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Decisions of the Nineteenth Century Tasmanian Superior Courts

Fitwell v. Testy [1829]

court room and proceedings, description of - sale of goods

Supreme Court of Van Diemen's Land
Pedder C.J., July 1829
Source: Colonial Times, 10 July 1829 [1]

Passing down Macquarie-street a few mornings ago, my attention was attracted by seeing a number of persons entering a large unfinished stone building, opposite the Church, and which upon enquiry, I found was the Court House, where the Criminal Sessions are held, and Civil Causes tried. - Among those who were pressing towards the door-way, apparently in great haste, was a tall thin Gentleman dressed in black, tripping along on his toes in a pace somewhat between a walk and a run. He leant his body forward, the projection of his back, which was unusually long, forming a very considerable angle. In his hand, which I noticed as he passed, was larger than ordinary, he held a bundle of papers. Just as he entered the broken enclosure in front of the Court House, he stopped for a minute or two to converse with another Gentleman, who was travelling the same road, but who, so far from having any hurry in his look, seemed wonderfully quiet and composed. Ever and amon[g] during their [s]hort conference, the tall Gentleman had recourse to a snuff box of extraordinary dimensions; the box indeed appeared to have been made for the hand, and the capacious power of the nose for both. The Gentleman, who helped to form the tète a tète, was also dressed in black. He was much the shortest of the two - wore his hat a little on one side, inclining the head a little further still; -- had rather a pleasant smile on his countenance, which was likewise full of meaning or expression, and I observed that his mode of talking was remarkably quiet. Upon my enquiring of a Gentleman, whom I had met at the Macquarie Hotel, what all this was about, he told me there were some civil causes for trial, and I determined therefore to make one of the lookers-on, and to see in what form justice was administered. Before I had time to cross the street for this purpose, my attention was attracted by the approach of a curricle, at a very rapid rate, drawn by two ponies, who were scampering at full speed, the one in a canter with the left leg foremost, and the other in a run, such as is known in England by the name of the butcher's shuffle. The vehicle turned the corner with such velocity, that I was nearly run over, and only saved myself by a hasty retreat. It stopped at the entrance of the building, and the person who had been driving, alighted and bustled towards the door, as if all the affairs of the universe were upon his back. He was short and fat, of a very merry countenance, somewhat resembling such as a painter would select for the original of the laughter loving God, and there was a certain something in his air and manner, as much as to say "Ecce magnus sed parvus homo." I followed these personages and several others into the building, and passing through a small sort of entrance hall, presently found myself in a capacious room or chamber, with a number of windows opposite each other, which producing cross lights, and admitting the full force of the sun's rays from the north side, must not unfrequently annoy the persons most requiring a steady and not glaring light. Across the middle of the room, about half way from the door, was a bar or railing, within which stood a large table, in size and arrangement not very convenient for the profession, two pews o[f] seats, resembling those of a Church, being on the left, [clo]se to the wall, and one of the same sort on the right, and immediately in front was an elevated seat across the room, in the centre of which was a sort of desk, as if intended for a Chairman or other person holding pre-eminence, and over which was an unsightly sounding-board, so unsoundly fixed as to threaten a sudden descent, and the natural consequence of putting out the lights occasionally below it. Upon a chair at the left-hand corner of this desk, sat one of the Gentlemen, whom I had seen enter from the street; exactly opposite to him, in another chair, was a young man, in the costume of a Barrister, and whose countenance seemed familiar to me. - Round the table, upon forms, were several other Gentlemen, amongst whom I recognized the tall snuff-taker, and the short curricle-driver, whom I had before seen, together with many others. Presently a door in one corner of the room opened, and a tall Gentleman, wearing the gown and wig of an English Barrister, entered and immediately proceeded to the desk in the centre of the long seat under the front wall. His countenance did nto seem unknown to me, although I could not immediately recollect where I had been introduced to him, but a[f]terwards a friend brought to my recollection that it was at the Governor's dinner party. Some little preliminary business having been disposed of, and two more Gentlemen in plain clothes having joined him who last entered, one of those who were sitting on the form rose and said, "if His Honor pleased, to cause, Fitwell v. Testy, was ready for trial." The Court having nodded assent, the pleadings began. From the opening speech of the Lawyer, I found that Fitwell was a tailor, and had been employed by Testy to make sundry articles of cloth[e]s, which he had done, and had sent them, acc[o]mpanied by a bill or account, amounting to £14 2s. 10d. - with the additional demand of fourteen shil[l]ings and six-pence for a velvet collar, which was the sole ground of action, Mr. Fitwel[l] having stated in his bill
"A blue coat and trimmings complete . . . . . £5 15 0
"Velvet collar to ditto . . . . . . . . . . . 0 14 6
Whereas Testy contended, that it could not be complete without a collar, that it only had one, whether velvet or cloth was no matter, and that he was not therefore liable to pay as if the coat had been furnished with two collars. His Honor enquired if it could not be settled out of Court, but neither party ch[o]sing to accede to this proposal, the case proceeded. After witnesses for the plaintiff had been examined, the Gentleman who occupied the chair on the floor, on the Judge's left, rose, and putting his left hand into his breeches pocket, and giving his head the exact proper inclination to the right, cross-examined one of them as follows:--
What are you? - What am I, Sir? a man.
I did not ask you whether you were a man or woman, I wish to know what is your trade.
Witness. - A tailor.
Lawyer. - Well now Mr. Mantailor, do you know a coat when you see it?
Witness. - I should think so.
Lawyer. - I did not ask you what you thought - answer my question, Sir.
Witness. - What sort of a coat do you mean, Sir?
Lawyer. - I ask you once more if you know a coat when you see it?
Witness. - Yes, Sir.
Lawyer. - Pray how many collars are there to a coat?
Witness. - How many collars are there to a coat, Sir, why every body knows that.
Lawyer. - Well then, if every body knows, you can have no difficulty in telling me - how many collars are there to a coat, I again ask?
Witness. - Why, sure Sir, you know as well as I how many collars there are to a coat.
Lawyer. - Perhaps I do, but still I wish you to tell me; come, Sir, I'll ask you another question, and perhaps we shall come round at last. How many tailors do you reckon there are to a man?
Witness. - One tailor to a coat, Sir.
Lawyer. - One what?
Witness. - Collar to a coat.
Lawyer. - (repeating) one collar to a coat.
Witness. - Yes, Sir.
Lawyer. - I thought we should come to the point in time; now, if there is only one collar to a coat, do you consider that a coat is complete without a collar?
Witness. - No, Sir.
The cross-examination was pursued much in this way for some time, when the case for the plaintiff being ended, the Lawyer, who had cross-examined the witness, rose and addressed the Jury on behalf of the defendant, commenting very happily on the admission of the plaintiff's witness, that a coat had but one collar, and that it was not complete without it. - The Gentleman neither wore a gown or wig. After he had ended, the young Barrister immediately opposite to him, addressed the Court in support of the plaintiff's claim. He had a good clear voice and a wonderful degree of self-possession, and his consumptive and delicate appearance would scar[ce]ly have warranted the expectation that his physi[c]al powers were equal to the deep sonorous tones which proceeded from him, or to the exertion which he displayed. The points upon which he chiefly laid stress were, that, although a coat might not be complete without a collar, it did not require a velvet collar, that the velvet collar was an extra, for which, it having been for the defendant's own pleasure and fancy, he was as much bound to pay as in a case where a contract might be made to complete a house or other work, and if the party afterwards chose to make alterations or additions not included in the contract, they were at his own cost and expence - that £5 15s. had been the price named by Fitwell for the coat, to which Testy had agreed, and that he afterwards said "let me have a velvet collar." He went on farther to argue, that it was by no means incontrovertible that coats might not have more than one collar - that he had seen coats with seven or eight collars, and had found the comfort of them when travellin[g] in cold weather. Here he was interrupted by the opposite Lawyer, who said "capes - not collars." - that even one collar was not necessary to complete a coat, for it was within the daily observation of every one that there were some coats of that peculiar make as to shew no collar, unless the straight neck-piece might be called a co[l]lar, and which might with equal propriety be termed a cape, as the other pieces of cloth, the mention of which had drawn upon him the interruption of the learned Counsel. Under these circumstances he confidently trusted to receive a verdict for the plaintiff.
The Judge then recapitulated the evidence in a husky tone of voice, frequently altogether inaudible, making constant breaks, or hesitations, and taking large quantities of snuff as he proceeded. He doubted very much upon which side the evidence preponderated - it was entirely a question of fact rather than law. He explained, however, what the law was with respect to contracts, and left the case wholly in the hands of the Assessors, who presently returned a verdict for the defendant. During my attention to the arguments and decision of this cause, I discovered how extremely difficult the construction of this building had rendered it to hear what passed - that in fact, at a very short distance from the elevated se[a]t before mentioned, nothing could be distinctly made out, when the voice of the speaker was not raised, and when perfect silence was no maintained. As I left the Court, I fell into conversation with a Gentleman with whom I was slightly acquainted, and who, like myself, had been a bye-stander, observing to him, that from what I had that morning witnessed, I presumed law was very cheap in this Colony. - "Cheap, Sir," he replied, with the utmost astonishment, "you were never more mistaken in your life - Law, Sir, is not only very scarce here, but it is very dear - there is a certain bastard commodity called law, which is very current, but even this is so much clogged by expenses, that it is perfectly ruinous, and yet the most surprising thing is, almost every person encourages it." "That's very strange, Sir," said I, "the Gentleman who cross-examined the witness seemed clever and ingenious, and I thought the Judge explained the law clearly." "Pretty well as to that," my friend replied, "the defendant's Counsel is about one of the best of them, but many of his geese are swans, and the Judge would do well enough, if he had not so much of the Ex-Chancellor's doubts about him, b[u]t you must come and dine with me, and I will then explain the subject more fully to you. You have only to-day heard or seen two or three of our Law-expounders. I will introduce you to the acquaintance of some more of them, and I will also let you into a knowledge of some of the sweets of the profession, and of the terrible consequences which attend such infatuation, as we have this morning witnessed, but which I am sorry to say, is very common. The Law Establishment of this Colony is a grievous tax upon the Public, and a dreadful scourge to individuals, but we will talk more about it over a bottle of wine. Mind my dinner hour is five, and I shall expect you."
The information I acquired by my visit will be communicated some other time. In the interim, I subscribe myself, gentle readers, you faithful and obedient,



[1] The names of the parties were, of course, invented for the purpose of satire. This is reproduced for its rare, although exaggerated, account of the court house and its occupants. Simon Stukeley was the pseudonym used by the convict writer Henry Savery, who wrote the first volume of Australian essays published in 1829, see C. Hadgraft, 'Henry Savery (1791-1842)', ADB, vol. 2, pp. 419-20.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania