1. Henry and Susannah Cable (Kable) v. Duncan Sinclair, July 1988, 2/8147. Unless indicated otherwise, case references are to the minutes of the Court of Civil Jurisdiction in the Archives Office of New South Wales in Record Group NCCJ/6. The minutes did not always record names clearly, consistently, and accurately. This article records names as the appeared in the minutes. From 1810, all cases were recorded and numbered in bound volumes. Prior to then, they were recorded on loose sheets, some of which have been lost.

2. John James v. Charles Thomas, 24 October 1811, 5/1106 no. 222, Sydney Gazette, 26 October 1811, 3.

3. Warrant for Charter of Justice. Charter for Establishing Courts of Civil and Criminal Jurisdiction on the Eastern Coast of New South Wales (2 April 1787), Historical Records of Australia [H.R.A.] 4/1: 6–12Google Scholar.

4. Holt, J., A Rum Story: The Adventures of Joseph Holt Thirteen Years in New South Wales (1800-12), ed. A'Shaughnessy, P. (Kenthurst N.S.W., 1988), 51–52Google Scholar.

5. See Richard Atkins v. John Harris, 28 May 1799-10 June 1799, 2/8150.

6. Quoted by Bennett, J. M., Richard Atkins—an Amateur Judge Jeffreys, 52 Journal of the Royal Australian Historical Society 261, 282 (1966Google Scholar) from Banks's papers, Mitchell Library, Sydney, 10 October 1807, 191 -92. For further evidence of Bligh's opinions of Atkins, see H.R.A. 1/6: 150-51.

7. See, e.g., Bennett, ibid.; Currey, C.H., Chapters on the legal history of New South Wales 1788-1863, unpublished thesis, Sydney University, undated, 121Google Scholar; and see Castles, A., An Australian Legal History (Sydney, 1982), 97Google Scholar.

8. Meehan, , The Fallen World of Judge Advocate Atkins, unpublished, Flinders University, 1990Google Scholar; Dermody, , Justice and Tyranny: Interpretations of Politics and the Law Especially the Ideas of Richard Atkins and John Grant in New South Wales, 1792-1811, unpublished thesis, Australian National University, 1986, 40Google Scholar esp.

9. Kercher, , Richard Atkins, a Drunken, Insolvent Hero of Early New South Wales Debtors, National Debt 4 (1987Google Scholar); Kercher, An Indigenous Jurisprudence? Debt Recovery and Insolvency Law in the New South Wales Court of Civil Jurisdiction, 1788 to 1814, Australian Journal of Law and Society (in press).

10. His social attitudes were shown most clearly in his diary, Voyage to Botany Bay (undated, typescript in Macquarie University library). See also Richard Atkins v. John Harris, 28 May 1799-10 June 1799, 2/8150; and Atkins to Macarthur, August 1796, in Historical Records of New South Wales, ed. Bladen, F.M., 7 vols. (Sydney, 1892-1901) [H.R.N.S.W.] 3: 125Google Scholar.

11. Evatt, H.V., Rum Rebellion: A Study of the Overthrow of Governor Bligh by John Macarthur and the New South Wales Corps (Sydney, 1938Google Scholar, reprint 1975); Fitzgerald, R. & Hearn, M., Bligh, Macarthur, and the Rum Rebellion (Sydney, 1988Google Scholar).

12. On Ellis Bent, see Currey, C.H., The Brothers Bent: Judge-Advocate Ellis Bent and Judge Jeffery Hart Bent (Sydney, 1968Google Scholar); Benjamin, Ellis Bent—Australia's First Lawyer, 38 Journal of the Royal Australian Historical Society 57 (1952Google Scholar); Mackaness, , Some Early Legal Celebrities. Fourth Series, 12 Journal of the Royal Australian Historical Society 317, 331–33 (1927Google Scholar); Ellis, M.H., Lachlan Macquarie: His Life, Adventures and Times, 5th ed. (Sydney, 1973), 281Google Scholar esp.

13. Kercher, Indigenous Jurisprudence.

14. H.R.A. 1/2: 243f; H.R.N.S.W. 3:547f; Collins, D., 2 An Account of the English Colony in New South Wales 16, 34, 70-71, 76-77, 197, 218–19 (1802Google Scholar repr. 1975).

15. Kercher, , The Status Decisions of the Court of Civil Jurisdiction, unpublished, Sydney, 1990Google Scholar.

16. Blackstone, W., 4 Commentaries on the Laws of England 380 (1783 repr. 1978Google Scholar); Field to Bathurst, 15 January, 1823, H.R.A. 4/1: 423; Shepherd and Gifford to Bathurst, 13 May 1818, H.R.A. 1/9: 821.

17. See, e.g., Governor's Orders, 26 October 1811, H.R.N.S.W. 7: 631; and see Wylde and Field to Goulburn, 5 April 1817, H.R.A. 4/1: 247.

18. Macquarie to Bathurst, 28 June 1813, H.R.A. 1/7: 779.

19. See, e.g., Sydney Gazette, 5 November 1809, 2.

20. Evidence of Wylde to Bigge, H.R.A. 4/1: 802-803; Wylde and Field to Golburn, 5 April 1817, H.R.A. 4/1: 246-247; Sydney Gazette, 16 September 1804, 2, and 17 February 1810, 2; H.R.A. 1/2: 246, 358-359; H.R.N.S.W. 3: 495; H.R.N.S.W. 4: 447.

21. Eagar v. Field and Eagar v. De Mestre, see H.R.A. 1/10: 351f.

22. Blackstone, , 1 Commentaries 108Google Scholar; Cooper v. Stuart 14 App. Cas. 286, 291 (1889).

23. Kercher, Indigenous Jurisprudence.

24. See, e.g., Campbell, , The Royal Prerogative to Create Colonial Courts: A Study of the Constitutional Foundations of the Judicial System in New South Wales, 1788-1823, Sydney Law Review 343 (1964Google Scholar).

25. Hartog, , Pigs and Positivism, Wisconsin Law Review 899 (1985). See infra at n. 76Google Scholar.

26. Castles, Australian Legal History, chap. 7.

27. On parallel developments in Canada, see Baker, , The Reconstitution of Upper Canadian Legal Thought in the Late-Victorian Empire, 3 Law & Hist. Rev. 219 (1985CrossRefGoogle Scholar).

28. Kercher, Indigenous Jurisprudence.

29. On the export trade, see Hainsworth, D.R., The Sydney Traders: Simeon Lord and his Contemporaries 1788-1821 (Melbourne, 1981Google Scholar); Builders and Adventurers: The Traders and the Emergence of the Colony 1788-1821 (D.R. Hainsworth ed., 1968); M. Steven, Merchant Campbell 1769-1846: A Study of Colonial Trade (1965); C.E.T. Newman, The Spirit of Wharf House: Campbell Enterprise from Calcutta to Canberra 1788-1930 (1961): Hainsworth, , Exploiting the Pacific Frontier: The New South Wales Sealing Industry 1800-1821, Journal of Pacific History 59 (1967Google Scholar); Gill, H., Notes on the Sealing Industry of Early Australia, 8 Royal Historical Society of Queensland Journal 218 (1966-1967Google Scholar). See also Sydney Gazette, 10 October 1812, 2.

30. Atiyah, P., The Rise and Fall of Freedom of Contract (Oxford, 1979), 200–203Google Scholar; Horwitz, M., The Transformation of American Law 1780-1860 (Cambridge, 1977), 173–77Google Scholar.

31. Atiyah, Rise and Fall, 200-203; Horwitz, Transformation, 173-77; Horwitz, , The Historical Foundations of Modern Contract Law, 87 Harvard Law Review 917 (1974CrossRefGoogle Scholar); Ferguson, , Commercial Expectations and the Guarantee of the Law: Sales Transactions in Mid-Nineteenth Century England, in Law, Economy and Society, 1750-1914: Essays in the History of English Law 192 (Rubin, G. and Sugarman, D., eds. 1984Google Scholar); Thompson, , The Moral Economy of the English Crowd in the Eighteenth Century, 50 Past and Present 76 (1971CrossRefGoogle Scholar); Gabel & Feinman, Contract Law as Ideology, in The Politics of Law: A Progressive Critique 172-84 (D. Kairys ed. 1982).

32. Gordon, , Macaulay, Macneil, and the Discovery of Solidarity and Power in Contract Law, Wisconsin Law Review 565, 577 (1985Google Scholar).

33. Atiyah, Rise and Fall, 398-406; Thompson, Moral, Economy, passim.

34. Atiyah, Rise and Fall, 402.

35. Such as Bain v. Fothergill, L.R. 7 H.L. 158 (1874), which demonstrated a reluctance to treat land as a commodity.

36. Atiyah, Rise and Fall, 544-61.

37. Simpson, , The Horwitz Thesis and the History of Contracts, University of Chicago Law Review 533 (1979Google Scholar). A more fundamental attack is made by Hamburger, , The Development of the Nineteenth-Century Consensus Theory of Contract, 7 Law and Hist. Rev. 241 (1989CrossRefGoogle Scholar), who argues that consensus theory did not emerge in the nineteenth century, but much earlier.

38. Stoljar, S., A History of Contract at Common Law (Canberra, 1975), 41–44Google Scholar.

39. Indeed, Simpson even concedes that the executory contract including expectation damages may have became paradigmatic in the nineteenth century. Simpson, A.W.B., Contract: The Twitching Corpse, in Legal Theory and Legal History: Essays on the Common Law (London, 1987), 332Google Scholar.

40. See also Simpson, , Innovation in Nineteenth-Century Contract Law, Law Quarterly Review 247 (1975Google Scholar). Simpson attributes change to the adoption of continental principles.

41. A. W. B. Simpson, Contract: The Twitching Corpse, 331; idem, The Penal Bond with Conditional Defeasance, in Legal Theory and Legal History, 111f.

42. Horwitz, Transformation, 176 suggests that judicial supervision of juries' damages awards in America may have arisen simultaneously with the recognition of expectation damages.

43. John McArthur (Macarthur) v. Andrew Thompson, 28 October, 1806, 2/8149.

44. Horwitz, Transformation, 175 notes a similar ambiguity in a parallel case.

45. The quote is from a letter by “An Occulist,” Sydney Gazette, 26 July 1807, 2, the opposing view on the same page being put by the editor, George Howe. See also issues of 5 and 12 July and 2 August 1807. Howe's campaign against speculation, particularly in currency, lasted for years. See Sydney Gazette, 19 October 1811, 3; 9 January 1813, 2; 6 March 1813, 2; 26 February 1814, 2.

46. Horwitz, Historical Foundations, 952.

47. Evatt, Rum Rebellion, chap. 18; Fitzgerald and Hearn, Bligh, Macarthur and the Rum Rebellion, 76.

48. John McArthur v. James Badgery, 30 October 1806, 2/8149.

49. B. Kercher & M. Noone, Remedies 162-67 (2d ed. 1990).

50. Thomas Kent v. Robert Campbell as surety for Captain Mallison, 17 November and 22 December 1809, 2/8149; Thomas Kent v. Captain William Mallison, 21 November 1809, 2/8149. The name of the defendant is apparently spelled Mallison, Mattison, Mallinson, and Mattinson in various places in the minutes, although the writing is often unclear.

51. These facts are partly taken from the subsequent hearing, Thomas Kent v. Captain William Mallison, 24 September 1810, 5/1104 no. 34.

52. Thomas Kent v. Captain William Mallison, 24 September 1810, 5/1104 no. 34.

53. These decisions in the period between Bligh's overthrow and the arrival of Governor Macquarie were declared by Macquarie to be “of none effect whatsoever in Law or Equity”: Proclamation, 4 January 1810. On its face this applied even to completed cases in which the judgment debt had been satisfied. However Bent declared the proclamation to be applicable only to acts and decrees of the court that were incomplete or not carried into effect. To interpret it otherwise would harm innocent parties, his court declared: Jesse Hudson v. Richard Fitzgerald, 22 January 1811, 5/1104 no. 165.

54. For another trover case based on a commercial agreement, see William Hobart Mansel v. Nathaniel Ayres and Rowland Walpole Loane, 7 April 1814, 5/1110 no. 231 (and see Sydney Gazette, 21 August 1813, 2), which involved the feared loss of the vessel in a gale at sea and its seizure by escaping convicts on the night it reached safety. See also the less romantic trover case of Moore v. Biggars, 23 May 1799, 2/8150.

55. Robert Murray v. Charles Hook, Thomas Cripps and Thomas Abbott, Case Papers, 13 April 1812, 5/2282; and minutes, 16 April 1812, 5/1107 no. 151a, and 21 April 1812, 5/1107 no. 164. Extracts from the minutes of this case are reproduced on the cover of the paperback edition of M. Tilbury, M. Noone, B. Kercher, Remedies: Commentary and Materials (1988).

56. In an informal way, the magistrates' courts sometimes did the same: See, e.g., Ellis v. Thomas Abbott, 29 September 1798, and Newton v. Holmes, 12 January 1799, minutes of the Sydney Magistrates' Court, SZ 766 (reel 655).

57. Kercher & Noone, Remedies, 182-83.

58. Hugh Kelly v. Thomas Clarkson, 12 October 1813, 5/1109 no. 349.

59. See also Richard Guise v. Samuel Laycock, 20 August 1810, 5/1103 no. 275, an action by a buyer for nondelivery on a rising market. The court advised the bar to sue for nondelivery of the goods, which can only be interpreted as an invitation to sue for expectation damages.

60. George Crossley v. John Harris, 25 October 1813, 5/1109 no. 390.

61. See Atiyah, Rise and Fall, 404, for analogous decisions by English judges.

62. There are five New South Wales Acts: Contracts Review Act, 1980; s.43, Fair Trading Act, 1987; ss.145-49, Credit Act, 1984; s.31, Consumer Claims Tribunal Act, 1987; and S.88F, Industrial Arbitration Act, 1940; and a federal act: S.52A, Trade Practices Act, 1974.

63. Simpson, in Contract: The Twitching Corpse, 331, and in The Penal Bond with Conditional Defeasance, suggests that these devices were important in English business prior to the nineteenth century.

64. Patrick Cullen v. Captain Owen Folger Smith, 2 July 1811, 5/1106 no. 39. Bills of exchange differed from promissory notes in being addressed to a third person for payment, not to the original drawer.

65. 2 Sheppard's, Touchstone of Common Assurances 240 (Hilliard, E. ed., 7th ed., 1820-1821Google Scholar).

66. See Sydney Gazette, 2 November 1806, 1; and Butlin, S., The Foundations of the Australian Monetary System 1788-1851, at 91 (1953Google Scholar).

67. Absalom West v. William Jenkins, 15 January 1813, 5/1109 no. 17; Robert Campbell the Younger v. John Cooper, 21 October 1812, 5/1108 no. 292; Simeon Lord and Francis Williams v. The Executors of Thomas Abbott, 26 October 1812, 5/1108 no. 308; and Butlin, Foundations, 109.

68. Rowland Walpole Loane v. Absalom West, 3 August 1813, 5/1109 no. 335.

69. Simpson, Penal Bond, 114.

70. In Penal Bond, ibid., 134-40, Simpson explains the development of relief against penalties, first in equity, then at common law.

71. Francis Short and Alexander Berry v. Simeon Lord, 30 April 1812 and 1 May 1812, 5/1108 nos. 33 and 34.

72. See, e.g., James Birnie v. Robert Campbell, 25 January 1814, 5/1110 no. 127.

73. See, e.g., Isaac Peyton v. Joseph Torch, 19 March 1810, 5/1103 no. 58, the debt being for digging a vault and erecting a tomb.

74. George Crossley v. Peter Hough, 27 October 1812, 5/1108 no. 312.

75. Macaulay, , Elegant Models, Empirical Pictures, and the Complexities of Contract, Law and Society Review 507 (1977Google Scholar).

76. Hartog, Pigs and Positivism.

77. Thompson, Moral Economy.

78. Sydney Gazette, Supplement, 14 September 1811, 2. See Therry, R., Reminiscences of Thirty Years' Residence in New South Wales and Victoria 72 (1862 repr. 1974Google Scholar).

79. The most damaging of his proclamations was in 1810: H.R.N.S.W. 7: 292-294; Sydney Gazette, 24 February 1810, 1. It ordered that women would no longer be able to obtain title to the estates of deceased men with whom they had been living “in a State of illegal and criminal Intercourse.” See also Sydney Gazette, 17 February 1810, 1.

80. Sydney Gazette, 1 July 1804, 3; 27 January 1805, 1; 29 January 1809, 2; 11 February 1810, 1; 7 April 1810, 1; 11 August 1810, 2; 15 September 1810, 1; 6 April 1811, 3; 12 October 1811, 4; 15 February 1812, 2; 14 March 1812, 1; 30 May 1812, 4; 29 May 1813, 2; 17 July 1813, Supplement, 1. Pigs played an important role in the jurisprudence of early New South Wales. A number of the early cases that tested the rights of the military were initiated by the marauding behavior of pigs. See John Boston v. Thomas Laycock, Neil McKellar, William Faithful and William Eaddy, 8-30 December 1795, 2/8147; Charles Wertney (?) v. Matthew Kearnes, 21 July 1801, 2/8147 and 2/8150; John Harris v. Anthony Fenn Kemp, 10 June 1799, 2/8150; and G. Blaxland v. John Bennett, Sydney Gazette, 19 July 1807, 2 and 23 August 1807, 2. See also Parsons, , Was John Boston's Pig a Political Martyr? The Reaction to Popular Radicalism in Early New South Wales, 71 Journal of the Royal Australian Historical Society 163 (1985Google Scholar).

81. Sydney Gazette, 10 July 1803, 1.

82. Gordon, Macaulay, Macneil.

83. In 1814, for example, Sydney residents were 70 percent of the plaintiffs and 41 percent of the defendants, while Hawkesbury residents were 26 percent of the plaintiffs and 44 percent of the defendants. On private farming, see Fletcher, B. H., Landed Enterprise and Penal Society: A History of Farming and Grazing in New South Wales Before 1821 (1976Google Scholar).

84. Ibid., chap. 2.

85. Andrew Thompson v. Simon Freebody, 19 September 1810, 5/1104 no. 1.

86. Kercher, Indigenous Jurisprudence.

87. See, e.g., Sydney Gazette, 21 April 1810, 2.

88. Sydney Gazette, 21 December 1806, 2 (Robert Campbell); 7 January 1810, 5 (Henry Kable); 2 June 1810, 2 (Henry Kable); and see 8 March 1807, 1 (Thompson).

89. Supra at n.14.

90. See, e.g., Captain Lock v. William Avery, 29 September 1798, minutes of the Sydney Magistrates' Court, SZ 766 (reel 655); Elizabeth Adams's case and Thomas Storer v. Michael Nowland, 9 February 1811, SZ 771 (reel 658); Henry Kable Jr. v. Charles McMahon, 8 June 1811, SZ 771 (reel 658); Sydney Gazette, 13 April 1811, 2. See also Merritt, , The Historical Role of the Law in the Regulation of Employment: Abstentionist or Interventionist? Australian Journal of Law and Society 56, 60–61 (1982Google Scholar).

91. Sydney Gazette, 21 September 1806, 2; 19 October 1806, 2; 27 June 1812, 1; 5 September 1812, 1.

92. See, e.g., John Hotchkinson v. William Loach, 4 August 1798, and John Dowdall v. Williamson, 12 January 1799, minutes of the Sydney Magistrates' Court, SZ 766 (reel 655). See also Sydney Gazette, 2 May 1812, 2.

93. Samuel Davidson, Peter Simpson, Andrew Nairn, John Bothick and William Miles v. William Parkes, 15 September 1810, minutes of the Sydney Magistrates' Court, SZ 771 (reel 658). See also Sydney Gazette, 13 April 1811, 2.

94. Arkinstall v. Ferguson, 23 December 1806, 2/8149; and Sydney Gazette, 28 December 1806,2. See also Arkinstall v. Ferguson, 2 March 1807,2/8149, an unsuccessful action in assault, and George Bond v. John Cameron, 10 September 1798, 2/8147.

95. See, e.g., James Hotchkinson v. William Loach, 4 August 1798, minutes of the Sydney Magistrates' Court, SZ 766 (reel 655).

96. Kercher & Noone, Remedies, chap. 10.

97. Sydney Gazette, 17 February 1810, 2; supra at note 20.

98. Neal, D., Law and Authority: The Magistracy in New South Wales 1788-1840, Law in Context 45, 66–67 (1985Google Scholar).

99. Sydney Gazette, 24 July 1813, 1.

100. Ibid., 14 June 1807, 1.

101. Gill, Notes on the Sealing Industry, 237.

102. John Robinson v. Charles Hook, agent of Robert Campbell, 25 September 1810, 5/1104 no. 33.

103. Hainsworth, Builders and Adventurers, 99-100.

104. Kercher, Indigenous Jurisprudence.

105. Matthew Kearns in behalf of the joint creditors of William Jones v. Master and owners of the ship Sophia, Sydney Gazette, 19 May 1805, 2; and see 20 August 1809, 2.

106. Ibid., 18 June 1809, 1; and see 25 June 1809, 2 for a reply by an irate “kidnapper.”

107. For example, Isaac Nicholls, the first postmaster, was partly successful when he sued Simeon Lord for postage due: Isaac Nicholls v. Simeon Lord, 22 April 1811, 5/1105 no. 221. For other examples of work claims cut down by the court, see George Wilson v. James Kennedy, 24 September 1810, 5/1104 no. 32; John O'Hearn v. Thomas Clarkson, 1 February 1813, 5/1109 no. 55; Thomas William Middleton v. Thomas Storer, 1 February 1813, 5/1109 no. 64; William Jenkins v. William Webb, 12 October 1813, 5/1109 no. 348; Charles Thompson v. Laurence Brady, 21 April 1814, 5/1110 no. 282; Patrick McMahon v. Garnham Blaxcell, 14 January 1814, 5/1110 no. 76; John Jackson v. George Howe, 20 January 1814, 5/1110 no. 98; Henry Shaffrey v. William Stewart, 1 February 1814, 5/1110 no. 211.

108. Horwitz, Historical Foundations, 935-36; Kaulla, , Theory of the Just Price: A Historical and Critical Study of the Problem of Economic Value (London, 1940Google Scholar).

109. See, for example, John O'Hearn v. Thomas Clarkson, 1 February 1813, 5/1109 no. 55.

110. Sydney Gazette, 2 June 1805, 2.

111. Simpson, Horwitz, 536-38.

112. Thomas William Parr v. Absalom West, 19 April 1814, 5/1110 no. 260.

113. Tilbury, Noone, & Kercher, Remedies: Commentary and Materials, chaps. 3 and 5.

114. Infra at notes 169-77.

115. The most likely place for this to happen was in the taxing cases in which the court scrutinized the emancipist attorneys' fees. Even there, the minutes do not show the reduction of any agreed fee. See, infra at n.158. The only evidence of a direct challenge to an agreed price was in the ambiguous case of Garnham Blaxcell v. William Case, 13 July 1813, 5/1109 no. 226. The defendant, commandant of H.M. sloop Samarang, refused to pay an account of Blaxcell, partly because of allegedly excessive prices and partly on privity grounds. The defendant was successful but not necessarily because of the allegation of overcharging. A further complication was that Case was under orders not to pay more than local market prices. The evidence showed that Blaxcell's prices were not above the market price in any event. Blaxcell was apparently defeated by privity.

116. The figures in the previous section were for defended cases alone; the figures here are for all cases, defended or not.

117. Martin Bryant v. Charles Hook, 31 January 1812, 5/1107 no. 88. The entire contract defense was also put in Patrick Kelly v. Robert Murray, 20 July 1812, 5/1108 no. 103, although that case was lost for other reasons. See also Joseph Murray v. Robert Campbell, 10 and 13 April 1812, 5/1107 nos. 124 and 129.

118. See Cutter v. Powell, 6 T.R. 320, 101 E.R. 573 (1795), which held that even death during a voyage was no exception to the entire contracts rule. It was also held that as there had been an express agreement, quantum meruit was not available for proportional wages. Barton, , Contract and Quantum Meruit: The Antecendents of Cutter v. Powell, Journal of Legal History 48 (1987Google Scholar).

119. William Jarrett v. Joseph James, 19 April 1814, 5/1110 no. 270.

120. On common carriers, see Biggers v. White, Sydney Gazette, 5 July 1807, 1; Laurence May v. Jacob Jones, 19 July 1811, 5/1106 no. 110, ibid., 20 July 1811, 1; unnamed case, 12 August 1804, 2; 8 August 1812, 2. On cattle herdsmen, see unnamed case, ibid., 17 December 1809, 2. On hirers of goods, see Isaac Moss v. Edward Doyle, 10 July 1812, 5/1108 no. 74, ibid., 11 July 1812, 2. These actions had elements of both contract and tort. The gradual development of a negligence standard of liability is examined in Kercher, , Shifting Patterns of Litigation: Tort in Early New South Wales, unpublished, Sydney, 1990Google Scholar; and Kercher & Noone, Remedies, chap. 10.

121. Jeremiah Harrigan v. Robert Campbell, 23, 24, 27 January 1812, 5/1107 nos. 42, 45, 50 and see 21.

122. John Wood v. Robert Campbell, 15 and 20 January 1812, nos. 12 and 20.

123. James O'Burne v. Robert Campbell, 3 and 4 February 1812, 5/1107 nos. 92 and 95.

124. Thomas Brady v. Robert Campbell, 17 April 1811, 5/1105 no. 147.

125. John Wood v. Robert Campbell, 15 and 20 January 1812, 5/1107 nos. 12 and 20; Jeremiah Harrigan v. Robert Campbell, 23, 24, 27 January 1812, 5/1107 nos. 42, 45, 50 and 21 also concerned Macquarie Island. See also Sydney Gazette, 24 July 1813, 2; 18 December 1813, 2.

126. Ibid., 31 October 1812, 2; 24 July 1813, 2; 18 December 1813, 2; Hainsworth, Builders and Adventurers, 101-103.

127. Sydney Gazette, 27 June 1812, 2.

128. Mrs. Wills v. James Underwood, Sydney Gazette, 19 May 1805, 2; Mrs. Morgan v. Thomas Jones, Sydney Gazette, 15 June 1806, 2; Mary Mears v. James Pendergrass, 23 August 1810, 5/1103 no. 299, and Sydney Gazette, 25 August 1810, 1-2; John James v. Charles Thomas, 24 October 1811, 5/1106 no. 222, Sydney Gazette, 26 October 1811, 3.

129. Minutes of the Sydney Magistrates' Court, 28 July 1798, SZ 766 (reel 655); Collins, Account 2: 88; Sydney Gazette, 10 July 1803, 1; supra at n.81. In 1802 and 1803, further orders required that the courts were to ignore assignments, deeds, bonds, and other instruments unless they had been drawn up by the judge advocate: Sydney Gazette, 2 June 1805, 1; 15 January 1809, 2.

130. Hainsworth, Exploiting the Pacific Frontier, 62.

131. See William Stewart v. Simeon Lord, 28 and 30 July 1813, 5/1109 no. 301.

132. Simeon Lord v. William Hobart Mansel, 17 July and 15, 16 and 19 October 1812, 5/1108 nos. 100 and 276.

133. Jeremiah Griffin v. George Johnson, 17 August 1810, 5/1103 no. 264; John Connelly v. Joseph Ward, 27 April 1812, 5/1108 no. 21; Hannah Hunter v. John Brabyn, 31 January 1814, 5/1110 no. 201.

134. Michael Wayland v. D'Arcy Wentworth and Thomas Moore, executors of Thomas Laycock, 23 March 1810, 5/1103 no. 99.

135. John Jones v. Charles Throsby, 20 September 1810, 5/1104 no. 6.

136. William Bond v. Andrew Magrath, 4 February 1811, 5/1105 no. 64.

137. Butlin, Foundations, 18-23, 63.

138. Ibid., 34; and see the Journal of Robert Murray (1793) in Forster, , ‘Tyranny Oppression and Fraud:’ Port Jackson, New South Wales, 1792-1794, 60 Journal of the Royal Australian Historical Society 73, 80 (1974Google Scholar).

139. Butlin, Foundations, 89. If the payment were in specific wheat, there was also the danger of the wheat being destroyed: see Sherwin v. McCarthy, Sydney Gazette, 2 April 1803, 3.

140. See minutes, 25-26 April 1811, 5/1106 nos. 7 and 8. Later, three of Stogdell's servants were successful in their actions for wages: William Bond and Sophia Bond v. John Palmer, administrator of John Stogdell, 29 July 1811, 5/1106 no. 165; John Bolger v. John Palmer, administrator of John Stogdall [sic], 10 October 1811, 5/1106 no. 199.

141. William John Speed v. Garnham Blaxcell, 22 July 1812, 5/1108 no. 116.

142. Anne Bartlett, administratrix of Richard Cadman v. Edward Quin, 15 April 1812, 5/1107 no. 145.

143. James Larra v. Joseph Holt, 9 October 1812, 5/1108 no. 264. For other cases turning on lack of proof, see John Tull v. Samuel Terry, 2 April 1811, 5/1105 no. 98; Patrick Kelly v. Robert Murray, 20 July 1812, 5/1108 no. 103; Garnham Blaxcell v. Matthew Everingham, 21 and 23 July 1812, 5/1108 nos. 109 and 115.

144. John Cureton v. Nathaniel Laurence, 26 July 1814, 5/1111 no. 5.

145. Patrick Ducie v. Owen Macnanimy [sic], 2 August 1814, 5/1111 no. 65, an action concerning the salt works.

146. Oliver Slater v. Joseph Underwood, 11 April 1811, 5/1105 no. 144.

147. Richard Lamdan v. Joseph Underwood, 15 April 1814, 5/1110 no. 240.

148. John Nowland v. Richard Fitzgerald, 25 January 1811, 5/1104 no. 185.

149. John Osborne v. William Jenkins, 9 July 1811, 5/1106 no. 58; William Watkins v. William Jenkins, 9 July 1811, 5/1106 no. 59.

150. Richard Palmer v. William Jenkins, 9 July 1811, 5/1106 no. 63.

151. Thomas Browning v. Henry Kable, 21 January 1812, 5/1107 no 32.

152. George Chartres v. Garnham Blaxcell, 2 November 1812, 5/1108 no. 376.

153. Daniel Dering Matthew v. George Thomas Palmer, 4 January 1814, 5/1110 no. 39. A similar defense was put in a ploughing case in George Smith v. Anthony Richardson, 11 January 1814, 5/1110 no. 59.

154. Gustavus Low v. William Gore, 26 and 27 April and 3 May 1814, 5/1110 nos. 308 and 401.

155. William Gore v. Gustavus Low, 2 May 1814, 5/1110 nos. 374 and 406. This case was sent to arbitration; both Gore and Low were insolvent. As provost marshal, Gore was in charge of the prison. He was imprisoned in his own jail for debt, but he escaped. See H.R.A., 8 March 1819, 1/10: 39-42 and see 15.

156. Philip Enis v. Robert Luttrell, 26 September 1810, 5/1104 no. 37.

157. William Hughes v. Sarah Wills, 4 July 1811, 5/1106 no. 50.

158. George Crossley v. Henry Kable and James Underwood, 25 July 1814, 5/1111 no. 2. In George Chartres v. Samuel Marsden and Edward Smith Hall, 22 January 1813, 5/1109 no. 23, the defense was that the demand was unjust and unreasonable, and the sum claimed, £30, was reduced to a judgment for £17.17.8. Chartres was also the subject of complaints of overcharging in George Chartres v. Robert Campbell, 27 January 1813, 5/1109 no. 45, as was Crossley in George Salter v. George Crossley, 6 November 1812, 5/1108 no. 400, and by implication in James Wilshire v. George Crossley, 29 April 1813, 5/1109 no. 189. Edward Eagar might not have been quite so inclined to overcharge. The court awarded the full sum he claimed in Edward Eagar v. Roger Connor, 25 January 1814, 5/1110 no. 136. It is clear from George Crossley v. Henry Kable and James Underwood, 6 November 1812, 5/1108 no. 399 that the court was willing to tax these costs. Some of these cases were settled by arbitration: see Joseph Underwood v. George Crossley, 18 April 1814, 5/1110 no. 246.

159. Report of the judge advocate's statement, Sydney Gazette, 24 March 1810, 2.

160. Examples of members of the court who commonly appeared as litigants are Augustus Alt (who sat in 1792), John Palmer (1792, 1795, 1810), William Balmain (1795, 1797), John Harris (1795, 1800, 1806), Edward Abbott (1800), Thomas Laycock (1801, 1808), John Blaxland (1808, 1812), D'Arcy Wentworth (1810), Garnham Blaxcell (1810-13), Charles Hook (1811-14), Alexander Riley (1811, 1812, 1814), Gregory Blaxland (1812), and Edward Smith Hall (1814). John Macarthur also sat in 1800 and 1801, although litigation in his family was usually conducted by his wife, Elizabeth, as he spent much of the relevant period in England. Wentworth, the Blaxlands, Blaxcell, and Hook often appeared as litigants, their actions showing that they were engaged in commerce. Of the traders who litigated often and who did not appear as members of the court, most were ex-convicts, including Kable, Thompson, and Underwood. Robert Campbell and his son were among the few free merchants who litigated often but did not appear as court members.

161. Campbell revealed in Thomas Kent v. Robert Campbell as surety for Captain Mallison, 17 November and 22 December 1809, 2/8149; Thomas Kent v. Captain William Mallison, 21 November 1809, 2/8149 that all three members of the court had received goods on the vessel in issue. Ellis Bent brought some liquor to New South Wales to sell as a speculation. He made a profit of 600 percent. He also trafficked in “currency,” private promissory notes, Currey, Brothers Bent, 48-49.

162. See, e.g., a letter by Dundas in D. Dundas v. John Driver, 4 July 1809, 2/8149, calling on the experience and sympathies of the “men of property & affluence” who were members of the court.

163. Kercher, Indigenous Jurisprudence.

164. See John Palmer v. William Henry, 8 October 1810, 5/1104 no. 87.

165. See, e.g., Sydney Gazette, 23 February 1811, 1.

166. See extracts from the journal of Robert Murray (1792-94) in Forster, Tyranny Oppression and Fraud, 77.

167. Ibid., 79-80. Murray also alleged that the officers of the corps adulterated the liquor, sugar, flour, and Indian meal they sold, and would have adulterated other staples if the means were known: 82.

168. The fixed price of £1 per gallon was in issue in Thomas Kent v. Robert Campbell as surety for William Mallison, 17 November and 22 December 1809, 2/8149; Thomas Kent v. William Mallison 21 November 1809, 2/8149; and Thomas Kent v. William Mallison, 24 September 1810, 5/1104 no. 34, supra at nn. 50-54.

169. William Hall v. Thomas Probart, 3 July 1792, 2/8147.

170. Journal of Murray, in Forster, Tyranny Oppression and Fraud, 79-82.

171. John Merritt v. William Baker, 29 April 1806, 2/8148.

172. H.R.A. 1/5: 17; Sydney Gazette, 15 July 1804.

173. Thomas Clarkson v. Richard Calcott, 7 July 1814, 5/1110 no. 478; Sydney Gazette, 16 July 1814, 2.

174. Butlin, Foundations, 62, relying on the Sydney Gazette's report on 1 June 1833 of the judgment of Burton J. in Macdonald v. Levey.

175. Nicholas Divine v. Augustus Ault, 3 February 1809, 2/8149.

176. Sydney Gazette, 18 August 1810, 2, apparently reporting Messrs. Campbell & Co. v. Richard Tuckwell, 15 August 1810, 5/1103 no. 220.

177. Macquarie complained about petty bankers from the lower orders, including convicts, who issued promissory notes and then became, or declared themselves to be, insolvent: H.R.A. 1/7: 264-265.

178. Sydney Gazette, 6 April 1806, 4. At that time, they also called in the bakers to organize methods of reducing the consumption of wheaten bread: 3, 4.

179. Ibid., 13 April 1806, 1; 20 April 1806, 1.

180. Ibid., 6 August 1809, 1.

181. Ibid., 29 September 1810, 1.

182. Ibid., 20 October 1810, 1; 26 December 1812, 1.

183. Ibid., 2 March 1811, 1.

184. R. v. Rusby, Peake Add. Cas. 189; 170 E.R. 241 (1800).

185. Thompson, Moral Economy, 88.

186. Sydney Gazette, 16 November 1806, 1.

187. Ibid., 21 December 1806, 1.

188. Ibid., 5 February 1814, 1.

189. Fletcher, Landed Enterprise and Penal Society, 82-85.

190. See minutes of the Sydney Magistrates' Court, at, for example, SZ 772, weekly from 5 January 1811; Sydney Gazette, 18 January 1807, 2; 9 June 1810, 1. Price fixing for bread in New South Wales was abandoned only in late 1987. On other consumer protection measures, mainly relating to bread, see minutes of Sydney Magistrates' Court, 31 December 1801, SZ 768, 6/37; 9 October 1802, SZ 768; 30 October 1813, SZ 774; and Sydney Gazette, 16 March 1806, 2, 4; 23 March 1806, 4; 19 February 1814, 1.

191. Minutes of Sydney Magistrates' Court, 31 December 1801, SZ 768, 6/37; 9 October 1802, SZ 768; 30 October 1813, SZ 774; Sydney Gazette, 13 April 1811, 1; 13 July 1811, 2; 27 July 1811, 2.

192. Ibid., 16 March 1806, 2.

193. Ibid., 16 March 1806, 4; 23 March 1806, 4.

194. Thompson, Moral Economy, 81.

195. See, e.g., minutes of Sydney Magistrates' Court, 27 March 1802, SZ 768, 16/81; Sydney Gazette, 15 May 1813, 1; 7 August 1813, 2. A General Order of 1 October 1800 prohibited the sale of liquor without a license: ibid., 3 February 1805, 1; 13 April 1806, 2.

196. Ibid., 16 March 1806, 1.

197. Thomas Kane v. John Norman, 3 May 1814, 5/1110 no. 405; Sydney Gazette, 7 December 1806, 1; 12 May 1810, 1.

198. Ibid., 13 April 1806, 1.

199. Ibid., 16 March 1806, 4.

200. Atiyah, Rise and Fall, 398-405, 544-61, shows a similar divergence between the policies of the common law and those of the legislature.

201. Kercher & Noone, Remedies, chap. 10. The same book discusses tort, contract, and debt recovery actions in this period.

202. Kercher, Indigenous Jurisprudence.

203. Horwitz, Historical Foundations, 940-41, states this as having occurred in 1825 in England and about 1815 in America.