[succession – work and labour]

Johnston v. Lester

Supreme Court of Van Diemen's Land

Pedder C.J., 13 September 1843

Source: Hobart Town Advertiser, 15 September 1843[1]

            Four gentlemen, entitled to the designation of Esquires, having been sworn, the following actions were tried.

JOHNSTON V. LESTER

            The Attorney-General appeared for the plaintiff; attorney Mr. Johnston; Mr. Macdowell was for the defence; attorney Mr. Stanley.

            The Attorney-General said the plaintiff in this action sought to recover from the defendant, Mr. Joseph Lester, the sum of £22 9s. 8d., being the balance of a bill of costs, which was originally £45 9s. 8d. for work and labor done for his defendant, and at his request. Mr. Lester, he should shew was executor and trustee under the will of the late Mr. Barnes; and the expenses were incurred by his authority in taking out letters of administration, and for the professional services with regard to the late Mr. Barnes’s estate. The defendant had pleaded that he is not liable, but as he had already paid the sum of £15 towards the account, and had not disputed a single item of it, either by causing the costs to be taxed or otherwise, it did seem difficult to divine how the plea of non-liability would be made out. Mrs. Barnes being a devisee to the personal estate under the will, was desirous of borrowing £300 to carry on the business; and in attempting to effect this it became necessary to prove the will; but he should shew Mr. Lester’s sanction in every step of the proceedings. He then called -

            Mr. Joseph Armitage (managing clerk to Mr. Johnston), who said I know Mrs. Barnes, widow of the late Francis Barnes.

            By the Judge. - There is a bill of costs in this action, but no bill of particulars.

            Examination resumed. - I know Mr. Joseph Lester, the defendant; he was appointed executor and trustee under the will of Mr. Barnes; I waited upon him on the 15th April ; and after some conversation with regard to Mrs. Barnes’s affairs, he said he declined to prove the will at that time, as he wished to save expense; on the same day I spoke to him again; he said he was already out of pocket on account of expenses incurred; and I told him he was empowered to raise funds for necessary expenses out of the personal estate; he said Mr. Johnston had better apply for letters of administration; which Mr. Johnston afterwards did, by Mr. Lester’s consent; a short time after the citation had been issued, Mr. Lester renounced the executorship; this was about three weeks after the 14th of April. Mr. Lester gave instructions to Mr. Johnston to obtain the renunciation; but as the court would not grant letters of administration to the widow; Mrs. Barnes, Mr. Lester agreed to withdraw his renunciation, and expressed his regret that the estate had been put to expense. [Here the bill of costs was handed to witness, which had been made out by witness and Mr. Johnston. It was for £45 9s. 8d.] The witness continued. - I have had much experience, and should say the charges are fair and moderate. Mrs. Barnes paid £8. and Mr. Lester £15 by way of advance to Mr. Johnston to proceed in the business. Mr. Lester paid the money, and Mr. Johnston said he would find the other necessary expenses for carrying on the proceedings, but hoped Mr. Lester would let him have the amount of the bill of costs as speedily as possible. I think the charges reasonable.

            By the Judge. - I have been some time in the business, and I think it was necessary to perform the several acts which are charged in the costs. The £15 was paid a few days before probate was issued.

            Cross-examined by Mr Macdowell. - This bill of costs was made out “To the executors of the late Mr. Francis Barnes,” and not to Mr. Lester, I do not think it was necessary to take out letters of administration. [The Learned Counsel then went through the items of the bill, several of which were for “Attending Mrs. Barnes,” &c. “Waiting upon Captain Swanston, and taking counsel’s opinion, as to borrowing £300 on the personal estate,” &c.

            By the Judge. - What instructions did you receive from Mr. Lester.

            Witness. - He gave his authority for all that was done.

            By Mr. Macdowell. - When the check for £15 was given, myself, Mr. Johnston, and Mr. and Mrs. Lester were present; I do not believe Mrs. Barnes was present. I will swear that the check was not given to Mrs. Barnes, but to Mr. Johnston. The check was then handed to the witness, and read, it was as follows:-

            “To the Cashier of the V.D. Land Bank,

            Pay to Mary Ann Barnes the sum of £15, which place to the account of

                                    JOSEPH LESTER.”

            The check bore the endorsement of “Mary Ann Barnes,” and was dated on the 10th of June.

            Cross-examination continued. - That check does not assist my memory, with regard to Mrs. Barnes being present when it was given. I had the authority of Mr. Lester to see Captain Swanston, on the subject of borrowing £300.

            Re-examined by the Attorney-General. - Mr. Lester said that the horses, and the other personal property on the estate, would not realise their value, in the then state of the three, if offered for sale, and he would rather raise the £300 on security of the real estate. Mrs. Barnes is a devisee to the personal estate under the will.

            Mr. J. A. Henderson (clerk to Mr. Johnston), deposed that the bill of costs now handed to him is a copy of the one furnished to Mr. Lester. Witness, after the delivery of the bill of costs, took a letter to Mr. Lester, requesting the favor of a check for the balance. The defendant read the letter, and said, he had already paid £15, and should not pay any more until he was in funds. He did not deny the debt.

            Cross-examined. - Mr. Lester said, that he had already advanced a considerable sum to Mrs. Barnes.

            Mr. Macdowell said, in addressing the jury for the defendant, he should occupy but a brief space of their time. He did not know whether the plaintiff in this action had recently been studying a very indigenous work, in two volumes, entitled “Advice to Lawyers;” (a laugh), but he would take the liberty of putting the bill of costs into their hands, and they might judge for themselves. The first witness- and he seemed to be a gentleman of much experience in these matters - had said that the items were reasonable. Be it so; but there was not a tittle of evidence to show that the defendant was liable to pay, be they reasonable or otherwise. On the contrary, there was the clearest proof that the instructions to act were given by Mrs. Barnes, and that the services performed were on her behalf, and not for Mr. Lester. The check for £15 was drawn in favor of Mrs. Barnes, and endorsed by her to the plaintiff. Could anything be more clear? It had been said that the defendant wished to renounce the executorship, and nothing was more likely, for he had already advanced money for the use of the estate, and given to Mrs. Barnes the check for £15, although he was not in the possession of funds. There could be no question that the attempt to saddle Mr. Lester with these charges was altogether an afterthought; probably because there was a greater chance of obtaining costs from him. Then there was the receipt given to Mrs. Barnes herself on payment of the £8 by her, as follows:

            “To the Executors of the late Francis Barnes.

            Received of Mrs. Barnes, for Proctor’s fees, &c. in this administration, the sum of &c.”

            Then the bill of costs was made out “To the executors of the late Francis Barnes,” and not to Mr. Lester, of Murray-street; in fact the plaintiffs own case went to shew that he was never employed by Mr. Lester in such a way as to authorise him to act; and, after all, so far as it appeared, these costs had been incurred without producing the desired result, for the ostensible object - the attempt to raise £300 had failed altogether. He should call a witness - now the husband of the late Mrs. Barnes - to prove that she, and not Mr. Lester had been applied to for the money; and then, taking with them the bill of costs, and the two receipts when they retired to deliberate, it would be for them to say whether the plaintiff had shewn made out the defendant’s liberality.

            Mr. Richard Stephen was then called. He said: I know the plaintiff, and was present when Mrs. Barnes made an arrangement with him for taking out letters of administration. Mr. Armitage was with Mr. Johnston at the time; he wanted to know whether he should take out letters of administration, as the money could not be raised without, and he would perform the service as cheaply as any solicitor in Hobart Town. Mrs. Barnes said, Mr. Lester would not act; and Mr. Johnson replied he could take out letters of administration without Mr. Lester’s authority. Then, it was agreed between Mrs. Barnes and the plaintiff, that he should do so. I afterwards saw the plaintiff in Hobart Town, when he said the probate was ready, but he wanted £15 to take it out; and as Mrs Barnes was then in town, Mr. Johnston waited upon her on the subject. On the evening of the same day (June 10), I saw Mr. Johnston again at the Ship Inn, when he said he had got the £15. I requested him to make out the bill of costs on her behalf, and also to get the probate; and to be as reasonable as he could in his charges, as she had but little money by her, and he said he would deduct 15l from the usual charges. I had known Mr. Johnston before his arrival in this colony; Mrs. Barnes and myself were not then married.

            Cross-examined by the Attorney-General. - Mr. Johnston and Mr. Armitage told me that the renunciation of the executorship had been withdrawn by Mr. Lester, because the Judge would not allow it. Mr. Lester, before renouncing the executorship, had advanced between 60l and 70l.

            The Attorney-General having briefly replied, the learned Judge carefully summed up, and went through the evidence. The jury retired for a short time, and returned a “verdict for the defendant.”