[debt recovery, liquor debt – Montagu J., clash with jury - usury]

Smith v. Griffin

Driscoll v. Watts

Supreme Court of Van Diemen’s Land

Montagu J., December 1839

Source: Hobart Town Advertiser, 13 December 1839[1]         

ASSESSMENTS

            The following jury were sworn:-

                        William Wilson

                        Edward Wilkinson

                        Edward Abbott

                        William Warham, Esquires.

            The Attorney General, in opening the case, observed in his peculiarly quaint style, that he had no difficulty whatever to apprehend in proving his case, except that his witnesses were not present.

            His Honor said, the case had better be struck out, when

The Attorney General observed, that his witness had just appeared.

In that case, said his Honor, let the case go on.

The claim was made by a person named Smith, who was, at the time the debt was contracted, a licensed publican. The defendant had run up this score for board and lodging, and he would prove by evidence that the debt had been acknowledged, and offers of adjustment made by the defendant.

The only witness called was a man named John Smith, who deposed that three weeks ago the defendant came to him, and shewed him a summons in this case, and asked him what he was to do in it. Witness told him he had better see Smith. Defendant said, he had been stopping at plaintiff’s house, that he had no money to settle the bill then, but he would give two pounds and his bill payable after the next season for the balance. He said he owed plaintiff £18 for the board and drinking. While they were talking, the plaintiff came in, and the defendant offered him two pounds, which he would not take, and demanded £5, as he had paid for the summons. They did not come to any arrangement.

His Honor was some minutes after the case was closed before he charged the jury, when he expressed a strong opinion against the validity of the plaintiff’s claim. The only evidence shewed that a portion of the debt was contracted for drinking; and in the absence of any evidence as to the quantum of the amount which might have become so due, it would be difficult for the jury to say what amount the plaintiff was entitled to recover. It might be, that this man, who was a whaler, had gone to the plaintiff’s house and run up this £18, or the major part of it, for drink, doled out to him in glasses full or pints full. Under the Act in council, a licensed publican was not entitled to recover such a debt. He was certainly entitled to something, and it was for the jury to decide what coin they would give him - a farthing - or a shilling - or any other amount which they might be satisfied was due for board or lodging, or washing, or other necessaries, exclusive of liquor.

The jury consulted for a short time, and returned a verdict of damages, £18.

His Honor - Really, gentlemen of the jury, this is the most extraordinary verdict I ever heard in my life - it is quite absurd and inconsistent with the evidence, and I certainly shall not allow such a verdict to stand. As however I might not have made myself sufficiently intelligible, I will read to you the clause in the Act in Council which disqualifies a publican from recovering in this court for spirits, &c., supplied in less quantities than 20s. worth at once, except to persons residing in the immediate vicinity of the public house who were constant and regular customers for malt liquors. Now it does not appear by the evidence, that this man was either of these, or a traveller going to take moderate refreshment. He was “stopping at the house.” He might not have been “stopping” there more than a few days, or perhaps one day; and it raises a strong presumption against this claim being for board and lodging, by their being no better evidence brought here to prove that fact. If the debt was for board and lodging, why was there not better evidence? The man himself makes no defence probably considering it was impossible for the plaintiff to make out his case; and I tell you, gentlemen, that by law the plaintiff cannot recover any portion of this claim which has accrued for wines or spirits. You have been told by the witness that it was for board and lodging and drinking. How can you tell what portion has been contracted for each? I must, therefore beg of you to re-consider your verdict.

The jury would make no allegation in their finding, and the verdict was recorded.

His Honor directed proceedings to be staid till the first day of next term.

Driscoll v. Wells

Clerk of the Court (addressing his Honor) - “The same Jury”

Mr. Justice Montagu. - “Oh no, by no means, I have had enough of that jury.”

A fresh jury was accordingly called, and among others the name of Thomas Atkins, Esq. was called, when the judge observing Mr. Dobson whispering rather anxiously to some of the other members of the profession, enquired what was the matter?

Mr. Dobson - “Your Honor, Thomas Atkins, Esq., is now working as a labourer on my farm.”

Mr. Justice Montagu. - “Oh, then, you are offended at his being called Esquire.”

Mr. Dobson. - “No, your Honor, I am only afraid you will fine him for non-attendance.”

Mr. Justice Montagu. - “I certainly shall.”

After some conversation, in which it turned out that the party alluded to had met with very serious reverses of fortune, His Honor directed Mr. Atkins to be exempted.

The following gentlemen were then sworn as Jurors:

William Watchorn                     Edward Abbott, and

William Wilson             E. Wilkinson, Esqrs.

Mr. Stephen appeared for the plaintiff. The action was brought by Mr. Driscoll, Manager of the Union Bank, to recover the sum of £358 17s. 6d. as principal and interest. The father of the defendant had entered into a covenant for himself and his heirs, to pay to the plaintiff the sum of £300, on the 17th October, 1839, with interest, in the meantime payable quarterly. The interest had been regularly paid till January last, when default was made; and in October, when the principal became due, there was a like default. The interest was therefore calculated from the 17th January, to this day, and amounted to £53 17s. 6d.

His Honor. - “At 20 per cent?”

Mr. Stephen. - “Yes, your Honor, twenty per cent.”

The deed being produced and the heirship admitted, the verdict was £353 17s. 6d.

The Court then adjourned.

Notes

[1] See also Tasmanian, 20 December 1839; Hobart Town Courier, 13 December 1839.