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Decisions of the Superior Courts of New South Wales, 1788-1899

Bucknell v. Moran [1829] NSWSupC 74

trespass to land - tenancy, eviction - damages, assessment of - self-help

Supreme Court of New South Wales

Dowling J., 9 December 1829

Source: Sydney Gazette, 10 December 1829[1 ]

This was an action of trespass, in which the damages were laid at £500.

The first witness called proved the execution of deed whereby the defendant agreed to lease to the plaintiff for seven years, a certain farm in the district of Hunter's river, called Duck River Creek Farm, consisting of one thousand acres, at the rent of £100m, to be paid half yearly; the plaintiff undertaking, if the rent were not so paid to deliver up peaceable possession to the defendant, and also to preserve and dispose of the crops then in the ground, for the benefit of the defendant, receiving one fourth of the net proceeds as a remuneration for his labour in so doing.

William Muston -- I witnessed this paper; it is signed by the defendant, Dr. Moran; I was in the service of the plaintiff, on defendant's farm called Duck River Creek; I saw possession of the farm given by the defendant to plaintiff; the premises consisted of a dwelling-house and out offices, and a large farm; the cultivated ground was fenced in, and surrounded the dwelling-house; there was some little altercation between plaintiff and defendant, when the latter was giving possession; I was called in to witness this paper, and after I had done so, defendant rode away, wishing plaintiff good morning and joy with the farm; this was on the 12th of August, 1828; on or about the 21st of April, this year, I know that plaintiff was summoned before the Bench of Magistrates at Wallis' Plains, about 8 miles from Duck River Creek; I saw plaintiff and some of the men on the farm proceed to attend the summons; on the same day, after plaintiff had gone to the Magistrates, I saw defendant on the farm, when I first saw him he was walking near the house with the key of the outer door in his hand; Miss Bucknall was with him; the door was locked; about half and hour before I saw defendant, I saw Miss Bucknall going toward the house, and afterwards I saw her going across the ploughed ground towards he [sic] men's huts, in the direction from the house; she was running towards the hut, and called out for me, and I saw her fall down; I accompanied her back to the house, and heard her say to defendant, ``Doctor what have you done, and why do you keep me and my brother out of the house ?" defendant said he could not think of being robbed of his rent and wheat, and have his out-houses burnt down; She asked defendant to allow her to go into the house, which he refused, and desired me to accompany her and her brother, a boy of seven years old, to Mr. Eales's farm; defendant then gave the boy's clothes out of the house to Miss Bucknall; after this a man named James Moran, a servant to defendant, remained in possession of the house; at this time plaintiff had both corn and potatoes in the ground; the land on which the corn and potatoes grew, was part of Duck River Creek Farm.

Cross-examnied [sic]. -- I am assigned to plaintiff, and have been in his service for two years; he has told me, after this trial is over, that he would allow me time to work for myself, and a bit of ground; he said, if he got the farm again, that I should remain in the house on it; I have said to my fellow servants, at different times, that I should stand in an aukward [sic] situation if plaintiff lost this cause; I have never been asked to say that defendant dragged Miss Bucknall out of the house; I have had conversations about my evidence twice with defendant; he wrote down what I had to say; plaintiff had eight or nine men on the farm; Miss Bucknall did not sleep in the house; she remained at Eales's farm; I saw Dr. Moran give her the boy's clothes out of the house, and also the plaintiff's writing desk; I saw nothing thrown out of the house by defendant; the furniture was removed from the house by two of defendant's men, before plaintiff returned; I did not see defendant behave with any violence to Miss Bucknall; I heard him say to her that he was sorry for Mrs. Bucknall and the children, but that plaintiff treated him so ill he was obliged to act as he had done.  I saw a quantity of wheat taken away from the farm early on the morning of the 21st of April, before defendant came.

Re-examined. -- Plaintiff has never told me to say anything but the truth in this case.

Martha Bucknall, daughter to the plaintiff, said, on the morning of the 21st of April, I went to the house at Duck River Creek, and found my brother there; before this I met my father on the road coming from the house; I was going from Eales's to take care of the house and of my brother; a little after I had been in the house, defendant came in and after paying the compliments of the morning, asked if there were any water-melons on the farm; I said I believed there were plenty, and he asked if the child would go and fetch him one; after the child was gone, defendant said ``Miss Bucknall, it will look very strange for us to be in here together, you had better walk outside"; I said I did not think it strange and went as far as the door, but it being very hot I did not go out; defendant then told me not to stand at the door, and led me a little way from it, and before I could turn round he had locked both the doors and one of the windows: I asked him why he locked me out; he said he had got possession and would keep it; I had my hand at this time in one of the windows and said I would not remove it till my father came home, and he then pushed me away; I then went to call Muston, and he returned with me to where defendant was; I was very frightened, as I did not know what was the meaning of defendant's conduct; on my return to the house I saw defendant outside with a key in his hand; defendant said I must not stay there, but must go back to Mrs. Eales's and take my brother with me; I asked defendant for my bonnet and some things for my brother out of the house; he went in to the house and gave me the things out of the window; and when he came out he said my father had been robbing him of his wheat; I told him he might have come some other time except when only two children were there; I then went with Muston and my brother to Mrs. Eales's.

Richard Cooks; I am in the service of plaintiff, and was so on the 21st of April last; he left the farm at Duck River Creek, to go to the Court-House, as I understood, on that day, about half-past nine in the morning; I saw defendant on the farm between 11 and 12 o'clock on the same day, and also about 2 o'clock; I heard him give two men who were with him, orders to take my master's goods out of the house, saying that the time was very short; they did so, and I saw them empty the house of tables and chairs and beds; they were placed on he public road, and a great many things broken; defendant told me I must leave the farm, and go to Wallis' Plains, or I would be punished; I told him I could not think of leaving the farm without my master's permission; he said I had been summoned to court, and insisted that I would leave the farm by sun down; I said I had not been summoned, and could not think of leaving till my master's return; I then asked him to permit me to put the things by in a careful manner, and he told me to quit the farm, as he did not wish I should incur punishment through being obstinate; defendant then went into the house, and I went to my hut; the furniture lay where there were placed till the following morning, when I and the overseer went and collected the articles together, but did not remove them from the spot; I do no know what became of them after; one of the men who removed the furniture out of the house had a pistol.

Matthew Baker -- I am overseer to the plaintiff; I was with him on Duck River Creek farm on the 21st of April last; I was summoned to the Bench at Wallis' Plains on that day, with some other of the men, and saw my master there; I was summonsed by Dr. Moran on a charge of robbing him; my master was also charged; the charge was dismissed; when I returned to the farm, I did not go up to the house till the following morning, when I saw defendant and two of his men there, and my master's goods lying on he road; several articles were broken.

Other witnesses were examined, who deposed, in substance, to the same facts.

Mr. Foster, on behalf of the defendant, addressed the Assessors at considerable length, contending, that though his client had committed a breach of the law, the circumstance under which it was done were such as amounted almost to a justification of his acts, and that the smallest amount of damages the Court could award were all that the plaintiff was entitled to.

Witnesses were then called, in mitigation of damages, to shew a breach of covenant in the non-payment of rent, and the non-performance of other stipulations on the part of the plaintiff.

Mr. Rowe replied.

The learned Judge having summed up the evidence, the assessors found a verdict for the plaintiff, damages £100.

 

In banco, 30 December 1829

Source: Sydney Gazette, 2 January 1830

Bucknall v. Moran.

This was an action of tresspass in which a verdict was found for the plaintiff last term, damages £100.

Mr. Keith, moved for a new trial, on the ground that one of the Assessors, who sat in the cause (Wm. Carter Esq;) who was master of the Court, had come to the trial with a bias on his mind; inasmuch as, in his ministerial capacity of master, he had previously taken the examination of a witness for the plaintiff de bene esse, who was not cross-examined by the defendant's Counsel, and whose evidence, though not read on the trial, had been improperly alluded to and brought to the recollection of Mr. Carter, by the Counsel for the plaintiff.

The Judges held that the ground of application urged by the defendant's Counsel was not sufficient to warrant the Court in disturbing the verdict.  It was assuming that Mr. Carter had arrived at a conclusion on a mere ex parte statement; and though it had been allowed as cause of challenge against a Juror, that he had expressed a strong opinion on a case, the Court could not see any reason for supposing that Mr. Carter had not joined in the verdict after a deliberate and impartial consideration of the case on both sides as it was presented to the Court on trial. - Motion refused.

 

Notes

[1 ] See also Australian, 11 December 1829.

Published by the Division of Law, Macquarie University