[trover – Pedder C.J., in conflict with Solicitor General – distress warrant]

Park v. Buck

Supreme Court of Van Diemen’s Land

Pedder C.J., 17 March 1840

Source: Hobart Town Courier, 27 March 1840

            This was an action of trover to recover possession of a horse. The Attorney-General and Mr. Stephen appeared for the plaintiff, and the Solicitor-General for the defendant.

The horse, the plaintiff contended, had been sold absolutely to him by the defendant, and was to be paid for by weekly instalments. The defendant’s case was, that the horse was let to the plaintiff with an understanding that it was to become his property if he paid a certain number of instalments, and that if not, the defendant might seize it: in proof of which, a written agreement was produced, which the plaintiff contended was a forgery. The jury found a verdict for the defendant, after some deliberation.

            In the course of this case, the following scene occurred:-

The Chief Justice had observed, at the close of the plaintiff’s case, upon the impropriety of a (so-called) distress-warrant, under the colour of which the horse had been seized, directing the bailiff to levy upon a horse value £60, for a rent of £13, when for aught it appeared there might be other chattels of less value sufficient to satisfy the debt.

Solicitor-General (in beginning his address to the jury.) - Gentlemen, I only hope you have not formed any opinion on this case until you have heard the whole of the evidence on both sides.

Chief Justice. - I presume that is intended as a rebuke to me?

The Solicitor-General was proceeding to continue his address without noticing this remark.

Chief Justice. - But I hope before you proceed, you will tell me whether you mean so or no.

Solicitor-General. - Why, your Honor, I was afraid that you might have formed an unfavourable opinion of my client’s case.

Chief Justice. - How can you say so merely from my observation, that they ought not to distrain a chattel value £60, for a debt of £13, when there may have been many other chattels of smaller value.

Solicitor-General. - I thought your Honor might have formed an unfavourable opinion. I am glad to hear it is not so.

Chief Justice. - Then I wish, Mr. Solicitor-General, you would tell me so plainly and openly to my face, and not sideways to the jury.

Solicitor-General (addressing the Jury.) - Well, gentlemen, it is very difficult to know how to discharge one’s duty with so many interruptions and observations, and I again repeat, I hope you have not formed any unfavourable opinion on this case. (His address was then continued.)

The Chief Justice in summing up, remarked in substance - I understood the observations of the Solicitor-General as a distinct insinuation that I had formed an opinion on this case before I had heard the other side, and I am sorry that it was not said, not as an insinuation but plainly, for if those insinuations are to be thrown out I am not fit to sit here. I shall now merely read the whole of the evidence to you and leave you to judge. It would be my duty to comment on it, but after what has passed I dare not do it, nor shall I. I will say that the observation I made I was entitled to make, and was right in making. My observation was, it was extraordinary to put in a distress warrant for £13, a direction not to distrain generally, but specially to take a chattel value £60. The general rule is that the subject shall not be liable to grievous distress. This horse it appears too was not taken under a distress warrant - if taken under anything it was under the agreement. I do regret that I was made the subject of the insinuation. (His Honor then proceeded to read the evidence.)