Hack Legal Cases

Bartley v. Hagen

Echunga sale noticeBarton and Stephen were driven to insolvency by The Bank of Australasia pursuing a debt of £508 by means of an 'execution' sale and Jacob Hagen pursuing unpaid so-called rent on the Echunga properties by means of a 'distress' sale. The foormer was advertised in the Southern Australian of 17 February 1843 though both sales were conducted concurrently on 20 February 1843. This led to a lengthy Supreme Court case before Judge Cooper because some items, a stack of wheat and two stacks of oats, that were claimed by another creditor, the lawyer William Bartley.

Bartley's saleBartley had advertised his own sale for the same day. The case, reported by both the South Australian Register and the South Australian in varying detail, reveals many questionable aspects on the sale and the perplexity of Judge Charles Cooper in interpreting Hagen's actions in particular.

South Australian Register, 2 September 1843

Monday, August 28th, 1843.

This was an issue out of Chancery, under the direction of his Honour, to try the defendant’s right upon a declaration of trespass by plaintiff, to enter in and carry away two stacks of wheat and two of oats, which the plaintiff claimed as his property. Mr Fisher appeared for the plaintiff, and Mr Mann for the defendant, and the damages were laid at £1000.
Mr Fisher opened the plaintiff’s case in an address of great length. The questions to be tried were, whether the plaintiff ever possessed these stacks, and whether the defendant had any right to take them. The plaintiff was formerly solicitor to Messrs J. B. and S. Hack, and was in the habit of advancing money for them in the way of professional business. In January last, Messrs Hack owed plaintiff a sum of £400, and plaintiff applied for security for that amount, which was at once given in the way of mortgage over the stacks in questions, but which had since been seized and sold by defendant under the colour of a distress for rent. The mortgage was dated January the 27th, 1843, and was registered on the 30th of the same month. It was peculiarly drawn, allowing the plaintiff on giving three days’ notice, to come in, and appropriate the stacks to his own use in any way he thought proper, in the event of the principal and interest not being paid. On the 10th of February, circumstances came to his knowledge, which led him to call in the mortgage, or insist upon the possession of the stacks, unless principal and interest were paid on the 18th of that month. The truth was, on the 7th of February, the Bank of Australasia had put in an execution, and had taken everything upon Mr Hack’s premises under it, except the stacks mortgaged to plaintiff, and a few other articles afterwards to be enumerated. On the 9th of February, defendant put in two distresses for rent, one for £597 10s against J. B. Hack for interest on a mortgage of £3,500, and one for £62 10s against S. Hack for interest on a mortgage of £1,000. Messrs Hack, each and severally, having agreed under these mortgages to put themselves in the position of tenants towards the defendant, and the distresses in each of these cases, stating that the amount claimed was “interest as for rent.” Messrs Hack, it appeared, were each possessed of an undivided moiety of 3,000 acres of land at Mount Barker, one undivided moiety being the property of J. B. Hack, and the other the property of S. Hack. The date of J. B. Hack’s mortgage to the defendant was the 2nd of March, 1842, and the consideration £3,500, and the date of S. Hack’s mortgage 2nd of August, 1842, and the amount for which it was mortgaged, as above stated, £1,000. On the 10th of February last, defendant gave notice to the Sheriff, who was then in for the Bank of Australasia, the execution creditors for £5,000, that he was landlord of the premises, and that he had a claim against the property of £600 and upwards for rent. The stacks of oats and wheat now in dispute had in the first instance been seized by the execution creditors, but on plaintiff's showing, that they were his property, the execution creditor relinquished them, and had even offered plaintiff the use of his houses to thrash them out. A thrashing machine being upon the spot, plaintiff went to Mount Barker, and applied to the defendant for the use of this to thrash out his wheat and oats, but received for answer, that defendant had no objection to his using the thrashing machine provided nothing was removed from the spot. A series of papers were then put in and read, bearing upon the assertion of the plaintiff’s claim, and upon the defendant’s alleged prior right. The property was sold by defendant on the 20th of February, the plaintiff at the time protesting against the sale, and, as counsel alleged, in a collusive manner, and notwithstanding plaintiff had advertised it for sale by his own auctioneer. As it respected the sale of plaintiff’s stacks of wheat and oats nothing covenous or collusive, perhaps, could be proved, but the things sold under the execution were sold in a most unusual way, and would serve to illustrate the general character of the sale. Out of one hundred lots, eighty were bought by a Mr Robinson, the representative of Mr Hagen, the defendant, and that too without giving the parties time to bid. No matter what the lot, if Mr Robinson gave a nod, down went the hammer. Amongst the things sold under the distress, three acres of potatoes and three acres of maize only fetched £3. A growing crop of melons, worth £100, sold for £10 10s. The plaintiff’s stacks of wheat, valued at £200 to £250, sold for £99. His oats, valued at £100 to £120, sold for £60. A mill dressing machine and a lot of sundries sold for £6, a thrashing-machine for £19, a flour-mill for 25s, and a side-saddle for 10s 6d. All the things sold under the distress fetched but £267, odd. Plaintiff’s wheat was knocked down to T. N. Mitchell, and he was at once called upon to pay a deposit; but, when things were knocked down to Mr Robinson, he was not called upon to pay any deposit. In fact, after Mr Mitchell had paid one deposit, he was called upon to give another, and was told, unless he paid it at once, the lot would he put up again, and sold to the highest bidder. Under the execution, things had been sold at equally ruinous prices, and the interference of Mr Hagen, the defendant, could be proved to be much more direct. Counsel was then going into the prices realized under the execution sale, but was stopped by the Judge, his Honour thinking that any active interference in this respect was matter of well-founded complaint to the execution creditor, the Bank of Australasia, but not to the plaintiff in this action, the property in respect of which he complained having previously been sold. Counsel would not then persevere in this course, but would conclude with the proof of his client’s claim to the property sold under the distress. The bill of sale, and other papers, were here handed in. Defendant was understood to ground his right of distress on a deed yet to be produced, but, without knowing what those deeds contained, except indeed as he could give a shrewd guess, counsel would undertake to say that no such right existed.
Witnesses were then called and examined for the plaintiff.
Mr Edward Stephens, Manager of the Bank of South Australia, spoke to advances made by the plaintiff to Messrs Hack, and on account of which security over the stacks in question had been taken. Plaintiff was aware that Messrs Hack were in difficulties, and had advanced part of this money to extricate them, thinking, as witness understood, the Bank had been rather hard upon them, but the event had proved, that Mr Bartley would have done better to take witness’s advice, and have nothing whatever to do with the matter. The claims of the Bank of South Australia upon Messrs Hack at the time this advance was made were £1,500, and they had taken £755 12s. 3d. for it, being a composition of 10s. in the pound.
Mr Sheriff Newenham proved the Bank of South Australia to have entered Messrs Hack’s premises under an execution in the month of August, 1842, and to this execution having been withdrawn under an arrangement with the Bank. Mr Bartley paid the Sheriff £50 7s. poundage on that occasion. The Bank of Australasia were also in, and their claim was large, but he received no poundage from them.
Mr W. G. Lambert had had dealings with the Messrs Hack, and required a guarantee for £100, which was given by Mr Bartley, the plaintiff, at Mr J. B. Hack’s request, and was afterwards paid by plaintiff. Attended the sale at Echunga, Mr Hack’s residence, on the 20th of February last, and saw defendant there, and heard him caution plaintiff against selling stacks of wheat and oats, which he alleged were his property, and which he had employed and paid witness to sell. When one of the stacks was knocked down to Mr Mitchell, a deposit of £15 was demanded, but he was afterwards told, that, unless he paid £30, it would be put up and sold again. This struck him as singular, and appeared to have been the result of a conversation between Messrs James, Hagen, Robinson, and the auctioneer. The impression on his mind was, that the property was being bought in. When the sale of the furniture commenced, Mr Hagen came to him, and either said, “the things are being bought in for the family,” or “we are buying them for the family,” he could not tell which, in consequence of which, although he had bought one lot, and intended to buy anything he saw worth purchasing, he bought no more. At home, things were sometimes taken by appraisement, and not by public sale, but public sale was the far better way of purchasing, and was fairest to all parties. General disapprobation was expressed at the sale about the things being all bought by one party.
Mr John Gloag, of Mount Barker, a rather willing witness, spoke generally of the way in which the sale was contacted, no time being allowed for other parties to bid before they were knocked down to Mr Robinson. On one occasion, in particular, when selling the furniture of a certain room, Mr Robinson and a young woman were in the room together, and he and the auctioneer in the door, but no one was allowed to go in, and all was knocked down to Mr Robinson, except one chest of drawers, which witness got a sight of, on account of its standing close to the door.
The manner in which the witness brought out this part of his evidence excited much laughter in Court, upon which his Honour said, that, at present, it was rather mysterious, but the auctioneer when called would probably clear it up.
Mr Mann objected to this course of examination, inasmuch as what was now under consideration was not the sale under the distress, but the sale under the execution with which his client, the defendant, had nothing whatever to do.
His Honour said, that, whether the furniture was sold fairly or not did not matter twopence, except as it might be adduced to show that the whole sale was fraudulent, and that the plaintiff’s interests were affected by it. It was only in this way, that evidence on that point could be taken, and he did not feel disposed to shut it out.
Dr Kent was next called, and proved that, when in the act of bidding for two side-saddles, Mr Hagen, the defendant, he believed, turned to him, and intimated that he should suspend his bidding, as it was desired that these saddles should be purchased for the use of Mrs Hack or family. He himself had bid nearly the full value of the saddle, and would not undertake to swear that it was Mr Hagen who had thus spoken to him, although he believed it was.
Mr Anthony Forster was at the sale, but did not think it of public or general interest, one person evidently having been employed to buy up most of the lots. The whole furniture in one small room was swept away whilst he was attempting to get there.
Mr W. Giles, sen, Manager of the South Australian Company, was at the sale, and Mr Hagen came up to him, and said “This side-saddle is for Mrs Hack, don’t bid against her,” and witness said, “No, I won’t.” Did not think the sale a fair sale. It was much too hasty. If they had been his goods that were selling, he should have been very much dissatisfied with the sale. It was generally understood that Mr Robinson was buying for the family, and this influenced the sale very much.
Thomas N. Mitchell, of Mount Barker, was at the sale, and priced various articles sold, particularly the melons, grapes, and potatoes, which were sold much below their value. Mr Robinson bought nearly all the articles, and he knew from his conduct at the time, that he was buying for Mr Hagen on account of Mr Hack. This was the reason he did not buy more at the sale than he did. He bought the oats, and paid a deposit of £15, but was called upon for another deposit of £15, making it in all £30, or he was told they would he put up again and sold. Mr Robinson was asked for no deposit when he bought articles at the sale, although he bought eighty out of a hundred lots. The sale was not conducted in the ordinary way, and, therefore, ceased buying although there were many things he wanted, and wished to have purchased. Many persons left the sale at the same time with him, because the things were knocked down to one party whoever bid, among whom were Messrs Lambert, Sayers, and others. None of the goods sold had fetched anything like their value. There were 1,200 bushels of wheat in the stacks, and at that time it was worth 5s. per bushel, but it sold for £89. The grapes were worth £250, but they sold for £20. The melons were also sacrificed. All were put up in one lot, and the Germans who had gone to buy in separate lots were thereby prevented. There was not fair play at the sale. Things were knocked down too soon, and before persons had time to bid. Would not undertake to swear that Robinson paid no deposit, but witness did not see him called upon to do so at the time of bidding. Mr Bartley wished the execution goods sold first, but they refused, saying, “sell they would,” and proceeded to the sale, in spite of all his remonstrances.
A number of other witnesses were called, all of whom spoke to some important facts, and the examination lasted upwards of six hours. One of the witnesses spoke in particular to the whole of Stephen Hack’s furniture having been bought at the sale for £7, and to his having afterwards seized it on account of money due to him, and sold it in Adelaide for £60 to £80.
The case was then adjourned.

Tuesday, August 29th.


Mr Mann commenced the proceedings of this morning with the defence. His client was a person of the highest respectability, and above the imputation of the collusive proceedings which it had been endeavoured to attach to him. The case was a trumpery case, and the jury would have to discharge their minds of all they heard, and look simply to the facts. His client, a gentleman of very humane feeling, and of high standing, had endeavoured to protect his friends, the Messrs Hacks from being turned out upon the world, shirtless, naked, and destitute as savages, and this was his reward, an action at law, in which the damages were laid at £l,000. The evidence of collusion, which it had been the object of the opposite party to establish, was not worth a rush, and this he laboured to prove in an address of upwards of two hours in length.
Mr Mann then proceeded to address his Honour, on the legal points of the case. And first, the deed Mr Bartley had produced, could be shown to come within the statute of the 13 Elizabeth cap. 5. sec. 13 for preventing fraudulent and covenous deeds. The deed had a travelling proviso in it, by which Mr Bartley could call in the money at any time before May, 1843, and which was intended to bar either Mr Hagen in his distress, or the Bank of Australasia as the execution creditor.
The next objection to the deed was founded upon the decisions which had been given in reference to attorneys and their clients. The case he should refer to was that of Hurton and Atkins, 3 Milner and Keene, 12, in which it was ruled, that the transactions of attorney and client should be at arm’s length and that no advantage whatever should be taken by the attorney of his client, or of the relation in which he stood to him. Now, it had been shown, that £290 had been paid by Mr Bartley to Mr Hack, but the residue of the amount claimed, according to Mr Bakewell’s own statement, could only be gathered from memoranda which appeared on the back of Mr Hack’s papers. He should not, however, dwell upon this at any length, but he should take a further objection to the plaintiff's deed as a fraudulent preference under Messrs Hack’s bankruptcy, of which he should proceed to give evidence. A creditor, he did not deny, might use due diligence in getting security, but the res gesta might still go to a jury, and it would be for them to say, whether the property claimed should or should not come in under the bankrupts’ estate. Mr Mann then proceeded to put in the deeds under which Mr Hagen claimed. By these deeds, it appeared that Messrs Hack and Watson owed Mr Hagen, in March, 1842, the sum of £3,500, and that Mr Hagen had consented to allow this sum to remain secured on Messrs J. B. & S. Hack’s property at Mount Barker, of which Mr J. B. Hack was then in possession, and was to consider himself tenant, subject to the yearly rent of £600, payable half-yearly, the half-year to be dated from March and September. A deed of a similar kind had been executed by Mr S. Hack for £1,000. The relation of landlord and tenant was created by these deeds, and it was under these that the defendant came in and distrained. See Winkinson and Hall, 3 Bingham, new cases, 508, bore on this point. Mr Mann proceeded to argue this matter at great length, and concluded by alleging the claim of Mr Hagen to be £597 10s. from Mr J. B. Hack, and £62 from Mr S. Hack. The jury, he felt satisfied, would give a verdict for the defendant.
This closed the case for the defendant, the deeds being put in, and no witnesses called.
Mr Fisher then proceeded to address the jury in reply, and his Honour upon the points of law, in a speech of upwards of five hours in length.
His Honour then summed up, and sent the case to the jury. This was an action brought to recover the damage sustained by the sale of wheat and oat stacks previously mortgaged to the plaintiff, and had arisen out of the unfortunate state of Messrs J. B. and S. Hack’s affairs. So long ago as August, 1842, they were under engagements, which they were unable to meet, and a compromise had been affected, and partly brought about with money advanced by Mr Bartley, and, in consideration of which, Mr Bartley in January last had taken a mortgage in question for £400. The security was of a peculiar kind, inasmuch as it fixed no time of sale, except in this way, that, provided the said J. B. and S. Hack did not pay the money on or before the 1st day of May next ensuing, or at any other time the said William Bartley might appoint, on giving three days notice, the said William Bartley might take the said stacks, and dispose of them in any way he thought proper, either by public contract, or private treaty, without being answerable to any one whatever. This deed had been duly registered, and was now put in. On the 9th of February, two distresses had been put in for rent, one against J. B Hack for £597, and the other against S. Hack for £62 10s. The warrants of distress were particular, stating the amount claimed to be interest of certain sums of money “as for rent.” On the 7th of February, an execution had been put in by the Bank of Australasia for £500, and most of Messrs Hacks’ property had been seized under it. Mr Bartley's deed was executed on the 27th of January, and he gave notice on the 11th of February for payment on the 17th, or, in the event of non-payment, directed that the stacks should be sold. The sale took place on the 20th of February, under Mr Hagen’s distress for rent and collusion had been charged, of which they had heard the particulars in the course of the evidence. Mr Bartley appeared to have thought himself hardly used on that occasion, and had pointed out to Mr Hagen sources from which he might satisfy himself without taking his stacks, and, supposing Mr Hagen to have had a right to put in any distress at all, and property of Messrs Hacks to be found sufficient to satisfy him, it would have been most unjust to take Mr Bartley’s property in preference to theirs, but he did not see how this could apply to third parties. In saying it would have been unjust, he answered, for the present, that the conduct of parties in all other respects was fair, and that the sale was a bona fide sale, but Mr Hagen was charged with collusion, and they would have therefore to inquire whether his conduct at the sale had been fair, or whether, in the event of their thinking there had been any collusion, Mr Bartley had been injured by it, and if so, to what extent. His Honour here went through the evidence on that point, and, as the collusion charged particularly applied to the sale under the execution, and not under the distress, he did not see how he could advise them to give damages to Mr Bartley in that respect, inasmuch as if any party had a right of complaint, it was the Bank of Australasia, the execution creditor, who had been more particularly injured by it. He did not, in saying this, wish to underrate Mr Bartley’s annoyance, but, with regard to Mr Hagen’s desire to buy in the furniture for Messrs Hack, it was very praiseworthy, but it would have been more discreet, had he confided his intention to one person only, insomuch as it was so difficult to sell property, when it was known that it was to be bought in. He imparted nothing to Mr Hagen in that respect, however, but indiscretion, for without something of this kind was done, how could persons hope to see their friends and relations get on in the world? It appears to me that Mr Bartley ought to have shown to you how Mr Hagen’s claim might have been satisfied without coming to his ricks, but this he has failed to do. Mr Hagen might have satisfied out of the Bank of Australasia’s execution, or from any other third party, but his Honour knew of nothing to protect Mr Bartley more than any other third party having property on the premises, supposing Mr Hagen to have a right to enter in at all. But now comes the great question, had Mr Hagen any right to take these stacks, and, if so, to what did this right amount? Mr John Barton Hack, it appeared, had taken a Special Survey, of 3,000 acres on behalf of himself and his brother. Of this he had subsequently mortgaged 1,500 acres to Messrs Morphett, Fisher, and Brown. Subsequently he had executed a declaration of trust, shewing that of this property he and his brother had an equal and undivided moiety. In March, 1842, he had mortgaged his undivided moiety to Jacob Hagen, and had given to Jacob Hagen in this mortgage deed power to enter and distrain for rent. Admitting himself to be a tenant on the 2nd of March, the first half-year’s rent would be due of the 30th of December, and, supposing him to have the power to enter, still only half a year’s rent would be due. Stephen Hack’s mortgage was made on the 1st of August, 1842, and a half-year’s rent would not become due till February. Now, he might be mistaken, but he could not understand how one tenant in common could give a right to distrain on his co-tenant in common, and, in fact, he was inclined to think he could not. The same would apply to Stephen Hack as to John Barton Hack. The former could not give the power to distrain upon the latter, or the latter upon the former. The authorities to distrain, which had been produced in this case, did not treat of rent in the usual way, and in terms of the deed, but they spoke of it an “amount of interest due to me as for rent.” On the whole, therefore, his Honour was disposed to think that there had been some mistake here, that Mr Hagen, in fact, had no right at this time to distrain these stacks. He should be glad to put it to the jury in any way that might be suggested to prevent further litigation, but he could not tell them that a person having an interest in an undivided moiety could give power to any third party to distrain upon his co-tenant. Supposing Mr Hagen, then, to have had the right to distrain, he should ask the jury, first, to find what was the worth of the property Mr Hagen had taken away; and, secondly, as a special finding, he should ask them, whether Mr Bartley had sustained any damage by Mr J Hagen’s interference, and if so, how. With regard to the relative merits of the cases of each of these persons, no doubt each thought his claim the best, but he did not see how Mr Bartley’s security for the £400 could be impugned, but they must take the case in all its bearings, and consider it quite apart from this.
The jury then retired for about two hours.
On their return into court, they gave a verdict for the plaintiff of £350.
His Honour asked them what was their finding as to the alleged collusion, and the answer was, that they had not taken it into consideration one way or another.
The case occupied two whole days, and did not come to a close till nearly twelve o’clock on the evening of the second.

South Australian Register, 18 October 1843

Monday, October 16th.

His Honour the Judge sat this morning in the Supreme Court Offices, Victoria-square, to hear an application from Mr Mann for a new trial in the case of Bartley v. Hagen of last Civil Sittings.
Messrs Mann and James appeared on behalf of Mr Hagen, and Messrs Fisher and Bartley for Mr Bartley.    
The grounds for the application were threefold—lst. Misdirection of his Honour. 2nd. Want of direction on the part of his Honour as to the effect of Mr Bartley’s deed. And 3rd. Excess of damages.    
Mr Fisher in commencing said—I think I shall without any difficulty, satisfy your Honour, that Mr Mann has not the slightest ground for a new trial. Mr Hagen had no right to distrain. In January, 1841, the land in the possession of John Barton Hack was 3,091 acres; that on the 9th of March, 1841, he mortgaged 1,508 acres to myself and others as trustees. That on the 23rd of September, 1841, he executed a deed for an undivided moiety to Stephen Hack. On the 2nd of March, 1842, Mr J. B. Hack mortgages his undivided   moiety to Mr Hagen, subject to the previous mortgage made by him of the 1,508 acres. That mortgage deed contains a clause to the following effect—“That the lands are now in the possession of J. B. Hack, and that the said J. B. Hack is the tenant from year to year, at the yearly rent of £600, payable half-yearly, viz., 20th day of March and 20th day of September.” On the 1st of August, 1842, Mr J. B. Hack conveys to Stephen Hack his undivided moiety, and on the following day Mr Stephen Hack mortgages this his undivided moiety to Mr Hagen. This deed also contains a clause under which Mr Hagen claims a right to distrain. Now, this deed does not imply that Mr J. B. Hack was in possession of all the lands at the time, for unless the land was in his possession Mr Hagen could not distrain.
His Honour would ask whether the lands were not in the possession of the Messrs Hack ?  
Mr Fisher—Yes; but there is nothing to show in the deed, that there was anything on these lands on which rent was to issue, or that the Messrs Hack were actually in possession. The deed should show that Mr Hack was in possession of the lands in which these stacks were distrained, and define the land on which distress was to issue. There could be no occupation on the part of Mr J. B. Hack according to this deed, but only of his undivided moiety, whereas he gave a right over Mr Stephen Hack's land. Now, if it could be shown that the stacks stood on undivided land, where is the right to distrain? Taking it in any way, according to the literal construction of the deed, Mr Hagen had no right. The land was not in the occupation of J. B. Hack, or of either separately. You cannot prove by this deed that he had occupation of the land, but only of a moiety. The land could not be in the possession of J. B. Hack, as Stephen Hack mortgages his undivided moiety. The evidence at the trial was, that the stacks were in the joint occupation of the Messrs Hack, and, therefore, Mr J. B. Hack could not have a separate right in them. Now, it appears that Mr Hagen had not the reversion of these lands, but only of the moiety—the difference of 3,091 and 1,508 acres. In this case the claims should have been on the lands of Mr J. B. Hack only, and not on the undivided moiety; so that Mr Hagen had not a legal claim to distress, as the property was undivided. In this case, it appears that the stacks in question were conveyed to Mr Bartley by John Barton Hack and Stephen Hack.    
His Honour—I conceive that the rent issues out of every part, and not only out of an undivided moiety.  
Mr Fisher—Who is to apportion the land?  
His Honour—It apportions itself.    
Mr Fisher—The land cannot be apportioned, as Mr Hagen had not the reversion of the property, but only of an undivided moiety, so that the rent could not be apportionable; the right to distrain for the rent cannot arise. The goods of one co-tenant cannot arise out of another co-tenant. Mr Fisher here quoted, among others, Kent v. Cook, Chambers’ 615, in proof of this, and proceeded, that he could not distrain on the lease of his companion, or of any part of the property held by his companion. I conceive that a right of distress cannot arise out of an undivided moiety. Now, it would be very difficult to say how a party could take a moiety of a cow or any other undividable property. With respect to the whole fee or the undivided moieties, it cannot operate as regards Mr Stephen Hack, as he was not a party to the original instrument, and not privy to the deed under which the distraint was made. As to mis-direction of Mr Bartley’s deed, I think it is not necessary for me to say anything as to the validity of that deed. Your Honour drew the attention of the jury to it and left the case in their hands. With regard to excess of damages, this is really a simple matter. Mr Stocks gave £60 for the oats, and certainly considered them cheap. He made his calculations, as to there being 800 bushels, and worth £160. Mr Mitchell considered the wheat to be 1200 bushels, which at five shillings would be £300. The wheat and oats were valued at at least £400. I have endeavoured, and I hope with success, to show your Honour that Mr Mann has no grounds whatever to seek for a new trial, but I hope that, if your Honour feels inclined to allow a new trial, you will not do so without payment of costs. But I feel sure that your Honour will see that a new trial ought not to be granted.
Mr Mann said, in answer to Mr Fisher’s remarks I must draw your Honour’s attention to two facts. So far as my recollection serves, Mr Fisher has stated to your Honour that we have not proved the locus in quo. Mr Fisher has looked to one portion of the deed only; this deed contains two schedules, which he has overlooked. The deed says that there were tenants in the occupation. These schedules are made part of the deed, and shows what were in the possession of the Messrs Hack and in the possession of other parties.              
His Honour—Though they were tenants in common, they had joint occupations. Would joint occupation come under that title?
Mr Mann—On the present occasion I only answer that portion of Mr Fisher’s arguments— that we were in possession of the land, and that there is evidence to prove that fact. The next point—our right of distress was also over Stephen Hack. Mr Hagen by that comes into the undivided moiety, and makes himself liable for the leases, as each of the mortgage deeds passes as an undivided moiety of the whole. There is sufficient evidence to prove that the execution was in due form, and warranted by the clause in the deed, and that each of the tenants in common may be supposed to be in possession of the whole. A tenant in common cannot pass but an undivided moiety. A reversion need not be a reversion for a year only, but may be for a day; under the deed here there was a direct right on the part of Mr J. B. Hack to a good reversion to bear out the execution. A tenant from year to year would be able to distrain. Mr Mann here quoted a case, Barnwell v. Cresswell, in his support, in which the position and liabilities of' tenants in common was clearly laid down.
His Honour said that Mr Bartley, in this case, was a stranger to Mr Hagen, and that the separate goods of one or the other of the Hacks could not be taken.
Mr Mann—It is now pretty well known that tenants in common may separately demise. Mr Fisher threw out hints of dividing a cow, &c.; now, this does not apply in this case. It is perfectly clear, that Mr J. B. Hack was indebted to Mr Hagen for rent and interest to the amount of £400, and the whole land, of course, was liable for the amount, whether the land belonged to Stephen Hack or otherwise. Both the Hacks had taken possession of their undivided moieties, and both had mortgaged their moieties to Mr Hagen. There was £100 due from Stephen Hack, and £400 from John Barton Hack. The undivided moieties were equally liable for the rent. Under an execution, the Sheriff could come in and take as of an undivided moiety. And in fact Mr Bartley is now liable for the rent. The Hacks do not question the present case. All goods on an estate are liable for rent; and, unquestionably, I do not consider my position an uncommon one.
His Honour—I do not consider that in the case of the Sheriff, he could sell more than an undivided moiety. And in case of a distress, the mode would be to remove it off the property and hold it in pledge.
Mr Mann—But both parties here owe rent, and the undivided moieties are liable jointly for the same; and all moveable goods and chattels are distrainable for the same.
His Honour—The rent here is reserved out of an undivided moiety of the whole.
Mr Mann—Yes, Sir, and all moveable goods and chattels are liable. We consider Mr Bartley a stranger, and that the distress is good against him absolutely. So far as the deed goes, the words are absolute, and stop Mr Bartley in his claim. I take it, that with regard to the right of selling, the goods and chattels of a stranger cannot be taken for rent. If Mr Bartley sets up a licence he must be in possession of the previous tenants, but Mr Bartley's deed is a licence subject to any claims for rent that may be brought against them. We have a perfect right to take them inseparably.
His Honour—I understand you to say, that you consider Mr Bartley a stranger; and that, if not a stranger, he must stand in the position of the Messrs Hack?
Mr Mann—Yes, Sir; supposing Stephen Hack had nothing due from him, and John Barton Hack had, and that the Hacks had no right to complain, I conceive he could come in, as in the case I quoted just now; but Mr Hagen comes in by both. Such is the view I take of the case.
His Honour—Well, it is a very difficult case.
Mr Mann—I now come to the second part of the case, but I shall not go into it at any great length. It must be in your Honour’s recollection, the mode of argument I adopted at the trial. You certainly mentioned that Mr Bartley's case was a dangerous one; I showed to your Honour at the time that they had not had a value for the goods.
His Honour.—I had no idea the jury would have given a verdict for so large an amount.
Mr Mann—A party claiming for the amount Mr Bartley did should have shown something more than scraps of paper in support of his claim, and it is surprising that he did not do so. If your Honour had given it to the jury in the manner I considered you ought on the nature of the evidence, we must have had a verdict. I contend that no professional gentleman ought to come in in the way he did without having his claim further substantiated.
His Honour—I said to the jury that I considered the deed was one that ought not to be favoured, but I did not put it in a precise manner. A judge is not obliged to say anything to the jury, further than that he leaves the case in their hands.
Mr Mann—If your Honour had dwelt on the evidence, as is your usual mode, I feel confident a different verdict would have been the result.
His Honour—I did not think it necessary to go into the thing further than I did. I showed the jury the nature of your claim and that of Mr Bartley, as I considered the case was.
Mr Mann—The third case, that of excessive damages; with respect to this, the very outside of the damages ought not to have exceeded £300. There was not one of the witnesses but guessed the quality and quantity; and the only way to have arrived at the value of the stacks, would have been the sales, if they had been bona fide. The amount at which they sold must be taken at Messrs Stocks and Mitchell’s valuation. Mr Bartley’s conduct at the sale depreciated the value. No quantity was specified at the sale; it was sold by the lot. I cannot see how there could be so much difference, a difference of £200 between the amount of the sale and the verdict of the jury, so that your Honour must see that damages were excessive. On the whole case I think that I have strong grounds for asking a new trial. It is not the case only, the law would favour the application. And I leave the case with your Honour, feeling assured that your Honour will grant a new trial.
His Honour said the case was one of extreme difficulty, and that, in the absence of direct precedent, he would take a day or two to consider of the application.

South Australian Register, 1 November 1843

Monday, October 30th.

For this case the following gentlemen were sworn as a special jury:—Charles Berkeley, James Henderson, Loudon H. McLeod, James Poole, David Sutherland, Alexander Lang Elder, William Sandford, John Russell, Charles P. Brewer, Edward Stirling, J. Grainger, and Ebenezer Moorhouse, Esquires.
This case arose out of the sale by distress, on the part of the defendant, of certain stacks of the Messrs Hack, which they had made over to the plaintiff in security of moneys advanced, and due to the plaintiff, and has been fully reported in this journal. The case was, at last sitting, tried by a common jury, who found the sum of £350 damages due to the plaintiff; but the Judge granted a new trial on the ground of excessive damages.
Mr Bartley, assisted by Mr Fisher, conducted his own case.
It appeared that he had been solicitor to the Messrs Hack, of Mount Barker, for two years; that he was also solicitor to the Bank of South Australia; and Messrs Hack being indebted to the Banks of South Australia and Australasia in large sums, for which they were pushed, he had become intimately acquainted with their affairs; and, having felt great confidence in the Messrs Hack, he had advanced, or become security, for a variety of sums to relieve them in their difficulties. He had put his name to a bill of £139 at their settlement with the Bank of South Australia—he had given his security for £120 to Messrs Lambert and Son—he had paid to the Sheriff £51—and other sums had been by him paid on their account—altogether amounting to £407. He had also a considerable law account. Of these sums, Messrs Hark assured him some would be paid by them when bills became due, and some that he would be repaid. Messrs Hack doubtless expected they would be able to pay him, but they had not done so, and he began to feel uneasy; still he did not press the Messrs Hack. Afterwards, hearing that quantities of cheese and other goods were being sent to the defendant by drays continually coming into town, he had demanded, and got the security of the stacks in dispute, being barely enough to cover his advances.
Mr Bartley then enumerated the transactions of the defendant with Messrs Hack. He had a security for £3000 over Mr S. Hack’s undivided moiety of certain lands belonging to Messrs J. B. & S. Hack, and he had advanced £600, for which he had a mortgage, having in it the powers of a landlord to distrain. The interest, 25 per cent., was enormous, and Mr Bartley contended that the right to distrain was introduced for a purpose, was unjust and inept. He also contended and would prove that the distress was collusive and deceitful. Mr Bartley also brought a number of objections against the demise in favour of Mr Hagen, and afterwards entered into a full detail of the various circumstances attending the sale and the negotiations relating to the possession and seizure of the wheat. He concluded by stating that he demanded damages. The wheat was valued at £400, the charges of the auctioneer, trouble, and other expenses.
Mr Bartley’s deed was put in and read.
The Judge then read the evidence of Mr Edward Stephens, of the Bank of South Australia, which was given on the former trial, and which was before reported in this journal.
He also read the Sheriff’s evidence, and Mr Fisher then examined the Sheriff, as follows:—
Mr Bartley gave an undertaking for poundage on the occasion of the Sheriff’s execution, at suit of Bank of Australasia; had several interviews on that occasion; seemed considerably interested for the Hacks, and was instrumental in saving the poundage, £81. In answer to Mr Mann, the amount of the Bank of Australasia’s claim was £5140 odd.
The Judge.—The poundage of £51, was paid by Mr Bartley. Then the suit was at the instance of the Bank of South Australia.
Mr Lambert’s former evidence was read by the Judge, tending to show that the sale was an unfair one. He was also further examined, and gave some further particulars.
Mr James Roberts’s evidence, proving a service of notice, was then read.
Mr John Gloag’s evidence to the same effect as Mr Lambert’s was also read, and the witness was further examined.
The evidence of Dr Kent, Mr Anthony Forster, and William Giles, Esq., Manager of the South Australian Company, was then read, as before published, respecting the sale.
The following witnesses were then examined:—
Samuel Mason, W. F. Newland, Wm. Bakewell, T. N. Mitchell, G. Goddard, John Ridley, Samuel Stocks, Robert Sanders, John Borr, George Robert Debney, and Robert Bogle Fairly. They were brought, some to prove collusion at the sale, some to prove damage by the way the sale was conducted. Mr Bakewell was examined in reference to a bill of costs due by Messrs Hack to Mr Bartley, and others bore evidence to collateral points. The above completed Mr Bartley’s case.
The Court was then adjourned till Tuesday.
Tuesday, October 31st, 1843.
Mr Mann opened the case for the defendant this morning by addressing himself to the question of collusion, which he had no doubt whatever of disproving, and by entering into the points of law on which the right of the defendant was raised, and then proceeded to call witnesses.
Mr Gwynne was called upon to speak to the execution of the deed of mortgage from Mr Hack to Mr Hagen, and generally to the result of one or two interviews between himself and Mr Bartley in reference to Messrs Hack’s affairs.
Mr John Bentham Neales, in a very lengthened examination, spoke of the sale at Echunga as a fair one, and as having been attended with the realization of fair prices, no collusion having been attempted, although, as he supposed, Mr Robinson, at the instance of Mr Hagen, was buying in some of the things at the sale for Messrs Hack and family.
Mr Samuel Stocks had bought the oats upon which Mr Bartley had a lien at the sale, and had afterwards sold them to Mr Hagen, at the price for which he bought them, partly because the matter was so encumbered with law, and partly because he wanted to go to Sydney. He had also bought some wheat at the sale, but it was not Mr Bartley’s. Judging from what he saw, Mr Bartley’s wheat-stacks would have yielded about 1050 bushels.
Walter Duffield was now managing at Echunga for Mr Hagen, and spoke to the return of the oats as amounting in all to 413 bushels, the price at the time of sale being about 4s 6d per bushel. He himself estimated the oats at the time of sale at 800 bushels, and thought they fetched their full value, but had he known their worth, he should have said they were dear, he gave £3 15s for the ploughs at the sale, but it was more than their value, having had to pay a heavy blacksmith’s bill before he could use them.
Thomas Corder thought the sale a fair one, and that there was plenty of time to bid. The oats and wheat were sold in the bulk, and, in his opinion, realized fair prices.
Mr Wm. Robinson had bought, in conjunction with other parties, at the sale; but, in buying those things, he did not know whether he should have the things himself or not, taking them at that risk. Mr Baker and Mr Hagen were the parties, but the purchases were left to his discretion. Certain articles he bought by desire of Mr Hagen, but he purchased them just as any other person would.
Mr James Saunders had had a letter from Mr James, Mr Hagen’s solicitor, to go to Mount Barker to purchase grapes. Witness was a juror at a prior trial of this case.
Mr Stephen Hack spoke to the conveyance of the property at Echunga to Mr Hagen, and to himself and brother being there as tenants. Mr Bartley had seen him on the Saturday night previous to the sale, and his wanting him to sign a deed to secure him against loss in the event of the stacks being sold, but he had refused, telling Mr Bartley that it depended upon whether he pursued a friendly course to him or not. Up to that time Mr Bartley had pursued a very friendly course. Mr Hagen did not offer to purchase cattle on his account, and did not receive money from him to buy at the sale. Had had a conference with Mr Bartley and Mr Hagen together a week before the sale.
This closed the case for the defendant, and, after a few remarks upon points of law addressed to his Honour by Mr Mann, the Court adjourned. The Court sits at nine o’clock this morning, and the plaintiff is heard in reply, previous to his Honour’s summing up.

South Australian Register, 4 November 1843

Wednesday, November 1, 1843

The Court sat this morning pursuant to adjournment in the above case from the previous evening.
Mr Bartley having replied,—
His Honour the Judge, after making some remarks as to the nature of the demise in favour of Mr Hagen, addressed the jury upon the case. This was an action at the instance of Mr Bartley, against Mr Hagen, in which the plaintiff sought to recover damages sustained by him in consequence of the defendant having sold certain stacks of corn, mortgaged to the plaintiff by Messrs J. B. & S. Hack. Mr Hagen said that he took them by virtue of a distress for rent, and the warrant had been put in (which his Honour read). Mr Mann, for the defendant, said that the plaintiff’s deed was fraudulent, and that in no case could he have any title to the stacks. On the other hand, Mr Bartley argued that his deed was perfectly good, and said that Mr Hagen’s deed was fraudulent, from the way in which it was drawn. It appeared that Mr Bartley was for a long time concerned for the Messrs Hack, and assisted, in August, 1842, in making an arrangement with the Bank of South Australia, in consequence of which the Bank of Australasia were induced to withdraw an execution. On that occasion, Mr Bartley advanced to the Bank of South Australia the sum of £130 on account of the Messrs Hack. He afterwards gave a guarantee for them to Messrs Lambert & Son to the amount of £90, which he paid, making together £221. He paid the Sheriff poundage, on their account, £51, and paid other sums of £10 and £5, making altogether £287. Mr Bartley had also handed into Court a bill of costs against the Messrs Hack, amounting to £183, for business done for these gentlemen, and to which he was fairly entitled, supposing the amount to be just. This would make the total amount more than £400, a considerable portion of which was money out of pocket. Mr Bartley appeared also to have given his personal guarantee to the Bank of Australasia, in order to relieve the Messrs Hack from writs of fieri facias; that they would execute a warrant of attorney in favour of the Bank, and also a mortgage of their horses. Nothing farther occurred till 27th January, 1843, when the security on which Mr Bartley rests was granted. This took place at a remarkable time, and the deed was uncommon, his Honour will not say improper, but it was a deed which would require to be scrutinized. By this deed the Messrs Hack mortgaged their the stacks in question, in security of £400 with interest at 10 per cent.: the day of payment was the 1st May last, “or such earlier day as the said William Bartley should appoint by a notice, at least three days before the term of payment.” A very few days after the deed was executed, on the 7th February, the Bank of Australasia put in an execution against the Messrs Hack. On the 9th Mr Hagen put in a distress for rent. On the 11th Mr Bartley gave notice to the Messrs Hacks to pay on the 17th, after which time he had right to sell. Disputes then arose between the parties, and a correspondence ensued, from which it was clear that Mr Hagen had notice of Mr Bartley’s claim to the stacks. The notice dated the 16th of February was important, as the stacks were there specially described, and stated to be “the property of the said Wm. Bartley,” and “that they were only lying there until they can be thrashed and removed.” That was a mistake, as Mr Bartley had no power over the stacks till the 18th. It notified that the Sheriff of the Province was in possession, and suggested the propriety of letting the sale go on under him, and he would then, as was usual, pay the rent due to the landlord. Mr Hagen had seized under a distress, and Mr Bartley tells him to apply to the Sheriff for payment of rent. The notice was of great consequence good or bad for the parties in the cause. There were remonstrances against the proceedings, but the sale went on, and Mr Bartley’s stacks were sold. Mr Bartley says his stacks were improperly sold, 1st, because Mr Hagen had no right to distrain. 2nd, because the distress and sale were executed in what had been called a collusive and fraudulent—but he would use a milder term—improper manner, so as to cause injury and loss to Mr Bartley. Collusion is not necessary to be proved, but if Mr Bartley proves that he was injured by Mr Hagen’s interference, you must find for him. His Honour made some observations on the rights and conduct of landlords, and read the evidence, commenting upon it, and then said he intended to dwell more particularly, before closing, upon Mr Bartley’s deed. There might be a form for the deed, but still it was uncommon. It was one which could be made to protect either the debtor or the creditor. Deeds usually make a certain day of payment. In this deed there is a day of payment, but an earlier day may be appointed by the creditor. His Honour then referred at some length to a case produced by Mr Bartley, which he said differed from the present in an essential point. He by no means wished to insinuate that the deed was fraudulent, but it would be a proper subject for consideration. The jury must look at the circumstances in which it was granted immediately preceding the execution by the Bank of Australasia. I repeat, said his Honour, that I don’t say it is fraudulent, but that it must be taken into consideration, and I would leave it to the judgment of the jury whether it was bona fide or otherwise. On the other hand it may be stated, that Mr Bartley’s claim was a fair one: that Mr Newland said that he considered the arrangement with the South Australian bank a good one; and that his company did not complain or object to the deed. On the other hand, we cannot shut our eyes to the fact of Messrs Hack’s situation; to the consideration that the security before given to the bank, as we understood, could be defeated. The deed is to be looked to with suspicion, and not the less so that Mr Bartley was attorney to the granters, and knew all the circumstances in which they were placed. His Honour then minutely examined the defendant’s titles. In reference to one deed, where Mr Bartley had objected there was fraud, because, as we understood, Messrs Hacks were to be considered for the purpose of distraining tenants, at a greater rate than the money advanced. His Honour said, that as Mr Bartley, a respectable professional man, was subscribing witness, the deed must be presumed to be a correct one.
Mr Bartley said, that he was not employed to examine the deed, and was only a witness, as happening to be in the office at the time, and that a witness to signatures was not held to know the contents of a deed.
His Honour, however, held that his being a subscribing witness was a favourable presumption that there was no fraud. His Honour concluded by stating that he would leave Mr Bartley’s deed in the hands of the jury. With regard to the defendant’s deeds, he said that he found sums due according to the notices of distress, which he could not find due by the deeds. He was afraid to say they were bad, but he had been very much puzzled. Supposing the distress bad, the jury would have to find for the plaintiff the full value of the corn. If they found the distress good, then it would be their duty to consider whether there was collusion and improper conduct on the part of Mr Hagen. Supposing that Mr Hagen thought that Mr Bartley was in collusion with the Hacks, and had seized and sold Mr Bartley’s stacks under that impression, it would then be a mistake, not a collusion, of Mr Hagen as to the bullocks and horses given up to the Auction Company. His Honour finally said that the jury would require to state in their verdict whether or not Mr Hagen's conduct at the sale was improper.
The jury retired for five hours, and at a few minutes after twelve p.m., brought in a verdict for the plaintiff—damages, £400— and that Mr Hagen had been guilty of improper conduct at the sale.
The Judge asked the jury whether they considered that Mr Hagen had a legal right to distrain. Mr Sutherland, the foreman, replied that they had found their verdict on the understanding that there was a legal right to distrain. The jury, also, in answer to a question, stated that they found Mr Bartley’s deed bona fide.

South Australian Register, 8 November 1843

Tuesday, November 7.

Mr Mann in this case moved that the verdict be for the defendant on the grounds of law, or that there be a new trial. Mr Mann proceeded to remark that both the court and the jury had found the right of distress in the defendant, and yet that his Honour had ruled that it did not come within the exceptions of certain cases argued on the trial.
His Honour observed that what Mr Mann meant was, that the jury had found under his direction that Mr Bartley had a right of distress, yet that the deed was not such a deed as to bar other creditors.
Mr Mann thought if not he was entitled to damages. Under a former trial the jury found, that his client had no right of distress, and yet they found for the plaintiff £350 damages, and now that the right of distress was admitted, the present jury found £400 damages.
His Honour observed that Mr Mann's remarks amounted to this only, that the former jury found £350 damages, and the present £400.
Mr Mann argued on the ground of his Honour's ruling that a right of distress existed on the part of the defendant for an amount of £62 as due by Stephen Hack, that what had been seized had been rightfully seized, and rightfully sold, but, as to the question of £12 10s. of money remaining in the hands of the distrainor, this was a mere matter of settlement, and could not be construed into grounds for damages on the part of the claimant. A person might seize and sell a diamond, and after the sale there might be money in the hands of the distrainor, which he would have to hand over, but this would be no ground for an action of damages. He did not so much come for a third trial, as for a new trial, inasmuch as the issue had been changed as to the distresss.
His Honour apprehended the view the jury had taken of the case was this. Admitting the right of distress on the part of the defendant, they supposed, that, if he had used due discretion at the sale, there would have been enough for him and others. They would never have given such a verdict, but from this view of the matter. They supposed that the defendant's distress might have been satisfied, and in fact, that it was satisfied under the circumstances.
Mr Mann said that he should then have a right to come before his Honour on other grounds, namely, that it was against his Honour's ruling.
His Honour replied that it was not against his ruling. He went into the conduct of Mr Hagen at the time of the trial, and left the jury to decide upon it. Under the sheriff's sale there was a large sum of money which went to Mr Hagen, and, putting aside the question of undue interference, there was, besides the grapes, melons, thrashing machine, &c., many other things seized under the right of distress for an amount of £362, and the jury might have thought there was enough to justify them in saying that there was no occasion for him to touch Mr Bartley's stacks at all. With regard to the question of bona fides, that was a particular question for the jury, and his Honour had left it to the jury as other judges had done, and he had been particular to use the language of other judges, to say whether Mr Bartley's deed was in good faith or not. On that point he had nothing more to say, for the jury had found it to be a good and valid deed. With regard to excessive damages, it was right for him to say that the former trial had not been granted on account of excessive damages. It was urged on the part of Mr Bartley, and, as his Honour thought, not very strongly combated by Mr Mann on the first trial, that Mr Hagen had no right to distrain. When his Honour considered that point duly, he thought he had put the case to the jury in a way in which he ought not to have put it to them, and he further thought that he ought not to deny Mr Hagen a new trial. The new trial was granted solely on the ground of his own mistake. He felt that he had not done justice to Mr Hagen, and however painful to have these matters brought under review again, he felt that he could not refuse a new trial. The jury had had the question of collusion or undue interference put to them, and his Honour could only interpret their verdict in this way, that the jury considered that Mr Hagen's distress might have been satisfied, and was, in fact, satisfied without interfering with Mr Bartley's stacks. The jury had viewed the matter very liberally, and had valued the things thus under his Honour's direction. Having considered the items which form the subject of distress, and the sums levied under the execution, all of which Mr Hagen had the benefit of, and considering Mr Hagen's interference, his Honour could not say that there was not enough to satisfy his distress. Then come to the value of Mr Bartley's stacks. He had never yet granted any new trial on the grounds of excessive damages, no case having come before him so glaringly as to make it necessary for him to interfere, and he hoped he never should, inasmuch as it was a most unpleasant ground, and yet he did not wish it to be understood that he would not grant a new trial under such circumstances. In this case the special jury was prayed for on the part of the defendant; they gave the most undivided attention to the subject, and they were, as his Honour apprehended, perfectly fair and impartial in their decision; and his Honour could not take a different view of the matter, unless strong grounds were given for his doing so. His Honour was not sorry to have had an opportunity of explaining the real grounds of the former trial, which he had indeed done to the jury.
Application refused.

Southern Australian, 30 September 1843

MONDAY, AUGUST 28, 1843.

BARTLEY v. HAGEN. —In this case, which arose out of the sale of the effects of Messrs J. B. and S. Hack, at Mount Barker, in the month of February last, the plaintiff sought to recover the value of certain property assigned to him (in security of the sum of £400, being principally monies advanced by the plaintiff to the Messrs Hacks during their difficulties), which had been sold at auction. The circumstances are briefly these: —It appears Mr Hagen held a general mortgage, alleged to contain the powers of a landlord over the property of Messrs Hack, and under that mortgage had sold everything off  by auction, including certain stacks of wheat, &c., which were assigned to the plaintiff.
Mr Fisher for the plaintiff took several points, the principal of which were, that the sale was collusive, and induced a sacrifice of the property, and that the defendant could not distrain under his mortgage. A great number of witnesses were produced on the part of the plaintiff, to prove the nature of the sale, and Mr Fisher went into a long argument to shew the nullity of the defendant’s deed.
Mr Mann for the defendant made a long address to the jury, commenting upon the plaintiff’s case for the purpose of showing that there was no collusion. He argued also that the plaintiff’s mortgage was held to be a fraudulent preference, as being forced by plaintiff upon Messrs Hack, while acting as their attorney; that the law held such a deed to be null.
The case lasted two days, and was terminated at a late hour on Tuesday evening.
The jury gave a verdict for the plaintiff, damages £350, but did not specify upon which point the verdict was founded.

Southern Australian, 31 October 1843

MONDAY, OCTOBER 30.

BARTLEY v. HAGEN.—For this case the following gentlemen were sworn as a special jury:—Charles Berkeley, James Henderson, London H. McLeod, James Poole, David Sutherland, Alexander Lang Elder, William Sandford, John Russell, Charles P. Brewer, Edward Stirling, John Grainger, and Ebenezer Moorhouse, Esquires.
This case arose out of the sale by distress, on the part of the defendant, of certain stacks of the Messrs Hack, which they had made over to the plaintiff in security of moneys advanced, and due to the plaintiff. The case was, at last sittings, tried by a common jury, who found the sum of £350 of damages due to the plaintiff; but the Judge granted a new trial, on the ground of excessive damages.
Mr Bartley, assisted by Mr Fisher, conducted his own case.
It appeared that he had been solicitor to the Messrs Hack, of Mount Barker, for two years; that he was also solicitor to the Bank of South Australia; and Messrs Hack having been indebted to the Banks of South Australia and Australasia in large sums, for which they were pushed, he had become intimately acquainted with their affairs; and, having felt great confidence in the Messrs Hack, he had advanced, or become security, for a variety of sums to relieve them in their difficulties. He had put his name to a bill of £130 at their settlement with the Bank of South Australia—he had given his security for £120 to Messrs Lambert & Son—he had paid the Sheriff £51—and other sums had been by him paid on their account—altogether amounting to £407. He had also a considerable law account. Of these sums, Messrs Hack assured him some would be paid by them when bills became due, and some that he would be repaid. Messrs H. doubtless expected that, but they had not done so, and he began to feel uneasy; still he did not press the Messrs Hack. Afterwards, hearing that quantities of cheese and other goods were being sent to the defendant by drays continually coming into town, he had demanded, and got the security, of the stacks in dispute, being barely sufficient to cover his advances.
Mr Bartley then enumerated the transactions of the defendant with Messrs Hack. He had a security for £3000 over Mr S. Hack’s undivided moiety of certain lands belonging to Messrs J. B. and S. Hack, and he had advanced £600, for which he had a mortgage, having in it the powers of a landlord to distrain. The interest, 25 per cent., was enormous, and Mr Bartley contended that the right to distrain was introduced for a purpose, was unjust and inept. He also contended and would prove that the distress made was collusive and deceitful. Mr Bartley also brought a number of objections against the demise in favor of Mr Hagen, and afterwards entered into a full detail of the various circumstances attending the sale and the negotiations relating to the possession and seizure of the wheat. He concluded by stating that he demanded damages. The wheat was valued at £400, the charges of the auctioneer, trouble, and other expenses.
Mr Bartley’s deed was put in and read.
The Judge then read the evidence of Mr Edward Stephens, of the Bank of South Australia, which was given on the former trial. It is to the following effect:
Mr Edward Stephens, Manager of the Bank of South Australia, spoke to advances made by the plaintiff to Messrs Hack, and on account of which security over the stacks in question had been taken. Plaintiff was aware that Messrs Hack were in difficulties, and had advanced part of this money to extricate them, thinking, as witness understood, the Bank had been rather hard upon them, but the event had proved that Mr Bartley would have done better to take witness’s advice, and have nothing whatever to do with the matter. The claims of the Bank of South Australia upon Messrs Hack at the time this advance was made were £1,500, and they had taken £755 12s 3d for it, being a composition of 10s in the pound.
He also read the Sheriff's evidence, nearly as follows:
Mr Sheriff Newenham proved the Bank of South Australia to have entered Messrs Hack’s premises under an execution in the month of August, 1842, and to this execution having been withdrawn under an arrangement with the Bank. Mr Bartley paid the Sheriff £50 7s poundage on that occasion. The Bank of Australasia were also in, and their claim was large, but he received no poundage from them.
Mr Fisher then examined the Sheriff, as follows:
Mr Bartley gave an undertaking for poundage on the occasion of a Sheriff’s execution, at suit of Bank of Australasia; had several interviews on that occasion; seemed considerably interested for the Hacks, and was instrumental in saving the poundage, £81. In answer to Mr Mann, the amount of the Bank of Australasia’s claim was £5140 odd.
The Judge. —The poundage of £51 was paid by Mr Bartley. Then the suit was at the instance of the Bank of South Australia.
Mr Lambert’s former evidence was read by the Judge, to the following effect.
Mr W. G. Lambert had had dealings with the Messrs Hack, and required a guarantee for £100 which was given by Mr Bartley, the plaintiff, at Mr J. B. Hack’s request, and was afterwards paid by plaintiff. Attended the sale at Echunga, Mr Hack’s residence, on the 20th of February last, and saw defendant there, and heard him caution plaintiff against selling certain stacks of wheat and oats, which he alleged were his property, and which he had employed and paid witness to sell. When one of the stacks was knocked down to Mr Mitchell, a deposit of £15 was demanded, but he was afterwards told that, unless he paid £30, it would be put up and sold again. This struck him as singular, and appeared to have been the result of a conversation between Messrs James, Hagen, Robinson, and the auctioneer. The impression on his mind was, that the property was being bought in. When the sale of the furniture commenced, Mr Hagen came to him, and either said, “the things are being bought in for the family,” or, “we are buying them for the family,” he could not tell which, in consequence of which, although he had bought one lot, and intended to buy anything he saw worth purchasing, he bought no more. At home, things were sometimes taken by appraisement, and not by public sale, but public sale was the far better way of purchasing, and was fairest to all parties. General disapprobation was expressed at the sale about the things being all bought by one party.
In addition, Mr Lambert said that he did not remember the precise words, but they were to the effect that the things were being bought in for the family; Mr Hagen beckoned me out, and said to the effect that they were buying for the family; I lent Mr Mitchell £10 first, and that not being, as they said, sufficient, I drew a cheque for £30; a conference was previously held between Messrs Neales and James, and I think Mr Hagen, when £30 was required, and I then drew the cheque; Mr Neales said he would sell again if that amount was not paid; saw Mr James, Mr Hagen, and the auctioneer together, occasionally; it was my intention to buy anything worth purchasing.
By Mr Mann—Cannot recollect Mr Hagen’s words; it was an intimation not to bid, but could have bid if I choose; it struck me as singular, first receiving a deposit and then demanding more; went there for the purpose of selling for Mr Bartley; recognises a copy of the advertisement; it would depend upon the conditions of our sale, which were not fixed, whether the sale by me would have been in equally favorable circumstances as by Mr Neales; I thought the price of the grapes very small, and thought they would not be ripe at the end of forty days; would not have purchased under such conditions, as it would have been rather too speculative; cheese was sold by us for Mr Hack at from 4d to 9d in November, 1842; could not tell without examining and tasting whether those at the sale at Mr Hack’s were equally good with those sold by us, but they appeared sound; have sold cheeses for almost nothing, but they were damaged; the cheeses were fair looking, but could not tell without examining.
By Mr Fisher—Saw Mr Robinson purchase; did not see him pay a deposit nor hear him asked for one.
James Roberts’ evidence was next read. It merely proved a service of notice.
John Gloag’s evidence was read.
Mr John Gloag, of Mount Barker, spoke generally of the way in which the sale was conducted, no time being allowed for other parties to bid before they were knocked down to Mr Robinson. On one occasion, in particular, when selling the furniture of a certain room, Mr Robinson and a young woman were in the room together, and he and the auctioneer at the door, but no one was allowed to go in, and all was knocked down to Mr Robinson, except one chest of drawers, which witness got a sight of, on account of its standing close to the door.
The witness then, in answer to Mr Fisher, explained his former evidence. He considered that at a sale a thing should be called before it was knocked down, but in many instances things were knocked down so fast that I had not an opportunity of bidding. If I bid, the article was immediately knocked down to Robinson—the auctioneer said “the old mark,” which we understood to be Robinson.
By Mr Mann—I did bid; ten to one, if I had, I would have got the article; if I gave a bid it was immediately knocked down to “the old mark;” I was forbidden to bid by the auctioneer; was forbidden to come into the far end room in case the room should fall down; I saw there was a young lady in the room; Mr Robinson went in, and the things were knocked down to him; I stood between the door cheeks; Mr Bentham Neales said—“are you aware that Mr Robinson is buying in for the family, and Mrs Hack would not have a bed to lie on ;” I said it is a public sale; I gave two bids for the wardrobe previously; I did not bid after that in that room; in another room Mr Neales said the place would fall down; was not told what the things were at once; bid for a chest of drawers; he only mentioned the names; I stood between the two door cheeks and saw what was in the room.
By Mr Fisher—Mr Robinson bought all the things in that room; the sale was not conducted in the usual manner; the fowls were sold at the risk of the purchaser, and at so much a-piece, and the purchaser was to catch them if he could.
Through the Judge—If the sale had been conducted in the usual way it would have lasted two days in place of a few hours; it was too hurried.
Dr Kent’s evidence read—
Dr. Kent was next called, and proved that, when in the set of bidding for two side-saddles, Mr Hagen, the defendant, he believed, turned to him, and intimated that he should suspend his bidding, as it was desired that these saddles should be purchased for the use of Mrs Hack or family. He himself had bid nearly the full value of the saddle, and would not undertake to swear that it was Mr Hagen who had thus spoken to him, although he believed it was.
By Mr Mann—Could have bid for any article. The price of the wheat would amount to 4s 6d or 5s per bushel. Thinks he heard from Mr Hagen the expression—buying in for family.
By Mr Bartley—With regard to most things there was time, with regard to others, thought it was done too quick. Went expressly to buy the saddle; did not buy anything; my impression was that there was a desire to purchase in many things for the use of the family, from the circumstance that one bidder was the principal purchaser, and on the part of the family. If things were understood to be bought for the family it would prevent me from buying. There was some public expression of dissatisfaction at the manner in which the sale was conducted.
By Mr Mann—The dissatisfaction was expressed to myself; is not aware that the auctioneer heard the expression. The manner in which the sale was conducted threw a damp upon it so as to prevent its having a free course.
Mr Anthony Foster’s evidence was read—
Mr Anthony Forster was at the sale, but did not think it of public or general interest, one person evidently having been employed to buy up most of the lots. The whole furniture in one small room was swept away whilst he was attempting to get there. In one room the contents were sold in two or three minutes; does not know who was the purchaser; the circumstance of one person buying nearly all the things, gave the impression that the public were not intended to purchase. I was present when a side saddle was sold; it was put up at 1s; went up to 20s; the auctioneer said, “the saddle is being bought in for the family; if you intend that the family shall not have it, bid £5,” or some other sum, I do not remember what. I did not think it was a public sale; I was so dissatisfied with the proceedings that I did not purchase at all.
By Mr Mann—Was at the sale about two hours; I observed nothing particular about the sale of the wheat and oats; I could have bid; several persons bid; there is no particular article, that I remember, I could not have bid for; does not remember anything that Mr Hagen did to cause the opinion that he interfered.
William Giles, Esq., his evidence read—
Mr W. Giles, sen., Manager of the South Australian Company, was at the sale, and Mr Hagen came up to him, and said “This side-saddle is for Mrs Hack, don’t bid against her,” and witness said, “No, I won’t.” Did not think the sale a fair sale; it was much too hasty. If they had been his goods that were selling, he should have been much dissatisfied with the sale. It was generally understood that Mr Robinson was buying for the family, and this influenced the sale much; saw Messrs Robinson and Hagen together; Robinson buying decidedly influenced the sale; it gave every one present the  idea that he was buying in for the family; there was not an article in the sale but what I could have bought, if I had been determined, but I must have been very quick; my impression was derived from the quickness of the auctioneer; it did not prevent people bidding; Robinson buying so much, showed that he bought for the family; several persons that he spoke to, had the same opinion; we were hunting after the auctioneer the whole day, and could not overtake him; 60 to 100 persons were present, I conferred with about five persons; there were no expressions of dissatisfaction, to my knowledge, made to the auctioneer.
The following witnesses were then examined:
Samuel Mason; W F. Newland; Wm. Bakewell; T. N. Mitchell; G. Goddard; John Ridley; Samuel Stocks; Robert Sanders; John Borr; George Robert Debney; and Robert Bogle Fairley. They were brought, some to prove collusion at the sale, some to prove damage by the way the sale was conducted. Mr Bakewell was examined in reference to a bill of costs due by Messrs Hack to Mr Bartley, and others bore evidence to collateral points. We are sorry that it has been found impossible to give the above evidence, but shall endeavour to report it entire in our next. The above completed Mr Bartley’s case. The defendant’s case comes on to-day, and will probably occupy the court to a late hour.

Southern Australian, 3 November 1843

MONDAY, OCTOBER 30.

BARTLEY v. HAGEN. —W. F. Newland, Esq., manager of the Bank of Australasia—His former evidence was read. It stated that Mr Bartley had applied to him for the loan of the bank’s horses at Echunga, to thrash out the wheat, and that he had consented to let him have them; that he was aware of the security in favor of Mr Bartley a short time before the distress.
By Mr Fisher—Considered Messrs Hacks’ arrangement with the Bank of South Australia as so favorable that the Bank of Australasia withdrew their execution for £5000.
W. Bakewell, clerk to Mr Bartley, spoke to the correctness of Mr Bartley's bill of costs now put in.
T. N. Mitchell’s evidence was then read:
Thomas N. Mitchell, of Mount Barker, was at the sale, and priced various articles sold, particularly the melons, grapes, and potatoes, which were sold much below their value; Mr Robinson bought nearly all the articles, and he knew from his conduct at the time that he was buying for Mr Hagen, on account of Mr Hack; this was the reason he did not buy more at the sale than he did; he bought the oats, and paid a deposit of £15, but was called upon for another deposit of £15, making it in all £30, or he was told they would be put up again and sold; Mr Robinson was asked for no deposit when he bought articles at the sale, although he bought eighty out of a hundred lots; the sale was not conducted in the ordinary way, and he therefore ceased buying, although there were many things he wanted, and wished to have purchased; many persons left the sale at the same time with him, because the things were knocked down to one party, whoever bid, among whom were Messrs Lambert, J Sayers, and others; none of the goods sold fetched anything like their value; there were 1200 bushels of wheat in the stacks, and at that time it was worth 5s per bushel, but it sold for £69; the grapes were worth £250, but they sold for £20; the melons also were sacrificed; all were put up in one lot, and the Germans who had gone to buy in separate lots were thereby prevented; there was not fair play at the sale; things were knocked down too soon, and before persons had time to bid; would not undertake to swear that Robinson paid no deposit, but witness did not see him called upon to do so, and he did not do so at the time of bidding; Mr Bartley wished the execution goods sold first, but they refused, saying—“sell they would,” and proceeded to the sale, in spite of all his remonstrances.
By Mr Mann—Other parties bid for the wheat; did not see Mr Stocks bid; was not inclined to bid for the melons; if inclined to be impudent could have gone up to the auctioneer; if I had demanded time there might have been a row; no pigs of mine got into the garden previous to the sale, or destroyed the melons; a pig of the Cattle Company’s got in afterwards and was; I saw it lying among the Cobbett’s corn.
Mr Fisher—We are not trying a question of pig shooting.
Mr Mann wished to show the circumstances in which the sale was made.
His Honor—Mr Mann may be allowed a little pig excursion.
By Mr Mann—I went to buy, but did not bid, because they were buying in for the family; I have not paid for what I bought.
By his Honor—I never paid the money because I could not get an indemnity; I have never got it; I was served with an injunction; I came down expressly to pay it.
Geo. Morphett, Esq.—I have looked through the bill of costs; so far as the bill states, and judging what business would be necessary, I think it is a fair bill.
George Gozzard, appraiser—Put in a distress on Stephen Hack and J. B. Hack. This witness then stated his proceedings, and spoke as to the cattle and entire horses, “Black Jack” and “Merrigig”, having been given up to the Auction Company, by order of Mr Hagen.
By Mr Fisher—The witness delivered his authorities, also the copy of inventory which he began to take; the things in the inventory were in the hands of the sheriff; the six bullocks and nine bullocks were given up; produces authority by which bullocks were given up; did not consider he had possession of the other horses; he did not know, till he got information from Mr Hagen, whether he was to hold or not; the goods distrained were not appraised; began to take an inventory of the goods which the sheriff had, and of the goods distrained, but it was partial; entered on the 20th February; the goods were not sold at the end of five days, because I got a request from Stephen Hack not to proceed; had no consent from Mr Bartley that the goods should not be sold within five days.
By Mr Mann—Mr Bartley’s stacks were included in the inventory—two wheat stacks, and one of oats.
By the Judge—All the wheat stacks on the premises were included in the inventory; Mr Bartley never asked for my authority.
John Ridley—The price of wheat in February last was 4s; the price of threshing was 9d per bushel; some might have given more.
By Mr Mann—Never gave less than 4s in February, and for some months after; winnowing and threshing might be done for 9d.
Samuel Stocks’ evidence read. It was to the effect that the oats at the time were worth 5s; thought the wheat at Deane’s was dearer.
By Mr Mann—Considered the price of oats fair; they were sold by public auction; £60 was as much as they would have produced after I got them into the market; all the trade were there, and the sale was fair.
By the Judge—The oats were worth 4s at Mount Barker; they brought as much as they were worth by auction; at that time they were worth more than £60 if brought into town; extreme value £160, after deducting expenses, but allowing no profit; allow profit 20 per cent., £32—£128; forty days were allowed to take away; the market began to fall very soon after the sale, but cannot fix the precise time; it would have taken longer than forty days to take away the stuff.
Francis Faulding, in the employ of Messrs Waterhouse. By Mr Fisher—We paid 9½d per lb. for Messrs Hacks’ cheese; the average weight was 20 to 25 lbs.; Messrs Waterhouse dealt with Messrs Hack for two or three years; the last average weight was 22 lbs., and the others were similar.
By Mr Mann—We knew what the cheese was pretty well; the last bargain was for 4000 lbs.; we did not buy all the cheese.
Robert Sanders, Hindley-street, evidence read—Bought cheese from Messrs Hack; average weight of cheeses 251bs.; price from 8d to 9d; bought from Mr Hagen the same sort at 8d; gave Mr Hagen £31 10s for grapes; credited Mr Hack £20 more; some grapes made into wine.
By Mr Mann—The grapes were packed in cases with chaff ; at first they were common packing cases, afterwards Mr Hack got boxes for the purpose; they were sent in 100lbs. to one cwt. and a half; there was a good deal of risk in sending them down; have seen many spoiled; at first they sold well, but afterwards they had slow sale; could not give much for the grapes at such a distance as Mount Barker.
John Borr, sheriff’s officer—Proved execution of fieri facias against the Messrs Hack, and that he seized Mr Bartley’s stacks, which were given up to him three days afterwards, by direction of Mr Newland.
By Mr Fisher—The bullocks were delivered to Mr Baker, of the Auction Company; the horses belonging to the Bank of Australasia were turned out by Mr Stephen Hack; I levied on another occasion, and the greater part of the things were there, not all.
By Mr Mann—Could not tell what was sold at the first, or the prices; Mr Hardy sanctioned the bullocks being given up: I seized on everything, also Mr Bartley’s stacks.
George Robert Debney, clerk to the Auction Company—Attended with Mr Neales at a sale at Mount Barker, in February last; took a memorandum of the articles sold, prices, and names of purchasers; the paper produced contains all, except about a dozen other articles, bought by another party, and afterwards charged to Mr Robinson’s account; Capper, to whom articles were knocked down, was at the sale; paper produced being authority to deliver bullocks; the signature appears to be Mr Hagen’s, but is not certain; the body of the paper is in Mr Baker’s hand-writing.
By Mr Mann—Has been in the custom of attending sales for the last five years; there was nothing materially different in the present sale; have seen him many times as quick; had no difficulty in writing down the lots; there were a great number present; there might be more than a hundred; the competition was carried on in the usual way.
Robt. Bogle Fairley.—I was at the sale at Mount Barker in February last; I attended it; Mr Robinson was the principal purchaser during the time I was there; I bought a spring cart; Mr Robinson bade against me; it was knocked down to me, but I did not get it; went next day about four o’clock, but could not find it; afterwards saw it lying upside down, and the wheels in the blacksmith’s shop; the blacksmith’s shop was on the premises, but higher up the hill; it was paid by Mr Giles, in my name  I went to Mr Hack; I asked him for the cart; I did not get it.
A debate here took place as to asking this witness respecting the circumstances of the detention of the cart.
Mr Bartley contended, that as this case, though nominally against Mr Hagen, was, in fact, to try collusion between all the parties, he was entitled to examine as to this point.
The Judge, however, refused to allow the question to be put.
This closed the plaintiff’s case.

TUESDAY, OCT. 31.

Mr Mann made a long and eloquent address for the defendant, and called E. C. Gwynne, Esq., Solicitor, examined, stated that he had perused certain deeds.
By Mr Bartley—I recollect Mr Bartley endeavouring to pacify me as to the Hacks; I was prosecuting them at the time; I thought him a great deal too anxious. He endeavoured to persuade me that the Hacks were not so bad as they were called, and I differed from him. I have looked through Mr Bartley’s account and having seen many of the deeds and knowing their length, consider the charges moderate.
J. B. Neales, Auctioneer—I acted for the Sheriff in the case of the Bank of Australasia v. J. B. & S. Hack, on 20th February, 1843; attended at the premises at Echunga Springs where sale took place. I acted also for Gozzard under a levy for rent. I know Mr Hardy; he was at Mount Barker; Gozzard’s sale took place first; the conditions were torn down; they were usual conditions; Mr Hardy was present, saw the conditions prepared. Mr Hardy attended on the part of the Bank of Australasia as attorney in the action; he was present during the sale; I was for making the term of removal 30 days, but Mr Hardy suggested that it should be 40 days; sold a crop of melons, grapes, a rick of wheat in two parts, a stack of oats, dressing machine, horse wheel, and harness. The sale realised £217 gross, net £198 9s 6d, which I handed over to Gozzard. There was a full attendance, about 200 people. As to the melons, few people but the buyer would have given as many shillings for them; Robinson was the buyer. One man bade 22s, and a person in the neighbourhood—a gardener, bade several times; there were not many bidders for the grapes; hardly any one else would have given the money from the distance to town; I would not have given £10 for them; Robinson was the buyer; 40 days was the utmost I ever knew given to take off any crops. The rick of wheat fetched £99; all the wheat buyers at the place attended—there were several; there were many bidders for the wheat; a Mr Mitchell who gave the name of Captain John Mitchell, was the purchaser; saw Mr Mitchell and Mr Bart- ley speak together; he first got £8 in notes from Mr Lambert as the deposit; it was afterwards made up to £30. At the time the deposit was made, Mr Bartley said it was all right; Mr Bartley, I consider, was endeavouring to depreciate the price; I then asked for a farther deposit; I thought if the £8 had been taken, the lot would not be cleared. I consulted Mr James on the subject. There were several biddings for the wheat; it was started at half of what it was sold for; there were more than three biddings—there might have been ten; Mr Robinson was one of the bidders; there was no warranty as to either quantity or quality; I believe £99 to be the full value, six weeks before or after the sale; the price of wheat has rather gone down than otherwise; Mr Stocks was the purchaser of the oats. There was pretty brisk bidding for all the property; don’t know whether Mr. Robinson was a bidder for the oats; I believe they fetched their full value; mill-horse, wheel, &c., bought by Robinson for £6; not so much competition, being a fixture. Thrashing machine bought by the same party; side saddle, &c. There was every opportunity given for any person to bid. The thrashing machine being fixed, was well sold at £19. Small flour mill was worth very little—it sold for £1 5s; had no farther communication with Robinson than any other buyer—that is, asking him for a deposit; I had no communication with Mr Hagen, except at the time of dispute about the wheat; Mr Bartley gave notice not to sell the wheat; no objection made to the sale of any other article; Mr Bartley said the wheat was his, and dared me to sell, or any one to buy. I told the people not to attend to the notice, and offered a guarantee; the sale of the wheat and oats were very fairly contested; I have made several applications to Mitchell and he would not pay; thought he was acting along with Mr Bartley, as Mr B. was angry for my not accepting the £8; I offered Mitchell a guarantee but he refused; the sale was exactly the same as all other sales; the sale would not have fetched half so much if it had been a two day’s sale, because so small a number of people; no relays of people as in England; acted also in the sheriff's sale. The conditions were the same, except that I reserved the power to refuse checks; the conditions were torn down; The gross amount of the sheriff's sale was £256; net amount £241 19s 3d; the sale commenced at eleven; never had such an assemblage of people in the country. Yokes, bows, and chains, brought £5—an enormous price. Phaeton and double harness brought £21; Mr Lambert bought it; Mr Solomon employed me to sell it since; have not been able to get the price; last reserve £18; last offer £11. A winnowing machine brought £6 10s, price of new ones. Robinson bought two childrens mattresses; not fit to take away; 3½| acres of potatoes and 3 acres of maize were bought by Robinson, for £3 15s; if they had been offered till this time they would not have brought more; my habit of selling is rather quick, and I was not quicker than usual; there were bidders for cheese; 81 cheeses sold at 1s 5d the cheese; no more could have been got for them; they commenced at 6d a cheese; they were very bad cheeses; have had them ever since, and tried them every fortnight, but could not realise a tenth of what they brought at Mount Barker; sold them since at 10s, and the man did not clear the lot; I know a man Gloag; he was very troublesome, and should have given him in charge of the police, had he been in town; he bade for nearly every article in the house; the two side saddles brought £5 l0s; could not have got a better price in town; the wheat stack that Mitchell bought was very imperfectly covered in.
By Mr Fisher.—Did not advertise the goods under the distress; consulted Mr James on the deposit of the £8 by Mitchell, as agent for the landlord, Mr Hagen; I can't recollect what I said to Mr Hagen at the time of the wheat question, but I recollect it was nothing of importance; I considered that Mr Bartley’s protest against the sale would have had an effect, if people had not taken my word in preference to his; he got into a great passion, for which he has since apologised to me; he said he would invalidate the sale; Mr James got out of temper, also, and said I was quite right: I said I had positive instructions to sell, and that I would guarantee to deliver; I do not remember what Mr James said; the sale took about two hours and-a-half or three hours; there were about one hundred and eighty lots; if in town I would have sold them in a third of that time, or little more; I have sold three lots a minute for seven hours together; they were drapery goods; the cheeses were put up all in a lot; they would not have brought more if put up singly; I received them in town from Mr Hagen; probably next month; cannot tell the weight of most of them; they might be from 4½ lbs to 7 lbs or 8 lbs; I have sold the entire horses since; I do not know how many bullocks there were delivered up, there might be three or four teams; I got replies from Mr Mitchell; he gave me his word of honor that he would settle; he asked for an indemnity, either mine or Mr Hagen’s; Mr Stocks had Mr Hagen’s indemnity; Robinson, and Capper for him, bought all the kitchen utensils.
By Mr Mann—In no instance were facilities given to Mr Robinson that every other buyer might not have obtained.
By the Judge—I knew at the time or rather guessed when he was bidding for the melons and grapes, that he was buying either for the family or for Mr Hagen; sup- posed so from his being friendly with Mr Hagen and Mr Hack, and not likely to buy such articles for himself; was more likely to buy the dressing-machine, wheels, and harness; the only reason for supposing at that portion of the sale that Robinson was so buying was as stated; no reserved price was given to me as to things sold under the distress; if the articles had been bid for, however low the price, I would have knocked them down; in the after part of the sale, Mr Hagen told me that Mr Robinson was to buy some furniture for the family or Mr Hack; it was either Mr Hagen or Mr Robinson who told me.
Samuel Stocks—Thrashed out wheat; it yielded poorly; thrashed out six stacks; saw the wheat stack belonging to Mr Bartley; suppose that Bartley’s stack contains 1050 bushels; the yield of the oats in quantity was indifferent.
Walter Duffield—I am a farmer residing at Echunga; I was present at Messrs Hacks’ sheriff’s sales; have thrashed of the oats 253 bushels; the oats were sold to Mr Stocks; about 160 bushels remain; 413 bushels in all; should think the price of oats at that time 4s 6d per bushel; I think the expense of thrashing and carting to town those oats would be ls 6d per bushel, because one half of them was nothing but straw; they were only a few yards from a blacksmith’s shop; have been all my life in the farming, and considering that they were sold in bulk, they brought full value; now, I think, they were dear; I estimated the oats at 800 bushels; I know of the stack of wheat sold to Mr Mitchell; I estimated that wheat at 900 to 1000 bushels; at the time of the sale wheat was worth 4s 6d; have not been able to sell at that price since; thrashing, winnowing, and carrying down to Adelaide would be ls 6d per bushel ; supposing a sale by Lambert, it could not have been removed except at a great loss; saw the cheeses; many had maggots, and many were cracked; I considered them the refuse of the season; I would not have bought the melons at Echunga at any price; about February and March I sold sweet melons at a penny, and water melons at a halfpenny per lb.; I bought three ploughs at the sale; I gave £3 15s for them; I gave more than the value for them.
By Mr Fisher—I lived at the Little Para; I manage now at Echunga, for Mr Hagen; I first saw the cheese at the sale, I then found them maggotty; I was not there immediately after the sale; the pigs and horses may have been at the stacks, but have not injured them.
By the Judge—Mr Hagen has taken possession of Echunga; I went up in the middle of April.
Thomas Corder—Was a miller in England; is a farmer here; corroborated the above evidence as to the yield of the stacks, &c.
William Robinson, of North Adelaide, sheep farmer—I was present at Mr Hack’s sale under distress and execution; I know of stacks of oats and wheat claimed by Mr Bartley; I bid for them; Mr Mitchell, and Mr Jackson for Stocks, bought them; there were a good many bidding for them; I thought they brought more than their value, or I should have purchased them.
By the Judge—I bid for the wheat and oats in conjunction with other parties; I did not know whether I should have the grapes and melons myself or not; I took the risk of them; Mr Hagen said afterwards, that he supposed I did not care much for the grapes, he said he felt inclined to give them to Mr Hack; the melons were taken for the same purpose, at the same time; not having any further interest in them I did not care what became of them; I eat some of them; Mr Barton Hack sent some into town to sell; Mr Hagen took the dressing machine, also, but I was not aware that I was buying the dressing machine, the thrashing machine, and others, for Mr Hagen; I bought them in conjunction with other parties; Mr Hagen was one of the parties, and when he asked for the things I gave them up to him; Mr Baker and Mr Hagen were the other parties; what I purchased, I should have had my share of the profit or loss; certain articles of household furniture I bought in for the family or Mr Hagen; anything else I bought as any other purchaser.
James Sanders, baker—Recollects of the sale at Hack’s; I had a letter from Mr James, saying that grapes were to be sold, and advising me to go and buy on my own account; I am in the habit of selling grapes.
By Mr Fisher—I was one of the jury on the former trial.
Stephen Hack recognises the plan of property at Mount Barker; four sections were let; all the rest were in the occupation of myself and brother; recollects the sale in February; Mr Bartley’s stacks were on section 3883; I saw Mr Bartley on the Saturday night previous to the sale; some conversation took place between us relative to a deed; he was very anxious that I should sign a deed to secure him from loss in case the stacks were sold; he tried all kinds of ways to induce me to sign it; he said his pursuing a friendly course depended on my signing the deed.
By Mr Bartley—Up to that time Mr Bartley had pursued a very friendly course; I am not sure that the deed I was asked to sign was not upon my undivided moiety after Mr Hagen was paid his £1000; I declined to sign the deed; I cannot recollect that I said there were parties in England that I must protect; I cannot swear that I did not; I have no recollection of saying that it was a swindling transaction on the part of Mr Hagen seizing the corn, or that it was gross conduct, or that Mr Hagen was a swindler in doing so; I do not recollect making any remark of the kind; I cannot swear that I did not; I received a notice not to execute any deeds to parties in England ; Mr Hagen did not give me money to buy cattle on my own account; I drew bills on parties in England; I made conveyance to parties in England; Mr Hagen bought to the amount of £100 for Russell Skey; Mr Robinson bought for me in the same way; I formed no judgment of my own as to the value of the grapes, my brother said they were worth £300; I do not recollect telling Mr Bartley, at his house, they were worth £600; I and my brother made a valuation of the crops; he estimated that he would make by the crops £1800; I recollect giving you a letter from my brother when you were riding a white mare; the two letters produced are my brother’s handwriting; I was in town about a week previous to the sale, and brought a letter, then, from my brother.
Mr Bartley wished to put in these letters, as the parties were all charged in the bill in equity, out of which the case arose. The order, he understood, was to try all matters out of that issue.
The Judge could not see that the letters could be received; it is unsafe to put in a letter from third parties to implicate the party here.
This closed the defendant's case.
Mr Bartley then replied.
His Honor after making some remarks as to the nature of the demise in favor of Mr Hagen, addressed the jury upon the case, generally to the following effect: —Gentlemen of the jury—This is an action at the instance of Mr William Bartley, Solicitor, of Rundle-street, Adelaide, against Mr. Jacob Hagen, Merchant, also of Adelaide; in which the plaintiff seeks to recover damages sustained by him in consequence of the defendant having sold certain stacks of corn, mortgaged to the plaintiff by Messrs J. B. &. S. Hack, of Mount Barker. Mr Hagen says that he took them by virtue of a distress for rent, and the warrant has been put in (which his Honor read). Mr Mann for the defendant, says that the plaintiff’s deed is fraudulent, and that in no case could he have any title to the stacks. On the other hand, Mr Bartley argues that his deed is perfectly good, and says that Mr Hagen’s deed is fraudulent, from the way in which it is drawn. It appears that Mr Bartley was for a long time concerned for the Messrs Hack, and assisted in August 1842, in making an arrangement with the Bank of South Australia, in consequence of which the Bank of Australasia were induced to withdraw an execution. On that occasion it appears that Mr Bartley advanced to the Bank of South Australia, the sum of £130 on account of the Messrs Hack. He afterwards gave a guarantee for them to Messrs Lambert & Son, to the amount of £90, which he afterwards paid, making together £221. He paid the Sheriff poundage, on their account, £51, and paid other sums of £10 and £5, making altogether £287. Mr Bartley has also handed into Court, a bill of costs against the Messrs Hack, amounting to £183 for business done for these gentlemen; and to which he is fairly entitled supposing the amount to be just. This will make the total amount more than £400, a considerable portion of which is money out of pocket. Mr Bartley appears also to have given his personal guarantee to the Bank of Australasia, in order to relieve the Messrs Hack from writs of “fieri facias;” that they would execute a warrant of attorney in favor of the Bank, and also a mortgage of their horses. Nothing farther occurred till 27th January, 1843, when the security on which Mr Bartley rests was granted. This took place at a remarkable time, and the deed was uncommon, I will not say unproper, but it is a deed which will require to be scrutinized. But this I shall reserve till afterwards. By this deed the Messrs Hacks mortgaged the stacks in question, in security of £400 with interest at 10 per cent., the day of payment was the 1st May last, “or such earlier day as the said William Bartley shall appoint by a notice, at least 3 days before the term of payment.” Gentlemen, a very few days after the deed was executed, on the 7th February, the Bank of Australasia put in an execution against the Messrs Hack. On the 9th Mr Hagen put in a distress for rent. On the 11th Mr Bartley gave notice to the Messrs Hacks to pay on the 18th, after which time he had right to sell. Disputes then arose between the parties, and a correspondence ensued, which it is hardly necessary to read, but it is clear that Mr Hagen had notice of Mr Bartley’s claim to the stacks. The notice dated the 16th February is important, as the stacks are there specially described, and stated to be “the property of the said Wm. Bartley,” and “that they are only lying there until they can be thrashed and removed.” It may be observed here, that this is a mistake, as Mr Bartley had no power over the stacks till the 18th. It states farther that Mr Bartley was ready and willing to point out property other than his stacks, sufficient to satisfy any amount of rent that was due. It also notified that the Sheriff of the province was in possession, and suggested the propriety of letting the sale go on under him, and he would then, as was usual, pay the rent due to the landlord. Mr Hagen had seized under a distress, and Mr Bartley tells him to apply to the Sheriff for payment of rent, under the execution, and I am not sure that Mr Hagen was right in refusing. The notice is of great consequence good or bad for the parties in the cause. There was some correspondence between the parties, and remonstrances against the proceedings, but the sale went on, and Mr Bartley’s stacks were sold. The warrants to distrain are against J. B. Hack for £600, and against S. Hack for £62 10s. They are dated 9th February. An inventory was taken of a variety of farming articles, including the stacks. It would seem that after the distress, J. B. Hack requested delay beyond the five days, and he paid the expence of keeping possession. Gentlemen, it appears that at the sale, Mr James, the defendant’s Solicitor, was requested to allow the sheriff’s sale to take precedence, but this was not done. I don’t know that Mr Bartley had a right to demand it. It might have been advantageous, but on the other hand the Bank of Australasia had a right to say, why pay him more than me. I am not now laying down the law, but when I come to the points of fraud and collusion, I shall state, so far as my humble abilities will allow, sufficient to enable you to form your judgment, We shall now proceed with the narrative. On the 20th of February, two days after Mr Bartley was entitled to sell, the sales under the distress and execution took place. Under the former, Mr Bartley’s stacks, and a variety of articles were sold, to the gross amount of £217, of which Mr Bartley’s stacks realised £152. The Sheriff’s sale produced £256. Here the Judge adverted to some dissatisfaction that had been expressed by Mr Bartley, as to his having been driven from the Court of Equity to come before a jury. His honor said that from his experience of equity courts, he recommended that course for the benefit of both parties, as it would have been enough to ruin them which ever gained. He had explained matters to Mr Fisher as a mutual friend, and he now farther stated, that he had expressed no opinion as to the merits. It was not necessary to go into the former case, but it was their duty to judge of that before them in an important and unbiassed manner, laying aside every private consideration. Mr Bartley says his stacks were improperly sold, 1st, because Mr Hagen had no right to distrain. 2nd, because the distress and sale were executed in what had been called a collusive and fraudulent—but he would use a milder term—improper manner, so as to cause injury and loss to Mr Bartley. Collusion is not necessary to be proved, but if Mr Bartley proves that he was injured by Mr Hagen’s interference, you must find for him. He asserts that he is injured. 1st, in consequence of the sale by the Sheriff not being first, 2nd, through Mr Hagen’s interference, the sale fetched much less than it would otherwise have done. These are the two principal points of this part of the case. Mr Bartley states another point—that a quantity of property was allowed to go, while his stacks and other small effects were seized and sold. That is a grave point, and worthy of examination. It seems a quantity of cattle were allowed by Mr Hagen to be delivered to the Auction Company.
Mr Mann—That was all under the execution.
His Honor—I was not going to lose sight of that. Mr Hagen says “so far as I am concerned, I allowed the removal of the cattle and the entire horses—this order was addressed to Gozzard the distraining officer, and therefore they were in his possession. Here his Honor read Gozzard’s evidence, and Borr, the Sheriff’s officer’s evidence. That is all the evidence as to the way in which the cattle and horses were seized and given up to the Auction Company. They are said to have belonged to that Company, and that they were not seized under the distress. Supposing them seized only under the execution, still there might have been collusion. Though the Bank of Australasia might have been satisfied, and given up the property, it does not follow that they could not have been seized under the distress. The most favorable way in which to view this point for the defence is, that Mr Hagen being a partner in the Auction Company, had an interest in the cattle, and it would not be equitable that he should seize his own property. The Auction Company might say, you have allowed them there a long time, why seize them now? There might be nothing fraudulent in the proceedings, but it appeared hard to Mr Bartley, and I know nothing why they should not have been distrained. The horses were seized by the Bank of Australasia.
Mr Fisher. —The entire horses belonged to the Auction Company.
His Honor. —So, I understand. Gentlemen, I may here make a few observations as to the rights and conduct of landlords. The proper course to take is that the goods of the the tenants should be seized before those of strangers. But where it is necessary to resort to the goods of strangers, and there are several of them, I would deem it fair that they should be sold and apportioned. I am not aware that such a proceeding can be enforced in law. Mr Bartley mentioned rules in equity, but I do not think they are recognised by a Court of Justice. The rule, I apprehend, should be as follows. Supposing there are a hundred such tenants they have no relief against the superior landlord, but they have equity of contribution, as against each other. Mr Bartley has likened this case to a case of insurance. A Court of Equity can give recourse between the parties insuring, but cannot prevent the insured from making a selection. If persons have insured independently there is no contribution. In this, a similar course must be followed. I cannot lay down an absolute rule, but it will be for you to consider whether Mr Hagen acted fairly or whether he acted injuriously to Mr Bartley. With regard to this you will have to consider his conduct at the sheriff’s sale as well as at the sale under the distress. We must consider this on the ground that though Mr Hagen was not responsible for that sale, his conduct is so far to be considered as throwing light upon his proceedings at the sale under the distress; Mr Bartley has said that the one was a link to the other, and I adopt that expression. When the sale under the distress took place Mr Bartley had a right to complain that Mr Hagen did not come to the Sheriff before he went to a sale under the distress. Robinson it appears bought the melons and grapes, other parties bought the wheat and oats, most of the other things passed through Mr Hagen’s hands to Mr Hack’s. Mr Hagen had a kind motive undoubtedly, for it appears that, after payment of the auction prices, Mr Hagen got the surplus realised by resale. It was very laudable in Mr Hagen to assist a friend, bowed to the ground by distress, to purchase a few articles of furniture for his family, when they would otherwise be destitute of common necessaries, and it was usual to employ a friend on such occasions. But there is a proper way of doing these things, and it was only just that if a man wished to benefit a friend, he should do it out of his own pocket, and not at other people’s expense. Therefore, when I heard of Mr Hagen telling people that he was buying in for the family I was very sorry to hear it. With regard to the sale under the distress, none of the witnesses complain, except Mr Mitchell, as we understood, who says that favoritism was shewn to Robinson, but in reference to this sale it is not clear that Mr Hagen interfered. With regard to the practice, though very commonly done, it is not to be upheld, and in case of proof of the practice, he must make up to parties losing the loss sustained. Then as to the amount of loss, the presumption is rather adverse to the party acting irregularly. To what extent Mr Bartley has suffered, I am not able to instruct you. Whether the sale was injured by interference, or whether it was injured by Mr Bartley's notice, I must leave to you as the best judges. Supposing an improper seizure, or the goods improperly sold and loss produced by that notice, it might be a question whether the parties should not share the loss.
Here his Honor went through the evidence of the several parties who spoke to the prices, and to the condition of the articles, for the guidance of the jury. He also went over all the evidence, and read and commented upon it; in the course of which, Mr Fisher rose, and begged leave to call his Honor’s attention to one expression which he had used. He did this in order to save expenses afterwards. The observation was, that Mr Bartley’s deed was uncommon; now, he could show by the style book in his hand, that the form was there nearly word for word.
His Honor said that his previous observations had been short, and he intended to dwell more particularly, before closing, upon this deed. As the matter had been in this pointed manner brought before him, he would now make his observations. There might be a form for the deed, but still it was uncommon. It was one which could be made to protect either the debtor or the creditor. Deeds usually make a certain day of payment. In this deed there is a day of payment, but an earlier day may be appointed by the creditor. His Honor then referred at some length to a case produced by Mr Bartley, which he said differed from the present in an essential point. He by no means wished to insinuate that the deed was fraudulent, but it would be a proper subject for consideration. The jury must look at the circumstances in which it was granted immediately preceding the execution by the Bank of Australasia. I repeat, said his Honor, that I don’t say it is fraudulent, but that it must be taken into consideration, and I would leave it to the judgment of the jury whether it was bona fide or otherwise. On the one hand it may be stated, that Mr Bartley’s claim was a fair one: that Mr Newland said that he considered the arrangement with the South Australian bank a good one; and that his company did not complain or object to the deed. On the other hand, we cannot shut our eyes to the fact of Messrs Hack’s situation; to the consideration that the security before given to the bank, as we understood, could be defeated. The deed is to be looked to with suspicion, and not the less so that Mr Bartley was attorney to the granters, and knew all the circumstances in which they were placed. I may remark, that I would not have dwelt so particularly on this part of the case, and I have no wish to speak unfavourably of this deed, but, as Mr Fisher has told me that there is a precedent, I am put on the defensive, and I have dwelt at length on the subject, when otherwise I should only have said a few words. His Honor proceeded. This part of the case has been brought in rather before its time, as the defendant must shew that his deeds are good before he can object to the plaintiff’s. His Honor then minutely examined the defendant’s titles. In reference to one deed, where Mr Bartley had objected, there was fraud, because, as we understood, Messrs Hacks were to be considered for the purpose of distraining tenants, at a greater rate than the money advanced. His Honor said, that as Mr Bartley, a respectable professional man, was subscribing witness, the deed must be presumed to be a correct one.
Mr Bartley rose and said that he was not employed to examine the deed, and was only a witness, as happening to be in the office at the time, and that a witness to signatures was not held to know the contents of a deed.
His Honor, however, held that his being a subscribing witness, was a favorable presumption that there was no fraud. His Honor concluded by stating that he would leave Mr Bartley’s deed in the hands of the Jury. With regard to the defendant’s deeds, he said that he found sums due according to the notices of distress, which he could not find due by the deeds. He was afraid to say they were bad, but he had been very much puzzled. Supposing the distress bad, the jury would have to find for the plaintiff the full value of the corn. If they found the distress good, then it would be their duty to consider whether there was collusion and improper conduct on the part of Mr Hagen. Supposing Mr Hagen thought that Mr Bartley was in collusion with the Hacks, and had seized and sold Mr Bartley’s stacks under that impression, it would then be a mistake, not a collusion, of Mr Hagen as to the bullocks and horses given up to the Auction Company. There was a question whether he was bound to distrain his own property. You will consider how far his conduct was improper. In reference to distribution, he had control in the distress sale, but not under the execution. He interfered in both. It must be borne in mind, that Mr Bartley had no interest in the sale under the execution. You will consider whether Mr Bartley was injured by the sale under the distress, by Mr Hagen not taking other property after notice, and whether he was bound to do so. Observe, that Mr Robinson having bought with Mr Hagen’s sanction, if you find improper interference, Mr Hagen is liable for full prices. The question will be, if the sale brought full value, and if not, how far that was caused by Mr Hagen. Supposing the distress and sale valid, a question would be, whether Mr Bartley would be entitled to more than the difference between half the amount of the sale under the distress, and the interest due. For instance, the sale realised £198; Mr S. Hack's half would be £99, and the amount accruing to Mr Bartley would be the difference between that sum, and the interest due by Mr S. Hack, £62 10s., being £36 10s. His Honor finally said that the jury would require to state in their verdict whether, or not, Mr Hagen’s conduct at the sale was improper.
The jury retired for five hours, and at a few minutes after 12, P.M., brought in a verdict for the plaintiff—damages, £400—and that Mr Hagen had been guilty of improper of improper conduct at the sale.
The Judge asked the jury whether they considered that Mr Hagen had a legal right to distrain.
Mr Sutherland, the foreman, replied that they had found their verdict on the understanding that there was a legal right to distrain. The jury, also, in answer to a question, stated that they found Mr Bartley’s deed bona fide.

The above important trial occupied three full days, and excited so much interest that the Court was generally well filled throughout the proceedings. Great justice was done to the case on both sides, and many nice points of law were ably discussed. Altogether, it has formed quite a cause célebre in South Australia.

Southern Australian, 17 November 1843

NOVEMBER 7.

BARTLEY v. HAGEN.—In this case the defendant applied for a new trial on several grounds, but principally on the point that the distress had now been found valid, and that the verdict had been against his Honor's ruling.
His Honor refused the application, and, in doing so, explained that he did not give the new trial on account of excessive damages, but solely because he thought that in his own charge to the jury, he had not done justice to Mr Hagen, upon the point of the right of distress. In this case the special jury had been prayed for on the part of the defendant, and they gave the most undivided attention to the subject. They were perfectly fair and impartial in their decision, and his Honor could not take a different view, uuless strong grounds were given for so doing.

NOVEMBER 14.

The plaintiff having applied to have his costs taxed, the case came on for further directions, when the following discussion ensued. It chiefly related to the preliminary expenses in equity in which the case originated.
Judge—The only question as to further directions is as to costs. The prayer of the bill in equity was for an injunction and account of the stacks sold by defendant.
Mr Jickling—The plaintiff states that his reason for coming to equity was because he could not obtain relief at law; now he has obtained such relief. The bill is one of interminable length which obliged us partly to plead and partly to answer. If the bill had been for discovery only, then it would have had a different complexion—Noble v. Garland Symonds. In the bill for discovery plaintiff pays costs—here they have prayed relief, and, had circumstances allowed. I should have put in demurrer.
Mr Fisher—Mr Jickling has avoided touching the real point—the bill was not a bill for discovery, but was one for relief, that defendants might not interfere with complainant's wheat, and it prayed discovery if there was any right of distress, and if such a rieht was held, then the same was improperly exercised—the verdict of the jury has found it so.
Judge—You might have brought detinue.
Mr Fisher—Before the action of detinue could have been tried, the wheat would have been removed; we sought to get our wheat, and to prevent its removal; for this our only remedy was in equity, and not in law—Fowkes v. Joyce was a case where, with right of distress, improperly exercised plaintiff failed at law, but had remedy in equity; here we come in equity first, and the jury have found what we charge.
Judge—No, you charge collusion, and the jury have expressly negatived there being any such; Fowkes v. Joyce was a case of fraud, here it is not so.
Mr Fisher—The precise ground of the bill is found by the jury; they find in effect, combination. Your Honor on the trial laid down undue interference as synonimous or equal in effect with collusion.
Judge—No, collusion implies a compact or agreement; there was not any such proved; there was a great deal in the bill that might have been struck out; you had no right to discovery of the defendant's title.
Mr Fisher submitted that the plaintiff had been prevented on trial from going into evidence he tendered, and that the selling by one defendant, and buying by others, as admitted by the answers proved combination, or CO'ÏUMOU in the sense used in the bill; the complainant was entitled in equity, as of law, to costs which usually follow the justice of the demand and prima facie the party who fails, pays costs, and it depends on such party to show the existence of circumstances in a sufficient degree to displace such prima facie claim of costs.
Mr Jickling—The bill is practically a bill for discovery.
Judge—The bill must be dismissed.
Mr Fisher—The defendant distrained for £597, and in his answer insists on his right to distrain for that amount; on the trial it was proved he had only a right to distrain for £300; the plaintiff has been subjected to two trials, and has had the verdict of his deed impuyned [impugned] and it has been twice confirmed; the first jury gave £350 damages; the second jury, a special jury, applied for and paid for by defendant, have given £400, and found undue interference.
Judge—I must dismiss the bill; the complainant is not entitled to costs; I do not see how I could have given any relief at equity—his remedy was at law; this case is different from Fowkes v. Joyce, in which case there was fraud; here the bill charges collusion, but that was not proved, and the juiy expressly found no collusion; but found undue interference; that is very different; they have found that there was sufficient for the distress without the complainant's stacks. The jury undoubtedly have taken a very favourable view indeed, of the plaintiff's case in this matter; they found it unnecessary interference; now for this the remedy should have been an action on the case, admitting right of distress; I do not know how it would have been possible for me to give relief in equity; I could not have gone into account of chairs, grapes, &c, as the jury did. The injunction has been dissolved; and now as to costs, it appears to me that I have no right to make defendant pay costs; but whether I should not make plaintiff pay defendant's costs, has been my principal doubt; there is this circumstance against it—he applied for information; that information being refused, it was very difficult for him to tell how to proceed; if he had brought trespass he would have failed; while the defendant having a bona fide security with right to distress, looked with suspicion to Mr. Bartley's deed, Mr Bartley looked with suspicion at Mr Hagen's conduct, and the quickness of the sale, &c. I am quite of opinion with the jury that there was no collusion, but it was a very unfortunate interference, although I could not give that relief at equity which is obtained at law, yet as there was reasonable ground for the bill, I dismiss it without costs; Hacks should not have costs; Stocks & Mitchell should, except that being indemnified by Hagen they cannot have them.
Mr Mann & Mr Jickling insisted that Mr Stocks was not indemnified, buit on reference being made to the answer the indemnity was stated.
Mr Fisher—The costs of the verdicts of course we have.
Mr Mann—Two issues were for us.
Judge—The costs of the verdicts abide the result. Mr. Bartley is entitled to them: he might have succeeded in an action on the case.

Bassett v. Baker

Cattle saleThis case arose when John Baker, the manager of the Adelaide Auction Company, foreclosed on Barton and seized his cattle which had been offered as security in November 1842. The sale advertised in the Southern Australian of 17 February 1843 appears to refer to these. However, amongst those seized were some belonging to Alfred Bassett and some to Messrs Hill, butchers of Hindley Street.

South Australian Register, 2 September 1843

Wednesday, August 30th.

BASSETT v. BAKER.
This was an action of trover for the recovery of the value, or compensation in damages, of thirty-two head of cattle taken from the plaintiff by the defendant in November, 1842. Mr Fisher for the plaintiff, and Mr Mann for the defendant. The plaintiff bought these cattle from Mr J. B. Hack, of Mount Barker, and, although allowed to remain on Mr Hack’s run, were branded with Mr Bassett’s mark. Notwithstanding this sale, the defendant, acting as Manager for the Auction Company, set up a claim to these cattle, and, in fact, to the whole of Mr Hack’s cattle running at Yankalilla, under a deed of mortgage. By his deed, the Adelaide Auction Company required security, and took it, in the deed itself, over 350 head of cattle, but it did not specify any particular cattle, but simply required that Mr Hack’s stock should be kept up to that number. The cattle were bought by bills on England on England, drawn by plaintiff upon plaintiff’s father, a respectable banker, and had been duly honored on presentation. The deed had neither been registered, nor was it executed by the plaintiff, and his Honor ruled that it was an insufficient security, or, at all events, insufficient as a bar to the plaintiff’s rights, which did not seem to have been acquired by any colourable pretence, but was, in reality, a bona fide transaction. The cattle had been valued by plaintiff’s witnesses at £6 per head, and his Honour left it to the jury to say what damages they would return to plaintiff in consideration of the loss he had sustained by having the cattle forcibly taken out of his possession, and kept up to this time. Verdict for the plaintiff £268 16s.

Southern Australian, 1 September 1843

WEDNESDAY, AUGUST 30.

BASSETT v. BAKER. In this case the plaintiff sought to recover the value of about 34 head of cattle which he had purchased from Messrs Hack, but which had been seized by the Auction Company, on an allegation that the cattle were theirs, and that Messrs Hack had no right to sell them.
Mr Fisher appeared for the plaintiff, and Mr Mann for the defendant.
Verdict for the plaintiff, £258 16s, the cattle being valued at the price they were worth when seized by the Auction Company, with interest to the date of judgment.

Hill and another v. Baker

Southern Australian, 31 October 1843

HILL AND ANOTHER v. BAKER.–This was an action of trover by Messrs William and James Hill, who are butchers in Hindley-street, against John Baker, Esq.,  as Manager of the Adelaide Auction Company.
Mr Smith stated the case for the plaintiffs.–It appeared that the plaintiff had, in 1841, purchased from Mr Philcox (who, in consequence of an arrangement with Mr J. B. Hack, was at that time engaged in selling J. B. and S. Hack's cattle), thirty head of steers, at £9, for which the plaintiffs gave a bill for £270. The bill was granted, though the whole cattle were not delivered, and ultimately the Adelaide Auction Company stepped in under a mortgage, and took possession of Messrs Hack's herds at Yankalilla, including nine head out of the thirty bought and paid for by the Messrs Hill. For recovery of the price of these nine head, the present action was brought.
Mr J. B. Hack sworn–I was possessed of cattle in the year 1841; I agreed with Mr Philcox that he should sell cattle to the amount of £1000, and he gave his acceptance to that amount; knows of sale to the plaintiff ; the bill produced (£270) has been endorsed by me; Mr Mason, our stock-keeper, got instructions to deliver the thirty steers to plaintiff; Mr Capper, on the part of the Adelaide Auction Company, went to Yankalilla, and had instructions from me to Mason to deliver the cattle marked Ĥ on the hip to Mr Capper, to be held for the Auction Company
Cross-examined by Mr Fisher–Mr Philcox discounted the bill for £270 on his own account; the arrangement with Mr Philcox was made in September or October, 1841, after the mortgage of three hundred and fifty head of cattle to the Auction Company; the cattle mortgaged were branded Ĥ, and the cattle sold to plaintiffs had the same brand; there were at the time upwards of four hundred head of cattle at Yankalilla; there were not six hundred head; the mortgage to the Auction Company has not been discharged; I believe I endorsed the bill produced immediately after it was drawn; I afterwards paid £600 of the £1000 bill, in consequence of Mr Philcox having only sold £400 worth of cattle.
E. O. Philcox corroborated Mr Hack's evidence, and stated particulars as to selling cattle to Messrs Hill; ten cattle were shewn to Messrs Hill at Crafer’s, and were afterwards sent to Yankalilla; there Mr Hill saw and picked the other twenty, and a list was made of them by Watson the stock-keeper; the cattle were delivered, and he then allowed them to remain on Mr Hack’s run for Messrs Hill’s convenience; they were to be sent in by sixes and nines at a time; the whole were subsequently sent to them, but the last nine were not delivered, because, when they were sent into town, Messrs Hill were from home, and they took them back to the station because they could not get a receipt; the Hills afterwards told him that they could not get these nine head, as Mr Baker said they were mortgaged to the Auction Company.
Samuel Mason–Was overseer to Mr Hack from beginning of 1841 till August 1842; knows Davis, stock-keeper, and Watson, also stock-keeper, at Rapid Bay; Watson received a subpoena from me on Sunday last for this case; saw James Hill at Crafer’s, in September 1841; he came to look at some cattle; witness then described the purchase of the cattle–that James Hill demurred to taking the whole cattle till he saw his brother; that Mr Philcox, Mr Hill, and himself, all came into town, where the bargain was agreed on, and a bill for £270 was given, of which he informed Mr Hack; witness then mentioned the delivery of all the cattle but nine; he saw Mr Baker upon the subject; in December, 1841, or January, 1842, Mr Capper came out as agent for the Auction Company, with instructions to receive all the Ĥ cattle; gave them up to Mr Capper (except the nine which he pointed out as Mr Hill’s); Capper took them for the Auction Company, and delivered to him again to hold them as for the Auction Company; he gave a receipt for them all except Messrs Hill’s, which were not included; these were sent into town, but as Messrs Hill were absent, they were sent back to the run; spoke to Mr Baker on the subject, who said that they were mortgaged to the Auction Company, and were not to be delivered to Messrs Hill; in August, 1842, Capper came out and took possession of the cattle, and witness left; seven of the Hill’s cattle were then in the herd.
Cross-examined–One of the others had been sent to town, and one to the fisheries to be slaughtered, both along with other cattle, and by Mr Baker’s orders;
Alfred Capper and Thomas Davis gave evidence corroborative of Mason's.
Mr Fisher, on the part of the defendant, argued that there was no proof of conversion to Mr Baker’s benefit, except the two that had been sent away, and no proof of identity.
Mr Smith replied.
His Honor said he would let the point go to the Jury.
Mason recalled–Said that shortly before he gave the cattle up to Capper, Mr Philcox attempted to drive  away Hill’s cattle in order to deliver them, but witness prevented him.
Mr Fisher produced the Auction Company's mortgage, by J. B. Hack in their favor, of the whole cattle at Yankalilla marked Ĥ and numbered, and raised several points upon it. He called Mr Stephen Hack to prove that he acquiesced in the deed, and that the cattle were partnership property, and were pledged for partnership purposes.
The Judge, after a lengthened summing up, told the Jury that the utmost they could find for was the value of seven of the bullocks and interest.
The Jury found for seven bullocks at £9 and interest, amounting to £71 sterling.

South Australian Register, 1 November 1843

Saturday, October 25th, 1843.

HILL AND ANOTHER v. BAKER.
This was an action of trover by Messrs William and James Hill, who are butchers in Hindley-street, against John Baker, Esq., as manager of the Adelaide Auction Company.
Mr Smith stated the case for the plaintiffs.—It appeared that the plaintiffs had, in 1841, purchased from Mr Philcox (who, in consequence of an arrangement with Mr J. B. Hack, was at that time engaged in selling J. B. and S. Hack’s cattle), thirty head of steers, at £9, for which the plaintiffs gave a bill for £270. The bill was granted, though the cattle were not delivered, and ultimately the Adelaide Auction Company stepped in under a mortgage, and took possession of Messrs Hack’s herds at Yankalilla, including nine head out of the thirty head purchased by the Messrs Hill. For recovery of the price of these head, the present action was brought.
Mr J. B. Hack sworn.—Was possessed of cattle in the year 1841; agreed with Mr Philcox that he should sell cattle to the amount of £1000, who gave his acceptance to that amount; knew of the sale to the plaintiffs; the bill produced (£270) had been endorsed by witness; Mr Mason, witness’s stockkeeper, got instructions to deliver the thirty steers to plaintiffs; Mr Capper, on the part of the Adelaide Auction Company, went to Yankalilla, and had instructions from witness to Mason to deliver the cattle marked Ĥ on the hip to Mr Capper, to be held for the Auction Company.
Cross-examined by Mr Fisher.—Mr Philcox discounted the bill for £270 on his own account; the arrangement with Mr Philcox was made in September or October, 1841, after the mortgage of three hundred and fifty head of cattle to the Auction Company; the cattle mortgaged were branded Ĥ, and the cattle sold to plaintiffs had the same brand; there were at the time upwards of four hundred head of cattle at Yankalilla; there were not six hundred head; the mortgage to the Auction Company has not been discharged; I believed I endorsed the bill produced immediately after it was drawn; I afterwards paid £600 of the £1000 bill, in consequence of Mr Philcox having only sold £400 worth of cattle.
Mr E. O. Philcox corroborated Mr Hack’s evidence, and stated particulars as to selling cattle to Mr Hill; ten cattle were shown to Messrs Hill at Crafer’s, and were afterwards sent to Yankalilla; there Mr Hill saw and picked the other twenty, and a list was made of them by Watson the stockkeeper; the cattle were delivered, and he then allowed them to remain on Mr Hack’s run for Messrs Hill’s convenience; they were to be sent in by sizes and nines at a time; the whole were subsequently sent to them, but the last nine were not delivered, because, when they were sent into town, Messrs Hill were from home, and they took them back to the station because they could not get a receipt; the Hills afterwards told him that they could not get these nine head, as Mr Baker said they were mortgaged to the Auction Company.
Samuel Mason.—Was overseer to Mr Hack from the beginning of 1841 till August, 1842; described the purchase of the cattle, and mentioned the delivery of all the cattle but nine; he saw Mr Baker upon the subject; in December, 1841, or January, 1842, Mr Capper came out as agent to the Auction Company, with instructions to receive all the Ĥ cattle; gave them up to Mr Capper (except the nine which he pointed out as Mr Hill’s); Capper took them for the Auction Company; he gave a receipt for them all except Messrs Hill’s, which were not included; these were sent into town, but as Messrs Hill were absent, they were sent back to the run; spoke to Mr Baker on the subject, who said they were mortgaged to the Auction Company, and were not to be delivered to Messrs Hill; in August, 1842, Capper came out and took possession of the cattle and witness left; seven of the Hill’s cattle were then left in the herd.
Cross-examined.—One of the others had been sent to town, and one to the fisheries to be slaughtered, both along with other cattle, and by Mr Baker's orders.
Messrs Alfred Capper and Thomas Davis gave evidence corroborative of Mason’s.
Mr Fisher, on the part of the defendant, argued that there was no proof of conversion to Mr Baker’s benefit, except the two that had been sent away, and no proof of identity.
Mr Smith replied.
His Honour said he would let the point go to the jury.
Mason recalled.—Said that shortly before he gave the cattle up to Capper, Mr Philcox attempted to drive away Hill’s cattle in order to deliver them, but witness prevented him.
Mr Fisher produced the Auction Company's mortgage by J. B. Hack, in their favour, of the whole cattle at Yankalilla marked Ĥ and numbered, and raised several points upon it. He called Mr Stephen Hack to prove that he acquiesced in the deed, and that the cattle were partnership property, and were pledged for partnership purposes. The Judge, after a lengthened summing up, told the jury that the utmost they could find for was the value of seven of the bullocks and interest.
The jury found for seven bullocks at £9 and interest, amounting to £71 sterling.

There were other sales that did not attract such controversy. The horses that were mortgaged to the Bank of Australasia, the three sections at Jupiter Creek and the cutter Hero. All were advertised for auction in the Southern Australian of 17 February 1843.