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Decisions of the Nineteenth Century Tasmanian Superior Courts

Van Diemen's Land Company v. Miller [1833]

assumpsit, implied - immigration - master and servant - reception of English law

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 2 April 1833

Source: Tasmanian, 5 April 1833 [1]

Mr. Gellibrand moved to have the verdict for the defendant in this case, set aside, and a verdict entered for the plaintiff, amounting to £59 7s. 0d.

Pedder C.J. and Montagu J., 9 April 1833

Source: Tasmanian, 12 April 1833

Mr. Gellibrand moved for the rule in this case to be made absolute.

Mr. Horne having risen to address the Court for the defendant, some misunderstanding took place as to the precise grounds on which he founded his objection.

Mr. Young who had appeared originally for the defendant, when a verdict was obtained in his favor subject to a point to be argued, addressed the Court for the purpose of explaining the points reserved, one of which was, "whether the implied assumpsit, should lie in favor of the Corporation?" He was sure that Mr. Gellibrand would bear him out in what he asserted, and of which he was ready to make affidavit.

The Chief Justice. - Subject, I understood, to whether that deed, or such a deed, could be received in evidence.

Mr. Justice Montagu. - It appears to me to be a most discreditable discussion. It has originated at the bar, and His Honor's notes are about to be impugned by the affidavit of Mr. Young. It does not appear to me, under what circumstances Mr. Young addresses the Court, and I do not see how His Honor's notes can be questioned.

There being three cases to be argued, namely, that of Hay, Miller, and Neal, each of which was analogous to the other, Mr. Horne enquired of Mr. Gellibrand whether the argument in one case would decide the whole, to which he replied, "Argue one first, and then you'll see."

Mr. Horne then addressed the Court at great length for the defendant, in which he said that the deed was immaterial, whether it did or did not exist - that the action was mis-conceived, inasmuch as implied thatassumpsit did not lie with corporations - and in confirmation of which, he cited the case of "the East London Water Works versus Bailey and others." A Corporation could not express their will, except under the general seal of their body. This action was brought by the Van Diemen's Land Company to recover the expense of sending out servants to their establishment - the circumstance of their being servants to the Company, was a direct negative to this action. Suppose he sent his servant to New Norfolk - was he to make him pay the expense of his Journey? Certainly not.

The Chief Justice. - In this deed, it is made a matter of express stipulation that the Company shall pay the passage.

Mr. Horne. - How was it to be supposed that a servant was to be sent out here, a distance of 16000 miles, and that after his arrival, he should pay the expense of his passage? If that deed was to be given in evidence, it made out a strong case against the plaintiffs. That document was drawn with extreme caution, and here were a few poor men, transported to this distant Island by an instrument of that kind, and then obliged to pay the expense of their passage. He contended that the contract being proved, such as it was, out of the months of their own witnesses, the verdict could not be disturbed. Having referred to the Revenue Regulations relative to Stamp Acts.

The Chief Justice said, "the question is, whether sitting here as a Colonial Judicature, we are to take notice of an English Stamp Act?"

Mr. Horne. - That document was merely brought to shew that his clients were servants - they did not come here to sue for any breach on the part of the Company - if so, it would make a material difference, and one which he would readily admit. If the document, had been stamped, no doubt it would be admissable. That document was put into the witness's hand, merely to shew that they were servants to the Company, and brought out expressly by them.

Mr. Justice Montagu. - Was not that the very essence of the contract?

Mr. Horne. - That question has considerable force, but I do not come for hiring; they charge me, that money was expended by them as their servants, and I have a right to shew the best evidence to that effect. If by that, their contract becomes an executed contract, and I only use it for that purpose, then their argument falls to the ground. After a few more observations relative to stamps, he concluded by stating that what was said with respect to the husband, applied likewise to the wife; she also being a servant.

Mr. Gellibrand in rising in support of the rule, observed that it was a matter of considerable importance to the Company, to have this point established. It was to recover money paid for passage, and also for money advanced; they proved that a number of passengers had been sent out by the Company, and the defendant was one. He contended, that if an implied assumpsit did not lie in this case, he knew none other in which it would; it was monstrous to suppose, that a number of persons should be brought here from England, and not recover their passage money. Having cited the case of the Gas Light Company, to shew the impracticability of every one connected with it having a stamp, and how utterly futile such an argument was in this instance; he continued "Mr. Horne put it to your Honors, that I wanted you to make that deed void. I require you to do no such monstrous thing: - having made a few observations with respect to the stamp laws in England, he concluded by observing, that he rested satisfied, that his rule was grounded on sound policy.

The Chief Justice, in giving his opinion said, that it was proved, that the defendant was the plaintiff's servant, and that the Company were bound to find him in a passage to this Colony, and not only him but his wife - now whatever way the agreement was made, and of which he should say nothing yet it was a question of great importance to that Company, who had large tracts of land in this Colony, and were under great expense. As to their servants thinking of coming out free of expense themselves, that document seemed to negative such a conclusion; for it does not go even collaterally, but to the very question in dispute, and nothing can prove it more than the agreement itself.

Mr. Justice Montagu, in giving his opinion, said, in reference to the document which he held in his hand, "This seems to come out in a very disgraceful way, as the instrument of a large Company; I must say, that these poor, and not unlikely illiterate men, have been grievously used in the making of this contract. It appears to me as inflicting a great degree of hardship on them, and I sincerely regret that the rule in this case, should be made absolute.

Rule made absolute.


[1] For the Van Diemen's Land Company see H.J.W. Stokes, 'The settlement and development of the Van Diemen's Land Company's Grants in North-western Van Diemen's Land, 1824-1860', B.A. Hons Thesis, University of Tasmania, 1965.

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