Tetley v Sherwin, 1843

To-day being the first sitting day of the first Term, the Bar was attended by almost every barrister and solicitor in town amongst whom we observed Mr. Cartwright, the father of our Colonial Bar.

The Attorney General in the case of Tetley v Sherwin, moved for an order to stay execution, to enable the defendant to appeal to the Privy Council; an application for appeal had been already made to the Court, under the charter of the colony; but their Honors did not consider that this particular case came within the charter, nor that amount was sufficiently exact, the charter requiring it to be £1,000. The present motion, however, was independent of the charter, and was shaped under a common law right, and when a party felt aggrieved, he might appeal to the Privy Council. The learned counsel would not waste the time of the Court in arguing this point; but he contended that every subject has a right of appeal, independently of any charter. The only appeal they had in the present case, was to the Queen’s Privy Council, and his request was that their Honors should concede to his client the right to which he had a claim. It was true, there was no precedent in the case; but he had shaped his motion as a mere abstract right; and if the execution was stayed the defendant was ready to give any security which their Honors might think proper to impose.

The Solicitor General wished to know what right his learned friend had to ask the Court for an appeal. If there was a right of appeal, where was the necessity of coming before that Court? The charter had provided for appeals in proper cases, and if his learned friend was entitled to a common law right, let him have it; but let him also (the Solicitor General) have the same right, by a judgment. The Attorney general had stated, in his opening, his object in coming to that Court; without the interference of that Court, his client could not appeal; the Court would, of course, impose the proper security, so as to obtain as an ultimatum, honest and fair justice.

The Chief Justice observed, that it appeared the Court, in the present case could exercise a control over its own process; there was a clause in the charter to provide for this. As the clause now stood, judgment might be entered up immediately, and if the ground of appeal appeared frivolous, execution would be allowed to issue. But the Court thought that, in the present case, there was a ground of appeal, and it would call upon the party intending to appeal, to enter into the necessary security this term, when the judgment would be stayed.

The Chief Justice. - That would be settled by the Master; it was impossible for their Honors to say, as it would depend upon the amount of the verdict and costs.

Mr. Justice Montagu delivered his opinion at some length, as to the subjects’ right of appeal to the Privy Council, which his Honor was of opinion might be exercised in all cases of colonial decisions. His Honor was not aware that her Majesty had ever attempted to take away, he would not say this prerogative, but this duty of the Crown. There was a clause in the charter, expressly declaratory of the right to appeal, notwithstanding any previous provisions, and no matter what might be the opinion of the judges on the subject. A petition being presented, it was the duty of the Court to see whether it agreed with the charter, and the Court, as a matter of right and duty, would see that proper securities were given. If the Court thought that execution ought to issue, it would give an order to that effect; the more his Honor thought of this case, the more was he convinced that the judgment and execution were contrary to law and justice, altogether repugnant, in fact, to all law in the colony. His Honor here entered into some observations upon this long standing case, of a style and tenor, similar to what has been so frequently said upon the subject, and it was eventually arranged that the defendant should enter into such securities as the Court should think fit, the Master to report previously upon the case; and the securities to be entered into within a period; not exceeding four sitting days of the Court, viz: - a fortnight.

The case[2] of Tetley and Sherwin has at length been decided, as far as the courts of justice in this colony are concerned, and the defendant has been allowed an appeal to the Privy Council. We shall say nothing on the law of the case, in that we shall not of course resume to differ from their Honors, but in the justice of the cause, we cannot find the courage to dissent from the opinions of forty-eight perfectly unprejudiced and disinterested jurors. Almost every thing which can be said on the subject has been already exhausted, its bearings has been fully discussed, and little remains to be said on the abstract merits of the case. The plaintiff having had a verdict awarded him four different times and in every portion of the island where it could be tried, the defendants despaired of wearing him out in the colony, and did not wish to keep up the odium in which they were held by their continual efforts to contravene the opinions of their fellow colonists. But in law or war a long purse has many resources, and what could not be effected in this case by an appeal to the country, will in all probability be done by this means. Four successive law suits having pretty nearly, in their opinion, exhausted the resources of the plaintiff, never a very rich man, it is more than probable that he will be unable to bear the expense of an appeal 16,000 miles off. It is therefore likely that they will be at length successful, but we do not envy either the means or feelings which conduce to that success. But is it success after all? They will perhaps avoid paying what 48 jurymen have declared to be a just debt - have they been any thing the better for it? Are they now richer than if they had at once paid the policy? The law expenses would perhaps counterbalance this gain. But there are other losses. Has their business increased? We suspect an answer in the negative, and that if the truth were known, the directors would have deserved the thanks of the shareholders, had they paid the insurance three times over, if necessary, instead of contesting it. They may have ruined Mr. Tetley, but we much doubt if the honor has not been purchased at a price almost worse than defeat. The exclamation of the old warrior may be theirs: “Two such victories more, and we shall be undone!”

For Mr. Tetley, one resource still remains. The case can scarcely be prolonged further than the appeal to the Privy Council. Let the colonists come forward once again and subscribe the expense of the appeal. They have already declared by their verdict what is just - let them now support it.

Tetley v. Sherwin - The Advertiser of this morning, in announcing the decision of the Judges in this case, has a long lachrymose article, begging a subscription for the plaintiff. We of course have not now time to reply; but we shall assuredly do so in our next. It is quite sufficient, in the mean time, to copy the words of Judge Montagu, as given by the Advertiser itself:- “The more his Honor thought of this case, the more he was convinced that the judgment and execution were contrary to Law and Justice, - altogether repugnant, is fact, to all Law in the Colony.”.

In the case of Tetley and Sherwin, the Attorney-General appeared to show cause against a rule, nisi, obtained by the Solicitor-General that day week; that was a rule for an order to issue execution, unless cause should be shown against it. It would be in the recollection of the Court - the Attorney-General observed, that on the 17th of February last, an order was made to stay execution, until a further order had been obtained. The first observation which the learned Council had to make was, that the parties on the opposite side had slumbered from the last day of the last term to the first day of the present. A petition of appeal, on the part of the defendant had been made under the charter of Justice, and presented to that Court, but, the Court being of opinion, that the sum was insufficient, and for another reason, the petition was refused. The present motion, however, was made under the Common Law, which gives the subject the right of appeal; and not under the charter - and he, the Attorney-General, now came into Court, to show why execution should not issue. The costs were only taxed, and judgement entered upon the first of the present month, and immediately afterwards execution was sought. The defendant could not petition before judgment was signed, and that judgment might have been signed on the last day of last term, when the defendant would have had no cause of complaint. The learned Counsel was prepared to show, that a petition had been drawn, and settled by his learned friend (Mr. Fleming) and that the defendant intended bona fide, to present that petition to the Privy Council: the defendant, also, was here in person to enter into any security, for the full payment of the debt and costs, with such other expence, as might occur from the appeal: he had affidavits, also, to show, that the defendant had used all due diligence, and had committed no unnecessary delay in the matter: notice had been sent to the plaintiffs’ agents on the 5th of May, declaring the defendants’ intention to present his petition; and he, the Attorney-General, need not advert to what had already taken place in four Courts of nisi prius, nor need he refer to the reluctance with which their Honors had permitted judgment to be signed in each case.

The learned Counsel here produced the necessary affidavits, in support of the present proceedings and proposed Messrs. John Sherwin, and D. McPherson as suretics on the part of the defendant. On the reading of the affidavit, citing the reasons for the present proceeding, Mr. Justice Montagu observed, that the Court had not decided, that the defendant had a right of appeal at Common Law - that point had never been discussed: judgment not having been signed, the Court would give no opinion on the subject; judgment not being signed, there could no appeals. Mr. Butler had not stated the objections to the former petition fairly. It was the duty of an Attorney, and of any person, who undertook to quote the decisions of the judges, to quote them fairly and correctly.

The Attorney-General contended, that the defendant had offered everything, that the law could require; the motive was not made under the charter of justice, but on the Common Law side of the Court, and was consequent upon the present proceedings. Authorities for the course which had been adopted, had been found by the diligence and research of his learned friend Mr. Fleming; and he did not think he asked too much, if he requested their Honors to look back to the merits of the case.

The Solicitor-General replied at some length, and argued, that, where the sum was under £1,000 a party, who wished to appeal, could petition for leave to appeal; that he did not deny, but he contended, that the Court had nothing to do with that, nor had it any power to take security, &c., after judgment had been duly and properly signed.

The Chief Justice. The parties do not come here to get a petition under the charter; but the amount being under £1,000,they come to us to beg us to suspend execution, upon giving proper security, as they are going, bona fide to petition the Queen for leave to appeal.

Mr. Justice Montagu declared, that the power of the Court, over an action, was not discharged, until execution had been levied.

The Solicitor-General inquired if his learned friend, on the opposite side, had shown any authority by which their Honors could suspend execution, or deprive the plaintiff of the amount of his judgment? He submitted, that the Court had no power to suspend execution.

Mr. Justice Montagu. Suppose the Court thought that the judgment was founded in error, or that the verdict was contrary to law, and that if execution issued, it would be alleged?

Mr. Justice Montagu said, such a course, in the present case, would be quite useless; the panel had been exhausted; the Court did not always set aside a judgment for a new trial.

The Solicitor General again submitted that the Court had no power to suspend execution, unless it could be shewn that there was some irregularity or error in signing the judgment.

After some further conversation, their Honors having made a note of the authorities cited by both the Learned Counsel took time to deliver their decision.

Mr. Montagu applied for a writ of Habeas Corpus, to bring before the Court, Thomas Williams, and Jane, his wife, who had been committed to Hobart Town gaol, on four distinct charges of felony, by Mr. G. B. Foster, Assistant Police Magistrate of Brighton. The Learned Counsel moved for the writ, on the ground that there was no seal attached to either of the warrants.

The writ was granted, returnable on Friday, (to-day) and a writ of certiorari was issued to the Magistrate, to produce copies of the proceedings in the case.

We purposely abstained from noticing this long pending case in our last number, hoping that it would now be in our power to inform our readers that this unfortunate plaintiff had, at length, been permitted to reap the fruits of the oft-repeated verdict in his favor. To us, the present delay appears (to use the very mildest term) most unaccountable, for, in our humble judgment, the only question now at issue between the parties is so distinctly and clearly answered by reference to the charter of justice under which our Supreme Court is constituted, as to admit of no doubt. Neither can we excuse their Honors the Judges for this delay, on the score that their time and situation has been taken up with other matters before the Court; for it is a notorious fact, that never since the formation of the Court has it had so little business - its duties may be said almost to have ceased. However, to return to the case before us, it will be in the recollection of our readers that Mr. Tetley obtained a verdict, for the fourth time, in September last; the three previous trials had taken place in Hobart Town, but on the last occasion, upon the application of the defendant, the cause was tried at Oatlands. In the following term (November last) the defendant, first of all, applied for a new trial, on the ground so often gone over by him successfully, but the Judges were tired of granting new trials, and refused to entertain the motion, assigning, as a reason, that it was hopeless to expect a different verdict after so many failures. The defendant then immediately filed a petition, praying for leave to appeal to the Queen in Council. This application was opposed, on the grounds that the charter gave no right of appeal, unless the sum in dispute exceeded £1000. And it was further objected, on part of the plaintiff, that there was nothing to appeal from, there being no judgment recorded in the cause. Thus the term past over, and the plaintiff seemed as unlikely to obtain redress as ever. In the course of the next term (February), their Honors delivered their judgment, and decided that, under the charter, no appeal could be allowed by the Court for the reasons already assigned; but their decision was followed, or rather accompanied by an order that no execution should be taken out upon the judgment which the plaintiff was now permitted, by virtue of his verdict, to record, until the further order of the Court. With due deference to their Honors, we must here be allowed to observe that, in our humble judgment, this order was as illegal as it was unprecedented. How can the Court reconcile the issuing such an order in the face of its own judgment, solemnly, and after great deliberation, recorded to the contrary? But to proceed; the judgment having been at length recorded, the plaintiff, on the first day of the present term, moved for a rule to show cause why he should not take out execution in pursuance thereof. The show cause rule, as it is termed, having been granted, the defendant by way of answer, filed affidavits, stating that if the Court would stay the execution, it was his intention at once to appeal to the Queen, under what he termed (if we rightly understood him) his Common Law right of appeal. He admitted that under the charter, he could not ask the Court to grant an appeal; and, in short, that his present application was altogether irrespective of the charter. It was not denied by the plaintiff’s counsel that it is the right of every subject under the Common Law to petition Her Majesty when and on what subject he pleases, and, therefore, it was open to this defendant to ask the Queen for that leave to appeal against the judgment in this cause, which this Court cannot give. But it was strenuously denied that the Court can exercise any discretion in the matter, or suspend the operation of the judgment for an hour, much less could it with any shadow of propriety or law tie up the judgment for such a length of time as would necessarily be required to ascertain the result of a speculative petition, such as the defendant is now desirous (as a dernier resort) to forward to Her Majesty. We agree with the plaintiff’s counsel, that the Court has no right to assume that the prayer of the petition would be granted, and for this plain reason, that no such appeal was ever contemplated by the charter. Would it not appear very absurd in the Court to adopt the course so urgently pressed for by this defendant, if the verdict was only ten pounds? And yet where is the line to be drawn, unless you look to the charter for it? Shall it be contended that the Judges should have the power of exercising their discretion on this important point, and so control and nullify the verdicts of a jury? Surely not. In the course of the last argument, the defendant’s counsel were called upon to show a precedent in support of their application; but they were compelled to acknowledge that they had been unable to find a single case in point.

We understand that this case is likely to be hung up for a long time to come, in consequence of a difference of opinion on the Bench. The question before the Court was precisely that upon which we offered a few observations in our last notice of this case, namely, whether the Supreme Court has or has not power to order a stay of execution, so as to allow a party time to petition the Queen for leave to appeal against a judgment upon a matter involving a less sum than that fixed by the Charter of Justice? We much regret not being present in Court to hear the judgments given by their Honors on this interesting point; but though we have been so unfortunate as to lose the benefit of considering Mr. Montagu’s arguments, which were, it seems, in favour of a suspension of the execution, we will venture to repeat what we have already asserted, and in which we are now supported by the opinion of the Chief Justice, that the Judges are precluded by the Charter from granting appeals or entertaining applications of any kind with a view to sending home appeals where the sum in dispute does not exceed one thousand pounds. So much for the case of Tetley and Sherwin, both parties being still, it appears, in much the same situation as they were before the commencement of this long-pending and notorious suit, and all for want of a third Judge to turn the scale one way or other. Ere we dismiss this subject, we have a word or two for our cotemporary of the Review, whose readers, or such of them (if any there be) as do not take his statement with “appropriate qualifications,” will peruse with some degree of astonishment our report of this matter, inasmuch as they were informed in the last Review, not only that “the judges had felt that it was their bounden duty, their sworn duty,” &c. &c. “to give the defendant the right to which he is legally possessed,” but, adds this veracious and, at the same time, modest and unassuming journalist. “It is impossible for anything to be clearer than the ground upon which both the Judges have come to their decision.” There are many more such facts and arguments put forward with equal assurance. Admirably calculated, as these are, to mislead the unwary, we must, nevertheless, pass them over, as well as the fulsome praise lavished upon the Directors of the Insurance Company concerned, as unworthy of further notice, contenting ourselves with observing, that if our cotemporary has not, to use his own words, “written thereon until he has bewildered himself into confusion,” we must adopt the less charitable conclusion, that there is “method in his madness.”

We are not in the habit of entering into controversies with our contemporaries unless on subjects of considerable public importance, whereupon we find it necessary to correct error or mis-statement. Within this category is an article in the Courier of Friday last on the subject of the eternal case Tetley v. Sherwin. We have already so completely disposed of it, that we did not think it possible that even legal ingenuity could give occasion for further discussion; nor indeed should we have considered notice of it necessary, but for two or three points of essential importance wholly irrespective of any other considerations arising out of the case itself. We pass over the statement of our contemporary that the Supreme Court has at present little business before it; or whether there has or has not been any unnecessary delay on the part of the judges in finally concluding this case: we proceed to the reference of our contemporary to the four trials which have taken place. Never certainly was there an instance known of four successive juries in any country delivering verdicts directly in the teeth of what all the judges of the land declared to be the law - we say never was an instance before known of this. In two ways only can it be accounted for: first, in consequence of a violent and unfounded prejudice excited by interested and malicious persons against the Insurance Company the defendant; secondly, because that the three first juries were in truth and in fact essentially the same, and the fourth jury actuated by an esprit de corps considered it a point of honour to be of accord with their predecessors. The verdict therefore is in real fact but of one and the same jury. It was perhaps not generally known until the fact was declared from the bench, that there are not quite two special jury panels for Hobart Town - not quite one for Launceston - and about half a one for Oatlands. The statement therefore of our contemporary as to four juries must be taken with appropriate qualification. And even had there been four separate and distinct juries, the law of the land expressly provides that in every case of a verdict contrary to law (and so long as judges occupy their seats they have a right to be considered to correctly expound the law) is delivered, the party against whom it is passed has a right again and again to a new trial until the law shall have been fulfilled. Otherwise, of what possible use would be either law or judges? The whole machinery of the common law, of the statute law, of judges to deliver the effect of either or of both, would be not only wholly unnecessary, but an expensive incumbrance, when the dicta of juries should be held paramount to all law. If this system is to exist, away with a “the books” - away with all judges - for the jury panel will combine the entire functions of both. If the judges are to blame at all, it has been by yielding - dangerously yielding - surrendering their rightful privileges bestowed upon them by the Constitution for the protection of the subject, to the illegal usurpation of one of the co-ordinate portions of a court of justice - the jury. The judges would have done well had they directed new trials until the law was fulfilled. It is certainly the established practice of the courts that a plaintiff cannot be nonsuited against his own consent; and why? because it has been the custom invariably until the case of Tetley and Sherwin, for the counsel for the plaintiff in all cases where the judges declare the law against them, or that there is not sufficient evidence in support of their cases to justify the judges in sending them to the consideration of the jury - it is, we say, the invariable practice in all courts in such cases for the plaintiff to elect a nonsuit, that he may not be precluded from again bringing his case forward in a better form, or with sufficient evidence. Not so in the case of Tetley and Sherwin. The counsel for the plaintiff relying upon the prejudice to which we have before referred, pertinaciously opposed the decision of the judges as to the law of the case, and secure of a verdict from the juries; took the chance of wearing out the defendant under the effect of popular clamour and thereby to force him into the payment of a highly illegal demand by equally highly illegal means. Whatever may be Judge Willis’s defects, he cuts the Gordian knot in cases where he sees the plaintiff by his own shewing is defective either in law or in evidence, by directing a nonsuit, summarily thereby closing the case for a time. This may be a vigor “beyond the law,” as the late Mr. Windham said, but it would have been well both for the plaintiff and defendant, if the Judges exercised it in the present case. We say this because the plaintiff’s counsel well knows, none better, that the appeal to

England

will not occupy there one moment’s consideration. The English Judges will confirm it upon the bare relation of the case, and as to “reference to Lloyds,” the whole body of insurance men would never be brought to believe that such a case could have been entertained in a court of law for an instant! And now as to the appeal itself. Our contemporary has written thereon until he has bewildered himself into confusion. It is impossible for anything to be clearer than the ground upon which both the Judges have come to their decision. It is an established principle of the English Constitution that any common law right of a subject is indefensible. The right of appeal is such. Oh! but says our contemporary, “let execution issue and the money be paid, the defendant may then appeal as soon as he likes.” Why, what a monstrous position would this not infer! Of what use would the right of appeal be, if it was not accompanied with the right of suspending payment upon giving security. It would be indeed, to all intents and purposes, a barren right. It is the bounden duty of the Judges, their sworn duty, to protect the right of the subject, and not permit it to be violated, as it would be in such case by any reference to the Charter of Justice. The Judges felt this, and have acted accordingly in giving to the defendant the right to which he is legally possessed, they have acted in obedience to their oaths, to the Constitution, and to the law.

Our contemporary reminds us that there is no precedent for the application for suspension of execution during appeal. It would indeed be strange if there was, for no such application was ever before found necessary, the right of appeal carrying with it the right of suspension of execution as of course. But what if this is the first precedent? Must there not be such an one in all cases? If this objection was to avail there could be no such thing as precedent, for the first application which occasioned it would be at once knocked down by the conclusive objection - “no precedent can be found.”

The Directors of the Insurance Company are entitled to the greatest praise for the firm and steadfast manner in which they have withstood the violent clamour which has been so industriously excited against the Company, the affairs of which entrusted to the management. The body of the Proprietors in public meeting assembled so felt; and passed to the Directors a very handsome vote of thanks accordingly. Nor is it for the careful protection alone of the large property confided to them that those gentlemen are entitled to such praise; a highly important public principle is involved, and without making any reference to the particular claims of the plaintiff in this case, we are all convinced that a very short time will have elapsed, when prejudice and private feeling having passed away, the Directors will receive the thanks of the public at large, as warmly as they have done those of their constituents, the Insurance Company.

We should be obliged to our friend, Alderman Kerr, of the Port Phillip Patriot, if he would be so obliging as to mention the Launceston paper from which he derived the information he thus propounds:-

The long pending case of Tetley v. Sherwin, brought to recover the amount of insurance on the Paul Pry, the property of the plaintiff, has, we observe by a late Launceston paper, at length been settled. Defendant was the accredited agent at Launceston of the Van Diemen’s Land Insurance Company, and undertook the insurance of the vessel. Previous, however, to the insurance having been regularly entered on the Company’s books, the vessel was lost, and the Company refused to recognise the transaction. An action was immediately instituted by the plaintiff, and a verdict recorded in his favour; but, dissatisfied at this, the defendant obtained a new trial, which had the same result, and, the case being tried a third time, a similar verdict was returned. The Company then referred the matter to England, but, no disposition being there evinced to alter a verdict, the correctness of which had been borne testimony to by not less than three colonial juries, it has at length handed over the insurance money with costs to Mr. Tetley.

The Patriot has, we apprehend, been impound upon into the insertion of the above; there is not one word of truth in the whole statement.

[1] See also Launceston Courier, 13 February 1843. Sherwin was a well-known banker, merchant and teetotaller: A. Fysh, 'Isaac Sherwin (1804-1869)'. ADB, v. 2, pp 441-2.

This case went on appeal to the Privy Council. See In re Sherwin, 1844 (Privy Council decisions) ((1844) 4 Moo PC 311; 13 ER 323). See also Tetley v Sherwin, 1841; Tetley v Sherwin, 1842.

[2] In the Advertiser of 10 February 1843, this editorial comment preceded the case report reproduced above.

[3] See also Murray’s Review, 5 and 12 May 1843; Tasmanian and Australian Advertiser, 30 June 1843.