[business history - balance of account - bark, trade in - law reporting - liquor licensing - new trial - set off]

Solomon and Another v. Davis

Supreme Court of Van Dieman's Land

Pedder C.J., 13-15 December 1832[1]

Source: Tasmanian, 21 December 1832

Assessors - Henry Nichols and Andrew Crombie, Esqrs.

Davis v Solomon and another

A long conversation ensured after the opening of the Court this morning, as to whether it was not better to submit this business to arbitration, or whether it being so submitted, they would not have to come into Court again. Mr. Horne wished to have the whole affair submitted to arbitration; Mr. Gellibrand ridiculed the idea of reversing the verdict of yesterday, and hinted pretty broadly, that if he got a verdict for £5 or 500 in the present action, he would then move to increase it on the spirit account. The Chief Justice said that it was not in the power of any person to touch yesterday's verdict; there being no appearance of an accommodation, His Honor enquired if there was any possibility of the trial on which they were about to enter, being terminated that day; and being answered in the negative, he said he had no alternative, as the Criminal Court sat on Tuesday, but to take it on the 26th; though he had no objection to try it at Launceston, where it would be on the 2d or 3rd of January. Mr. Horne thought that would be the best course; but Mr. Gellibrand was of a contrary opinion, intimating that on an action of assumpsit, the plaintiff could try where he chose, and therefore he would have it tried here.

The trial was therefore fixed to take place in the Supreme Court, on Wednesday the 26th instant.

Pedder C.J., 26-27 December 1832[2]

Source: Tasmanian, 4 January 1833

Before Chief Justice Pedder, and John Bell and William Wilson, Esqrs, Assessors.

DAVIS versus SOLOMON AND ANOTHER.

This was a cross action brought by the plaintiff, to recover from the defendant, different sums of money paid by him to them, and with which he had not been credited.

The Court was occupied for two days in this, as in the former trial; the same ground was gone over in the examination of the witnesses, and though we have a full report of the trial before us, yet we are of opinion that we should only be taxing the patience of our readers by its publication, as the ample details of these complicated transactions already furnished in our paper of the 21st instant, are quite conclusive also in the present instance.

On the close of the examination of the witnesses on Thursday, Mr. Gellibrand having replied, the Chief Justice summed up at considerable length, after which he retired for upwards of an hour the Assessors, and with on [sic] coming into Court, delivered a verdict for plaintiff of £894 19s. 6d.

His Honor observed, that he was desired by the Assessors to state, that the manner in which the Messrs. Solomon had kept their accounts, was disgraceful to them as mercantile men, in not giving credit to the plaintiff for sums of money which had been paid by him; that throughout the whole no credit had been given, and the plaintiff had to work out his case as well as he could. He further stated, that the plaintiff was at liberty to move to increase the verdict, by £1,782 18s. 6d. the amount of the spirit account.

Counsel for the plaintiff, Messrs. Gellibrand and Ross. For the defendant, the Attorney-General, Mr. Horne, and Mr. Pitcairn.

Pedder C.J. and Montagu J., 2, 4 April 1833

Source: Tasmanian, 5 April 1833[3]

At 11 o'clock this morning, their Honors the Chief Justice, and Mr. Justice Montagu, took their seats in Banco.

DAVIS v. SOLOMON

Mr. Gellibrand moved for a rule to shew cause, why the verdict in this case, should not be increased by the amount of the spirit account £1782 18s. 6d., on the grounds of Solomon being unlicensed. -- Granted. ...

Thursday, 4th April.

SOLOMON & AN. v. DAVIS.

Mr. Horne moved for a new trial in this case, on the grounds of "misdirection." He quoted several authorities in support of his argument, the gist of which was, that the Chief Justice directed the Assessors to throw out of their consideration, the amount of the spirits furnished by plaintiffs, and that a verdict for defendant was the consequence. As the greater part of the argument used in this case turned on questions of "dry law," and as the subject is to come before the Court on Tuesday next, as will appear by Mr. Gellibrand’s motion, "to increase the verdict on the spirit account," we need not enter more fully into it at present, than by observing that Mr. Horne used every applicable legal argument to attain his object; he contended, that if he could shew, that by the misdirection of the Judge, there, was even a possibility of the Jury giving a verdict against him, on that ground, he was entitled to a new trial.

The Chief Justice remarked, that unless he could shew, that if the amount of the spirits had been allowed him, it would have given a verdict in his favor he did not see how a new trial could be granted.

Mr. Horne being about to shift his ground, and combat the decision of the Chief Justice, on the grounds of disagreement of opinion, entertained between His Honor and the Assessors, and of which His Honor had just made an admission.

Mr. Justice Montagu said, that it appeared to him to be quite useless to go any farther into the subject; and to open the argument by the introduction of any new matter, was entirely irrelevant. The Judge who tries a case in nisi prius, and who may be required to produce his notes, was placed in an awkward predicament, from the many arguments which are used on each side, and the interruptions to which he is liable by one gentleman or another addressing some observation, perhaps at the very moment that he is summing up; For his part, he would prefer, and it was much more desirable, that some officer of the Court should be appointed to take notes of the Judge’s Address - There had been too many motions for new trials, which tended materially to bring courts into disrepute; for his part he never would in a single instance, give "a rule to shew cause," unless he was perfectly satisfied, that injustice had been done; it was harassing both to plaintiff and defendant; he was of opinion, that admitting such direction to be given as that stated by Mr. Horne, "it was strictly legal" - Suppose a case was brought, wherein two thirds of the amount sought to be recovered was obtained through the most nefarious means - was the Court to sit, and allow an individual to recover upon such an improper transaction? Certainly not. He considered the sale of the spirits in this case, strictly an illegal transaction - Rule refused.

DAVIS V. SOLOMON.

Mr. Horne then moved for a new trial in this case, on the grounds of the insufficiency of evidence.

The Chief Justice, saw no necessity of granting a rule in this case, as it was admitted on the trial, that Solomon had no license. [sic]

Mr. Horne then moved to have the verdict in the latter case decreased £600, 500 of which, was for the sale of 2000 acres of land, at Salt-pan Plains, and 100 a part of Collins's bills.

The Court was not prepared to give a decision in this case, the motion having been brought unawares; and it is understood that the whole of the depending litigation between the parties, will be brought to a conclusion on Tuesday next, when Mr. Gellibrand argues his motion, for increasing the verdict, by the amount of the spirit account.

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

Source: Tasmanian, 12 April 1833[4]

Tuesday, April 9, 1833

At 11 o’clock this morning their Honors, the Judges entered the Court and took their seats in Banco.

Davis v Solomon

The Attorney-General rose to shew cause against the rule obtained by Mr. Gellibrand for increasing the verdict in this case, by the amount of the spirit account. - He contended that in the evidence of Mr. Williams as taken on the trial, he had proved that the spirits were so far settled, that they were set off against the plaintiff’s demand; and called their Honors’ attention to the particular fact, that the settlement had been made between the parties, subsequent to the sale of the spirits. - He quoted the opinion of Judge Mansfield in one of the cases which he cited, wherein he had stated, "that a set-off was in the nature of a payment" - and that such being the case, it could not be recovered back again. He would submit that it would be a waste of public time, for him to occupy the attention of the Court any longer on the subject, and should therefore sit down with confidence, unless indeed Mr. Gellibrand were prepared to shew some extraordinary discrepancy between the opinion of Sir James Mansfield in the case which he had cited, and that now before the Court.

Mr. Gellibrand in reply, contended that no such settlement had taken place as that stated by the Attorney-General; in proof of which, he quoted the direction given to the Jury, referring to an allusion made by the Counsel on the other side, as to the motives which influenced Davis to bring on this suit. He could not help drawing the attention of the Court to the decission[sic] which accompanied the verdict of the Jury - after which, any observations coming from Mr. Solomon against his client, came with a bad grace indeed. Having replied to the arguments of the Attorney-General with much force and ability, he concluded by observing that there was nothing to prove that any settlement had taken place.

A question having arisen as to whether there was any evidence given to prove that the Messrs Solomon were dealers in spirits. Mr. Justice Montagu was of opinion that the fact of their having spirits in their possession, was a sufficient proof thereof.

Mr. Gellibrand pointed out in his notes of the evidence taken on the trial, the sum of £4789 - "£1784 of which was for spirits."

The Chief Justice - O! I beg your pardon, so it is - I have it here."

Judgment deferred until Friday -

Counsel for Plaintiff Mr. Gellibrand; - for Defendant, - The Attorney-General, and Mr Horne; - Solicitor, Mr. Pitcairn.

Notes

[1] The Tasmanian falsely gives the date of Friday 14 December as 24 December. The 24th was a Monday, not a Friday and was two days after this issue of the newspaper was published.

For an earlier case involving the Solomons see Murdoch v. Solomon, 1832. See also H.J. Solomon, 'Joseph Solomon (1780?-1856)', A.D.B. vol. 2, p. 458.

[2] These are the likely days, being the two days including Thursday 27 December, before the publication of this issue of the newspaper.

[3] See also Hobart Town Courier, 5 April 1833.

[4] For a small note on this case stating that judgment would be on the following Friday, see Tasmanian, 12 April 1833.