Dobson v Gregson, 1843

The Solicitor General and Mr. Fleming appeared for the plaintiff, and Mr. Montagu for the defendant.

This was a demurrer to an award. Sometime after a deed of grant, at the request of Mr. Lascelles, was made for the Millbrook Estate to Mr. Dobson and T. G. Gregson, Esq., in trust, matters of difference, with regard to the trust, arose between those gentlemen, and which they agreed to submit to arbitration; the arbitrators being Mr. McPherson and Mr. W. M. Orr.

It was demurred that the award was illegal, the arbitrators having directed Mr. Gregson to divest himself of the trust, and place the entire control and disposition of the property in the hands of his co-trustee, which the arbitrators had not legally the power of doing. It seemed quite clear that such an award could not entitle the defendant to take a re-conveyance for himself, and to bind, as it did,Mr. Gregson or his heirs or executors to fulfil all the provisions of the first. Then again, the arbitrators did that, which in law was wrong, by directing that the expenses of a suit in equity then pending should be paid out of the trust funds. This suit, it must be borne in mind, was not one of Dobson and Gregson against each other, but in which they were joint defendants, as co-trustees of the estate, against other parties; and how, he would ask, could the trustees make an award as to the suit in equity then pending? It was clear they had exceeded their powers in this respect. It was again demurred that the award was bad, because not final; - it did not settle the matters in dispute between the parties. It set forth that, after Mr. Gregson had been denuded of his trust, the estate should, under conditions specified, be sold; and that the proceeds should be applied in the payment of certain debts and obligations; but for which, if not paid, Mr. Gregson, under the trust deed, would be liable. True Mr. Gregson was to receive, when the affairs of the estate were wound up, a certain sum of money; but it was directed that Mr. Dobson amongst other sums, was to pay two several amounts of 200l, and 500l to Mr. Edward Lord, then he was to pay himself, and after that Mr. Gregson, - but there might not be funds to pay that gentleman a single shilling. The award, therefore, was bad, on the ground of there being no reciprocity; it was all on the side of Mr. Dobson. Mr. Gregson was, on a particular day named, to give his promissory note for a large amount to Dobson, for which he was to be re-imbursed when the estate was sold; that is providing there was funds. Was that an equitable award? As to the disposition of the property, there was an illegal direction on the face of the award and which was not only contrary to law, but nugatory, because compliance with it was impossible. Then again, if an action was commenced by any party, the award could not be an answer, to clear Mr. Gregson from liability. The learned gentleman contended that the two portions of the award could not be separated; the same principle pervaded the whole of it, He submitted that the arbitrators had exceeded their authority, and that the award was illegal, and consequently void.

Mr. Montagu argued, at some length on the other side, and was replied to by the Solicitor General.

In this case, tried yesterday, the Judge, in reply to an application for speedy execution, declined to comply with the request, but said he would take time to consider. Under an impression that the application would not be granted. Mr. Fleming, the defendant’s counsel left the court on the conclusion of the trial, not being engaged in the next case. Before the rising of the court the plaintiff’s counsel again questioned the subject to his Honor, who granted compliance.

Mr. Gregson, on the conclusion of this day’s sittings, made application to the Court in arrest of speedy execution, on the grounds stated in the following affidavit:-

Thomas George Gregson, the above-named defendant maketh [???] and saith that he this deponent was present in the Supreme Court during the trial of this action, before his Honor Mr. Justice Montagu, on Thursday the fourteenth day of December inst. and heard the information on oath and cross-examination of Thomas Riley, who appeared as a witness for the above-named plaintiff. And this deponent further saith that the said Thomas Riley, then and there swore, “that on the twenty-fourth day of May last past he saw on the premises occupied by the plaintiff, Drum, a plough in a fowl house and that two or three days afterwards he saw a man named Williams a servant of defendant holding the same plough, ploughing in a field belonging to the said defendant.” And this deponent further saith that the above quoted testimony given by the said Thomas Riley was not true, but a false and corrupt perjury, as this deponent is ready to prove by the testimony of six credible witnesses in confirmation of his own affidavit that the said plough was not so used or removed from the said fowl house.

And this deponent further saith that it is his intention forthwith to present and prosecute a complaint and information against the said Thomas Riley, for wilful and corrupt perjury in the matter above recited, as well as on other parts of his said evidence on the said trial.

And this deponent further saith that the said action was an action of trover, and that the jury returned a verdict for the plaintiff, as this deponent has reason to believe and does believe on the evidence which the said Thomas Riley did then and there falsely, wickedly, and corruptly give for the purpose of proving a conversion of the property sought to be recovered by the said action, of which property the plough before mentioned formed a part.

And this deponent further saith that, he this deponent has been informed by his solicitor, and verily believes that his Honor the Judge who tried the case did, on the application of the plaintiff, grant speedy execution. And this deponent further saith that in the event of such execution issuing by which he, this deponent will be compelled to pay the amount of the said verdict and costs, to the plaintiff, he this deponent believes that he, this deponent will be deprived of all remedy on the judgment being set aside upon the conviction of the said Thomas Riley for perjury, which this deponent believes to be inevitable.

The Judge (after looking over the affidavit) said “However willing I might feel, I have not the power now of staying execution.”

Mr. Gregson. - If I read the Supreme Court Act aright, it gives you full power, under the peculiar circumstances of this case.

Mr. Gregson. - Your Honor will find that the fifth proviso gives you the requisite power: Mr. Gregson then read the clause as follows:-

“Provided also that notwithstanding the issue of any such writ as aforesaid, by virtue of this Act, [particular emphasis was laid upon the words] it shall be lawful for the court, at any time within the term next following, to order the same to be stayed or set aside, and the judgment (if any be then entered up) to be vacated, and to enter the arrest of judgment, or grant a new trial, or new assessment of damages, as justice may appear to require. And the party affected by such writ, shall be restored to all that he may have originally lost thereby, in such manner as is provided in England upon the reversal of a judgment by writ of error or otherwise, (but without prejudice to the previous sale of any property under such execution) as the court may think fit to direct.”

Mr. Gregson observed that the words in the clause “notwithstanding the issue of any such writ as aforesaid by virtue of this Act,” referred to the second and third clauses, for making provision for speedy execution, and the mode of proceeding in such cases.

Mr. Gregson. - I rely upon the interference of the Court, principally on the ground of the plaintiff’s principal witness (Riley), on whose testimony alone the jury found that there had been conversion, having committed gross perjury. Of this, I assure your Honor, I have the clearest proofs, and I am now about to institute proceedings against him in the criminal court. It is only reasonable that execution should be stayed, until the result can be known.

The Judge inquired of Mr. Lewis, the Clerk of the Court, whether the certificate had been sent out.

The Judge. - You should have applied earlier; the certificate has been sent out, and I am afraid I cannot now interfere.

Mr. Gregson. - When my counsel left the Court, he did so under an impression that speedy execution would not be granted.

The Judge. - I think you misunderstand it. The action was in trover. When the case was argued here, I said that, in strict law, in some cases, a mere taking was not conversion. It is quite clear that in your case there was conversion. Had your counsel made application, I would have called upon the plaintiff to give you a bond, until the decision of the Court could be known on any application that your counsel might make to the Court in banco.

Mr. Gregson. - If the plaintiffs’ get execution, there will be no chance of getting the money back from them.

The Judge. - Your counsel should have objected to it; when I asked him, he said he should rely on the two points, to stay judgment, argued on the trial; first, that there was no proof of the servants having acted by your authority; and secondly, that none of the goods had been converted.

Mr. Gregson. - The only witness who swore to the removal of the wheat and the plough, was Riley. That he swore falsely as to the plough, I can myself avouch; and if his testimony was false in one particular, the inference is that it was false altogether. I believe the jury returned their verdict on this man’s perjured testimony. When your Honor said you would consider the application of speedy execution, my counsel left with the impression that execution would not be granted. It appears that your Honor, when the case was argued, said that in an action of trover, to prove conversion, it was necessary that there should be something more than a mere making. In not calling witnesses as to value, I was entirely guided by my counsel, [???] could prove by the most respectable men accustomed to such valuations, that the property which Riley swore was worth £250 was not worth £47.

Mr. Gregson. - I understood, from my counsel, that the Court had decided the point of law in my favor. My ground of application is, that the jury returned their verdict on perjured testimony.

The Judge. - I think you would still be without remedy; were I to grant the application, I think it would throw additional costs on your own shoulders.

Mr. Gregson. - I am willing that it should be so, if I fail in proving that Riley perjured himself. I only ask for time to abide that decision. But I think it due to myself, to my family, and to society, to arrest such proceedings by every possible means. It is on public principle that I make this application. When the case was tried before the Chief Justice, his Honor suggested that the plaintiff should submit to a non-suit. This they refused, and the jury returned a verdict in my favour. I then thought the question was set at rest. Conversion was not proved.

The Judge. - There was your own letters upon which the other side strongly relied.

[Here Mr. Hone, the Master of the Court, entered, and after a short consultation, the Judge proceeded.]

The Judge. - I do not see how I can give you any relief. I have issued a certificate, which is the same as judgment. There is no technical error complained of; no point of law raised; but if your counsel could have urged any other ground for staying execution than those upon which he before relied, I never should have granted a certificate.

Mr. Gregson. - If your Honor will give time, I will instruct my counsel to make application, or do it myself, and I have no doubt show sufficient reason for the interference of the Court. I could be ready in two days.

The Judge. - Then if your counsel can persuade me that I ought to stay execution, I will do so.

It was then arranged that Mr. Gregson’s counsel should argue the case at the Judge’s chambers at twelve o’clock on the following day (Saturday).

[1] On 3 December 1843, the court deferred judgment until the first day of term in 1844: Hobart Town Advertiser, 8 December 1843. For Gregson, see F.C. Green, ‘Thomas George Gregson (1798-1874)’, ADB, v. 1, pp. 475-6.