Davis v. Jennings, 1842

Messrs. Macdowell and Young for the plaintiff; Messrs. Welsh, Horne, Crombie, and Pitcairn, for the defendant.

This, is an action of trover, was brought by the plaintiff, in his capacity of assignee to the insolvent estate of the late Mr. E. P. Robinson, to recover the value of 36 hogsheads of rum, and the title-deeds of a house in Warwick-street, on which the defendant, as Manager of the Union Bank, held a lien established in his favour by Mr. G. F. Evans.

For the proper understanding of the following evidence (into the minute of which we have entered at some length, in consequence of the interest which the case seems to have excited in the commercial world,) we will premise that the entire question at issue rested on whether Mr. Evans had, in making the transfer of the property, acted as joint executor to the estate, or merely as agent to Mr. P. Degraves, under the following circumstances:- On the death of Mr. Robinson, Messrs. Evans and C. Degraves were appointed executors, though the former seems, by consent, to have had the almost entire management of the estate. Prior to the sale effected by auction by Mr. T. Y. Lowes, as arrangement was entered into by Mr. P. Degraves and Mr. Evans, to prevent what they anticipated would be a sacrifice of the property. Directed by the latter, Mr. Degraves purchased to the amount of £1,500, for which he gave bills, drawn on himself by two of his sons. The first was duly honoured, but, on renewal of the others, it was thought expedient that Mr. Evans should also affix his name, he doing so (as stated by him in evidence) under the impression that Mr. Degraves had been a bona fide purchaser, and that he was to act as his agent in making private sales of the goods on which he should obtain a commission. The last of the acceptances, for £500, was paid by Mr. Evans, who, in consequence of this disbursement, thought himself entitled to the rum, which he valued at £450, and transferred it, together with the grant deed of a house belonging to the estate of which he was an executor, as security for some private money transactions which were taking place between the Union Bank and himself. Mr. Davis, however, as assignee to the insolvency, contended that the property never having been vested in Mr. Evans, but merely placed in his hands as executor, could not be transferred on his private account; and having vainly demanded restitution from the defendant, appeared by his counsel, Mr. Macdowell, to establish the claim in the Supreme Court.

Mr. Macdowell having given the jury an exposé of the matter for their consideration, called -

Mr. W. Wright, bonded warehousekeeper, since the 5th Feb., 1841, who, on being referred to his books, certified to the transfer of 37 hogsheads of rum from the executor of the late Mr. E. P. Robinson to Mr. T. Y. Lowes, on the 17th February, 1841, as also to that of subsequent date of 36 hogsheads (part of the original 37) from Mr. Lowes to Mr. Evans; found that on the same day the latter had transferred the same to Mr. J. Jennings; witness had guaged the casks on their first entry, but (when cross-examined) could not swear that they were not empty at the time of the second and third transfers; when first taken, to the store the 36 hogsheads contained 11,889 gallons; witness had succeeded Mr. Charles Abbott, in his present situation.

Mr. Charles Abbott. - On the 5th of February 1841, was bonded warehousekeeper; was in the office during eleven or twelve years; recollect on the 25th May, 1840, an entry being made of 40 hogsheads of run, ex Lady of the Lake, bonded by G. Watson; on the 28th of the same month I find from my book (produced) a transfer of 40 hogsheads of rum from Willis, Garrett, & Co. to E. P. Robinson. From this certificate, dated March, 1842, I find that though in Watson’s name they were actually the property of Willis, Garrett & Co.; they were marked HO within diamonds; it frequently happens that persons do not wish their names to appear, and enter under the name of another.

William Birkmyre, of the firm of Willis & Co., - Was acquainted with the late Mr. E. P. Robinson; remember that, about the 25th May, 1840, he purchased forty hogsheads of rum from the late firm of Willis, Garrett & Co., paid for by Mr. G. F. Evans’ acceptance, he being one of the executors of the estate; it was sold for 5s. 9d. per gallon on board the Lady of the Lake; should think that about the 15th November this particular rum was worth 4s. 6d.

By Mr. Horne. - Was in the firm in May, 1840; I think it was about three days after the signature of this receipt (produced - for payment by bill at six months, from Mr. Evans,) that Mr. E. P. Robinson died; the acceptance was dated May 28th, but was not given till June; it was dated back, am certain that the bill was given a few days after Mr. Robinson’s death.

Mr. G. Watson. - Remember that in May, 1840, the Lady of the Lake arrived from London; some rum was landed; it appears that it was bonded in my name, but I was not aware of it till yesterday; a portion of it was my property, the remainder Mr. Garrett’s; it was sold to Mr. E. P. Robinson.

Mr. T. Y. Lowes, auctioneer - Remember being employed by Mr. Evans, executor of the estate of the late Mr. E. P. Robinson, to dispose of the property in his store; it was in August, 1840; there were thirty-seven hogsheads of rum, marked H O within diamond, placed in the Bonded Store; Mr. P. Degraves attended at the sale; do not know that a considerable portion of the property was bought in by him; he was a purchaser to the amount of about £1,500; the above-mentioned rum was part of the property purchased by Mr. Degraves; understood at the time that he was a bona fide purchaser; do not think it ever was transferred to Mr. Degraves; it was afterwards transferred to me by the executor, Mr. Evans; in the course of bill transactions it was handed over to me as a collateral security, cannot state how long after the sale was effected to Mr. Degraves; the rum must have remained in the store under my name during three or four months, after which I retransferred it to Mr. Evans.

By Mr. Horne. - Knew Mr. Evans as joint-executor, and as such he ordered the sale; there were facts which distinctly impressed on my memory the belief that Mr. Degraves was a bonda fide purchaser; received Mr. Degraves’ acceptance for the amount of his purchases; as to the retransfer, Mr. Evans lessened his obligations to me, and I returned the security; two bills were drawn, at six months, dated August, and two dated some time after, drawn by C. and J. Degraves on Mr. P. Degraves; remember that the first was not paid immediately, and that Mr. P. Degraves said he must try to raise the money to pay it; they have all been paid since; think that the last acceptance was renewed by an arrangement with Mr. Evans.

By His Honor. - I took the sole security of the original bills, but on renewal the transfer was required by me as security; when Mr. Evans tendered the rum as security, he said that Mr. Degraves had placed it in his hands for sale; Mr. Evans arranged with me for the renewal of those bills, and brought other acceptances from different parties, and the balance in cash, to enable me to take up Degraves’ acceptances as they became due; it was then that he transferred the rum to me as collateral security.

By Mr. Horne. - Never saw Mr. Degraves on the subject of the transfer of the rum.

Mr. P. Degraves. - The late Mr. E. P. Robinson was my son-in-law; recollect in August, 1840, a sale of his effects being made by Mr. Lowes; was present at the time; had some conversation with Mr. Evans prior to the sale; obtained from him a list of the articles to be sold; it made me cognizant of the cost prices, as also of the amounts below which they were not to be sold; I acted upon if; found a number of persons whispering together and disinclined to bid, and, being instructed not to let the rum go for less than 3s. 6d., I bought several lots; it was distinctly understood between me and the executor in what character I purchased it; it was partly to accommodate Mr. Evans, who was unable to meet his payments; it had been previously arranged that, should the rum not fetch a certain price, I should give bills, which, being discounted, might enable him to meet his payments (bill placed in witness’s hand;) this is Mr. Lowes’s invoice for the goods purchased by me; up to this moment have never received a single article contained in this list; it was never intended that they should be transferred to me; gave bills, drawn by C. and J. Degraves upon myself, for the amount; have not, out of my own monies, paid either of the bills.

By the Attorney-General. - Did not, at the time of the sale, believe that it was a bona fide sale between us; I made arrangements for issuing the acceptances; have already said that, when I saw the whispering, I said it was a bona fide transaction; Mr. Evans wanted the money at that time very much; know Mr. Thomas Capon; never did say to him that I had been purchasing wine and spirits to the amount of £1,300 or £1,500 at Lowes’s sale of Mr. E. P. Robinson’s effects, and that I intended going to England to establish myself there as a merchant.

Mr. E. F. Evans, by Mr. McDowell. - Am one of the executors of the late E. P. Robinson; in that capacity I have not acted entirely alone; generally speaking, I acted by myself; the accounts of the estate have been kept exclusively by me, as also the appropriation made of the greater portion of the assets; know the subject matter of this action; that the plaintiff seeks to recover a quantity of rum and some title deeds to certain property in this town; remember a sale of E. P. Robinson’s effects by Mr. Lowes; remember, amongst other property, 37 hhds. of rum; remember that, before the sale, I gave Mr. Degraves a list of goods to be sold to which list I had attached certain prices at which I would resell those goods if Mr. Degraves purchased them; he was to become the purchaser of them on his own account, in the same manner as any other purchaser; Mr. Degraves purchased to the amount of about £1,500; the rum was included in the purchase, but was not transferred to him; it was left in my possession to sell on his account; have sold one of the 37 hhds., I retailed it out myself; did not tender an account to Mr. Degraves, did not receive any bills from Mr. Degraves for his original purchase; believe he gave some to Mr. Lowes, who handed over to me, as proceeds of the sale, his own bills and an amount in cash; do not know that Mr. Lowes discounted these bills and handed me the money; had not borrowed any money from Mr. Lowes previous to the sale; (document shown, professing to be an account current between Mr. Lowes and the executors;) this was given to me; the sale took place on the 24th of August; do not know why I have been debited with the two accounts of £100 and £500; the whole amount which the estate fetched was £2,073; Mr. Degraves purchased to the amount of £1,502, and from the account (shown) it would appear that Mr. Lowes had had the bills discounted; it was transferred to Mr. Lowes on my asking for a renewal of the last bill; believe that Mr. Degraves paid the first; another was cancelled by Mr. Henry Degraves, and one by myself out of monies which I procured from the Union Bank; believe the run remained in the executors’ name for a considerable time after the sale; I transferred it to Mr. Lowes for a renewal of Mr. Degrave’s acceptance; it remained in Mr. Lowes’s name until I paid the acceptance, for which I had given it as security; Mr. Lowes then transferred it to me, and I transferred it to Mr. Jennings, the Union Bank having applied to me for some security for Mr. Milward's overdue bills; I then held it as collateral security, since I had paid one of Mr. Degraves’s bills; did not transfer it to the defendant as executor; did not consult Mr. Degraves about the transfer; some of the articles; purchased by Mr. Degraves were not delivered to him, though some were forwarded to his son Henry on his account; (list shown;) out of this, 11 cases of wine, 16 hhds. of ale and 13 cases of wine, were sent to H. Degraves; do not think that it was in consequence of my moving from my former store that I sent the articles, as I should most probably have transmitted them without; know that some of the articles have since been sold by Mr. Davis, the assignee to the insolvent estate; afterwards saw some of the articles at Mr. Taylor’s mart; did direct Mr. Taylor not to sell them, because, having paid two acceptances of Mr. Degraves’s since the delivery of the property, I considered it should, in honour, have been returned to me, a portion of the goods has been sold by me, and a portion is in my possession now; (journal produced from Aug. 30, 1840).

His Honor, after great trouble had been taken to ascertain what monies had been paid by debtors to the estate of the late Mr. Robinson (at least free from connexion with witness’s affairs,) but without effect, inveighed against the impropriety on the part of Mr. Evans in not having kept distinct books referring exclusively to his executorship.

Examination continued by Mr. Macdowell. - Find from the journal (produced) that the sum of £39 1s. was paid in favour of the estate on the 31st August. Of the item £20 all, except £2 2s. 6d., belonged to me on account of stock sold. On being closely pressed by His Honor, it appeared that the full amount did really belong to the estate, which again called forth remarks condemning the course followed by Mr. Evans.

On the 5th September, the item £63 was paid to the estate; October 19th, £72. 19s 6d.;in November, £47, £28 and £18; January 14th, £23 4s. 6d., 15th, £21, and bill £100; June 19th, £20 5s.; 28th, £10; February 2nd. £29 17s. 4d., £70 4s.; 28th, £40; 13th June, £29 6s.; bill, £42 11s.7d. and cash £19 10s. 2d.;January 10th, £41; bill, £120; since the sale, have received the whole of those monies; a portion of those sums has arisen out of the sale of goods arrived since Mr. Robinson’s decease; at the end of June I received £561 5s. 1d., and in July, £771 11s. 9d.; in August, £658 4s.; in September, £329 9s. 10d.; in October £310 5s. 10d.; in November, £343 5s. 5d., in December, £310 2s. 9d., in January, £230 10s. 9d; amongst those sums some of my own transactions have been mixed up; about £400 of those amounts are my own; besides those sums, I received a considerable amount in bills; at the time I transferred the sum to Mr. Jennings, I did not believe it to be the property of the estate, and still entertain the same opinion; on the same day that I transferred the sum to Mr. Jennings, I put him in possession of the deeds of a house situated in Warwick-street; it was not disposed of at the sale in August; never pledged it to Mr. Lowes; from the books I find that on the lst January, 1839; it cost £357 11s. 9d.; the deeds came into my hands as executor; did not take any receipt on delivering them over to Mr. Jennings; of the amount of goods purchased by Mr. Degraves, and since disposed of by me, I have received about £780; the rum was then worth £480 10s., subsequently made out an account of sale, and tendered it to Mr. H. Degraves, who refused it in the name of his father; in the account of goods sold by me, I did not include that property sent to him; out of the £780, I paid £600 to take up Mr. Degraves’ acceptance and handed over to him the bills obtained besides, which, I think, were devoted to the payment of Mr. Lowes.

By the Attorney-General. - The reason for which the goods purchased by Mr. Degraves were not delivered, was, that the latter called on me, and saying that it would be a pity to sacrifice them, wanted me to take them on my own account, which I declined doing, and it was in consequence of the refusal that the goods were sold by auction; I remember telling him that if he would undertake to purchase the goods at the prices I would specify, I would undertake to sell them for him at a fair profit before his acceptances became due; it was on the strength of that understanding that Mr. Degraves became the purchaser of those goods; it was necessary to have a license before the person purchasing the rum could sell it again; do not believe that Mr. Degrave had such a license; I have one; considered myself as agent to Mr. Degraves for the re-sale; sold to the amount of £600, to persons of the name of Deane and Lester, for an acceptance, which was handed over to Mr. Degraves; did not sell more, because he told me that he intended going into the spirit trade and required the remainder; Mr. Degraves had, prior to this sale, been in the beer line; he added, that as he was in the habit of supplying publicans with beer, he might as well do so with spirits; did not put my name to any of the bills given by Mr. Degraves to Mr. Lowes; believe that on the first renewal my name appeared on the bills in conjunction with Mr. Degraves; he proposed that the estate should take the goods entirely off his hands; this was subsequent to the sale to the amount of £600; should say that Mr. Degraves had given the full value for what he purchased; had not been in the habit of lending my name to him; the rum was retransferred to me by Mr. Lowes as security for the amount of the bill which, I had paid for Mr. Degraves; my name was affixed to all the renewals.

His Honor thought no evidence had been adduced to show that the property, allowing it to have been traced to Mr. Degraves, ever was vested in Mr. Evans to authorise him to part with it to Mr. Jennings.

The Attorney-General stated, that what he aimed at showing was, that after the sale Mr. Evans had ceased to act as executor, but merely as agent to Mr. Degraves, who, having failed to take up the last acceptance, must naturally expect that the remaining property would be claimed as security.

Examination continued by the Attorney-General. - Had paid the last of the bills previous to conveying to Mr. Taylor the warning not to sell; Mr. Robinson’s estate was indebted to Mr. Moore, of Sydney, a sum which Mr. H. Degraves, as his agent, was authorised to receive; but the latter informed me that his principal was likely to take rum in part payment; had this transaction been effected, I should have pocketed the money to reimburse myself.

Mr. D. Taylor, auctioneer. - About the 13th of March 1841, was employed by Mr. Evans to sell some property belonging to the estate of the late Mr. E. P. Robinson - 1 hhd. of porter and 15 barrels of ale; rendered an account to Mr. Evans; the property was brought from Mr. Degrave’s store in Collins-street.

Mr. Wm. Carter. - Was present at the sale of the late Mr. E. P. Robinson’s effects by Mr. Lowes; saw Mr. Degraves there, and understood from him that he was preventing the sacrifice of the property; I remember his showing me a paper, on which were the prices fixed by Mr. Evans; I considered him in the light of a “puff,” and believe that the company generally did the same; know that Mr. John Moses was present, and that some vehement remark was made by him with reference to Mr. Degraves.

Mr. James Hill. - Was in Mr. Young’s office in the month of November last; served Mr. Jennings with a demand for some property, which he refused to hand over, but without assigning any reason.

Mr. J. Allport, attorney. - Was acquainted with the late Mr. E. P. Robinson; have repeatedly had conversations with Mr. Degraves, as also with Mr. Evans, on the subject of the estate; on one occasion Mr. Evans said that he had charged and treated Mr. Degraves as a bona fide purchaser; and on a subsequent occasion, that he intended to alter the books, and deal with him as a buyer in for the estate; I told him that he would deservedly lay himself open to punishment, if he took upon himself to alter true books.

As might be expected, from the tenor of the evidence, the principal aim of the counsels was to establish, on the side of the plaintiff, that Mr. Evans had all along been acting as joint executor; and on the other, that he had , since the sale of the estate, been divested of those duties, and noted merely as an ordinary agent to Mr. Degraves.

The Jury, after a few minutes consideration, returned a verdict for the defendant.

[1] According to AOT SC 28/1, the jury found for the defendant as to the rum and for the plaintiff as to the deeds, damages £10. See also Hobart Town Advertiser, 18 March 1842.