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

Doe dem Harris v. Riley [1832] NSWSupC 76

ejectment - tenancy - Court of Civil Jurisdiction, legality of - Court of Civil Jurisdiction, jurisdiction of - Crown prerogative to create courts - succession - trusts, abandonment - trustees, replacement of - Burwood - barristers, seniority between - Chancellor, governor functions as - law and equity, separation of - equity jurisdiction, none in early colony

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 12 October 1832

Source: Sydney Herald, 18 October 1832[1 ]


Friday. -  Doe on the demise of Harris v. A. Riley.  - This was an action of ejectment to recover possession of the Burwood Estate, Parramatta-road.  A verdict had been entered for the lessors of the plaintiff, subject to the opinion of the Court on a special case.  It appeared that Captain Rowley, of the 102d regt., died possessed of the Burwood Estate by virtue of a grant from the Crown to him, and bequeathed this estate amongst other property to Major George Johnstone and Dr. Harris, his executors, in trust to pay his debts, and held the same for the benefit of his children, the present plaintiffs.  In the year 1805 the executors of the testator being out of the Colony, His Excellency Governor Macquarie, upon a petition presented to him by Thomas Moore, Esq. of Liverpool, appointed Mr. Moore guardian and trustee of the estate, subject to the orders and directions of the Court of Civil Judicature.  Mr. Moore, under a decretal order of the Court, sold the estate to Alexander Riley, Esq., the present defendant.

Mr. Wentworth now argued in support of the verdict upon the following grounds: - 1st. that the Court of Civil Judicature was a nullity, inasmuch as it was instituted by the King's Letters Patent.  The King had no power to constitute a Court of Justice, except according to the Common Law, and the Court of Civil Judicature was not instituted according to the Common Law; 2d. that the Court Civil Judicature did not possess any equity jurisdiction under the King's Letters Patent; 3d. that the Governor had no power to appoint a trustee or guardian to infants; 4th. that no fresh trustees could be appointed, those under the will being still alive; 5th. that the decretal order of the Court under which the estate was sold, was void, inasmuch as the infants were no parties to it, nor had they ever been brought before the Court to show cause against such an order being granted.  Upon those grounds the learned gentleman contended upon the authority of various decided cases, that the verdict should stand.

Messrs. Therry, Carter, and Norton, on behalf of the defendant, contended that the decretal order of the Court of Civil Judicature was sufficient to authorise the sale of the estate, and that the verdict ought to be entered for the defendant.

The Chief Justice said the Court would pronounce judgment at an early day.



Forbes C.J., Stephen and Dowling JJ,18 November 1832

Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261[2 ]


[p. 61] Doe d. Jno Harris,

Thos Rowley, Jno Rowley

Jno Lucas, & Mary ux,

Hen. Sparrow  Briggs &

Eli his ux & Eliz. Selwyn 


Alexander Riley

Ejectment for 750 acres of land in the County of Cumberland. Verdict for Plfs subject to the opinion of the Court upon the following case:-[3 ]

On the 27th February 1805 Thos Rowley Esq devised to Geo. Johnstone Esq & John Harris Esq. all his worldly estate & effects, including the land in question.  In trust in the first place ``to pay, satisfy & discharge all his just debts and the expenses of his funeral, and after payment & satisfaction thereof" - in trust for the benefit of his 5 natural children, & their mother  Elizabeth Selwyn in the proportions therein mentioned & he appointed the said Johnstone & Harris his exors & trustees, & guardians to his children.  In 1806 the testator [p. 62] [4 ] died  seised of the land which is the subject of this ejectment.  In 1808 Johnstone  & Harris departed this colony for England, having previously taken upon themselves the exn[5 ] of this will, but without having made or in anywise sanctioned any sale of the estate in question or attempting to delegate to any person any of the powers or authorities vested in them under the will of the said testator during their absence from the Colony.  In 1812 a petition was presented to Govr. Macquarrie [sic] to appoint another trustee in the room of Johnstone & Harris who had not then returned to the Colony.  No trace of this petition was to be found, but on the 10th March 1812 in pursuance thereof, the Governor under his hand & the seal of the Colony, appointed Thomas Moore Esq. of Liverpool in this territory to be sole guardian of the infants until they became of [p. 63] age or until the return of Johnstone & Harris or either of them, with power in the mean time to dispose of testators estate according to the directions of his will.  Provided however that he should not sell or alienate any part of the lands devised without application being first duly made in writing to the Judges of H.M's Court of Civil Jurisdiction  & their approbation first had thereupon.  By virtue of an order of the then Court of Civil Jurisdiction of this Colony dated 21st July 1812 the estate in question was sold by auction, & purchased by the Deft, for bonâ fide consideration paid, & a conveyance of the same was executed to him.  No record is to be found of the Petition on which the decretal order of the sd Court of Civil Jurisdiction for the sale of this estate appears to have been founded. At the time of the sale all the children were infants under 21.  Neither of the trustees named in the will have in any manner ratified the sale of this estate since their return to this Colony.

If the Court is of opinion that [p. 64] the sale of this estate under the decretal order of the Court of Civil Jurisdiction, is valid in the law, then a verdict is to be entered for the deft; but if it should be of opinion that such sale is not valid, then the verdict for the lessors of the plf is to stand.

The case was argued at great length by counsel on both sides, before Forbes C.J. Stephen J. & Dowling J., & afterwards fully debated at the chambers of the Chief Justice & on Thursday the 18th November the judgment of this Court was delivered by

Dowling J. We are of opinion that the sale of the estate in question, under the decretal order of 21stJuly 1812 made by the then Court of Civil Jurisdiction of this Colony is not valid in the law & that judgment must be given for the lessors of the Plf.

[p. 67] This being an action of Ejectment, it must be determined strictly according to the rules of law, and we are precluded in the present mode of proceeding from any equitable considerations arising of out of the case.  The primary question for our determination, is, in whom is the legal estate in the land vested?  Primâ facie it is vested in Major George Johnstone & John Harris Esqre who are appointed by the testator, his trustees, and guardians of his natural children.  This is a personal trust, because they are expressly named, & their trust is coupled with an interest, i.e. the property is vested in them to pay debts etc.  The legal estate being therefore primâ facie in them, they would be entitled to recover in this ejectment unless it appeared that their legal title had been divested by an authority competent in point of jurisdiction, & in a form & manner of proceeding consistent with the ordinary rules of justice.

What is there disclosed in this special case for act of the special case (for out of this special case it is not competent for us to travel) shewing that the legal estate has been divested out of them?  It is contended on the part of the Deft that the appointment by Governor Macquarrie of Thomas Moore Esq to be trustee & guardian in the place & stead of Johnstone & Harris who had gone to England, is to have this effect, and that by virtue of such appointment, it was competent to the Court of Civil Jurisdiction, to decree [p. 68] a sale of this property upon the petition of Mr Moore.

It is conceded, at least it is not denied, that the sale to the deft under the decretal order, was bonâ fide and for valuable consideration; but whatever may be the hardship of the case in a court of law, in ripping up a transaction of this nature, still if it cannot be upheld according to the rules of law, we must deal with it as it is presented to our consideration, sitting as judges in a court of Law.

Now is there anything to shew that the removal of Johnstone & Harris, & the substitution of Moore, was a competent act of Governor Maquarrie?  The Governor's commission has been brought under our notice, and certainly there is nothing therein contained empowering him so to act, even if it were shewn that a case of necessity had arisen authorizing him to interpose as Chancellor for the purpose of substituting another trustee and guardian.  Giving, however, full effect to this argument which has been so ably pressed upon our attention, that having regard to the infant state of the Colony, and the imperfect machinery of the then civil Government, every presumption is to be made in favour of the competency of the jurisdiction & the regularity of the proceedings had in those early times, still however [p. 68a] we are bound to see that the substantial rules of equity and justice have been observed.  Admitting that the Governor of this Colony had at that time a jurisdiction in such matters, similar to that of the Lord High Chancellor of England, is it shewn to us that it has been pursued, under such a state of circumstances as that the Lord Chancellor of England would have so acted under the like circumstances?  It is found by the case no doubt, that Johnstone & Harris had left the Colony, but under what circumstances - whether they were likely then never to return - or whether they went away only on a temporary occasion, does not appear.  There is nothing to shew that the trust was then vacated, or that they had done any act manifesting an intent on their part to vacate it, so as to authorize the Chancellor to interpose for the purpose of appointing another trustee.  As observed before the trust to Johnstone & Harris, was of a personal & very special & a delicate nature namely the guardianship & care of his infant natural children, and therefore a case of strong [p. 68b] necessity must have been made out before a mere stranger to the testator could have been substituted.  The only cases in which the Chancellor of England will substitute new trustees, are where trustees resign, never having acted - are dead, - are guilty of misconduct, or go away to parts beyond seas, with an expressed intention never to return.  This is not one of those cases, & therefore in the absence of such a case of necessity I apprehend we are bound to hold in a court of law that the legal estate in the original trustees has not been effectively divested.  But then waving [sic] all objection to the appointment of Mr Moore by Governor Macquarrie what is there to show that the Court of Civil Jurisdiction had authority to decree a sale of this property.  That Court was little more than a court of Requests, having only a summary jurisdiction only actions & suits at law as the terms of its creation; & the course of its proceeding incontestibly shew.  There is a Parliamentary recognition of this, in the 49. G. 4. c 96. s. 18. in which the legislature recognizes its acts so far only as it has it has a lawful jurisdiction.  It clearly had no jurisdiction in Equity, and had no authority to decree such a sale.  Without however, relying upon a want of jurisdiction, which would alone be a fatal objection [p. 68c] in limine, one substantial difficulty arises, going to the vital essence of the proceeding on grounds of natural justice, for it appears that this decree was made exparte, and without proper parties before the Court.  The infants could not be bound by such a decree.  The whole proceeding was therefore coram non judice.  There is no proof that the infants ever assented to the appointment of Mr Moore as their guardian.  It may be true that the estate might lawfully be sold, in the first instance to pay debts; but there was an obvious mode of proceeding, to be adopted by creditors desirous of having the estate sold for such a purpose, if the civil court of the Colony at that time had really an equitable jurisdiction.  It is notorious as matter of history, that until the institution of the Supreme Court[6 ] of this Colony, namely two years after this decree was made, there was no equitable jurisdiction [p. 68d] in any of the courts of the Colony.  With every desire therefore to strain the law in favour of a proceeding which may be bonâ fide, and arising under the peculiar state of this Colony at that time, still with these glaring infirmities throughout this transaction before us we cannot hold that the sale in question was valid in the law.  It appears to me that the very pains taken to recite, in the deed conveying this estate to the Deft, all the several proceedings in the case, import a consciousness of the infirmity of the title in all the parties to it.  But the decree itself is as bare and naked a proceeding as could well be emitted by a court of justice.  For anything that appears to the contrary Mr Moore the petitioner is a perfect stranger, & he is allowed to sell the landed property in the petition mentioned - for what purpose? ``in order to liquidate a debt due from the said estate to divers creditors" - What debt? - what [p. 68e] creditors? - non constant that it was a bonâ fide debt for which the estate would be liable - or that the creditors alluded to without name, had any just claim against the property.

The case does not even show that there was any necessity for selling this estate by averring that the personal property had been absorbed by the paymt of debts. Making every fair & reasonable intendment to support the legality of this transaction, we feel ourselves bound in a court of law to hold that the sale of the estate in question under the decretal order of the Court of the Civil Jurisdiction is not valid in the law, & consequently judgment must be given for the lessors of the Plf.

Whether a court of Equity upon a full disclosure of all the circumstances of the case, would afford the deft any relief is another matter, but in the present state of this case, being constrained to dispose of it according to the strict rules of law, we have no alternative but to give the Plf judgment according to law.

Postea to the Plf.



[1 ] See also Sydney Herald, 12 October 1832.  For the final result in the case, see Harris v. Riley, 1833.

[2 ] See also Sydney Herald, 22 November 1832.

[3 ] Marginal note in manuscript: ``Powell v Robson 7 Ves. 209.  Bro. C.C. 385.  Bond v Dk of Newcastle 1 Scho. & Le Froy 238 2 P. Wms 122.  7 Maddon 605.  1 Wm 4 c. 65.  2 Bro. C.C. 339."

[4 ] Marginal note in manuscript: ``Note.  In this case it was ruled, that Carter, being an English Barrister senior to Therry, also and English barrister, took precedence of the latter though admitted to this bar before Carter."

[5 ] Execution.

[6 ] The reference is to the first Supreme Court, in operation between 1814 and 1824, after which the permanent Supreme Court commenced operation.

Published by the Division of Law, Macquarie University