[trover –  trover, elements of – damages, date of assessment, in trover – courthouse, condition of]

Drum v. Gregson

Supreme Court of Van Diemen's Land

Pedder C.J., 13 September 1843

Source: Hobart Town Advertiser, 15 September 1843[1]

            Mr. Macdowell (with whom was Mr. Montagu), appeared for the plaintiffs; Attorney, Mr. Dobson. For the defence, Mr. Fleming; Attorney, Mr. Crombie.

            Mr. Montagu, in opening the pleadings, said this was an action in trover, to recover from the defendant the value of certain property, which he had wrongfully converted to his own use, and which he had refused to give up after notice.

            Mr. Macdowell said, the defendant in this action, Mr. Thomas George Gregson, was well known to them all as a gentleman of considerable landed property; and the plaintiffs, Hugh Drum and Peter Drum, had for some time tenanted a portion of Mr. Gregson’s estate, under lease, at £100 per annum. The lease, which was for five years, terminated on the 30th September last. The last amount due for rent had been paid by bill, a short time before it was due, and was not taken up on the day of its maturity, simply because the plaintiffs’ were not able to find out at which of the banks it had been deposited; but it was duly honored on the day following. These facts he should prove, should it be any part of his learned friend’s case to shew that a single fraction of rent was due. Such being the case, and the detention of the goods by the defendant being undisputed, he might designate this to be an undefended case, had not the defendant pleaded the general issue. By this he admits that the property was in the plaintiffs, but denies that they were lawfully possessed. Now, his learned friend, who appeared to substantiate this plea, was possessed of great ingenuity “to make the worse appear the better reason;” and no doubt would exert their powers to the uttermost. The Drums were in possession as partners in cultivation of the land, and towards the close of the tenancy the defendant gave them time to gather in their crops; but, eventually, for some, so far he could see, unexplainable reason, that permission was retreated, and a notice served upon them not to remove any property from the land, in the terms following, addressed to Mr. Hugh Drum, dated May 2, 1843:-

            “You are not to remove the corn until your rent is paid; and, in the event of your attempting to do so, I have authorized the impounding of your cattle, and all personal chattels.

            (“Signed) THOMAS GEORGE GREGSON.”

            The learned Counsel continued - Eventually the Drums were turned off the premises, and their goods retained by the defendant. The Messrs. Drum then wrote a letter to Mr. Gregson, demanding restitution of the property he had unlawfully detained. The learned gentleman having read the letter, proceeded to quote a passage from Dr. Johnson, who had said that, whenever the enemy of a man is in a passion, the Devil put a pen in his hand. And so it was in this case. The defendant, in reply to the plaintiff’s demand for restitution, wrote a letter, which, while it acknowledged that he was in possession of the plaintiff’s property, offered to refer all matters in dispute to some unprejudiced person. Why, he would ask, what matters in dispute could there be? The rent had been paid up to the expiry of the lease, and there could not possibly remain any matter in dispute, except what was purely imaginary. The letter was then read by Mr. Macdowell as follows:-

                                                “Risdon, 8th July, 1843.

                        “To Hugh and Peter Drum

            “In reply to your notice to deliver up certain goods and chattels which you represent to have been impounded by me, I desire to say that I am perfectly ready to do so, or the value of them as may be fairly estimated; but I require you to name one or more respectable persons to settle all matters in dispute between us.

            “It was never my intention to put you to inconvenience, as my three respective notices will prove, and I am perfectly satisfied that there is not one man of common honesty in the colony, who will consider that I have acted harshly, or in any way contrary to those principles, by which an upright man ought to be governed. And I again advise you to lay my letters before some unprejudiced person of good reputation, rather than submit your case to a man, the very reverse of this description.

                        “THOMAS GEORGE GREGSON.”

            Mr. Macdowell continued - It was not competent for him to enter into the question of rent but he would assert that not only was there no rent due, but that no pretence could possibly be set up on that ground. Neither was there any pretence for the detaining, or taking possession, of the plaintiff’s goods, which the defendant had acknowledged, and he would again assert that this, in reality, was an undefended action, as no real or substantial defence could be set up.

            William Potts was then called and examined by Mr. Montagu. A document having been handed to witness, he said, I think I have seen a copy of this before. I served it upon Mr. Gregson at Risdon, on the 14th July, and asked him for an answer. He said he would give me an answer through Mr. Crombie, his solicitor, within an hour. I went to Mr. Crombie’s office, and waited all the afternoon, but Mr. Gregson never came.

            Cross-examined by Mr. Fleming. - I have either seen this document before or one like it. I will not undertake to swear that this was it; it was either that or a copy of it.

            By the Judge. - I know it was a copy of that document I served upon Mr. Gregson because I read it through.

            By Mr. Fleming. - No one examined the document with me; I only saw the one I served upon Mr. Gregson; I read it by myself. I will swear that Mr. Gregson said he would meet me within an hour. When I left Risdon, I first went to my own house; then I next went to Mr. Crombie’s about twenty minutes to two. I saw the clerk; he said Mr. Gregson had not been there that day; I waited until evening, close by the gate outside the office, until I saw Mr. Crombie go away; I did not speak to him.

            The learned Judge here observed that the witness had not proved that the document produced was a copy of that which he had served upon Mr. Gregson.

            The Witness. - I will swear I served a copy of that; it is the same hand writing.

            Mr. Fleming. - In whose hand writing is either that, or the original document served upon Mr. Gregson.

            Witness. - I do not know.

            The Judge. - There is really no evidence to shew that what he gave to Mr. Gregson was a copy of it.

            By Mr. Fleming. - I believe the signature to this document to be similar to the hand writing of the copy I served; but I never saw either of the documents written, and that is all I know about it.

            G. W. Hillyard (clerk to Mr. Dobson), said I saw the Messrs. Drum sign the document, of which this is a copy, on the lst June. I am attesting witness. The letter now handed to me is Mr. Gregson’s writing; it is dated the 8th July, 1843.

            Thomas Riley deposed that he had been in the Messrs. Drum’s employ for the last three years. On the 24th May last they were turned out of possession by Mr. Gregson’s servants. The witness then enumerated most of the articles mentioned in the plaintiffs’ demand of Mr. Gregson for restitution, viz. ninety one bags wheat, in 3-bushel bags; seven 3-bushel bags potatoes; and twenty one loads straw, and various other property. Upon these the witness put a value.

            Cross examined by Mr. Fleming. - I counted the articles - every thing - on the 23rd May, the day before possession was obtained by Mr. Gregson’s servants. I counted them because I had orders to do so by my master; he did not tell me to put a value on them; I did not put a value on them in my own mind at that time; I would give £8 for the dray, “not useable in its present state.” The place where the property was is a hut; it was fit for the working men to stop in; I stopped in it myself. I have heard that the hut was afterwards burnt down; I have not seen it since the 24th May, about four o’clock in the afternoon. I never mentioned to any person the value of the things that were burnt in the hut. The wheat at that time was worth 4s. 10d. to 5s. per bushel. One of the cross-cut saws was quite a new plate, the other was fit for any work; better than new - it was better for use. I was a working hand, an assigned servant part of the time. I am living in the service of Mr. O’Hara, in Harrington-street, who keeps a public house.

            John Woodward, sworn. - Is a publican residing at Risdon. I know the land which the plaintiffs occupied of Mr. Gregson, at Risdon. To my knowledge most of the things stated by the last witness were on the premises, and I agree with him generally as to the value put upon them.

            Cross-examined. - I had recently a sale of my own property; the wheat which was smutted, sold at 2s. to 2s. 6d. per bushel.

            Mr. Macdowell - The price at which the witness’ wheat sold, has nothing to do with the question of value in this case. The value must be estimated at the time the transaction took place; and the witnesses wheat was smutted.

            Mr. Fleming submitted that the jury were not necessarily fixed to find the value of the articles at the time of conversion, and quoted a case, Greening and Wilkingham (as we understood) in point.

            The Judge. - The value of the property must be estimated from the time that the mischief was committed.

            Mr. Fleming submitted that the plaintiffs had neither proved their demand for restitution, nor the refusal on the part of the defendant. His learned friends on the other side, had entirely failed in making out their case. To prove the sufficiency of the plaintiffs’ demand, the document which had been handed to the witnesses must be shewn to be a true copy. But no such thing had been done.

            The Judge. - If two men examine an original document, and a copy of it together, that would be evidence.

            Mr. Fleming. - But that is a perfectly different case to the present. The witness (Potts) stated that he examined it by himself.

            The Judge. - The original was served, and he believes it to be in the same handwriting.

            Mr. Fleming contended that was not sufficient. The witness must be in a position to identify the original. That not being done, the copy served must fall to the ground. The witness did not compare it with another person; he does not swear that the document he has seen to day is a copy of that which he served, but he merely thinks it is; and his only reason for so thinking is, that in his opinion - his mere opinion - the signature resemble, in the character of the writing, those which were written at the foot of the document, which he handed to Mr. Gregson. Now would his learned friends contend that was sufficient evidence of services?. Non constat. These signatures might be the signatures of some other persons of the same name; but a mere resemblance, and that only in the opinion of the witness, who never saw either of the plaintiffs sign their names, is the only evidence of exemplification of the document produced, being a copy of the original.

            The Judge. - It is quite possible for the witness to prove the delivery of a notice, although he cannot either read or write. Evidence might be shewn that A. B. was present when a copy was examined with the original, that he served the original on C. D., and that he had seen the paper produced to him before.

            Mr. Fleming submitted that such an alternative had nothing to do with the present case; the witness (Potts) examined it by himself, and his evidence as to the copy produced, was altogether valueless. He should, therefore, submit that the plaintiffs had failed in proving their demand for restitution; or the refusal to grant it on the part of the plaintiff; that, consequently, no case was made out to go to the jury, and that the verdict must be for the defendant.

            The plaintiffs’ counsel quoted several cases to shew that the unlawful taking out of the owner’s possession is itself a conversion; that the taking, either wholly, or for a time only, is a conversion; that although, whenever the circumstances are such as not to prove an actual conversion, the plaintiff must have a demand and refusal, yet in a case like the present, it would be a waste of time to go into those matters, in order to prove a presumptive conversation; and that any tortuous act was a conversion. [The cases cited were from Barnwell and Alderson; Barnwell and Creswell; Buller’s Nisi Prius, and other authorities.]

            Mr. Fleming contended that his learned friends had quoted no case to shew that a mere conversion was sufficient. In all the decisions to which they had referred, something more had been done by the defendants. These quotations did not at all bear upon the question before the Court. By their own plea the demand and refusal were to be shewn, but in this they had failed.

            The Judge said, the question appeared to resolve into this:- whether the mere wrongful act of taking was a sufficient conversion. Now, in the cases cited, there was something more. For instance, a man took a horse and rode him; in another, promissory notes, after being taken, were thrown into the fire, and so on with the other cases. But here the evidence was of a different character, for the defendant, so far from converting the articles to his own use, had offered to submit all matters in dispute to an unprejudiced person. If the defendant’s counsel insists upon a nonsuit, I will direct the jury to find the value of the goods detained.

Mr. Fleming. - That will not prevent me from offering counter evidence as to value.

The Judge. - If I direct a nonsuit to be called, I cannot permit you to go into other evidence. The plaintiffs have failed to prove notice and refusal.

Mr. Montagu. - We have proved the demand.

Mr. Fleming. - There is nothing in the plaintiffs’ letter to justify the allegation.

Mr. Macdowell. - I shall not submit to a nonsuit.

            The Judge. - Very well; then I shall direct the jury to find a verdict for the defendant, giving you leave to enter a verdict for the plaintiffs, for the value, if the court shall afterwards be of opinion that such a verdict ought to be entered.

            Mr. Fleming hoped there would be no misapprehension hereafter, and said, before he produced counter evidence as to the value, he would take the opportunity of replying to one or two observations which fell from his learned friend in opening this case. His learned friend had been pleased to compliment him on his ingenuity, and he intimated that the full exercise of it would be required in defence of his client. But, when the learned gentleman spoke of this as, in reality, an action without a defence, he appeared to forget that no only were his own (Mr. Macdowell’s) great talents pressed into the service of this case to which there could be no reply, but it was deemed necessary also, that the plaintiffs should have the advantage of the legal acumen and the skill of his learned friend, Mr. Montagu. Did that appear as if the plaintiffs, or the party who acted for them, deemed this action to be incapable of defence? His learned friend had quoted from Dr. Johnson; but he (Mr. Fleming) never yet heard that the learned Doctor was any reliable authority in matters of law, or of an action in trover. And so far from the letter of the defendant to the plaintiffs, which had called forth the observations of the plaintiffs’ counsel, being in any way prejudicial to his cause, it was highly honourable to him as the straightforward production of an honest and upright man. What, in effect, did the defendant say in this letter? Why, that, to prevent litigation, to save expense and annoyance, or discomfort, he was anxious to submit all matters in dispute to some disinterested individual. What course of conduct could he possibly have adopted, more honourable, manly, fair, or straightforward? But his learned friend had said, that, because the rent was paid, there were no matters in dispute. Had he offered any evidence of that? No, but he had said there was a lease, without adverting to its provisions or conditions. The fact was, that, by the lease, the plaintiffs covenanted to perform certain things, such as the clearing and burning of the land, and many other acts, in the performance of several of which they had failed. How, then, could it be said, that, failing in his application to have the matters settled amicably, the defendant could be accused of having acted tortuously, or with a wrongful taking, when his only desire was to enforce the performance of stipulated covenants?

            Mr. Macdowell. - I submit that my learned friend has no right, to go into the subject matters of the lease, which is in our possession; and has not been produced.

            Mr. Fleming. - My learned friend must perceive that I do it with a view to disabuse the minds of the jury, and, in reply to his own argument, that, because the rent was paid there remained no differences to settle by a disinterested party. He had given no evidence that the rent was paid, and yet he introduced this extraneous matter in his opening address. In reply, I claim the same privilege of stating facts of which I am cognizant.

            Mr. Macdowell. - The lease is with us, and he has given no notice for its production.

            Mr. Fleming. - Because the tenancy has expired, and, in a legal point of view, the production of the lease would not be evidence.

            Mr. Macmichael, auctioneer, was then called as to the value of the articles detained. The wheat valued by the plaintiff’s witness, at 4s. 10d. or 5s. per bushel, he valued at 3s., making an allowance for its removal to the market at Hobart Town; the potatoes at about half the price previously sworn to; the oxen bows, and yokes, previously said to be worth £14 10s., the witness valued at £3 10s.; the two bullock drays, sworn to have been worth £20, the witness valued at £3 10s.; the wheat screen, valued at £3 5s, the witness valued at £1; two ploughs, on which a value of £14 had been put, were only worth £3 10s.; and so on with the rest of the articles.

            Mr. Stracey, auctioneer, deposed that he had viewed the property, with Mr. Macmichael, the last witness, and coincided with him generally in his estimate of value.

            In cross-examination, it turned out that with the exception of the wheat and potatoes (which had been removed to Mr. Gregson’s store), all the articles enumerated were on the premises lately occupied by the Messrs. Drum; and that Mr. Stracey, and Mr. Macmichael, had seen the property only that morning.

            Mr. Macdowell said. - If there could have been any doubt as to the law of the case, before his learned friend called his witnesses, there was none now. His Honor had laid it down that actual conversion was not proved; but here they had sufficient evidence of the fact, for on this very day, the wheat and the potatoes wrongfully detained, were seen by the defendant’s witnesses in his own store.

            The Judge. - There is no proof that the conversion was made before the commencement of this action; or indeed that it was made before yesterday morning.

            Mr. Macdowell then contended as to the value of the articles, that the estimate was not to be taken of their worth now; but, what it would fetch at the time of the wrongful detention.

            The Learned Judge then summed up; but as it was now six in the evening, and there being no light provided in the reporters’ box, our short-hand writer could not note his Honor’s observations. He understood the Learned Judge to say, that the wheat and potatoes might have been removed to the defendant’s premises only yesterday, or, being of a perishable nature, at some previous period, for the purpose of preserving them from injury.

            Mr. Montagu thought the usual course would be to direct the jury to find for the plaintiffs; with liberty to enter a non-suit.

            The Judge said - this application was made by the counsel in the absence of his leader; after the arrangement previously entered into on both sides, he could not comply with the request. His direction to the jury was, to find for the defendant, subject to the conditions named.

            The jury returned a verdict (under the direction of his Honor) for the defendant - the value of the goods, 160l; with a remark that, had they not been so directed by his Honor, they would have found a verdict for the plaintiffs.

Pedder C.J. and Montagu J. in banco, 7 November 1843

Source: Hobart Town Courier, 10 November 1843[2]

            On Tuesday the Court sat in Banco, being the first day of sittings in the present term. During the recess, as they say at the theatres, the walls have been newly painted; the interior fittings-up of the Court vigorously and plentifully varnished; and, what is better still, a room has been appropriated for the reception of witnesses. In due time we hoper to see something done for the accommodation of the jurors, who, although compelled “to give their attendance” under heavy penalties, have frequently, whilst “waiting for the next case,” to remain for hours together in a crowded Court, mixed up with the odoriferous congregation which, generally speaking, constitute the audience. There was but one matter mentioned on Tuesday.

Drum v. Gregson

            Mr. Macdowell said - In this case, which was tried before His Honor the Chief Justice during the sittings of the last term, a verdict was found for the defendant; and I am now instructed to apply to your Honors for a rule to show cause why that verdict should not be set aside, and a verdict with one hundred and sixty pounds damages, entered for the plaintiff.  The action was in trover for seizing a quantity of wheat and other property of the plaintiff’s, and, on the part of the plaintiff, we attempted to give evidence of a demand and refusal; and I must admit that his Honor was right in holding that the testimony offered for that purpose was in strictness insufficient. His Honor was therefore disposed to nonsuit the plaintiff, but I contended that where, as in this case, the taking was in the first instance illegal, for there was no attempt to justify it, where indeed it more resembled a taking by storm on the part of the defendant, that in such a case evidence of a demand and refusal was altogether superfluous, inasmuch as the conversion of which demand and refusal were but evidence was completed by the illegal taking, about which, as I have already observed, there was no dispute. I cited some authorities in support of this position, but from them it certainly did appear that the party illegally taking had used or removed the property so taken, and this distinction was observed upon by His Honor, and he was still disposed to nonsuit. I, however, on the part of the plaintiff, refused to be nonsuited. His Honor then, with the consent of my friend Mr. Fleming, who appeared for the defendant, and with mine, told the jury to ascertain the amount to which the plaintiff was entitled, provided he had a right to recover anything in the present state of his evidence, which he was of opinion he had not from having failed to prove a demand and refusal, which was essential to his right to recover, not indeed in all cases, but in such a one as the present, where there was nothing beyond the taking. His Honor left the case thus to the jury, directing them to find a verdict for the defendant; but telling them, at the same time, in order to prevent the necessity of a second trial, should he be mistaken, to estimate the amount of damage to which the plaintiff, if he had a right to recover at all, was entitled, and then for that sum a verdict, if His Honor was mistaken, might be entered for him. I understand from Mr. Montagu, who was counsel with me, for I was not in Court myself, that the jury found for the defendant, but at the same time said, that had it not been for His Honor’s direction they would have found absolutely for the plaintiff, thus expressing a tolerably strong opinion as to the honesty of the defence. I am now prepared, may it please your Honors, to contend, on the authority of cases which I have before me, that proof of a tortious taking alone, whether the chattel were subsequently used or removed by the defendant or not, dispenses altogether with the necessity of proving a demand or refusal.

            At this stage of the learned counsel’s argument, the judges conferred together for a few minutes, when the Chief Justice said, “You may take your rule.”

Montagu J., 14 December 1843

Source: Hobart Town Courier, 22 December 1843[3]

            This was a case tried at the Sittings after last Term, in which a verdict, under the direction of His Honor the Chief Justice, was returned for the defendant, on the ground that a sufficient conversion of the property had not been proved. The jury were also directed to estimate the value of the goods, which they found to be £160, which sum the plaintiff was to be at liberty to enter up, as his verdict, should the Court in Banco be of opinion that the jury had been misdirected. A new trial, however, was taken. This was, of course, as before, on an action of trover. Our readers are, doubtless, familiarised with the particular events out of which the action arose; indeed they are fully set forth in the report of the case of Drum v Price in the “Courier” of the 22nd September. There was no necessity for our giving the addresses, as, with the exception we mention below, they consisted solely of comments upon the evidence; that evidence, however, the most important portion of the case, we have given fully, since it is said that the defendant will institute proceedings for perjury against Riley.

            Mr. Macdowell and Mr. Montagu for the plaintiffs; solicitor, Mr. Dobson. Mr. Fleming for the defendant; solicitor, Mr. Crombie.

            Mr. Macdowell opened the case.

            John W. Hilyard, Head Clerk to Mr. Dobson, was first called and examined by Mr. Montagu - Produced memorandum, bill of exchange, and several letters of Mr. Gregson’s.

            John M. Dixon, Teller of the Bank of Australasia, examined by Mr. Montagu - Discounted the bill on the 20th of March; that the bill was paid the day after it was due; it was made payable at the Colonial Bank in Mr. Gregson’s handwriting.

            Thomas Riley, examined by Mr. Macdowell. - Knew plaintiff and defendant; was residing at the Drums, at Risdon, for three years; I am well acquainted with the property; on the 22nd May Drum was in possession of the land; I heard Mr. Gregson tell Drum that he might stop on the land until he could take his crop off; the land was ploughed by Mr. Gregson on the lst of May; I mean by Mr. Gregson’s taking possession of the land on the 22nd, that I saw Mr. Gregson on the land on that day; some of Mr. Gregson’s servants were also there; Drum had a dwelling-house on the farm; on the 23rd I heard Mr. Gregson order his men to impound the cattle, and not to allow anything to be removed off the farm; Peter Drum was with me on the 24th; between 3 and 4 o’clock in the evening a servant of Mr. Gregson’s came to Drum’s house, and said that if he were not off before a very short time he would fetch a mob up and drive him off; Drum did not seem to put himself the least out of the way; the door of the hut was locked, and a little afterwards Mr. Gregson’s servants came and burst the door open; they seized Peter Drum and dragged him out in the most violent manner; they came back and seized me the same way; five or six more men were with these; some of the men were engaged in removing the wheat from a wagon which stood in the yard; it was Drum’s wheat; I saw them take it over the fence towards and on Mr. Gregson’s land; they dragged me on the road; I saw the plough removed; I saw a man holding the plough on Mr. Gregson’s paddock; a man by the name of Williams was ploughing on that land; the plough was in the fowl-house of Mr. Drum on the 24th; I was acquainted with all the articles of furniture in Mr. Drum’s house; I came into town after they had dragged me; Mr. Gregson’s servants were removing the wheat when I came away; they were at the house and about the place; there were on Drum’s premises about 91 bags of wheat, in three-bushel bags; wheat was bringing from 4s. 9d. to 5s. at the time; forty loads of straw, about £2 a load; potatos, 7 bags. [The witness here gave his opinion as to the value of the various articles of property on Drum’s premises at that time.]

            Cross-examined by Mr. Fleming. - On the 24th of May I was the servant of the Drums; I am now in Mr. Dobson’s employ; I have, with Mr. Drum, some boats of Mr. Dobson; I rent them with Drum; what I have from Mr. Dobson I have to pay for; I am not anybody’s servant except the public; I take any one across the ferry; I saw the plough in the fowl-house of Mr. Drum on the 24th; I saw it after it was removed at work, some five or six days after the 24th, in Mr. Gregson’s paddock; about half an hour after the servants came the first time. I was dragged off; with the exception of the plough and the wheat I saw nothing taken off; I counted the wheat on the 23rd and 24th; I judged that there were better than forty loads; it was worth about £2 a load; I considered that it was worth that at the market; I never recollect speaking, in November, at the “Turk’s Head Inn,” of Mr. Gregson in offensive terms; I do not recollect ever saying that Mr. Gregson was a “damned scoundrel;” I deny having made use of these words; I do not recollect, at that place, saying anything in reference to the evidence of Drum and Gregson; I never made use of such language to him on that day and place; I said nothing to Williams about the evidence that I formerly gave in this action; I never said that I would as soon take £10 or £20 from Mr. Gregson as I would the £10 from Mr. Drum for giving evidence; I did not say “I would swear anything for £10, what is the odds;” I know a man of the name of William Hurst; I do not recollect anything about the time to which you refer; I made use of no such language in the presence of Hurst; I do not recollect whether I swore on a former occasion that there were or not; I now think I did say so. [Here some confusion was visible in the witness, but presently explained that what he said or meant to say was, that there were on the premises twenty loads, at £2 per load, which would be £40, and that he did not meant to say that there were forty loads.]

            Examined by Mr. Macdowell. - You know Williams, I think? How does he get his livelihood? He hangs about just where he can; I never speak to him.

            John Woodward, by Mr. Macdowell. - I formerly kept the “Turk’s Head Inn;” I knew the Drums; I knew the property; there was amongst it a mainsail which I had lent to the Drum’s it belonged to me; its value was about £2 10s.; the Drums were, of course, responsible to me for it; there was also a sailcloth worth about £4; I know most of the property that Riley has valued; I dissent from him in the valuation of some things; in other I agree.

            The case for the plaintiffs was here closed.

Mr. Fleming submitted that there was no case to go to the jury. First, there was no evidence that the tort or wrong committed on the 24th May was with Mr. Gregson’s consent; secondly, that it was not sufficient to show the possession of the servants to recover against the master; thirdly, that it was not sufficient in trover to prove a simple possession, there must be actual conversion.

            His Honor stated that he was quite aware, as is the second point, that the possession of the servant solely was not sufficient in trover to recover against the master; but with regard to the other points, he thought there was ample evidence to go to the jury. Men had been, in criminal cases, transported on much less evidence. The letter of the defendant connected him with the matter - they were prima facie evidence that he intended to take the property, and that he did so.

Mr. Fleming addressed the jury - After proceeding a very few minutes, the learned counsel said - I have to complain of Mr. Macdowell’s opening speech; I have heard several opening addresses in actions of trover, and never heard such as that. My learned friend, forgetting dry law and tact, forgetting the simple issue, proceeded to characterise the conduct of Mr. Gregson as unjustifiable and outrageous. I do not think that such terms are borne out by the facts of this case; and whether it could be from private pique or not my learned friend certainly travelled out of ______

His Honor. - I did not think that you have any right to impute private pique to counsel in the public discharge of duty. If Mr. Macdowell, or any other Member of the Bar, could be influenced by such feelings, he would be unworthy to practice in this Court, and should not.

Mr. Fleming. - I did not, may it please your Honor, mean, for one moment, to say that my learned friend was influenced by any unworthy motive. I only meant that my learned friend seemed to forget that it was dry law. I do not say any motive or anything more than an error.

His Honor (addressing Mr. Macdowell) - I am sure you, Mr. Macdowell, had no private feeling in the matter; had you?

Mr. Macdowell - On the contrary, your Honor, the only feeling is that which is inspired by my brief; and upon that, and as the evidence has shown to-day, I still say that the conduct of the defendant, in turning these men out of doors, was “unjustifiable and outrageous.” As to any feeling beyond that of an advocate in the cause, I have none, or towards Mr. Gregson. I am sure Mr. Fleming did not mean that - it would be too absurd. I hope the learned counsel will proceed.

Mr. Fleming then submitted to the jury, in a concise and augmentative address - first, whether they thought there was a conversion; secondly, if it was the act of the defendant; and, thirdly, how far that conversion was referable to the articles in the declaration. The learned gentleman remarked severely upon Riley’s testimony, and in conclusion, said that the only witnesses he should think proper to call, were those who would discredit the testimony of that witness.

Edward Williams. - I remember to have been at the “Turk’s Head Inn” on the 8th of November last; I saw Riley there, and Mr. Gregson also; he had come down from his house to go to town; Riley observed that Mr. Gregson was a “damned scoundrel;” he said “that £10 or £20 from Mr. Gregson would be as good to him as the £10 he had got from Drum for swearing at the last trial; he said also, “£10 would do me, any pay, what is the odds?” Drum came and called him into the taproom; there was a man named Hurst there, and two other persons.

Cross-examined by Mr. Macdowell. - Hurst, I think, is in Government employ, which at once constitutes respectability; but what is your profession, and where do you reside? I am living at Risdon, on the grounds of Mr. Gregson, who gave me liberty to get all the brushwood I could from off his place; Sandy Bar was in Mr. Gregson’s hut when I went up, and there it was I first mentioned what I heard; the reason that I recollect the day so well, was because the public-house was opened the day before; I said to Riley, “Mr. Gregson’s a gentleman, and perhaps you do not know that he could have you up for what you have said, and then you would look very ill.”

William Hurst, examined by Mr. Fleming. - His evidence was similar to the preceding, stating, besides, that Riley was under the influence of liquor.

Thomas Storey was about to be examined by Mr. Fleming but it was objected to on the other side, as he had not mentioned his name, nor the place, time, or particular circumstances which he wished to contradict.

Mr. Macdowell addressed the jury, commenting upon the whole case.

The Judge summed up, and the jury, after a short deliberation, returned a verdict for the plaintiffs; damages, £255.