[trover – civil procedure – non suit – lunacy]

Barton v. Humfrey

Supreme Court of New South Wales

Burton J., 3 November 1841

Source: Sydney Herald,  4 November 1841[1]

Wednesday, November 3.

Before Mr. Justice Burton and Assessors Dawson and Miles.

            An application was made by Mr. Windeyer in this cause on the joint affidavit of Mr. Gowland, the defendant’s attorney, and of the defendant himself, to postpone this case on the ground of the absence of a material witness. The application not being successful the cause was called, being the first on the list.

            Mr. Broadhurst opened the pleadings; the Solicitor-General stated the case.

            This was an action of trover brought to recover damages from the defendant for a quantity of hay, household furniture, and agricultural implements, alleged by the plaintiff to have been left on certain premises, when the defendant came to them as the plaintiff’s successor.

            John Woodger examined by Mr. Broadhurst: Knew the premises of the plaintiff at Berrima; remembered them when in the possession of the defendant, about eighteen months ago. They had formerly been in Barton’s occupation. Had lived in Barton’s services and knew of two stacks of hay having been left by the plaintiff on the premises when the latter gave them up to the defendant. A plough, two harrows, and a roller, were also left by the plaintiff, worth about seven pounds. Witness saw Humfrey, on the part of the plaintiff, respecting payment by the latter for the articles left. Humfrey said the plaintiff had better come and see about them himself.

            Cross-examined by Mr. Windeyer: Did not know whether the hay and articles in question were the property of the plaintiff after Barton left; knew that a man of the name of Ash had been in possession of the premises after Barton left, and before Humfrey went to the premises; Ash staid there about six months; did not know whether Barton was under restraint when Ash was there.

            James Collins examined by the Solicitor-General: Had worked on the farm under Barton and was there when the defendant came to take possession; Barton left when Humfrey came; such articles as Barton left, as household furniture, &c., were committed to the care of witness; the property was given up by witness to Mr. Humfrey; Humfrey and his people brought nothing to the premises with them bulkier than hand bundles; witness believed the articles were all to be lent by Barton to Humfrey, when the latter came to the premises; recollects when Barton sent for the articles; Humfrey said he should not give them up without an order from the executors.

            On cross-examination by Mr. Wind[eyer]. [For the six months] before Barton left, he had not been in his usual senses; considered that every thing on the premises belonged to Barton; when sent by the latter to Humfrey three months after, witness said to the maid, he had been sent by his master for forks, knives, dishes, &c.; could not say whether at that time he and his master were or were not reeling drunk; never thought he should have been called upon to give evidence about such a matter, and therefore had not preserved it in his memory; the defendant, when witness spoke of the knives, forks &c., set the yard dog at him, and said he would not give up the things without an order from the executors.

            John Langmore examined by Mr. Broadhurst:  Had gone for Barton to Humfrey, to demand of the latter the goods in question. Had taken a notice with him, which when presented to the defendant, the latter had torn up and thrown at witness; saying, at the same time, that if the plaintiff or any of his agents came to defendant, he would kick them off the premises. Recollected the property left by plaintiff on the premises when Humfrey came into possession. There might be about sixty tons of hay, worth about £4 each ton.

            Cross-examined by Mr. Windeyer: The hay and other properties left by Barton, were precisely in the same state when witness went to the premises a long time after, as when Barton left the place. Recollected that Barton made an offer to pay the defendant £20 a-year, as the rent for the standing of the hay on Humfrey’s premises. Barton’s offer was that the rent should be paid in property of the plaintiff’s on defendant’s premises. Defendant objected, and said he must have the rent in money.

            James Gillroy, gave, in all material points, much the same evidence as the preceding witnesses; but failed in proving any conversion of the property of the plaintiff by the defendant.

            Thomas Smith was then examined by Mr. Broadhurst: Recollected the property in dispute between the parties, and also remembered an argufication about the things between Barton and Humfrey. Witness told the latter he had better give up Barton’s things to him, and Humfrey said he should not do anything of the sort nor allow anything of Barton’s to leave the farm. This was the plaintiff’s case.

            Mr. Windeyer, for the defendant, contended that the plaintiff must be non-suited. The hay and agricultural implements had been left on the premises for the convenience of the plaintiff; they occupied valuable space of the defendant’s, and the latter had never at any time refused in an unqualified manner, to return the plaintiff his goods. The witness Smith had admitted, that at the time of the defendant refusing to give up the hay, he had declared he had a lien upon them for rent. The witness Collins had also said, that defendant merely refused to give the implements up, without an order from the executors, and no such qualified refusal as this could amount to a conversion.

            The plaintiff’s counsel contended that, as a user of property, without the leave and license of the plaintiff amounted to a conversion, the evidence of the witnesses established such unauthorized user, and therefore the plaintiff was saved from a nonsuit.

            His Honor, Mr. Justice Burton, said, he thought the plaintiff had better be nonsuited; but the case might proceed, leaving to the defendant liberty to move hereafter, if a verdict were returned for the plaintiff on the issue.

            Mr. Windeyer then addressed the Assessors, contending that all the circumstances in evidence rebutted the imputation of conversion, which had been cast on the defendant. The premises, and the property thereon had been lawfully given up to the defendant by the plaintiff, when the latter left the premises;- the articles in the house had been used by the defendant, under the care of the domestic attendant of the plaintiff, and whilst the same attendant was waiting on Humfrey when he came into the farm; and when the witness Collins came in a drunken state to demand the knives and forks belonging to the plaintiff, the defendant acted very properly in refusing to give them up to such a messenger, without an order from Collins’ master.

            His Honor then carefully summed up the evidence, and left it to the Assessors to determine whether there had been any conversion of the farming implements; the domestic utensils and the hay being left out of the question, of the conversion, of which latter property there was no evidence at all.

            His Honor intimated that from the opinion which the Assessors entertained of the case, the Plaintiff had better elect to be non-suited, and prepared a better case next time. The plaintiff was non-suited accordingly.

            Attorney for the plaintiff, Smith; for the defendant, Gowland and Williams.

Burton J., 15 November 1841

Source: Sydney Herald,  16 November 1841[2]

Monday,

            Before Mr. Justice Burton, and Assessors Moffatt and Smythe.

            This action was brought to recover the sum of £434, for the price and value of a quantity of wheat and cattle alleged by the plaintiff to have been left by him on a farm, to which the defendant had proceeded as tenant.

            The defence was, that a portion of the corn and cattle had been sold by Mrs. Barton, (acting for Mr. Barton, he then being of unsound mind) to other parties before the entry of Mr. Humphrey; that so much of the corn as the defendant had purchased, was so bad as to be almost worthless, and that he having already paid £100 for it, was entitled to include that sum in the subject matter of a set-off, (for rent of hay-stacks) which he had against other parts of the plaintiff’s claim.

            John Wilmot, a farmer and glazier, examined by Mr. Windeyer for the defendant, said, he recollected Barton leaving the farm in the October of 1839, and that before he left, he witness bought a paddock of corn and a paddock of hay, of Mrs. Barton, whilst Mr. Barton was in the next room, and the door from the one room to the other, open. Witness saw Mr. Barton afterwards, and told him of the purchase he witness had made of Mrs. Barton, to which Mr. Barton appeared to assent. That witness had paid the superintendent of Barton for the hay and wheat, and upon afterwards applying for them was informed that Barton had since sold them to some other person: upon which witness sent persons to cut the wheat, which was prevented by Humphrey setting to work, and cutting it for himself. When the wheat in the twenty acre paddock became ripe, there was not more then ten bushels to the acre; which were worth about 5s. a bushel.

            Jessy Bygen examined by Mr. Windeyer: said, that in 1838 he was a government man to Mr. Barton, and had sewed two paddocks with wheat in the September before Barton left; that this was much too late for sowing wheat; and that witness had told Barton that the seed was so bad that it was not worth sowing, to which Barton returned for answer, “he did not care, [f]or he should not reap it.”

            Terence Cunningham, stated he was a miller in the employment of Humphrey, and recollected the paddock of wheat next to Wilmot’s, which was dirty rubbish. Some of it harvested about [e]ight bushels to the acre. One half of it wa[s] [r]ye-grass, and oats. Recollected Mr. Humphrey having sent a notice to Mr. Barton to take away [h]is stacks, as otherwise Mr. Humphrey should charge a pound a week rent for its standing. The witness produced what he called a sample of the wheat which Barton had grown, but which appeared to be a portion of a lot grown by Humphrey, alleged by the witness to be very similar to Barton’s wheat. The specimen produced, appeared to be mixed up with dirt and grass-seed, almost in as great quantity as the grain.

            The Solicitor-General having replied, Mr. Higgins, one of the plaintiff’s witnesses, was recalled by the Judge, and asked whether any warranty had ever been made by the plaintiff of the wheat? The witness answered “not to his knowledge.”

            His Honor summed up and said that if the Assessors were satisfied that there had been a contract for the purchase of the corn, cattle, and implements, between the plaintiff and the defendant; the latter having received the goods must pay the former, although he had previously sold the same property to another party. The defendant’s set off, which consisted of the £100 before mentioned and a demand for rent, incurred by the occupation of defendant’s paddocks by the plaintiff’s haystacks), the Assessors would estimate according to the evidence. The case was then left to the Assessors, who found for the plaintiff upon the whole of the issues, £[?]61 10s.

            Attorneys, for the plaintiff, Smith; for the defendant, Gowland and Williams.