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

Alldruss v. Dalton [1837] NSWSupC 65

trover, cedar cutting, McLeay River

Supreme Court of New South Wales

Kinchela J., 3 October 1837

Source: Sydney Gazette, 5 October 1837[1 ]

Alldruss v. Dalton. - This was an action of trover, brought to recover the value of a cargo of cedar and a quantity of clothes detained by the defendant.

Mr. Foster stated the case.  The plaintiff was a sawyer at the McLeay River and shipped a cargo of cedar on board a craft called the Resolution, which belonged to the defendant.  The plaintiff came up to Sydney bringing with him his tools and clothes, and when he came the defendant refused to allow him to have either the cedar or clothes, alleging that the cedar was his property.  The following witnesses were called.

George French - I am a sawyer at the at the McLeay River; I know Alldruss was sawing there, on the night that the Resolution came in the Captain asked me if I had a freight to give him; I told him there was a poor man there that had accommodated me, and I would be thankful to him to take his cedar up; Alldruss was present and said he would give him the usual freight of 8s. per hundred, and would tip him something to himself in the bargain.  Alldruss took a raft alongside the next day, and I helped to put it on board; the Captain considered he had twenty thousand feet on board; it is not customary to measure cedar until it arrives in Sydney, but I should think there was 20,000 feet; it was worth from 18s. to 20s. per hundred; it was of good quality; I was present when a great part of this cedar was cut by Alldruss; I have seen the cedar in Sydney; I heard Alldruss demand it from Dalton, and Dalton said he intended to sell it and pocket the money, and Alldruss might do as he liked; I believe the vessel belonged to Dalton.  Dalton said he understood that the cedar belonged to me, and as I had not got the money to pay him for the provisions Mc`Huon had supplied me with, he would stick to the cedar.  There were some clothes, a bed, box, and some saws put on board by Alldruss; they were worth more than £10; Dalton detained all.

Cross-examined - When Alldruss asked for his clothes, Mr. Dalton said he would keep them until he was satisfied; he did not say until the freight was paid; Alldruss was occupied about 12 months in cutting cedar; he sold some of it but kept the best; I bought some cedar from him; the last I bought was about 8,000 feet; it was months before the cedar was shipped on board the Resolution; I have sent cedar to Sydney by the Resolution to Humphrey Mc'Huon, who made the best of it he could in Sydney and sent me the returns;  It was not an agreement between me and Mc'Huon that I should have a third of the profits for buying the cedar at the river; there were no writings between us; I sent the cedar to pay for the property he had sent me; it was to be at my option whether I had a third of the profits or not; we had no settlement; I wrote to Mr. Huon to say that I had purchased about one hundred and thirty thousand feet, which I had branded with M'Huon's brand; I considered the whole as my property; I never made any agreement with the owner or master of the vessel about the freight; I understood that Dalton and Mc'Huon were partners; I have not received from either Mc'Huon or Dalton any account of the cedar I sent up; I never measured it; I gave this bill for one hundred and eleven thousand feet of cedar to Mc'Huon, this, with nineteen thousand feet, would make one hundred hundred and thirty thousand feet; it is not a customary thing to measure cedar when sent up to Sydney; I do not know that it was cut upon Crown lands; there is a cattle station or two there; it was cut on the banks of the M'Leay River, none further up than half a mile from the river; the cedar was branded with a chequer brand by Alldruss, at the McLeay River, when the cedar was drawn to the water; I saw some of it branded at beach Bay about a month before it was put on board, there were about twenty planks branded with T M, a brand which he borrowed, the rest were branded with a tiller brand; I saw no brands defaced; I never saw my other brand on this timber; Mr. Horton James claimed one plank of this cedar at the Police Office; Alldruss was charged with felony, I was not; it is usual to brand cedar where it is cut; I bought some unbranded cedar of Alldruss; I have not the slightest interest in the cedar which is the subject of the present action; I saw the cedar dragged own to the river, and am quite certain that it was the edar [sic] cut by Alldruss; Mc'Huon and me have a large unsettled account, but I have no animosity against him; he owes me £140, and won't give me any satisfaction; Mr. Dalton demanded fifteen shillings for the freight of my clothes to Sydney, and the Commissioner of the Court of Requests ordered me to pay it; Mr. Dalton did not tell me that he had received information three weeks before of the way I intended to serve him with regard to the remaining lot of the cedar.

Re-examined - Dalton told Alldruss that he considered it was his own property, and that if he thought it was Alldruss's, he would be very sorry to keep him out of it; he said nothing about freight; it was clearly understood by the master of the vessel that it was Alldruss's property: there are several falls in the river, and in going over them it is a common thing for planks to get adrift, and have pieces knocked off; I have seen hundreds of pieces of planks floating about; I never offered Mr. Dalton 12s. a hundred freight to give up the cedar; I never mentioned anything of the kind.

John Miller - I was a sawyer at the M'Leay; Alldruss cut some timber and put it on board the Resolution in March last; I helped to raft it down; he brought down about twenty thousand feet; I heard Alldruss and Williams the master bargaining about the freight.

George Morris - I am a sawyer; I heard a conversation between French and Dalton, when the latter said he considered the cedar was his property, and I told him that I knew it was Alldruss's, as my step-son and he cut it; Dalton said he would stick to it; I know that two planks I saw on Mr. M'Huon's wharf belonged to Alldruss, I saw him cut them.

Cross-examined - I saw the planks cut; I was alongside of them for twelve months; one of them was burued at the end and; the other had a big dosey knot.

This was the plaintiff's case.

Mr. Windeyer then addressed the Assessors for the defendant.  He averred that an agreement had been enterred [sic] into between Dalton, M'Huon, and French, by which plaintiff was to proceed to the M'Leay and purchase cedar for the others and to receive one third of the profit.  It would be seen by the documents handed in, that the plaintiff wrote to M'Huon that the had purchased one hundred and thirty thousand feet of cedar on their account, and that he had only sent up one hundred and eleven thousand feet, so that the cargo that was claimed by Alldruss made up the quantity that French had purchased  on the account of Messrs. Dalton and Huon.  These facts, the learned gentleman contedded [sic], were so clearly proved by the evidence of French, which shewed such grounds for suspecting fraud, that he did not think it was necessary to call witnesses.

His Honor told the Assessors, that if they believed the evidence of French, that the cedar was actually shipped by, and belonged to Alldruss, they must in that case return a verdict for the plaintiff.  With regard to the detention of the clothes, he could not understand why the defendant detained them, as he did not attempt to claim them.  Verdict for the plaintiff - damages £110.

Counsel for the plaintiff, Mr. foster; for the defendant, Mr. Windeyer.


[1 ] On the cedar cutting industry, see also R. v. Walker and others, Australian, 9 November 1837; Sydney Gazette, 9 November 1837.

Published by the Division of Law, Macquarie University