Colonial Times (Hobart, Tas. : 1828-1857) Tuesday 9 November 1841 p 3 Article
SUPREME COURT-SITTINGS IN BANCO.
TUESDAY, NOVEMBER 2.
In re Thorne v. Danby and anr.
In this, case Mr. S. Stephen moved that the former verdict should be set aside, and a new trial granted, on the ground that the verdict was contrary to evidence.
Our readers will recollect, that the plaintiff brought an action, at the last Civil Sittings, against Howard and Danby, the Dealers on the New Wharf, for the price of some wheat, when the defendants setup, that the wheat was not the property of Thorne, but of one Bartholomew Reardon, an In- solvent. The Jury, after being shut up for six hours, returned a verdict for the defendants, by three-fourths of their number, the other portion being for the plaintiff. The learned counsel for the plaintiff, contended, that there was no evidence that the wheat belonged to Reardon, while the testimony of Jones, Bingham's boatman, who brought the
wheat to Hobart Town, went to show a contract of the sale to the defendants.
I Mr. Justice Montagu.-That was no evidence of a contract for sale, but a mere matter of opinion ; and the witness had stated, that the wheat had been refused to Thorne, at Sorell, as a person not fit to be entrusted with it ; there was no proof that the wheat was in Thorne's possession.
Mr. Stephen urged, that a sale was proved by the testimony of Jones, and that the selling gave Thorne a right of ownership in the wheat. The point resolved into the simple question of sale and delivery, of who sold, and who purchased ? There was no other question raised ; but in consequence of Bartholomew Reardon's name being mentioned, a doubt was raised in the minds of the Jury ; there were however two B. Reardons, the elder and the younger, the former being an insolvent; but there was nothing to show that the wheat sold by the plaintiff belonged to Reardon the insolvent. Lord Chief Justice Tenterden had ruled, that the question was, not with whom the contract was made, but by whom the business was carried on, and that person had a right to sue ; so that the learned counsel apprehended the rule of law to be, that the seller was entitled to action, although only an agent, unless the plaintiff steps in and interferes, which would be a bar to the action of the agent ; it would upset the doctrine altogether, if the buyer was allowed to put in a plea, that the property did not belong to the seller. Mr. Stephen here cited several cases in support of his argument, which Mr. Justice Montagu noted down.
His Honor Mr. Justice Montagu enquired, whether he had directed the Jury to consider the question of fraud, and if so, to give no verdict to the plaintiff?
Mr. Stephen replied in the négative! the jury must have thought that the wheat was Reardon's ; not that Thorne never had possession, but that it was not his.
Mr. Justice Montagu referred to the alteration of the weigh-tickets-the first being made out as from Reardon to the defendants, the others as from the plaintiff- the assignee of Reardon claiming in the mean time, so as to cause the alteration.
Mr. Stephen observed that there was no evidence to show that the Assignee had claimed " in the mean time" besides all tho wheat might not havo belonged to Thome, and tho first portion weighed might have been the property of Reardon, junior; still the plaintiff, as the parson selling, was entitled
to recover ; if the defendants could show that they had paid Reardon, it would be a different thing.
Mr. Justice Montagu-Do you recollect if the Jury considered the alteration a trick to defraud the 'insolvent's estate, that I directed them to give no verdict to the plaintiff?
Mr. Stephen-I do not exactly recollect your Honour's direction ; I remember your observing upon the circumstance, but I cannot distinctly remember how.
Mr. Justice Montagu-Do you mean to say, that if Reardon and Thorne had combined to cheat the-creditors, Thorne could recover?
Mr. Stephen-No ; if there was evidence of that fact, but here there was none ; there was no evidence to show that the wheat belonged to either of the Reardons.
Mr. Justice Montagu, after some consultation with the Chief Justice, observed that the act of council no verdict was to be disturbed, unless it could be shown that substantial justice had not been done; the Act was explicit upon this point, which it was incumbent upon the party to show.
Mr. Stephen remarked that, as three of the Jury were for the plaintiff, there must be some doubt.
Mr. Justice Montagu-We must act upon our own opinion in this respect, and not upon that of the Jury.
Mr. Stephen-How then can there be any use in trial by Jury? There are no facts to show that substantial justice had been done. I must say that I was most dissatisfied, as well as surprised, at the finding of the Jury; I anticipated a verdict, as did every body around me, and had the case been tried by nine other persons, I should have had one. Your Honor has issued a speedy execution for the costs, so that you must be satisfied in your own mind upon the subject. I hope, however, that your Honor will let the rule go, that we may have the benefit of your Honor's notes ; for, from the way in which business is done, we have no accurate notes to refer to.
Mr. Justice Montagu observed that it was the duty of the Solicitors in the cause to take full and accurate notes ; if they did not do their duty, actions ought to be brought against them. It was a curious argument for bringing the defendants there again, and to have discharged against them the whole of the plaintiff's artillery, because the attorney had not done his duty.
Mr. Stephen said, that he had no doubt the attorney had taken notes, but they were not full enough for minute reference.
Mr. Justice Montagu said, he was quite satisfied at the time, with the finding of the Jury; His Honor thought, with them, that the wheat belonged to Reardon; he now recollected signing a certificate for speedy execution, and nothing that had been then said, had shaken his opinion of the case.
After some farther brief remarks, their Honors would take in to consider their opinion.
The Attorney-General, just as the Court was rising, made some application in the long pending cause of Lordimá Knopwood, but the learned counsel spoke in so low a tone, that we could not catch its purport ; from the obbervations of their Honors however, it appeared to urge the Court to some decision respecting tile settlement of a decree, which the Chief Justice, said, he had been prevented from completing, they wanted time to look into the several documents.
We have given this as the substance of what occurred ; but from the jealousy with which our reports are scrutinized, and the extreme aridity with which the slightest error is pounced upon, and carped at, by envious rivals, we will not vouch for the precise accuracy of the last paragraph ; but as regards the first case, that of Thorne v. Danby, we will answer for its correctness; and, we may state, that we have repotted it somewhat lengthily, to show the public that however loose and clumsily constructed the Insolvent Act may be, it is very evident that both Judge and Jury are determined to discountenance the slightest suspected attempt to commit fraud.-REPORTER.]
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