McLucas v Hunt and Others. - This was an action brought to recover the amount of a promissory note for £23 10s. made by defendant in favour of plaintiff in consideration of 19 head of cattle.  The note was admitted.

For the defence it was urged that the cattle so sold were not property of plaintiff when he sold them - that they were stolen from Mrs. McHenry; that the thieves had been convicted - but prior to which defendants had restored the cattle to Mrs. McHenry.

Mr. Justice Burton desired to hear the counsel on the points of law which arose out of these facts, and Mr. F. Stephen contended that the defendants could not avail themselves of this defence; they had received an actual tangible consideration, they were not bound, in fact they had no right to restore the cattle to the claimant, until restitution was awarded under the Act of Parliament, and then set up their own act to avoid the consequences of their own note.  If the question rested upon the simple issue whether or not these identical cattle had been stolen from Mrs. McHenry, he would concede the point and that his client could not recover, but there was another consideration in the case, viz. whether her property in them had not been divested, and the act of the defendant in giving up the cattle without an order of Court, could not decide that point.  He contended that if the act of plaintiff amounted to a guilty participation in the act, it was felony in him, and could not therefore be shewn as a defence in this action.  If not then he had purchased the cattle openly, sold them openly, given and taken a fair price, done every thing according to the custom and usage of the trade in this Colony, and upon the principle upon which in England a sale in Market overt divested the property from the owner, of whom it had been stolen, the same rule must regulate this transaction, at all events as the present plaintiff, could not in the present action go into this question, which he might, if an action were brought by Mr. McHenry, he contended that the defendant could not set up the present defence, as it placed his client in a worse situation than he otherwise would be.

Mr. Wentworth urged that if the cattle sold were not the property of plaintiff at the time he sold them, then there was a failure of consideration and he could not recover upon the note.  The question then was, whether Mrs. McHenry had ever been divested of her property in the cattle.  The sale by the thieves to plaintiff did not change the property - then the selling by Mr. Lucas to the defendants, especially under the suspicious circumstances attending it, did not confer a property in the cattle.  The subsequent conviction of the offenders settled the question as to the property, and whether the cattle were given up before or after the conviction, with or without a summary order to that effect, it did not alter the fact that the property was still Mr. McHenry's.  After arguing at some length on these points and a brief reply.

Mr. Justice Burton ruled nearly in accordance with Mr. Wentworth's argument, adjudging especially that there was no such thing as market overt in this Colony.  There was a question whether the property had been guaranteed when tbe [sic] note was given, which he wished the Assessors to find separately.

A verdict was returned for defendants and the Assessors found that a guarantee had been given.

Counsel for plaintiff, Messrs. F. Stephen and F. R. Nichols, for defendant, Messrs. Wentworth and C. H. Chambers.

(As this case and several others involving points of great interest to the community are to be decided finally by the full court, we have deferred giving the decisions of the Judges on the trial at length, intending to report them fully when heard in banco. - Eds.)

In banco, 7 April 1834

McLucas v. Hunt and others.  - In this case a verdict had been returned for the defendants under the following circumstances - The plaintiff had purchased nineteen head of cattle from a man at the Cowpasture Bridge, and had re-sold them at Parramatta to the defendants, taking half cash and half in a promissory note, the action was brought to recover the amount of this latter.  The defence was, that the cattle were stolen, and the parties convicted, and that by the sale no property had been conveyed, consequently the consideration for the note had altogether failed.  It appeared that the defendants had returned one half of the cattle to the owner, the other moiety had been slaughtered.

Mr. F. Stephen for the plaintiff, now moved for a new trial, on the ground that the sale of the cattle had changed the property so as to prevent the owner from recovering against the present plaintiff, as he had according to the case in 2nd East, bought and sold before the conviction of the thieves - and that the property being in the plaintiff when the note was given and fell due, the consideration was then valid, and the defendants could not set up the subsequent conviction as proof that the plaintiff had no property in them at the time of sale.  It was certainly a hardship upon them, but if the law were otherwise it would be equally a hardship upon the intermediate purchasers upon whom no imputation rested.  Counsel urged that all the requisites to a sale in market overt, so as to change the property had been complied with, such as the sale being public, in the day time, &c., and although there was no regular market established in the district, yet from the necessity of the case, and the custom of the country, it must be held that a sale so made in this colony would have the same effect as a regular sale in market overt in England, according to the technical meaning of that term.  I was further urged that the defendants in this case had actually used and sold one half the cattle and that the owner could not recover those or the value back, consequently the plaintiff had a right to apply the note as given for the ten cattle slaughtered and the money as paid for those returned to the owner.  If so, there was a full consideration for the note.

Mr. Wentworth replied, and the Court unanimously taking the same view of the case, as that learned gentleman did, decided, that the whole question depended upon whether the property was ever divested from the owner.  Their Honors proceeded to hold that there was no sale in market overt at the Cowpastures, which alone could change the property, and therefore before conviction of the thieves, the owner might, at any time, have recovered the property.  The Court would not go to the length of deciding that there could be no sale in market overt in the Colony, as undoubtedly wherever the Government had appointed Markets for the sale of particular descriptions of Goods and Property, in such places valid sales so as to change the property sold, could be made, but there was nothing before the Court to show, that at the Cowpastures such a Market existed, in point of fact, there did not.  In selling the cattle to defendant, plaintiff was under a warranty in law, that he had the property in him, and the power of Sale, in this case he had not the property, and the whole case in all its bearings, depended on that one point. - New trial refused.

``Per curiam.  We must give a legal technical meaning to a sale `in market overt.'  There was here no sale in market overt, and as the Plf was most in fault, tho' ignorant that the Cattle was stolen, he must bear the loss.  The property was not changed by the sale from the thief to the Plf.  Rule Refused."