Dowling C.J., 14 March 1838

Ashcroft & Co. v. Bryant & Co - This was an action brought by the plaintiffs, merchants in London, to recover the sum of £1,557 for goods sold and delivered to the defendants, merchants in Sydney.  The proceedings were under the Act of Parliament 5th & 6th William 4th, by which the declaration of the plaintiff made before the Lord Mayor of London, is made evidence against the defendants.

The plaintiffs declaration stated that he had shipped the goods, as by the annexed bills of lading to the order of the defendants.  The only lading to the order of the defendants.  The only witness called to corroborate the declaration was Mr R Duke, who purchased a quantity of casks from the defendants which arrived in the Duchess of Northumberland, bearing Messrs. Ashcroft's brand.

For the defence, the Attorney General wished to read an affidavit made by the defendant, but His Honor held that the defendant not being out of the jurisdiction of the Court, his affidavit could not be read.  The Attorney General in his address contended that although the law made the declaration of the plaintiff receivable, it was for the jury to look on it as they would the evidence of an approver, and give it credit no further than it was corroborated; and if he had been abel [sic] to have read the affidavit of the defendant, he could have shewn that the balance of accounts was in favor of his client.

The Chief Justice said that it was not for him to question the propriety of such an innovation of the common law, but the statute certainly made the plaintiff's declaration receivable as evidence, although the defendant was left without similar protection; but although receivable, it was for the Jury to give it what credit they thought fit.

Verdict of the plaintiff; damages, £702 11s., being the value of the goods sent out to this Colony in the Duchess of Northumberland.

In banco, Dowling C.J., Burton and Willis JJ, 27-28 March 1838

Tuesday. - Before the three Judges, in banco.

Ashcroft & Co. v. Bryant & Co. - This was an action of assumpsit for goods sold and delivered, tried before the Chief Justice and a Special Jury, when a verdict was returned for the plaintiff for £700.  The plaintiffs being merchants resident in London, the declaration of one of the partners made before the Lord Mayor was given in evidence under the th5 [sic] and 6th of William IV., cap. 62.

A new trial of a judgment, as in case of a nonsuit was now moved for by the Attorney General and Mr. Windeyer on the following grounds; - that the declaration of the plaintiff was not admissible as evidence - that there was not sufficient evidence that the plaintiff was resident in England to make the declaration admissible - that the declaration was informal, not being entitled in any particular cause - that the declaration did not sufficiently describe the residence of the plaintiffs - that the declaration did not sufficiently describe the statute under which it was made - that the certificate was under the seal of the Corporation of London, whereas it ought to be under the seal of the Lord Mayor - that the Judge ought to have received the declaration of the defendant as well as the plaintiff, although he refused to do so - that the verdict was against the weight of evidence - that the damages were too large, and that the verdict was contrary to the direction of the learned Judge.  The argument of the learned gentlemen lasted until five o'clock, when the Court was adjourned, the Chief Justice stating that the Court would give judgment in the morning without troubling the other side for argument.

Wednesday. - Before the three Judges, in banco.

Ashcroft v. Bryant. - Their Honors delivered their judgment seriatim, and were unanimously of opinion that the objections must be over-ruled, and the verdict sustained.  All their Honors concurred in the opinion that the Act of Parliament 5th and 6th Wm IV., cap. 62, is a great hardship to the mercantile community of this Colony, as the simple declaration of any person resident in England respecting a debt is made evidence in the Supreme Court, while the defendant is debarred from making a similar declaration.

Notes