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Decisions of the Superior Courts of New South Wales, 1788-1899

R v Payne [1830] NSWSupC 19; sub nom. R. v. Payne (No. 2) (1830) NSW Sel Cas (Dowling) 681

land law, title, customs and usages, land grants, intrusion, trespass to land - Darling Harbour, reception of English law, land law, jury verdict, contrary to law, jury, judgment contrary to its verdict

Supreme Court of New South Wales

Forbes C.J., 18 March 1830

Source: Australian, 19 March 1830[1 ]




King v. Payne.

This case deservedly excited very considerable interest, and drew together a crowded Court.

Mr. Chief Justice Forbes having taken his seat, the following Special Jury[2 ] were called over viz.

Mr Pritchett   Mr.G. Paul

Cohen Pitman

Chisholm Grose

Hosking Rickards

Maziere Taylor, and

Rapsey Connell.

Mr. Attorney General Baxter for the Crown, stated this to be an information against the defendant, for an act of intrusion, in keeping possession of a certain piece of land adjoining Cockle Bay, (called by the Learned Gentleman) Darling Harbour,

Dr. Wardell, with whom was Mr. Wentworth, for the defendant, addressed the Jury.

They had heard the technical name of this case, namely, an information for intrusion.  These informations were not usual, he thought it as well to say, for the Jury might not be so very well acquainted with this case as with others that usually come before a Court of Justice; and he felt he ought to congratulate the Jury, and the Colony, on the novelty of such informations.  This information was brought on the plea that the defendant had illegally intruded himself upon a piece of ground, the property of the Crown.  But the defendant had set out his title, and that they would find was a similar title to what prevailed throughout the Colony.  If any one of the Jury held land in the territory, it was held by a similar title.  There might have been quiescing acts, and quiescing proclamations, but them he considered nothing better than disturbing acts and proclamations; even they only extended to a very small portion of land in the Colony; up the country there was not one title good, in consequence of the arrears of the Public offices, whose duty it was to provide titles; but were the Jury therefore to be told, that that faith which had been pledged to the Public was to go as nothing, because the parchment and seal were wanting?  He would put it to the Jury, was it fit or not that settlers arriving in a new country, where the foot of civilised man had never trod, instead of picking out their land, should be enquiring of the superior for parchment and seals.  The foundation of all titles formerly, as the Jury must know, was merely an application to the acting Governor, and if the ground was vacant, and the man had merit, he was told to take it; 20 years ago no men were more rewarded than those who served their country, veteran soldiers, especially those of the 102d and 73d regiments; and it was a fact, that the whole Bay where this land was situated, was nearly surrounded by these men.  Now came the question - a piece of land was granted to one of these, a man named Earley. This Governor Macquarie took from him to make a street, but gave him the piece in question in exchange, and there commenced the title of the defendant in this case; Earley on obtaining the land, paled it in, to show an appropriation, and then sold it to a man named Henesey, whose title was also recognised by Governor Macquarie, and who advised the very sale of this land as the original possessor was proceeding to Europe; here as a regular series of transfers, and in 1816 the land was sold by Henesey to one Farrel, who remained in possession till 1827, when Farrel sold it to the present possessor for a very handsome equivalent.  Thus the defendant could trace his title through a series of undisputed titles, until the quarry at that spot struck the fancy of some of the Authorities as very desirable for several reasons.  After a short interval, defendant received, to his no small astonishment, a letter from the SurveyorGeneral, stating that where the defendant had commenced quarrying, was Crown land, which had never been alienated, and that he would therefore be liable for all damages.  In answer to this, the defendant (Mr. Payne) replied, that the land had been occupied for a period of 29 years downwards - that it was not he who had enclosed the place - that he had entered into contracts to erect some handsome buildings on it - and that he hoped the Government would extend to him the like liberality as to other person holding land in the neighbourhood under the same title.  A succession of official letters followed, an action (brought previously) of ejectment, had failed, but subsequently the defendant sent a letter, showing that he wished to have the matter settled, and offering to deliver up his right and title, on receiving an equivalent.  In answer, it was stated that as he had acted in defiance of the government, the Governor could not interfere in any way. -  Now he (Dr. W.) did not consider that it was defect of title that caused these proceedings, and if such were allowed to prevail, no one concerned could answer for the consequences.  He begged the Jury therefore to look at this question of right with the eyes of colonists.  It would be absurd to apply the technicalities of the laws of England here, respecting titles - the titles must be accommodated according to circumstances, but if this action were to go against the defendant, why the very letters of occupation, which they received, and by which they (the Jury) held their farms, were all as nothing, because there were not the parchment, the seal, or the setting forth of the title, produced - documentary evidence, which few could get by any means.  He would ask then if the defendant had not got bona fide possession - if he had not paid money for the land under a bona fide belief that the possessor could sell it, and if the land like most other lands in the Colony was not held by a similar tenure.  Having considered these matters, how then could the defendant be justly ejected from his land?

Evidence being gone into for the defendant and on the part of the crown, which we have not space at present to detail, and the tenor of which may principally be gathered from the foregoing statement of defendant's Counsel.

The learned Judge summed up.  Were this a case between private parties - he would consider there had been sufficient title proved, from the first holder to the present possessor; but as this was a case of the crown, and there being but one way of alienating crown lands by record, under due form of law, he did not conceive local customs could control it; considering this case too material for decision at Nisi Prius, he would recommend the Jury to find the facts, and give a special verdict, which his Honor would submit to the Court on the point of law.  The Jury, however, after some absence returned

A verdict for the DEFENDANT, being of opinion that he had proved his title, and that government had received an equivalent from Early in the house which he purchased of Saxton.



Forbes C.J. and Dowling J., 1 June 1830

Source: Sydney Gazette, 3 June 1830[3 ]


Rex v. Payne.

This was an action of intrusion, brought at the suit of the King against the defendant, Mr. John Payne, for the illegal occupancy of a certain allotment of ground in Darling Harbour, claimed as the property of the Crown.  The cause was tried last term, before the Chief Justice and a special jury, when a verdict was returned for the defendant, contrary to the direction of His Honor, who told the jury that they ought to find a special verdict on the facts of the case, as detailed in evidence.

The Attorney General moved for a new trial in the above cause, on the ground that the verdict was contrary to law and to the direction of the learned Judge who presided at the trial.

The Chief Justice read his notes of the evidence taken on the trial, and stated the manner in which he put the case to the jury, namely, that the Crown was entitled to a verdict, indeed to judgment, upon the pleadings before the Court.  The defendant claimed against the Crown, by an Act of the Surveyor General, by order, and under verbal sanction of the Governor, made within twenty years, and upon an alleged local usage of the Governors to grant occupation and possession without the formalities of the law.  This, however, His Honor held, was no custom, upon the general rule which governs all customs, and especially was no custom, as it infringed upon the prerogatives of the Crown; but, under this view of the cased, His Honor recommended a special verdict, if the jury thought there were equitable claims on the part of the defendant.

The Attorney General said, this case, as His Honor will no doubt remember was brought before the Court by information of intrusion, and was to recover possession of a certain piece of land in Darling Harbour, Sydney, of which the defendant had possessed himself, but which, it was contended, had never been alienated from the Crown.  It appears clearly from the Judge's notes, that on the very showing of the defendant himself, he was in possession of the land in question by the permission of the Government, and that the whole of the evidence adduced by him merely went to show a permissive occupancy.  Now, it is expressly laid down [Comyn's Digest. v. 4, p. 65], that there can be no occupant against the King.  The first occupiers of the land in question had the mere title which possession gives; they had no estate in fee, and were not competent to sell or assign the land to any person.  The title set up and proved by the defendant, is not, therefore, sufficient in law to bar the Crown, as the defendant has not proved any alienation whatever of the land by the Crown.  Alienation must be, I apprehend, by deed-poll, or other instrument in writing; at least it must be by something of record; and whether the land in question was legally alienated is clearly a matter of law, and not within the province of a jury to determine; and I humbly submit to the Court, that the jury, in returning the verdict they did, greatly exceeded their powers, and not only became judges of the fact, but of the law also; and it, therefore, strikes me, for this reason alone, seeing that the defendant did not prove a legal and good title, as, having pleaded it, he was bound in law to do, that a new trial should be granted, and that the ends of justice can only be obtained by that proceeding.  With respect to the verdict being directly contrary to His Honor's direction.  I have to state, that the learned Judge told the jury, as nearly as I can recollect, that, as this was a Crown case, and there being but one way of alienating land, namely, by record under due form of law, he did not conceive that custom could controul it; and His Honor further stated, that he considered the case as too much for him to decide at nisi prius, and therefore recommended the jury to find the facts, and return a special verdict, in order that the law arising out of the fact of the defendant's title being merely derived from permissive occupancy and possession, should be decided by the Court.  Notwithstanding His Honor's recommendation, however, the jury returned their verdict in these words:- ``We find for the defendant; we being of opinion that the defendant has proved his title, and that government has received an equivalent from Early in the house which he purchased of Saxton."  The jury thus took upon themselves not only to decide upon the facts from which the defendant claims title, but also upon the law arising out of those facts; and, thought I am as great an advocate for the extensive rights of jurors as anyone can possibly be, still I do most confidently submit to the Court, that in the present instance, they have exceeded that right beyond all bounds.  There is also one other observation to which I would call your Honors' attention.  I stated at the time of the trial, and I have no hesitation in again saying, that I do not consider there has been any fraud practiced by the party now before the Court, but I did think then, and I am now satisfied, that it was practiced somewhere; for, previous to any proceedings being taken, I sent to the defendant, by his own appointment, to ascertain the title under which the claimed possession of the ground in question, and he then handed over two distinct titles to the property.  One was described as being an allotment to Early, the other an allotment to a person named Scott; and it is worthy of remark, that the allotment stated to have been given to Scott, was precisely that same as that stated to have been given to Early.  I should have been enabled to prove this on the trial of the cause, but that the defendant produced only the title from Early.  With these observations I shall conclude, trusting that I have stated enough to induce the Court to grant a new trial, only adding that the sole object of the Colonial Government in bringing this case before the Court is to prevent the fraudulent assumption of Crown lands by private individuals; not to interfere with permissive occupations, but to prevent fraudulent ones; in other words, to define and defend the King's rights, as the best and only security for, those of the subject.

Dr. Wardell, against the motion, relied on local usage, and especially that the Crown had received an equivalent in a piece of land of greater value in exchange.  The defendant had also built an expensive house upon the faith of his possession obtained immediately from the Crown; and the learned Counsel submitted if the Court felt itself bound to proceed by the strict rule of law, that it would at least impose terms, by requiring the land taken as an equivalent to be returned, and awarding compensation for the house built by the defendant, in faith of the possession so given, and the title supposed under that possession.

Mr. Wentworth followed on the same side.

The Court was of opinion that a new trial ought to be granted, that being the object of the Attorney General's motion, but intimated, at the same time, that the more proper course of proceeding would have been an application to the Court to enter a verdict for the Crown notwithstanding the finding of the jury. - Motion granted.


Forbes C.J. and Dowling J., 1 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 310]

[Where a Title appears in the Crown on the record, the Court is bound to take official notice of it at law and give Judgment ex officio notwithstanding the finding of the Jury to the contrary]

Tuesday 1st of June 1830

Coram          Forbes CJ.

                    Dowling J.

Rex v Payne

This was a writ of intrusion against the Defendant, for trespassing on certain lands of the Crown situate at Cockle Bay near Sydney.  The defendant set out a Title to the land in question in virtue of a derivative title from from [sic] one Henry Earle, in pursuance of the King's Commission to the Governor of this Colony authorising them to grant the waste last of New South Wales.  The Plea without setting out any grant alleged a custom and usuage for the Governors of the Colony to give Tickets of occupation and possession of land without grants formally drawn, up and executed, and that in pursuance [p. 311] of this usuage and custom  Earle the original possessor of this land had entered into possession, that he had sold his interest to A. that A sold to B to one Patrick Troy from whence the defendant purchased for valuable consideration.  Issue was taken upon the usuage and custom.  At the Trial before Forbes CJ. on the 18th March last before special Jury evidence was given fully establishing the Defendants plea.  The Judge thought upon the pleadings that the Defendant was out of Court, for without proof of a natural grant, the usuage and custom pleaded and the irregular occupation allowed by the Governor could not have the right of the Crown,  The Defendants Counsel wished the case to go to the Jury,  The Attorney General allowed the case to go to the Jury and they found a Verdict for the Defendant against [p. 312] the direction of the Judges who ruled that upon the pleadings the Crown was entitled to Judgment.

Baxter AG. now moved for a new trial

Wardell & Wentworth admitted that in strictness of law the defendant had not made out any title against the Crown, but insisted that in Equity the verdict ought not to be disturbed.

Dowling J thought that the proper motion was to move for judgment non obstanti verdicto[4 ] because the pleadings showed the Crown entitled to Judgment.  He also thought that the Court ought on the authority of Cio - Car 590. to give judgment ex officio for the Crown it being there said that if a title appears upon record for the King, the Court ex officio shall judge it for him.

Forbes CJ. agreed with Dowling J. but as the Attorney General pressed for a new trial, and at his request we acceded to his motion.

The rule made absolute.



[1 ] For preliminary proceedings, see Australian, 17 March 1830.

[2 ] Jury trial was granted on 1 March 1830: Sydney Gazette, 2 March 1830.

[3 ] See also Australian, 25 June 1830.

[4 ] Non obstante verdicto: notwithstanding the verdict.  The court has power to enter a judgment contrary to the finding of the jury.

Published by the Division of Law, Macquarie University