Pitcher v Sinclair, 1841

[contract, passage-money for farm laborers from Adelaide – new trial, jury bias – law reporting]

In the above case Mr. Josiah Pitcher was plaintiff, and John Sinclair, Esq., of Clairville, defendant. It was an action brought to recover the sum of £71 10s. for the passage-money and commission on twenty-seven emigrants from Adelaide. The defendant had paid £47 10s. into Court, and alleged that plaintiff had not sustained damages to a greater amount.

Mr. Sydney Stephen for the defendant stated the case to the jury. Mr. Pitcher in October last was requested by a number of gentlemen to undertake a voyage to South Australia for the purpose of procuring labourers of which proposition Mr. Sinclair was the chief mover. The plaintiff undertook the duty upon conditions that he should receive as a remuneration the sum of £2 per head. Mr. Sinclair was the first to sign the power of attorney, and was evidently the originator of the project. He afterwards, however, wrote a letter to the plaintiff authorising him to procure twenty-seven farm labourers and reapers for himself and other gentlemen, distinctly making himself responsible for the payment of both the passage-money and the commission. (This letter was handed in and read, together with other documents to which allusion is not necessary in this brief report of the case). The money had not yet been paid, although the men arrived some time since, and therefore the plaintiff sought for damages from the hands of the jury.

The learned counsel then called the witnesses, but experienced great difficulty in making out his case. The evidence was so incomplete and unsatisfactory that the Attorney-General who appeared for the defendant applied to His Honor for a non-suit, on the ground that plaintiff had not proved the fulfilment of his contract by the delivery of twenty-seven good farm labourers and reapers.

By the consent of all parties, however, the case was left for the decision of the jury.

The Attorney-General for the defence merely contended that the contract entered into by Mr. Pitcher had not been completed, the plaintiff had not proved that he acted up to the terms of the agreement. It was his place to have done so, but he (the Attorney-General) would prove the direct contrary to have been the case, and instead of the farm laborers and reapers whom the plaintiff had undertaken to procure had only scraped up the sweepings of the streets of Adelaide, who upon arrival here were found to be perfectly incapable of performing the work for which they were engaged.

The learned counsel then called five of the men in question, who were engaged as reapers, one of whom was a cooper, one a sawyer, one a groom, one a painter and glazier, and another a blacksmith. The examination of these men kept the court in a continued state of laughter.

Mr. Stephen replied, and his Honor summed up, directing the jury to find for defendant on all the counts except the first, there being no evidence whatever in support of them. As to the first count, his Honor took great pains in commenting upon the evidence, pointing out where it was defective, and where it bore upon the case.

The jury retired for a short time, and brought in a verdict for plaintiff to the full amount.

His Honor afterwards said the verdict was contrary both to evidence and to his directions, and gave the counsel for defendant leave to move the court for a new trial.

The last action which was tried on Thursday morning before His Honor and a special jury of twelve highly respectable and intelligent gentlemen - the whole of whom, we believe, with one exception, were country settlers, was at the suit of Mr. Josiah Pitcher against John Sinclair, Esq., J. P., of Clairville, Evandale, for the recovery of £71 10s. being the amount due to plaintiff for passage-money of reapers and farm labourers from Adelaide to Launceston, and commission for procuring the same. Defendant had paid £47 10s. into court, and pleaded by his attorney, Mr. Gleadow, that he “did not promise as in the declaration alleged,” that is, that he would pay to plaintiff £2 per head for each farm servant he could procure for him at Adelaide, and the cost of the passage of them to Launceston.

To prove the justice of Mr. Pitcher’s claim, which, we are compelled to say, appears to us strange, that the payment of it could be refused, we furnish Mr. Sinclair’s letter of instruction.

“SIR. - You will be pleased to engage at South Australia, for the following gentlemen, the number of reapers and farm servants, attached to their respective names, viz:-

Making in all 52 men, on such terms, and conditions as are set forth in the indenture given to you; and in payment for your services you shall be paid the sum of £2 for every man you so engage on account of the above-named gentlemen, and the passage from South Australia of such reapers and farm servants shall be paid by me on their arrival at Launceston - I am, Sir, your obedient servant,

The power of attorney referred to in the above letter, signed by Mr. Sinclair and others, is as follows: “Know all men by these presents, that We, the several persons whose names are hereunto subscribed and seals affixed, do hereby nominate constitute and appoint Josiah Pitcher of Launceston, in Van Diemen’s Land, yeoman, as, and to be, our true and lawful attorney for us and each of us to hire and engage laborers and servants in the colony of South Australia and to sign execute and deliver such indentures and agreements as shall be necessary in and about the matters aforesaid, and to convey and send such servants and labourers from South Australia to Launceston, and what the said Josiah Pitcher shall do or cause to be done in or about the same we undertake to ratify and confirm. In witness whereof, &c. &c.”

Now, it being understood that Mr. Pitcher having procured the men required, and delivered them in Launceston to the parties for whom they were engaged, and in every possible way having fulfilled the terms of his agreement, it will be a matter of astonishment to every person how a cause of action could be manufactured. Mr. Sinclair’s plea was, that “he did not promise as in the declaration alleged,” or in plain terms, he did not promise as the fore-going letter and power of attorney show that he did promise.

One syllable of comment from us on this action, after showing the occasion the plaintiff had for appealing to a court of law for the liquidation of a just claim, which Mr. Sinclair refused to pay, is needless. We understand from Mr. Pitcher that he had no difficulty in obtaining payment from every person who engaged his services excepting those from whom he sought to recover the amount claimed. - £71 10s. - Mr. Sinclair being responsible for the whole; viz: - G. H. Ball, Esq., J.P; Theodore Bartley, Esq., J. P.; John Sinclair, Esq., J.P.; J. A. Youl, Esq., J.P.; and J. W. Gleadow, Esq., the attorney in the action.

The jury were unanimous in their verdict in favor of the plaintiff to the full amount claimed - £71. 10s.

Mr. Stephen, for plaintiff, moved for a new trial in this case, which has already appeared before Mr. Justice Montagu, at Launceston, where a jury had awarded a portion of the amount claimed.

It appears that Mr. Bartlett, on behalf of several gentlemen residing on the Launceston side, had induced Mr. Pitcher to proceed to Adelaide for the purpose of engaging and bringing over a specified number of reapers and farm servants for each gentleman, in total fifty-two, to do which, a power of Attorney was transmitted to Mr. Pitcher, the consideration being £2, on each man; the plaintiff paying the passage money out of his pocket, but to be refunded on arrival in Launceston. Plaintiff proceeded to Adelaide, and seeing a man at work in the Hibernia Hotel, enquired whether he could reap, and how he would like a trip to Van Diemen’s Land. The man answered he had reaped but once, though he was quite willing to learn - Mr. Pitcher, no doubt believed in the old adage, that “where there is a will there is a way” closed with him, shortly after with four others; one a tolerable reaper, the second a pastry-cook, the third a whaler, and the fourth a butcher. Of these, the pastry-cook had remained in Launceston, the butcher had bolted, and the whaler was non est investus. Many more were engaged, the greater number of whom were declared unfit for what they had been brought over to perform. This circumstance had been taken as a plea for withholding from plaintiff the sum of £47 10s. He had endeavoured to recover the amount in the Supreme Court sitting at Launceston; but the jury (biased as Justice Montagu seemed to think) had awarded only £24.

Mr. Stephen went through the case as it had appeared before the Court in Launceston, and maintained that reaper’s work is so undefined, that it would be nothing extraordinary for a person to be mistaken in the selection; besides a masterly use of the sycle is not incompatible with the trades of blacksmith, or butcher. The fact of the greater number of these men having been received, and not returned, was an admission of the contract.

Mr. Justice Montagu observed that the contract was clearly admitted, but the question was whether substantial justice had been done on the former trial. It was very difficult in these Colonies to obtain a really impartial jury who enter the box totally ignorant of the case to be brought before them, and who will be guided solely by what will appear in evidence; more particularly so in Launceston, where the community is small, where the smallest transaction is known, and where the merchants, who principally compose the juries, know more of the case before entering the Court than the Judge does. I have repeatedly seen jurors enter upon a case, their minds already fixed as to the verdict, and I think such was the fact in this instance, the merits and demerits having been prejudges, the verdict would have been the same five minutes after the opening as at the close of the case. The more I consider the more impossible it seems that the trial should stand, as I must say I do not think the jury behaved as they should on this occasion. Case ordered to stand over till this day week.

“We regret exceedingly to perceive that Mr. Justice Montague made some observations in court the other day in the case of Pitcher against Bartley, tending to throw discredit on the finding of the jury in that cause.

As conducters of a portion of the public press, it is a duty incumbent on us to repudiate such observations, unless they are deserved. Our reporter may not have taken the words accurately, but we presume the sense is correct, and we find that Mr. Justice Montague stated that “he had repeatedly seen juries enter upon the case, with their minds already fixed as to the verdict. The merits had been prejudged - the verdict would have been the same five minutes after the opening of the case.” Now we really do not know the case, as it was a Launceston cause, but we do protest against such language being used by any Judge whatever, unless where the law and justice of the cause had been unjustly and partially contravened - when it would be no less our duty than our inclination to uphold the majesty of the law, as administered by the presiding Judge. It was only a few weeks back, we observed a statement in a contemporary - we think it was the Colonial Times, that Mr. Justice Montague had, in addressing the Jury, talked of the “men in the box”. This report we do not believe - we hardly think any Judge, however eccentric he might be, would have made use of such words. We have made these observations merely that the Launceston Journals will make enquiries about the case. The names of the Jury in the cause are highly respectable, and we think these gentlemen quite as well able to form a correct opinion on a cause presented to them as any Bench of Colonial Judges whatever.”

The following are the remarks made by his Honor Mr. Justice Montague on the occasion in question, as reported in the same Journal of the 18th instant.

“Mr. Justice Montague observed that the question was whether substantial justice had been done on the former trial. It was very difficult in these Colonies to obtain a really impartial jury who enter the box totally ignorant of the case to be brought before them, and who will be guided solely by what will appear in evidence; more particularly so in Launceston, where the community is small, where the smallest transaction is known, and where the merchants, who principally compose the juries, know more of the case before entering the Court than the Judge does. I have repeatedly seen jurors enter upon a case, their minds already fixed as to the verdict, and I think such was the fact in this instance, the merits and demerits having been prejudged, the verdict would have been the same five minutes after the opening as at the close of the case. The more I consider the more impossible it seems that the trial should stand, h[ere] I must say I do not think the jury behaved as they should on this occasion. Case ordered to stand over till this day week.”

His Honor Mr. Justice Montague has often complained of having his language misrepresented, and we have good reasons for thinking that he has been so in this instance. The report is altogether inaccurate.

By some strange bungling, the plaintiff, Mr. Pitcher, instead of the defendant, is made to move for a new trial, and the defendant, Mr. Sinclair, is transmografied first into a Mr. Bartlett, and then into Mr. Bartly! After such specimens of incorrect reporting - which even two publications a week, at 4½d. a number, will not altogether justify - it would be wrong to conclude that the remainder of the report is fairly and impartially given. We have no doubt that not only the language but also the substance of His Honor’s remarks have been misunderstood - for wilful misrepresentation is a crime too serious to be charged against any one without very decisive evidence of its perpetration. His Honor never could have made use of such remarks, for it is nothing more nor less than charging the jury with wilful and corrupt perjury, or at least it imputes to them a total disregard of the sacred and solemn oath which they had taken to decide according to the evidence, and the dictates of their consciences. Will any one believe that His Honor declared from the bench “that he had repeatedly seen jurors enter upon a case, their minds already fixed as to the verdict, and he thought such was the fact in this instance, and that the verdict would have been the same five minutes after the opening as at the close of the Court.” Will any one believe that this was ever uttered, either verbatim or in substance, by His Honor the puisne judge? We certainly cannot.

It prefers one of the most serious charges imaginable against twelve as respectable and intelligent gentlemen as could be selected from this side of the island. A more respectable jury we never saw in a court of justice, comprising the names of several of the leading merchants in this town, and the most wealthy settlers in the neighbourhood. Against each one of these twelve, His Honor is made to cast an imputation that they took their oaths with the fixed determination of violating them, that they swore to decide by the evidence, and had arrived at their decision before they knew what that evidence was! This is a crime of such enormity, that in days of yore, the invention of man was not deemed fruitful enough to invent a species of torture that could be deemed an adequate punishment. As yet, the Advertiser, would have us believe that a Judge, delivering a decision from the Bench, deliberately preferred this charge against twelve as respectable men as could have been impannelled out of the whole list of special jurors.

[1] See also Hobart Town Advertiser, 16 April 1841. Sinclair was a public servant before becoming a businessman and farmer. See S and B. Bennett, Biographical Register of the Tasmanian Parliament 1851-1960, Canberra, ANU Press, 1980, p. 151.