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Decisions of the Nineteenth Century Tasmanian Superior Courts

Van Diemen's Land Company v. Hay [1832]

passage money, action to recover - master and servant - contract, breach of - assumpsit, implied - money counts - Van Diemen's Land Company

Supreme Court of Van Diemen's Land

Pedder C.J., 12 December 1832

Source: Tasmanian, 14 December 1832

Assessor - W. Wilson and J. Scott, Esqs.,


This was an action brought by the above Company, to recover from the defendant £56 being the passage money of himself and wife from England to Circular Head, and some £7 advanced him in London. Mr. Gellibrand and Messrs. Cartwright and Allport, for the Company; Mr. Young for the defendant. In the course of last week Mr. Young moved to put off the trial, in order to obtain evidence from England of the execution of a contract under the Great Seal of the Company, between themselves and the defendant but which the agents of the Company here refused to admit. The Chief Justice inclining to favor the application, Mr. Gellibrand consented to admit its execution only, leaving its admissibility as evidence for future objection. The payment of the above sums was proved by two witnesses; and also that the defendant had admitted, that he had absented himself from the Company's service for ill-treatment. Upon cross-examination it appeared that the defendant had acted as the Company's servant on board ship, in taking care of their stock, &c. Mr. Young, for the defendant tendered the above-mentioned contract as evidence, to which Mr. Gellibrand objected, upon two technical grounds; in substance - first, that the contract was not stamped, and therefore inadmissible - secondly, that it was a contract de futuro; whereas the power the Company possessed under their Act of Parliament, to enter into such contracts, was limited to services immediately to be entered upon, and therefore the deed itself was void. The Chief Justice over-ruled these objections, reserving them, however, for future consideration, and the deed was read. It appeared, thereby, that the Company was to provide the defendant with a free passage to this Colony; and that the defendant was to serve them for seven years, at £20 per annum, wages. He contended, that thus the charge for passage money was disposed of; and as to the £7, it was much more than over-paid by the services of defendant on board of ship, and by the four or six months, which plaintiff's witnesses had proved he had served them here. Mr. Gellibrand, in reply, argued that defendant came there to insist upon the performance of a contract, which he had himself broken; for that he had absconded from the Company's service, after having obtained from them his passage here; and that therefore plaintiffs were, upon the merits, without reference to the points reserved, entitled to a verdict. The Chief Justice, in summing up, gave it as his opinion, that the defendant was entitled to a verdict, under the count of the declaration for passage money, subject to the point reserved, as to the validity of the deed. If that decision was in favor of the Company, that it is to say, if the deed was declared void in law, then the company would have a verdict entered for £28, the passage money of defendant, the £7 being discharged by the services proved to have been rendered by defendant during his passage. The Chief Justice observed upon that part of Mr. Gellibrand's reply, in which the learned gentleman had assumed, that the defendant had absconded, that there was no evidence whatever of that fact, as to which the Assessors were wholly in the dark. Mr. Henty proved that the defendant had said he left the Company for ill treatment, and that was all which appeared on the subject.

The Assessors after a short consultation returned a verdict for defendant, upon the whole declaration, subject to the points reserved. Mr. Gellibrand, then, for the first time, the above verdict having been returned, started a claim for £28 more for the passage money of defendant's wife. Mr. Young objected to this, it not having been charged in the declaration. Mr. Gellibrand referred to those counts, called the money counts, inserted to catch all wefts and strays, under which he insisted he could recover for the wife's passage money. Mr. Young denied this, for that there was no proof of "instance and request" from defendant, or promise to pay for that passage money. Mr. Gellibrand rejoined, that the payment by the husband of the passage money of the wife, was an implied assumpsit. Mr. Young objected that the only case he could find in the books of such was, the husband was bound by law to bury his wife. Some discussion took place on this point, when it was settled that it should be also reserved whether the passage money of the wife, could be recovered under the money counts, as byimplied assumpsit; and also whether any implied assumpsit could exist between a corporation and an individual.

[We have to offer a few observations on this case. First, it was rather ungracious in this gigantic Company to refuse to acknowledge their own deed under any circumstances. Secondly, it was still more ungracious to assert that it is a void deed, that deed being of their own preparation; and thus any poor man who left his native land under the faith of it, might at their option, here, be turned round upon, and told that he had no claim upon the company, if they wished to get rid of him; while on the other hand, they could keep him if they liked under an instrument of their own making with their own great seal upon it, which the poor man in all probability would never know to be void. We do not think however, that bad as this is, the Company will be obliged to their Agents here for this implied assumpsit quibble. Is it commonly fair that a poor artizan is to be engaged in England to come out here with his wife, and seeing that nothing expressly stated about his being charged for her passage money, his own being expressly provided for, that he puts her on board without a word of objection on the part of the Company, not a syllable said as to any charge for her passage, and on their arrival here, up jumps the Company's lawyer and says, pay us £28 for your wife? What! says the poor man! Why I never promised to pay. I understood we were to have our passage free. Oh! Says the lawyer, you never promised expressly I know, but there is the implied assumpsit that makes you promise whatever your understanding of the matter or your intention might have been, and so either pay, or go to goal!

This is strong work on the part of this might Company, and we apprehend the Chief Justice will hesitate in sanctioning so very remarkable an attempt. We shall watch this case carefully, and report it fully.]

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania