The Sydney Herald
20 July 1835, p. 2, col. 3
Supreme Court - Civil Side
Before Mr. Justice Dowling and Assessors
Hay V Gordon. This was an action brought by the plaintiff against the defendant, Storekeeper at the Female Factory, Paramatta, to recover the sum of £60, under the following circumstances:- It appeared that, in the year 1829, plaintiff went into the interior, and having a sum of money in his possession, he called upon the defendant, who had been employed with him in the Commissariat Stores in Sydney, and were on the most intimate terms, for the purpose of placing it in his hands for security; defendant took possession of the money, and gave his undertaking in writing for the amount, with interest at 25 per cent. for the use of it until called for; plaintiff, at the same time, left his watch and a quantity of wearing apparel; he received, during his stay in the interior a sum of £4, and, on his return from the interior, a further sum of £5, together with his watch and wearing apparel, for which he signed a receipt written by the defendant; having, subsequently, occasion for the residue of the amount in defendant's hands, he made repeated applications without effect, being put off, from time to time, with a variety of excuses; plaintiff subsequently went to Moreton Bay where he remained a considerable time, and, on his return to Sydney, renewed his demands upon the defendant, with no better success than before; finding that defendant evinced no disposition to make any settlement of his claims he made a final application, taking a person with him as a witness to what defendant might say on the subject; defendant was sitting at the gate of the Factory when plaintiff arrived there, and a conversation took place with reference to the claim; defendant seeing a third party, and being aware of the object of the visit, evinced some hesitation in entering upon the subject, saying that he would arrange the matter on the following day; plaintiff said he would have no more of his tricks, and high words arose; defendant observed, that as it had come to that pitch, he could inform plaintiff that if accounts were balanced, he did not think there would be above a pound or two in his favor, but declined giving any further satisfaction, and expressed himself with the greatest caution in the presence of the witness, who remained at the distance of a few yards, so that he might hear what transpired. Plaintiff immediately instituted the present action; the undertaking of defendant was put in and proved. On the part of the defendant a receipt for £4, and also one for a watch and wearing apparel and £55, which bore the signature of the plaintiff, but on inspection it appeared, according to the opinion of a witness who was put into the box by the defendant's counsel, for the purpose of proving the plaintiff's signature, that the word ``fifty" with the corresponding figure at the head of the receipt, had been inserted subsequently to its execution for the watch and wearing apparel, together with a sum of £5 only; the word fifty seemed to have been written with different ink from that of the other parts of the receipt, and to have been crowded in; defendant had stated, that the body of the receipt had been written by Mr. Commissary Bowerman, which gentleman was subpoenaed by plaintiff's attorney, to give testimony to that fact, as it was doubted. Mr. Bowerman attended at the office of Mr. Allan, and stated, that he had not written the receipt for the defendant as stated by him. The receipt ran in these words - ``Received from Mr. J. Gordon, my watch, wearing apparel, and fifty five pounds, signed, W. Hay." It was therefore argued by the Counsel for the plaintiff as clear that the amount had been inserted subsequently. What man giving a receipt for so large a sum as fifty-five pounds, would commence that receipt with the acknowledgment of a watch and wearing apparel? the very nature of the receipt itself, independently of its appearance, where the words `fifty-five' had been crowded in, was sufficient to stamp it as an unworthy document, for the purpose of avoiding a just claim. Mr. Bowerman was called but did not appear; the receipt, however, was recognised as the hand-writing of the defendant. His Honor, in putting the case to the assessors, made some observation as to the undertaking of the defendant to pay interest at the rate of 25 per cent; the law had confined the interest to 8 per cent., but if parties were weak enough to give an undertaking for so enormous a rate of interest in the face of the law, of course the Court could not interfere.
The question for their consideration, looking at the evidence which had been adduced, and the document before them, was, whether the same was a bona fide release for the sum of £55, under the hand of the plaintiff; if they were of opinion that the words `fifty-five' had been inserted by the defendant himself for the purpose of fraud, they would say so by their verdict. The assessors returned a verdict for the plaintiff, of £121 7s. 5d.
Counsel for the Plaintiff, the Solicitor-General, Attorney, Mr. N. Allan; Counsel for the Defendant, W. H. Kerr, Esq., Attorney, Mr. George Allen.
Transcriber's Note: Hay v Gordon and MacDonald V Levy1833 are the earliest colonial cases cited for the Australian common law in respect of usury (the lending of money at above the legal rate of interest).
Transcribed from the newspaper by J. Raymond, Brisbane - 2000