Tetley v. Sherwin, 1842

[trover for recovery of insurance – nonsuit – civil procedure, jury verdict overturned – jury finds against Judge’s directions multiple times – Privy Council, appeals to]

In this case a verdict had, on a trial at the last Civil Sittings, been returned for the plaintiff, two dissidents appearing, Messrs. Furtado and Warham. On Tuesday week last, being the sitting in banco of the first Term, the Attorney-General, on behalf of the defendant, moved for a rule to show cause why a new trial should not be granted, on the grounds that the verdict had been returned contrary to the evidence, and in complete opposition to the direction of His Honor Mr. Justice Montagu , who tried the case. The decision had, according to the very words of the foreman of the jury, been arrived at under the impression that the defendant acted as agent to both parties, which was at variance with the evidence elicited from Mr. McPherson.

The rule nisi having been granted, the Solicitor-General appeared this morning to ground his objections.

Mr. Justice Montagu read over his notes of the testimony adduced on the trial, and stated that the finding of the jury was certainly quite contrary to the manner in which he had laid the case before them, it having on that occasion distinctly fallen from his lips, that nothing whatever had appeared before the Court to sanction a verdict otherwise than for the defendant.

Mr. Horne, for the plaintiff, contended that Mr. Sherwin’s position in the cause of action was as nearly that of a broker in England as could be, and that it was, to say the least, a piece of gross negligence on his part, residing, as he did in Launceston where the plaintiff was also living, and where the convenience of a twopenny post was near at hand, not to drop into it a letter informing Mr. Tetley that the former policy had expired, and that he would be expected to pay for a renewal before he could derive any further advantage from the insurance. Mr. Justice Montagu had, continued the learned gentleman, pointedly requested the jury to consider, in addition to their verdict, whether they considered that Mr. Sherwin had been employed as agent to both parties; they decided that he had been; and it was to be inferred that if, through his neglect, the insurance money was lost, the loss should be cancelled by him; but since it had been thought expedient that the Company should forfeit, why disturb the verdict? It had been contended on the other side that an agent for two parties could not be sued; but as a contradiction to such an opinion, the learned council would quite a case in which a broker had been amendable to law under more ambiguous circumstances.

His Honor the Chief Justice thought that the rule ought to be made absolute, and should be tempted to grant a new trial, from the fact that the jury were not unanimous, and as far as his Honor had heard of the evidence, there seemed nothing whatever to lead a jury to the conclusion that the defendant was the agent of both parties; on the contrary, it appeared to his Honor as clear as day from night that he was merely agent of the Company, and that the money on renewal of the policy not having been deposited, the deed had not been handed over, so that Mr. Tetley never could have had any property in it.

Mr. Justice Montagu perfectly concurred in what had fallen from the lips of his Honor the Chief Justice, and could see no reason whatever for differing from that which Honor had formed at the time of the trial; on the contrary, the more numerous the reflections bestowed on the matter, the more was his Honor convinced that no evidence whatever had appeared to sanction the finding of the jury. The Bench always felt great reluctance in disturbing verdicts, injurious, as repeated instances must prove, to the interests of the community, except in such cases as would show that a right finding had not been obtained; and if, in large communities, it was thought right that judges should keep a strict eye over the decisions of juries, how much more incumbent was it not on those of this colony to bestow redoubled attention, since in every case affecting the interests of a few members, the circumstances connected with it were well-known and prejudged by all; and his Honor was well aware that there was not one of those who constituted the jury, on the occasion of the trial under consideration, but was perfectly cognizant of the whole case before he entered the box. The judges, on the contrary, being less subject to these outward impressions, could exercise a sanative effect on the bias thus involuntarily produced. There were two dissidents, Messrs. Furtado and Warham, both of whom his Honor should pronounce good judges in such matters; and the staunch objections which they sustained against the verdict, clearly showed what was their opinion on the subject. For the purpose of disconnecting the verdict with the legal points of the case, his Honor had purposely placed as a second question for their consideration, whether they considered Mr Sherwin had been employed as agent to both parties in the transaction? The reply was in the affirmative, and his Honor did not like to press the question; though, had he done so, the gentlemen of the jury might have been unable to afford a substantial reason for coming to such a conclusion. It seemed perfectly natural, that if a person went to the agent of a company and required him to insure against a certain risk, the latter should reply that he would write to the actuary in Hobart Town, and that if before the policy deed had been sent down a loss ensued, the amount should be withheld by the company. Mr. McPherson, the Actuary of the Company in Hobart Town, had distinctly stated that it was their invariable rule to exact payment of the policy before any risk could be incurred by the Insurance Office. His Honor therefore coincided with the Chief Justice in allowing the rule to be made absolute - Hobart Town Courier.

Messrs. Horne and Roberts for the plaintiff. Messrs. Walsh, McDowell, and Stephen for the defendant. This was an action of trover brought against the defendant to recover a policy of insurance. Damages laid at £1000.

Duncan McPherson, Esq. - I am manager of the Van Diemen’s Land, Fire, Life, and Marine Assurance Company; I was so in August, 28, 1841; there was no directors in Launceston then, neither has there been any since; the defendant is the Company’s agent at Launceston, he transmits the orders from thence to Hobart Town; Mr. Sherwin sometimes takes the risk upon himself, he has no power to issue a policy; they are sent over from Hobart Town; at the end of every month; it might be the case of a party paying their premium, and not obtaining their policy for a month; (the company’s books were produced containing a memorandum of the policy spoken of, being cancelled shortly after September 14, by order of the directors); I do not know when the entry was made; another book was produced containing the Launceston Agency Account, on August, 31st, 1841, an entry was made to Marine Policy, 507, debit, folio 323, £30; Mr. Sherwin is the agent debited with this; on October 5th it was struck out of Mr. Sherwin’s account; the company did once dissent from Mr. Sherwin taking the risk upon himself; the letter I received from Mr. Sherwin is in the court, I gave it to Mr. Nott; it was an order to renew the policy of the Paul Pry, for three months (the letter was produced); since the last action we have altered our terms, the policy is not to be given up until the premium is paid.

By the Attorney-General., - Mr. Sherwin had no special authority to take so large a risk upon himself as £1000; the Launceston agent is allowed by the Company to be agent for the Commercial Bank, but no other; he is not allowed to give credit by the company; as long as the policy can be returned to the company they do not hold him responsible, although the premium be not paid; I should not thin k the vessel had left Launceston more than a day or two, when I received Mr. Sherwin’s letter; on the 14th September, 1841, I received the policy back from Mr. Sherwin.

Mr. Giblin - I am clerk at the Commercial Bank, Launceston; I recollect the defendant having a conversation with the plaintiff about the policy of the Paul Pry; Mr. Tetley came to the bank; Mr. Sherwin asked him if he wished the policy of the Paul Pry renewed, he said yes; Mr. Sherwin said he would write to Hobart Town about it; shortly before that Mr. Tetley kept an account at the Commercial Bank; Mr. Tetley came again, on the 10th September, Mr. Fisher was with him; Mr. Tetley said he wished to pay the premium; Mr. Sherwin said he could not take it; I saw the policy in Mr. Sherwin’s possession the same morning.

By Mr. McDowell. - I believe the policy was sent to Hobart Town a few days after the 10th; 5 or 6 days after Mr. Tetley came again.

[George Fisher. - I am a Shipping and Commission Agent at Launceston; on the 10th September I went with Mr. Tetley to see Mr. Sherwin; Mr. Tetley asked him if he had attended to his instructions in the renewal of the policy of the Paul Pry; he said yes, it is now lying in my office for you; Mr. Tetley told him he would call in the course of the day, and pay the premium; Mr. Sherwin asked Mr. Tetley if there was anything the matter; he said yes, she was telegraphed as lost this morning; I went with Mr. Tetley the next morning to Mr. Sherwin; the plaintiff tendered the amount of premium in the Commercial Bank Notes; he said he would inform the company he had tendered the premium, he could not take it; I saw no document produced; the policy was not asked for; I went again with Mr. Tetley to Mr. Sherwin on the 16th September, to tender the premium in specie; he said he would no6t take the money, and would not deliver the policy up, as the company did not consider the vessel insured.

By Mr. Stephen. - Mr. Sherwin asked Mr. Tetley if anything was the matter with the Paul Pry; Mr. Sherwin hearing of the loss, said he did not think the company would bear the risk; Tetley had had legal advice which induced him to call upon Mr. Sherwin again.

Mr. Ducrow. - On the morning the loss occurred. I spoke to Mr. Sherwin about the policy of the Paul Pry; I told him I had heard he had refused to give up the policy to Tetley; I told him he ought to consider the vessel insured; he said on what grounds Tetley had not paid the premium; I told him it was customary to deliver up the policy before the premium was paid; Mr. Sherwin said Tetley was insured at the time he gave the order, but he had forfeited the policy by not having taken it up; I told him perhaps he did not know it was come; I asked him if he had sent him word; he said no, he did not know where he was to be found,

His Honor, in summing up the evidence gave it as his opinion that the plaintiff was not entitled to the verdict, unless he had tendered his premium earlier, therefore he considered the verdict was due to the defendant. Verdict for the plaintiff

The case of Tetley v Sherwin is reported in our present number. The verdict was in favor of the plaintiff, although the Judge inclined strongly to the opposite opinion. We trust the matter is now set at rest, and that the money will be forthwith paid. It is rumoured that the Directors intend adopting other proceedings to avoid payment, but surely they will not so far impose upon the Company, which they have already saddled with about £700 of expenses, besides an immense loss of business, consequent upon their vexations tenacity. The shareholders ought to convene a meeting amongst themselves, and pass a vote of censure against the directors - those we mean who resisted payment of Mr. Tetley’s claim, - for to the honor of the Company, we believe only two of the directors persisted in their obstinacy. At any rate the shareholder of a public company will establish a bad precedent, if they allow this proceeding to pass without notice. Their property is destroyed and depreciated, in proportion as the Company loses the support and confidence of the public; they have a right to know and censure the individuals, by whom the company has been reduced to its present insignificant standing in public opinion. The major part of the directors, we are confident, delight in the result, because they are honourable men, and admit the justice of the verdict. These we would absolve from all blame, but the prime instigators and supporters of the oppressive proceedings should be dismissed and disgraced.

Tetley v Sherwin . - The Attorney-General on the part of the defendants, applied for a rule to shew cause why a non-suit should not be entered in the above case instead of a verdict for the plaintiff, on the ground that the jury in arriving at their verdict must have assumed that the defendant was agent for both the plaintiff and the company he represents, which was contrary to evidence. His Honor the Chief Justice could not see how the jury arriving at the verdict they did, carried with it the inference that they believed the defendant to have been agent for more than the Insurance Company. The jury found an unconditional verdict, if the point of agency had been reserved at the trial, the Court could of course hear arguments, but unless the point was so reserved, he thought they ought not to interfere with the verdict. The rule was, however, after some further discussion, granted.

Tetley v Sherwin. - The Attorney General moved to make the rule absolute in this case.

The Solicitor General contended against the rule, and observed that the case had been before two juries, who had each given a verdict in favour of the plaintiff, thus establishing in fact that Mr. Sherwin was the agent for both parties. That there was sufficient evidence, he could call their Honors attention to the fact, that in Fisher’s evidence, when Tetley met Sherwin in the street, he asked him if he had insured the Paul Pry, and was answered by Sherwin in the affirmative.

Chief Justice. - This is no evidence of Sherwin being the agent of both parties.

The Solicitor General resumed, - If Mr. Sherwin then was no agent, Mr. Tetley could as well have written to Hobart Town, and insured the vessel himself. He (the Solicitor General) thought there was sufficient evidence for the jury to come to the decision.

Pusné Judge. - He was not agent for Mr. Tetley, he was only a Clerk to the Company.

The Solicitor General. - Then since I cannot convince your Honors of that fact, I contend that the plaintiff ought to recover on another account. He conceived, although the premium was not paid, that Mr. Tetley was insured, because the policy had been signed by the Directors at Hobart Town, and sent to Mr. Sherwin who ought to have delivered it to Mr. Tetley.

Chief Justice. - I think it was not the duty of Mr. Sherwin to deliver the policy. Mr. Tetley should have called for it. If a person puts in a bill for discount, the bankers do not send to say it is discounted, but the parties call.

Solicitor-General. - Yes; but as the Company do not send the policies but once a month, the case is materially different, and I submit to your Honors that the policy being out of the hands of the Company, and although the premium was not paid the vessel was fully insured.

Judge Montagu. - If the vessel had made the voyage and came back safe, would Mr. Tetley have been obliged to pay the premium?

Solicitor General. - Most assuredly. And on the trial I was going to have shewn what was the custom of the company at Launceston, but I was stopped by your Honors. I should have shown that vessels had been insured, and made the voyage and back, and the premium was not paid until all danger was over, and the vessel safe in harbour. As this case had gone before two juries, and were decided in the plaintiff’s favour, he hoped their Honors would order the defendants to pay the costs of the former trials.

The Attorney General replied to the Solicitor General, and said he could not add one word more in favour of his client, than what had fallen from their Honours.

Tetley v Sherwin. - His Honor the Chief Justice remarked, that from the evidence on former trials, he could not see that Mr. Sherwin acted in any other capacity than as agent for the insurance company. He believed the case stood thus - Mr. Tetley applied to Mr. Sherwin to insure his vessel, and previous to the time of the vessel being lost, Mr. Tetley enquired of Mr. Sherwin if he had effected the policy. Now up to the time of the vessel being lost, he (his Honor) could not see that any contract had been made. The Insurance Company might have refused to have given up the policy, until the premium had been paid, and as there was not any contract made up to the time of the vessel being lost, there could not be after, therefore he considered the party not entitled to the document.

His Honor Justice Montagu said, that at the time the trial came before him, he plainly told the jury there was no evidence to justify the belief that Mr. Sherwin acted as the agent for Mr. Tetley, but it would be only waste of time on his part to recapitulate the evidence; he would say it was of that nature that the learned counsel could not support his arguments upon that point. If Mr. Sherwin was the agent for the company in the absence of the principals, it was his duty to act at Launceston as a principal, and he (his Honor) could not see that any consideration was made on the one side, or any policy accepted on the other. According to law, the contract was not perfectly completed, and therefore was rendered void. He was not talking about points of honour but of law, which left it to the option of the opposite party. To say the contract was good would be nonsense, they might as well endeavour to prove a will simply executed before being published was valid, or a libellous letter being in possession of a person making him liable before it was published. His Honor said, that in bringing an action before a jury in a small community like Van Diemen’s Land, where the public mind becomes so easily excited, when the jurors are frequently led away with their own responsibility, deviating from the Judges, from the love of their own independence, and not unfrequently he believed with their minds made up before the trial commenced, that to address them would be utterly useless, and under such circumstances it was impossible to do justice to such a case. In England, if the public mind was prejudiced in one county, they could send the trial to another where justice might be expected, but how could it be hoped for here, when he had seen out of twelve jurymen nine who had been prisoners. He said, a member once speaking in the House of Commons remarked, that in Van Diemen’s Land they had prisoner constables over a prison population, but this his Honor said was not all, there were men here who held responsible situations in the Police Office and also in other places belonging to the same class. If they were to go back to a trial here, he did not see how the plaintiff could obtain justice.

Mr. Macdowell proposed sending the case to be tried at Oatlands if they could not get an impartial jury here.

Mr. Justice Montagu replied, he should be willing to send it any where, where the jury would not set aside all rules of law. He had frequently had nine men who had been convicts out of twelve, to tell him what was just between two honest men. His Honor proposed staying all proceeding for twelve months, until the excitement was over, as he was quite sure it was no use bringing it on at present. He thought it might be advisable to bring it on at Oatlands, but it was no use to put it down for the next sittings. His Honor said there must be a new trial but he scarcely knew where to hold it.

The Solicitor General remarked, that notice should have been given on the opposite side. Also that the Court had nothing to do with the intrinsic value of the case or with the jury either.

Mr. Justice Montagu said, he conceived that the court had the power of granting a new trial, and which might be tried in any part of the colony to attain the ends of justice.

The Chief Justice said, that he did not think the jury, when he tried the case, appeared in Court with preconceived opinions, or was inattentive to his directions, but when the evidence given in had to go to the jury, it was too much for the Judge to set aside the verdict; but in that case there was no evidence at all.

Mr. Justice Montagu said to Mr. Macdowell he had better make his application in his chambers.

Source: The Hobart Town Courier and Van Diemen’s Land Gazette, 17 June 1842[5]

This case underwent a third trial, and with the same issue, a verdict having been returned for the plaintiff in the amount of the insurance £1000, minus the policy, making the damages £970.

These two actions have, on the former occasions, been so fully reported in this journal, that we have suppressed the repetition of details, which, offering no variation, must be devoid of interest.

Source: Cornwall Chronicle, Commercial, Agricultural and Naval Register, 3 August 1842[6]

The Attorney General, on the part of the defendant, moved the court for a rule to shew cause why the verdict which was given last Sittings for the plaintiff, in this case, should not be set aside, and either a non-suit entered, or a new trial granted, on the grounds that the verdict was contrary to law, and to the direction of the learned judge before whom the case was tried.

The Attorney General argued, that as Mr. Justice Montagu, who presided at the trial, was of opinion that it was a case for a non-suit, and would, as he stated, have directed a non-suit to be entered had he possessed the power, it was competent for him (the Attorney General) now to move the court on the points.

Mr. Justice Montagu said he had stated very fully to the jury, but he felt that it was a perfect waste of language. His Honor felt that it would be useless to try the case again, for he believed the jury would return the same verdict if it was tried three hundred times. If it was to be tried again he would never consent to its being tried in Hobart Town, and if it was tried at Launceston, he should require the jurors to be taken from the Oatlands and Hamilton districts.

Their Honors delivered their opinion this morning in the case of Tetley v Sherwin¸ upon a motion for another new trial, which had been made by the Attorney General on the first sitting in the present term.

Both the Judges concurred in granting a new trial upon the point of law. His Honor the Chief Justice observed, that it was entirely upon the point of law, and not of fact, that the trial was granted. If the decision of the jury had depended upon the credibility of a witness, or as to the fact whether a certain thing was, or was not done, and two juries had decided the same way, the court would not interfere; but if it was shown that Sherwin was only the servant of the Insurance Company, and not the agent of Tetley, no court even if twenty juries had found for the plaintiff, could refuse a new trial. There had been already three trials, and the list of jurors in Hobart Town, his Honor understood, was exhausted; it would be necessary therefore that the case should be tried by some other persons, and in some other district.

Mr. Justice Montagu would not think of setting up an opinion against a jury, on a question of fact; but, admitting all the facts in this case, by law, the defendant was not the agent of the plaintiff. The present was not a question of fact, but of pure law, which it was for the court to decide, while the jury had merely to decide upon the facts. It was exceedingly improper for juries to go beyond their province by deciding upon points of law; if the question was a mixed one of law and facts, it was the duty of the Judge to point out the law, by which the jury should abide. Here the law was beyond doubt for no person can be the agent of another without he acts for him. The jury felt that the justice of the case was with the plaintiff, and give him a verdict they were determined, right or wrong in law. With respect to the costs, they must be decided by the event. His Honor at first thought that there was some laches in not demurring to the point of law that had been raised; but he did not now consider that the plaintiff had acted wrong in submitting his case to a third trial; whether to have demurred would have been the proper cause, his Honor would give no opinion, but even if it had, there was no laches on the part of the plaintiff.

The fourth trial of this case took place at Oatlands on the 28th ultimo, before the Chief Justice and the following jury - Messrs. John Robt. and David Taylor, Robertson, James Davidson, Leake, R. Q. Kermode, James Hamilton, R. Bostock, Claudius Thomson, and Gavin Hogg.

The Solicitor-General for the plaintiff; the Attorney-General and Mr. Macdowell for the defendant.

Mr. Horne stated, that although Mr. Sherwin was the nominal defendant, yet the action was in reality brought by the plaintiff against the Van Diemen’s Land Insurance Company. Mr. Sherwin merely acted in the capacity of agent between the company and parties insuring at Launceston. The Paul Pry had been previously insured in this office, and on the 21st of August, 1841, the then existing policy expired. This the plaintiff requested Mr. Sherwin to renew for three months. When Mr. Tetley heard of the loss of the Paul Pry, on 10th September, he proceeded with Mr. Fisher to the office of Mr. Sherwin, and enquired if he had effected the insurance. Mr. Sherwin replied, “yes, and I have the policy in the office for you.” Tetley then acquainted Mr. Sherwin with the report of the loss of the Paul Pry, when he said, “in that case the insurance will not stand good as the premium has not been paid,” Mr. Horne contended that the position of Mr. Sherwin was identical to that of an insurance broker at home, but the opposite counsel would not permit the examination of Mr. Du Croz on the point, nor allow the custom at home to be given in evidence. Mr. Horne proceeded to show that it was the practice of the office itself to give credit, and instanced insurances by three vessels the Sisters. Brothers, and Dundee Merchant, where the premium must have been paid after the risk had expired.

The Attorney General, for the defence, stated that Mr. Sherwin could not be looked upon in the light of a broker, and that the analogy in this respect completely failed. Counsel then adverted to the circumstances of the defendant, and insisted (without proof) that if the vessel had reached her destination, the plaintiff would not have paid the premium; although it could not be shown that the premium was ever demanded, or refused.

The Chief Justice in summing up called on the jury to disabuse their minds of all they might have heard or read out of court, they were to decide according to evidence, and he was there to explain the law; he entered into an exposition of the duties of brokers, but made no distinction between general and insurance brokers, and then left the case in the hands of the jury.

After six hours absence the jury returned with a verdict for the plaintiff, damages £970, there being three dissentitlements.

The Attorney-General in the case of Tetley v Sherwin moved for a rule to set aside the verdict given at Oatlands and to enter a nonsuit, or for a new trial. The learned counsel said, that it would be almost superfluous for him to state at length the facts of this case; there had been already four trials, and it might be said that for this reason the present application ought not to be entertained; but if any such obligation should be set up he would be prepared to show that where four consecutive juries decided on a point of law, against the opinion of the judge that was no ground for refusing a new trial; on the contrary, he should show, on the authority of a most able judge, that a trial should be had till justice was obtained. The learned counsel here briefly recapitulated the facts of Tetley and Sherwin’s case, contending that there was no legal tender of the money for the policy, which was in Hobart Town when the payment was offered, and therefore not in Sherwin’s possession; the jury, too, had found contrary to law and to the judge’s charge; their decision was to be given on a point of fact and not of law, which they were bound to take from the judge.

Mr. Justice Montagu observed that if his Honor the Chief Justice (who tried the case at Oatlands) had not given leave to move for a verdict, the court could not entertain the present motion.

The Attorney-General said it was open to discussion whether his Honor had power to reserve the point or not; if he had that power, his Honor said he would do so. The matter stood thus - it was for him (the Attorney-General) to show that the learned judge had the power, although the counsel on the other side objected to the reservation. The learned counsel here cited a case decided by Lord Chief Justice Best (Lord Wynford), where that learned judge said it would be mercy to the plaintiff to grant a non-suit, as it was desirable, even after repeated trials, the justice of the case should be arrived at. The judge was to decide the question of agency, which was purely a question of law; this had been laid down by Mr. Justice Ashurst and by Mr. Justice Buller, who said, that great mischief would ensue to the mercantile community by leaving the jury to decide upon the reasonableness of time, which was entirely a question of law. He cannot say that the present case was unparalleled for the jury to decide against the laws so explicitly laid down by the learned judges; they had in fact acted with contumely, and he hoped that although the jury might contumeliously decide against the opinion of the judges, the law would at least be effected. There were three points of view in which the present case was to be considered: - lst, whether the policy was void without payment of the premium; 2nd. the correction of the policy; 3d., whether the court could now enter a nonsuit. The payment of the premium was “a condition precedent” to the policy, as might be shown in the ordinary case of a vender and purchaser, the purchaser having no right to the property until he had made a tender of the price. So Tetley was no more entitled to his policy than a purchaser or vendee who had not tendered his price for his purchase; if, as stated by Sir Edward Sugden, a purchaser wished to make his bargain binding he must make his condition “precedent” by tendering the price. Tetley had not done this, for Sherwin was no agent to Tetley; and it was only by this construction of Sherwin’s capacity that Tetley could have made his tender or “condition precedent.”

Mr. Justice Montagu: If there was a legal tender that would have been a “condition precedent”.

The Attorney-General: Not without a qualification. Tetley, he had no hesitation in saying, intended fraud, the loss being known. The policy expressed a payment of £30, and if it had got into Tetley’s hands that would have been sufficient. There was a sort of tender made, but no demand; and this being an action of trover could not therefore be sustained. To have constituted a demand for the purposes of the action the policy ought to have been in Sherwin’s hands, whereas it was in Hobart Town. Their honors, the learned counsel thought, would be justified, on the ground of fraud, to grant a new trial. Tetley had not a shadow of right to the policy.

The Attorney-General: No doubt the very moment the policy reached Sherwin, it was in Tetley’s possession; but Sherwin was not the agent of Tetley any more than any clerk in the company’s office might be; this was a cardinal point in the case, but there was no evidence whatever of this fact. To constitute an action of trover three things were necessary: - lst, a right of property in the plaintiff; 2nd, a conversion of the property; and, 3d, a demand and refusal. The learned counsel, after applying this to the present case, submitted, that he was entitled to his motion for a rule nisi.

Mr. Justice Montagu observed, that there was a difference between sending the case again for trial in a small community like ours and from county to county in

England

. Here the panels had been exhausted, and another trial might not obtain the justice of the case. He did not see why judges were to overrule juries by seesaw trials of this kind; the court could not be called upon in perpetuity to set aside trials, for this would be carrying its power to too great a stretch. In

England

he would send it to every county, so long as the chance of a right decision existed, but when that chance was gone such a course would be absurd.

The Attorney-General observed that there had been only one trial at Oatlands, and he had since heard that there were some of the gentlemen who might have been called on the jury who would have given a different verdict.

The Attorney-General applied to have the conditional rule obtained by him in this case, on Tuesday week, made absolute.

The Chief Justice having read over his notes of the trial, observed, that if Sherwin had been the agent of Tetley, the Plaintiff would be entitled, at least, to a remedy against him; but, of this there was no title of evidence, in fact, it went the other way. Then, what was the value of the contract? Upon the payment of a certain sum of money, the Company were bound to pay the Plaintiff a specified sum, but there could be no contract, if there was no previous payment of the policy; so that Tetley had no right to the policy, until he had paid the premium. Upon this ground a verdict ought to be for the Defendant, while it would be for the Plaintiff on the conversion subject to a point reserved. In the way the case went to the Jury, who found for the Plaintiff on both the pleas. As to moving for a non-suit, His Honor stated, he would consent to this, if he had the power, if not the Defendant might apply for a new trial.

The Solicitor-General showed cause against the rule. With respect to the question of a non-suit, he, the learned counsel, had refused to consent to it, on the part of the Plaintiff; he also, declined the reservation of any point. It was for him, now to show, that the Court had not the power to reserve the point, relative to the non-suit, without the consent of the Plaintiff. The learned counsel here cited several cases, illustrative of this point, and concluded, by stating, that there was no case, where the Court had entered a non-suit, except by consent. He had now, to consider the question of conversation. It had been contended, on the part of the Defendant, that there was no conversion, because the Defendant had parted with the policy. Three days before the Plaintiff made his tender, Sherwin had said, he had the policy, and when the money was tendered he left the Plaintiff to suppose he had it; on a former trial, the Defendant was not allowed to go into evidence on that point, because Sherwin, by not saying he had the policy, led the Plaintiff to suppose, that it was in his possession, he ought to have said, he had it not. It was not necessary, that the policy should have been in Sherwin’s possession at the time, as was shown by a case in the Term Reports, p 260, where the owner of some goods, on board a vessel, directed the Captain not to land them on the wharf, these were subsequently delivered to the Wharfinger, who retained them for a lien, on the Captain’s account. Here, at the time of the demand - and refusal, the goods were not in, the Captain’s possession, but that of the Warfinger, it was therefore unnecessary (the learned counsel contended,) that the goods should be in the actual possession of the Defendant at the time of the demand, neither was it imperative, that he should be in a condition to deliver them up at the time of such demand.

The Solicitor-General said there was Sherwin said, he would not give up the policy, as the Company did not consider the Insurance valid.

Mr. Justice Montagu : if Sherwin was agent to Tetley, no demand or refusal was necessary.

Mr. Justice Montagu : no, not unless the policy was vested : one answer cuts off the other, your argument is that, if Sherwin was Tetley’s agent the tender was unnecessary; you say, you are entitled to recover because Sherwin was your agent.

Solicitor-General : if Sherwin was an agent we must prove the demand and refusal of property in his hands, to preclude a lien.

Mr. Justice Montagu : then you argue that there was a contract, which was binding, without any consideration at all? Your position is similar to the 5th proposition in Euclid, and quite as plain; being driven from angle, you must admit the equality of the other. You are upon the Asses’ bridge, and must go first one way or the other. I can’t see, how you can get out of the dilemmas.

Solicitor-General : Sherwin was to get the policy; we tendered the money for it. In the double character in which Sherwin stood, it was difficult to say, what was to be done; he stood as agent to both parties, and the tender was made to cover any lien, as agent to Tetley. The learned counsel maintained that the action had been rightly brought, because Sherwin had led the Plaintiff to believe, that he had the policy. If the rule were made absolute for a new trial, he, the Solicitor-General could not see what good result would ensue; but it did appear to him, that, after so many trials, there should now be a cessation of litigation between the parties.

The Attorney-General said, that, were it not for one or two observations, which he wished to make on the cases, cited by his learned friend, the Solicitor-General, he should consider it a mere repetition of what he had already said to offer any further argument in the case; the learned counsel then proceeded to argue, that the cases, which he himself had cited, on moving for the rule, as well as those quoted by the Solicitor-General, all tended to show that the Court could rule a non-suit, without the consent of the Plaintiff, and observed the Attorney-General, in all the cases I have seen, and in all the best books to which I have referred, the assent of the Plaintiff is never given.

The Attorney-General having intimated, that he should not cite any more cases, Mr. Justice Montagu expressed a wish, that he would, if he could find any, as his Honor was extremely anxious to have all he could upon the subject with a view to an alteration of his opinion. If the learned Counsel had not been so strenuous in his application for the rule, his Honor would not have consented to the rule, in the first instance.

The Attorney-General, then referred to an opinion of Mr. Baron Graham, to the effect, that a Judge had a right to put a Plaintiff out of Court, whenever the question was resolved with a mere point of law; this was the case, as to Sherwin’s agency, and the learned Judge had a right to take the case for the jury.

Mr. Justice Montagu: how can a Judge have his right, when the party says, he will not be nonsuited?

The Attorney-General: from the distinction between law and fact; the Judge to decide the law.

Mr. Justice Montagu : what is the use of the Judge’s right, if the Plaintiff refused to be nonsuited; what is the Judge to do, in such a case?

Attorney-General : by letting the case go to the jury, and reserving the point, for the decision of the Judges in open court, by so doing, the Judge takes the case from the jury.

Mr. Justice Montagu : A Judge has no right to do so; if the Plaintiff insists upon the case going to the jury, the Judge cannot help it. If the Judge is wrong, there is a remedy by a bill of exceptions, or a writ of error. Does that case (Mr. Baron Graham’s) mean to say, that the Judge can alter the trial in that way?

Attorney-General, thought it did : it was a pure case of law, tried at nisi prius.

Mr. Justice Montagu : if you look, logically, at the whole passage, you will find it a mere dictum, in fact, if a Judge does anything arbitrary as in facts, there was the greater necessity for the jury to decide upon the case. I cannot see the inference from that passage, that on a question of law, the judge can direct a nonsuit, without the consent of the Plaintiff.

The Attorney-General had exhausted what he had to say on the case; and, in a case of such importance, he hoped the court would hear the Counsel, who were engaged with him in the case; there were two Counsel so engaged.

After a few remarks from Mr. Justice Montagu, as to the rule of practice and an observation from the Chief Justice, that if it were now allowed, it should not be considered a right for the future, it was agreed, that one Counsel should be heard, in further support of the rule; Mr. Macdowell consequently briefly addressed the court, as to the expediency of a new trial, under all the circumstances of the case.

His Honor The Chief Justice, then delivered his opinion : he had at one time thought, that he could have granted leave to move for a nonsuit, notwithstanding the dissent of the learned Counsel for the Plaintiff; he now thought otherwise, and believed that this was not a case for a nonsuit. The next question was, whether the Defendant had a right to a new trial, in other words, whether the verdict ought to stand. There was no doubt that the verdict was wrong - undeniably wrong. As to the property being in Sherwin’s possession, when demanded, that was of no consequence, as he might have sent it away; it was to be recollected, however, that a demand and refusal was no proof of conversion; the principal question was, whether Tetley had any property in the policy, and this involved the alleged agency of Sherwin. Without the payment of money, there could be no contract; the company, therefore, had a right to say, that Tetley’s part of the contract had not been fulfilled. When Tetley demanded the policy, the very essence of the contract had ceased, namely, the loss of the vessel. Up to that time Tetley had had no property in the policy. Before he could consent to a new trial his Honor wished to confer with Mr. Justice Montagu. Strong opinions on one side or the other must exist; and his Honor stated, that at the last trial (at Oatlands) he had endeavoured to put the jury on their guard against any preconceived feeling or opinions, as to what the company ought to have done, or what they had better have done. The verdict was decidedly contrary to the evidence but whether there should be another trial required farther considerations.

Mr. Justice Montagu concurred entirely with his Honor the Chief Justice, as to the verdict being contrary to law; the result would follow that a party would have to pay £1000, or perhaps now £2000 contrary to law; it was a hard thing, that being resident in this territory, a person should be so mulct of his property. His Honor was extremely anxious that justice should be done either by entering a nonsuit by a new trial, he was anxious, indeed, that this object should be effected. On the first point his Honor had made up his mind; the maxim had been stated that the court had a right to decide upon points of law, and juries upon facts; juries also, were to take the law from the judge; but it did not follow that the court could take away the case from the jury, and decide upon the law. This principle was modified by criminal cases, in high treason for instance. The judges may declare the crime high treason, the jury are of a different opinion, and return a verdict of acquittal. Where then is the right of the judge? A jury may acquit in opposition to the judge. Let us take the case the other way. In a case where a man was tried for manslaughter, the judge directed an acquittal, but the jury would not have this, they found him guilty of manslaughter “because he stole a goose from the foreman a short time before.” What was the effect of this? The judge was bound to receive the verdict and also to record it, but he would recommend the accused for a pardon, either with or without the opinion of the other judges; thus in either way the evil was corrected. There was no difference in the principles of criminal and civil cases, and there had not been a single case found by the Attorney General, where a judge had nonsuited a plaintiff, the counsel refusing his assent, unless he acted arbitrarily or erroneously, upon a point of law, for which there was a remedy in a bill of exceptions. When a judge ordered a nonsuit, and the counsel acquiesced, but finding the judge wrong, he had his bill of exceptions; the subject had a right to submit the errors of the judge by a bill of exceptions, which might be again corrected by a writ of error. Where the judge was against the counsel, it was much better to say nothing about it, and have the point reserved, to save the bill of exceptions and get an opinion in Banco which was a cheap and simple remedy. A party had a right to go to a jury, if not he might be ruined in his property, or executed under a criminal charge. If ever there occurred a case which the judge ought to take from a jury this was the case; the defendant could not feel more deeply than did his Honor, the hardship of the case; it was indeed, very hard that because he lived in this territory he was obliged to pay 1000l, away from his family. “If,” said his Honor, “I had any doubts, I should almost cut short that doubt, and enter a nonsuit, but this point is so strong, that I cannot get over it.” With respect to a new trial, His Honor already said, that he should not have granted a rule in the first instance; the question was one of policy, or expediency, and in this light His Honor should now consider it; nothing that had been advanced had allowed his mind upon the subject. Courts order new trials when they think justice has not been done, and when there is a probability of obtaining justice; but judges were to send back cases ad infinitum to evince obstinacy and perseverance of the bench, and firmness and unanimity on the part of juries; great inconvenience, misery, and expense would ensure from such a course; the plaintiff would be worn out, and the defendant would eventually succeed, with a handsome amount of costs to go to the lawyers. This His Honor could not do; he would never consent so to work a Court of Justice, nor to obtain a right by so iniquitous and wrong a course of proceeding. In a small community like this, where two juries had decided alike upon a case, and in opposition to the Judge, it was useless to attempt another trial; the facts became known and canvassed, feelings were excited, and great injustice was the result. The community had trial by jury, and it was not for the court to upset its decisions; His Honor would, however, reserve his final judgment until he had conferred, as was his duty, with his Honor the Chief Justice.

The remainder of the sitting was occupied in hearing arguments from the Solicitor-General, against a new trial, in the case of Dobson and Gregson, which was tried at the last sitting, and which involved the validity of the award, respecting which a bill for an injunction has been filed in the equity side of the court.

In re Tetley v. Sherwin. – Their Honors, today, refused a new trial in this case, on the ground only that it would be perfectly useless. Both judges agreed that the plaintiff was entitled to a new trial, but having had four trials, and the matter having been much canvassed out of doors, it would be utterly hopeless to expect a different result.

Their honours gave their decision in this case, which discharged the rule for a new trial. His Honor the Chief Justice said, that in point of law he perfectly concurred in the defendant’s right to come for a new trial, and the case must be very strong indeed to warrant a refusal; but there had been four trials, and they might send back the case as often as they would, but it would be perfectly useless; upon that ground, and that only, his Honor should not grant a new trial.

Mr. Justice Montagu concurred with the Chief Justice, and recommended Mr. Sherwin to appeal to England; the proceedings to be stayed in the meantime.

It was arranged, therefore, that all proceedings in the case should be stayed till Saturday week (next Saturday), in order to afford Mr. Sherwin time to prepare his petition for appeal, to which he was entitled, as the property in dispute amounted, “directly and indirectly,” to £1000.

The American system of so simplifying the settlement of all controverted claims, as that juries alone shall decide without reference to law, layers, or judges, is progressing here. All law, that interminable code, the law of precedent especially, being now thrown overboard, the lawyers may sell their libraries to the grocers for waste paper for they are worse than useless - a positive incumbrance. Another jury, after six hours’ deliberation was decided by a majority, in the case of Tetley v Sherwin, in favor of the plaintiff. His Honor the Chief Justice directed them, that the law entitled the defendant to a verdict. “We care not a fig for the law or your declaration of it,” say the jury, “we shall decide as we think proper, without reference to either.” “Very well”, replies the judge, “I cannot present your usurping a POWER for which you have not AUTHORTY, but so long as the law exists, and judges have the administration of it, they know how to control such usurpation.” The counsel for the defendant will of course move next term that a verdict, as in the case of a nonsuit, be entered, that delivered being contrary to law, and the rule will be made “absolute” as absolute matter of course.

Which is the better system, the expensive tortuosities of “layers’ law”, or the cheap simplicity of “jury law”, the establishment of which latter by the Courts of the whole British empire and the consequent demolition of the whole “profession” would save the country so many hundreds of thousands of pounds sterling per annum, is quite another question, of which we say nothing.

[1] See also Hobart Town Courier, 18 February 1842; The Cornwall Chronicle and Agricultural and Naval Register, 19 February 1842. This was a continuation of Tetley v. Sherwin, 1841; Tetley v. Sherwin, 1843. This eventually led to the first reported appeal to the Privy Council from an Australian colony: In re Sherwin (1844) 4 Moo PC 311; 13 ER 323.

For Sherwin see A. Fysh, ‘Isaac Sherwin (1804-1869)’, ADB, vol. 2, pp. 441-2.

[2] See also Hobart Town Courier and Van Diemen’s Land Gazette, 25 March 1842; Hobart Town Advertiser, 25 March 1842; Launceston Examiner, 2 April 1842.

[3] See also Launceston Examiner, 14 May 1842; Hobart Town Courier, 13 May 1842.

[4] See also Cornwall Chronicle, Commercial, Agricultural and Naval Register, 4 June 1842; Launceston Examiner, 11 June 1842.

[5] See also Hobart Town Advertiser, 21 June 1842.

[6] See also Hobart Town Advertiser, 12 August 1842.

[7] See also Austral-Asiatic Review, 7 October 1842, The Hobart Town Courier and Van Diemen’s Land Gazette, 30 September 1842.

[8] See also Austral-Asiatic Review, 18 November 1842; Hobart Town Advertiser, 11 November 1842.

[9] See also Launceston Courier, 28 November 1842.

[10] See also Launceston Examiner 21 May and 12 November 1842; Austral-Asiatic Review, 17 June, 15 and 22 July, 21 October, 4 November and 9 and 16 December 1842; Launceston Advertiser, 23 June 1842 (journalistic comments).