[civil procedure]

Lyons v. Sea

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ,  6 March 1841

Source: Sydney Herald, 8 March 1841[1]

SUPREME COURT. – Civil Side.

            Saturday. – Before the Chief Justice and Mr. Justice Stephen, in banco.

            Lyons and Another v. Sea. – His Honor the Chief Justice said that the Judges had had a conference on this case, and that his brother Judge Stephen would now deliver the judgment of the Court which he did as follows:-

            We should be sorry if anything that fell from the Bench on the former argument in this case, shall have misled the plaintiff into an amendment, which after all does not avail him. But the decision of the Court on that occasion, seems to us to have been a very plain one; and not easy to have been misunderstood. It was distinctly intimated, by both Judges, that the proper form of action in this case had been mistaken. It was intimated, however, by one of us, that averments might possibly be introduced, so as to make out a new state of facts, sufficient to maintain this action. The only averments specified by the Court were two:- such as should connect the defendant with the Bank, and show that the Bank knew the condition of discounting meant to be insisted on. If the Bank and the defendant were substantially identical, or rather if the Bank were the only interested party, and had possession of the bill stipulated to be delivered up, and the defendant was shewn to be merely their tool, and colluding with them, it seemed to us that an essentially different state of things would have arisen. It might then perhaps have been contended with success, that here was a fraud, putting an end to the entire transaction. No opinion, however was offered on this point. The suggestion was offered for the plaintiff’s consideration; and was not intended to bind the Court, ultimately, to any decision one way or the other.

            It is supposed by the learned Counsel, who has so ably and with so much confidence argued this case, that the throwing out of such a suggestion amounted to an intimation, that on all the other points the Court was in the plaintiff’s favour. This, however, was scarcely a justifiable inference. The Court delivered its judgment as is usual on such occasions, on the most prominent point only; and it was taken for granted, (for reasons not necessary now to repeat) that the case would not again have been heard of. It is now, however, once more before us, and the whole question has been very elaborately discussed anew. It is therefore necessary to dispose of the objections, more in detail than heretofore.

            With respect to the amendments, it may be enough to say that it has, at all events, by no means carried out the suggestion on which it claims to be founded. The mere allegation, that “the defendant was, and acted as agent in the transaction,” is by no means sufficient to show the collusion, or the knowledge of his principal. We think, however, that, even were all objection on this score got rid of the plaintiff had others, of the same special-pleading nature, to remove, and which he has not removed. It is inconsistent to admit, as the plaintiff does, that the defendant had authority to discount the bill, and thereby make it the property of his principal the Bank; and, further, to admit that the proceeds were agreed to be carried to his, the plaintiff’s own credit, thereby meaning his general credit; and that they were, in fact, so credited accordingly, -- [and yet to allege that there was a condition that] such property was not to pass, unless, on the carrying of the proceeds to such credit, another distinct thing was done – in itself independent of, and unconnected with, the passing of the property. The allegation should have been, that “no such authority was given; and that no property was to be passed, (or in other words no discounting was to be effected) unless and until such other thing was done.” As the replication stands, the thing stipulated to be done was an act posterior to the transferring of the property; and such transferring being by the plaintiff’s own assent, expressly admitted, where is the “conversion” to maintain Trover?

            This defect in the case, like some other objections raised by the demurer, might have been, or might even now, be removed. The more substantial difficulty, however, would still remain; whether, on any state of facts which we can here really suppose to exist, Trover is the appropriate remedy. And, after most diligent research, and reflecting again on the authorities referred to in our former judgment, (the two strongest cases for the plaintiff being those of Bishop v. Sillitoe and Buchanan v. Findley,) we are of opinion that it is not. It may be conceded, that, although the property should have passed to the Bank by the act of discounting, [as it would do, unless they were colluding with this defendant or were aware of his having only a conditional right of transfer,] and although thereby, at the moment of such discounting, the plaintiff’s property was at an end: yet, at the same moment of time, there might have been in him a property, as against the party so transfering, and, if so, there might quoad hoc be Trover against such party. (See 2 Saund 47. h. note s., and Parker v. Norton, 6 T. R., p. 95.) But, the insuperable point of difference in this case, and which distinguishes it from the case, relied on for the plaintiff, and brings it within the principle of Palmer v. Jarman is, that the transfer in question (being the only act relied on as a conversion,) was by the plaintiff’s own consent; and was not only not dependant on another act, to be done previously or contemporaneously, but (apparently) was necessary, as a preliminary to that very act being performed.

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