Terry v. Brown. - this was an action of assumpsit, brought to recover the value of certain goods sold and delivered.

Dr. Wardell for plaintiff, stated the case to the jury.

In 1829, a person of the name of Raine became embarrassed in his circumstances, and standing indebted to the plaintiff, Terry, an execution was entered for the same.  After much negotiation, a contract was entered into between the plaintiff, Mr. Raine, and Mr. Scott, agent for the Australian Company, Mr. Scott agreeing to liquidate Raine's debts, at a certain time in consequence of which he took possession of Mr. Raine's goods, and the levy under the execution was withdrawn.  The time allowed for the liquidation of the debts was two years.  Mr. Scott took possession of all Mr. Raine's property, entering into a bond with Raine amongst which was a quantity of flax, which he remitted to Messrs. Bettington's, in London, and on which he received an advance of £15 per ton, and transmitted an order to the house in town, to pay the remainder to the agent of the Australian Company at home.  It appeared after litigation that Mr. Scott had no authority to make any such contract, and consequently the Australian Company repudiated it, and attempted to do away with the liability to which they were subjected.  In doing this they did not do that which they ought to have done.  Mr. Terry considered, from the non-fulfilment of the contract, that he was placed in the same situation in which he was before the contract had been entered into between the parties.  The Australian Company had, from Scott's presumed authority, taken possession of the property in question, and a demand was made for either the property or for the proceeds of its sale.  This the company refused to accede to, and, in consequence of this refusal, the present action was brought.  Scott was avowedly the agent for the Australian Company, and received £413 17s 6d before the shipment of the Goods, and the residue £213, making in the whole, the net proceeds of the flax; was paid to the agent at home and the agent here.  The bond given by Scott and Raine, described Scott as agent for the Australian Company.  An action had been brought against Scott; but unfortunately failed, as it ought to have been brought against the Australian Company.

Mr. Gurner deposed, that he had produced the judgment in Terry v. Raine, in February, 1829, for £4000, and a writ of fieri facias was issued in the case for £1867 14s. 6d. under a warrant of attorney, which was given by Raine to Terry for £2000 and interest.

Mr. John Brown, Under Sheriff, produced a writ issued in February, 1829, against Raine, for £1867 14s. 6d.; but did not know whether it had been acted upon.  It had been regularly entered in the office book, and withdrawn on the 4th of April.

Mr. McQuoid, Sheriff, stated that the entry of the writ, was in the handwriting of Mr. Rogers, then clerk in the office.

James Christopher Rodney deposed that he was Sheriff's Officer in 1829, and re-collected well making a levy on Mr. Raine's goods under writ produced in Court.  A levy was made in the house, and all the goods, but no list was made out, as it was a nominal levy on one article in the yard, on the name of the whole.  He did not go into the stores, and therefore could not give any idea of the value of the property levied upon.  He had a written authority stating at whose suit the levy was made; but could not produce it, as not being considered of any consequence, it had either been lost or mislaid.

Dr. Wardell here observed, that it was not necessary to produce it, the writ had been laid before the Court, and that was sufficient.

Mr. Foster contended that the authority or warrant, should be produced, to prove at whose suit the levy was made.

The Chief Justice stated, that he should admit the evidence, reserving the point.

Order was issued by Mr. Prout to withdraw the bailiff in possession, and witness made a return to the office, of a nominal levy in the case of Terry v. Raine.

Mr. Prout deposed, that he was Under Sheriff in March 1829, and remembered the levy in question, and an entry was made in the office book, of what was done on that occasion.  The writ was lodged on the 25th February 1829, but was not acted upon until the 5th March.  He saw the property under levy, viz., household furniture, New Zealand flax, &c., and considered that there was a sufficiency to cover the writ of execution.  It was customary when a levy is made, to judge whether there is a sufficient property to cover the amount of execution.  The flax was sold by Mr. Richard Jones on behalf of Mr. Scott, considerably after the notice had been given to withdraw the bailiff.  When Mr. Jones took possession of the goods to sell them, witness told him that they were under levy, but nothing more of the transaction.  He considered at the time that Mr. Scott was dead, and that Mr. Jones was acting as his agent.  Mr. Wentworth desired witness to explain what he meant by goods being under a levy, when notice had been given to withdraw the bailiff.  This the witness did not explain, and said that the writ had expired when the goods were sold, and witness considered he could not interfere as the power had been taken out of the office.

Robt. Macintosh, stated that he was Mr. Raine's clerk, in 1829, and remembered the levy being made.  There was a considerable quantity of flax, about 30 or 40 tons, and about £400 worth of hops, lime &c.,  He considered that the goods in the house and store, were worth double the amount of the writ of execution.  The flax was shipped to Messrs. Bettington's House, London, by Mr. Scott as agent for the Australian Company.  The hops were sold to some party in Sydney.  The bailiff remained 10 or 12 days, and then was taken away, in consequence of some arrangement between Terry and Scott.  The goods were shipped after the bailiff's removal.  Mr. Raine sold the hops acting as Mr. Scott's agent.  Mr.  Scott was agent for the Australian Company, and never knew him to act in any other capacity.  A composition deed had been execucuted [sic], and under that deed Mr. Scott had paid some of Mr. Raine's creditors 6s. 8d. in the pound.  The whole of Mr. Raine's effects were given up to Mr. Scott as agent for the Australian Company.  Mr. Raine acted as Mr. Scott's agent.  Capt. Dacre had some portion of the flax in payment of some pressing claim, the rest was shipped to Messrs. Bettington and Co. London.

Mr. Bettington, deposed that he knew Mr. Scott, and that he was generally considered to be the agent for the Australian Company and recollected making him an advance on 27 tons, 11 csts., 3 quar. 10 lbs. flax, on the 21st May 1829, of £413.  The flax came from Mr. Raine's store, and was consigned to his partner in London, subsequent instructions had been sent, that the balance should be paid to Turrit & Vertue, agents for the Australian Company in London.  The net proceeds of the flax was  £712 11s. 10d.  The balance was paid accordingly as proved by a letter, received from Messrs. Bettington's house to that effect, amounting to £298 14s. 4d.

Mr. F. Agars deposed, that he was clerk to Mr. Bettington, and remembered a shipment of flax in 1829.  The flax was received from Mr. Raine's stores by order of Mr. Scott, acting as agent for the Australian Company.  Instructions were sent to London to pay the balance over to the Australian Company.  An answer has since been received, stating that the balance had been paid according to instructions received.

Mr. Unwin stated that he was Terry's Attorney at the time the writ of execution was issued.  The levy was withdrawn in consequence of an arrangement between the parties to the following effect.  That Raine would allow Terry interest on the writ of execution, at the rate of 10 per cent., provided he did not proceed to sale for one month.  About this time a final agreement was made, and the bailiff was dismissed.  Mr. Scott, as agent for the Australian Company, proposed that Mr. Terry should allow three years credit on the mortgaged properties, and withdraw the execution, and he would give a bond on the part of the Australian Company for the whole amount claimed.  In conequence of which Mr. Terry gave up the property in question.  The bond was not executed until the 15th October; since Mr. Scott's death, the Company have repudiated the bond.  Demand had been made to Mr. Ingliss, the present agent to the Company, who refused to pay.  Mr. Terry did not concur in any trust deed.  Witness saw the flax in the stores under levy, and considered that there must have been at least 60 tons.

Mr. Thomas Brown deposed that he lived in Sydney, and was the son of Robert Brown, manager for the Australian Company, who had held that situation since 1823; but did not know whether his father's name and others had been properly recorded in the Courts of Scotland.

Mr. Ingliss deposed that he was the present agent for the Australian Company in this Colony, and Robert Brown is the agent at home.  A memorial to that effect had been registered in the Courts of Scotland, in pursuance to the Act of Parliament; had heard the evidence respecting the flax, and was aware from certain communications, that a sum of money had been paid by Messrs. Bettington, to the agent of the Australian Company, as he was in possession of a letter to that effect; he did not know the value of the flax sent home; he had not the account sales of the flax, having given it to his Solicitor, in whose possession it no doubt was at that moment, nor could he say when he last saw it; the Australian Company had lost upwards of £10,000 by the unauthorised transactions of Scott; the Australian Company immediately on hearing of the transaction in question, repudiated it.  This was the case for the plaintiff.

Mr. Foster observed that the Counsel for plaintiff had failed in making out the case.  The declaration contained three counts - the first of which was for goods sold and delivered, and if the plaintiff failed on that count, the action must fall to the ground.  Witnesses had been called who had attempted to prove that Scott in his transaction with Terry, was acting as agent for the Australian Company, but that was not the case.  But setting that aside, the goods when the levy was withdrawn, were Raines's, and a fresh execution might have entered against them.  Terry never had any specified property in them, and therefore could not legally sell them.  He, therefore, submitted to the Court that the plaintiff must be non-suited.

Dr. Wardell, after point out the nature of the contract, and that Scott acted as agent for the Australian Company, observed that the plaintiff had adopted the only remedy in his power.

His Honor the Chief Justice, observed that he always felt reluctant in stopping a case from going to the Jury, but on this occasion he was compelled to do it, as the goods on the withdrawing the execution, were evidently Raine's, and the plaintiff therefore, could not maintain his action.  The plaintiff was accordingly non-suited.