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

Martin v Munn [1833] NSWSupC 54

ejectment - trespass to land - land law, proof of title - permissive occupancy - damages, nominal - new trial - reception of English law, attitude of Burton J. - jury, judges of law or fact - jury, appeal against verdict - land law, Crown grant - land law, squatting - squatters, title against Crown and others

Supreme Court of New South Wales

Dowling J., 22 and 23 October 1832

Source: Sydney Gazette, 25 October 1832[1 ]

The following gentlemen were sworn on the Jury:-

Edward Deas Thompson (Foreman), Thomas Shedforth, Henry Smith, Charles Cowper, Robert Crawford, Archibald Mossman, Edwin Parkes, John Dixon, James Chicholm, and Edmond Lockyer, Esquires.  Talesmen - George Thomas Savage and George Acres, Esquires.

Mr. Unwin opened the pleadings. This was an action of ejectment brought by the lessor of the plaintiff, to recover possession of certain premises situate in Cockle Bay, in the Colony of New South Wales. The defendant pleaded the general issue.

Mr. Wentworth stated the case on the part of the plaintiff.  The case which the Jury had to try, the learned gentleman said, had been substantially decided by the result of an action of trespass tried some months ago, the object of which was to establish the title to the same premises; and in which case the jury came to a conclusion in favour of the plaintiff, which he hoped would be followed up by their verdict this day.  The plaintiff arrived in the colony in the year 1795; and, in the year 1803, or 4, during the administration of Governor King, obtained a ticket-of-leave, and was employed as overseer of one of the public gangs until the arrival of Governor Macquarie, and for some time after that period.  Governor Macquarie in consideration of the plaintiff's public services and good conduct, some time after his arrival, gave him the piece of land, the subject of this action, and which is situate in Cockle-bay, then forming no part of the town of Sydney, near the water; its contiguity to which induced him to select it, on account of the facilities it afforded for carrying on his business of a lime-burner.  The land in question was then occupied by two sawyers, named Mills and Arkdale, who were squatters on the ground, without any permission from the government; and when the plaintiff obtained possession, he was obliged to call in the intervention of the deputy Surveyor General of the Colony, Mr. Meehan, by whom they were ordered off.  Plaintiff then took possession, and the first act of ownership exercised by him, was the erecting of a lime-kiln on the land, in which he burnt lime for a considerable period of time on his own account, and afterwards let it at a weekly rent.  In 1814, or 15, after having failed in several applications to Mr. Meehan to measure the land, he addressed a memorial to the Governor on the subject, and he (Mr. W.) would put into the box the man by whom that memorial was written, and who afterwards saw on the corner of it an order, in the hand-writing of the Governor, to Meehan, to meet him the following morning on the ground, for the purpose of measuring it.  It would also be proved, that, in compliance with that peremptory direction.  Meehan did meet the Governor, in whose presence he measured the land and defined the boundaries by driving posts into the ground.  It would also be shewn in evidence, that on one of those posts, a notice was set up, warning persons against trespassing; that those posts remained in the land for several years, and that, subsequently a dyke was dug, for the foundation of a dry wall, intended as the boundary on one side, but which was never completed; and it would also be shewn that part of that dyke was remaining at the time the defendant took possession of the land.  The plaintiff not only continued in possession of the whole of the land for a number of years, but it would be proved that part of it was never out of his possession.  However, somewhere about the year 1825, plaintiff removed with his family from Sydney; and the defendant, who arrived in the Colony about that period, made application for this particular allotment to Sir Thomas Brisbane.  But before he came to this part of the case, it was necessary to state, that a similar application had been made two or three years before, by a person named Farrell, who had been refused, on the express ground that the land applied for belonged to the plaintiff.  The application of the defendant was acceded to by Sir Thomas Brisbane; but the plaintiff, who was up the country at the time, complained to His Excellency who gave an order to the Surveyor General, Mr. Oxley, to put him in possession of his land.  His name was accordingly written on the chart, but had been subsequently erased, as he hoped to be able to prove, by the contrivance of the defendant.  He should be able to prove that the order to measure the land was seen in the custody of Meehan, in 1825; and he should also prove that the original order to take possession was seen by a person who would be produced, immediately after it was given by the Governor in 1810, or 11.  If the evidence which he should be able to offer on these points came up to his expectations, there would be no difficulty in showing why those documents could not be found in the public offices; and that they must have been surreptitiously abstracted, through the contrivance of some person, by means of some one or other of the subordinate clerks in the departments-men who, in those days were taken out of the gangs for their skill in penmanship, and to whom five pounds, or a few gallons of rum, would be a sufficient inducement to do almost any act that might be required of them.  It was also worthy of observation, that the defendant, under the permission from Sir Thomas Brisbane to occupy an allotment of land, and which was the title he now set up, had managed to get possession of three allotments; although strange to say, his name was only written upon one of them on the public map.  How his name came there at all, he (Mr.W.) knew not; but under any circumstances, he could only lay claim to one allotment.  Now that he was actually in possession of three allotments, would be shewn by the evidence of Major Mitchell; for it having been represented to the government, that the defendant had stopped up a public road, the Surveyor General was ordered to report upon it, and then it was that the defendant was found to be in possession of three modern-sized allotments instead of one, and that he had no right whatever to trespass upon the land through which the road in question ran.  But the plaintiff, when he found the defendant in possession of his land, not only complained to Sir Thomas Brisbane, but frequently warned him that he was trespassing.  In spite of those warnings, the defendant still went on trespassing and erecting buildings; therefore, whatever might be the expense to which he went, he did it with his eyes open, and there could be no hardship in turning a man out of possession, who neglected to take the necessary steps to ascertain his right to the land which he now claimed.  Should these facts be established in evidence, the question would then be, whether the grant of a subsequent Governor could prevail against the grant of a former Governor? - Even if the document relied upon by the defendant could be considered a grant, which he would shew it was not, and which at all events Sir Thomas Brisbane had made without any knowledge that the land had been previously given away by his predecessor, that irregularity could be easily accounted for, seeing that, at the time the plaintiff obtained the land from Governor Macquarie, there was no map of the town in existence; the first map having been made by Mr. Harper, at a period long subsequent to the plaintiff being put into possession.  This was the case for the plaintiff; and he was sure, if he succeeded in establishing the facts by evidence, the jury could have no difficulty in finding a verdict in his favour.

The learned counsel then called the following witnesses:-

Henry Colden Antill, Esq. - I was on Governor Macquarie's Staff during the period of his government; I know the plaintiff; it comes to my knowledge that Governor Macquarie gave him a grant of land about the year 1810; it was situate in Cockle bay, but I do not know in what part, or what was the quantity; I understood it was to build a lime-kiln on, but I did not see it.

Cross-examined - Plaintiff was an overseer at that time; I believe he held a ticket-of-leave; I should think the ordinary overseers of gangs in those days were free men; I should suppose when he Governor gave a grant, there would be some record of it; grants of town allotments in Sydney in those days were much larger than they are now, as the land was not considered of much value then; there were no buildings in Cockle-bay in 1810; the object of the plaintiff getting the land, as I always understood, was to burn time; I certainly do not remember having seen him in the possession of this land; I speak merely from an impression on my mind that he had got the land, but I have no knowledge.

Cross-examined - I have no doubt that he got some land in Cockle-bay, but I don't know the extent; two or three acres of land in Cockle-bay would be no great allotment in those days to a man like the plaintiff, who was considered a hard-working, industrious man.

By the Jury - Plaintiff did not erect the kiln for government; the government made lime at that time at Newcastle, where shells abounded.

By Mr. Wentworth - The words on his bit of paper were written by my clerk, John Riley, who is now dead; the signature is in the hand-writing of Governor Macquarie; he never signed ``L. Macquarie, Governor in Chief," except to important documents; I conceive this to be a scrap of a letter written by the Governor, and sent by him to my clerk to copy.

By Dr. Wardell - The original, I should think, would remain in the office of the Governor, for his guidance; I think he took some of the public papers of the Colony home with him.

Charles Maryatt - From the year 1811 to 1813, I was every day at Government house; I am a watch and c'ock [sic] maker; I lived with plaintiff when he applied for an allotment of land to erect a lime-kiln, as I understood; to the best of my recollection it was between 1811 ad 1813; somewhere about 1814 I was one day coming out from where Mrs. Macquarie was, and I saw plaintiff come out from the room where the Governor was, with a paper in his hand; I read the paper and saw him show it to several persons; it was directed to Mr. Meehan the Town-surveyor, and mentioned a plot of ground, not a town allotment; I don't know where the plot of ground was given, but I know he afterwards erected a lime-kiln on Jack the Miller's point; it was built by a man named Marman, who was a witness on the last trial here; I don't know that he is since dead; a long time after the plaintiff got the order for the land, I saw a board up warning persons not to trespass on it; he was in possession of the land till 1822, when he went up the country.

Cross-examined. - The order was to Mr. Meehan, to measure a plot of ground in Cockle-bay; to the best of my recollection the order said a plot of ground; I received an order for a plot of ground in exchange for the ground opposite the Military Hospital; I was assigned to plaintiff in June 1810, and after that; I paid him fifteen shillings a week to allow to be on my own hands; he was an overseer and overseers were allowed men in those days; about the year 1813, the board warning persons not to trespass was put up; the kiln, at that time, was rented by the plaintiff to other persons; I don't know that the persons lived there; I suppose the board was put up to warn persons against taking away the shells used for making the lime; the land was not of much value then, I have heard, but I don't know it, that plaintiff laid a claim to some farm at Cooke's river, at the time I lived with him; I have been transported in this Colony for forgery, in the year 1822; I left the plaintiff in possession of the land when I left this part of the territory.

By the Jury - The board I speak of was a notice to persons not to trespass on the ground; the name of the plaintiff was to it; I saw the paper he had in his hand when he came out of the room where the Governor was, it stated something about a plot of ground in Cockle-bay.

William Wilson - I am a publican living on the rocks; I was employed for about nine months from January 1815 in the Commissariat stores; I lived with the late Mr. Andrew Frazer; I know plaintiff, and knew him at that time; I knew that he had an order for an allotment of land for the purpose of building a lime kiln; I knew it, because he brought it to Frazer to borrow a trifle of money on it; Frazer was an illiterate man, and he gave me the order to read; it was in the hand-writing of Governor Macquarie.

Cross-examined - I was acquainted with the hand-writing of Governor Macquarie; the order was for an allotment of land for the purpose of building a kiln; I cannot remember the precise wording of it; Mr. Frazer would not advance any money on it, and the plaintiff took it away; I know that the kiln was erected on the land after that.

By the Jury - I do not know the date of the order; it was in the latter end of 1816 or the beginning of 1817, he brought it to Frazer.

John Laurie - I know the plaintiff; I have known him since 1808; he had an allotment of land in Cockle-bay; I knew him in possession of it between 1808 and 1811; it is situated in the neighbourhood of Dawes's battery; it was given to him by Governor Macquarie; I was principal overseer of the town-gang at that time, and plaintiff was subordinate to me; I saw plaintiff's letter, or something of that kind, requesting permission to take possession of the land for the purpose of burning lime upon it, and the Governors permission to do so endorsed upon it; that was the usual course in those days; I have applied for land myself in the same way, and got it.

Cross-examined - I did not know plaintiff during the whole of 1808; he was overseer of the gaol-gang between 1808 and 1811; I can't say whether he was a free man or not; I do not know, upon my oath; he was employed as a subordinate overseer to me; the gangs were prisoners; I paid no money to them, neither did I pay any to plaintiff; I suppose they were all prisoners; I have no doubt of it, but I can't say positively that plaintiff was not a free man; the paper I saw with plaintiff was a request to be allowed to take possession of a piece of land to build a lime-kiln on; the Governor's signature was to the bottom of it; I don't know whether it was in the shape of a letter; it was an application in the usual way, signed at the bottom by Governor Macquarie.

William Williamson - I am a brick-maker; I know plaintiff; I have known him since sixteen or seventeen years ago; I remember being ordered in 1815 to take a pick and shovel to Cockle-bay, I was standing at the Lumber-yard, and I heard the Governor order plaintiff to take a pick and shovel to Cockle-bay, and I took them; I followed the Governor to Cockle-bay, and found Mr. Meehan on the ground measuring it; the Governor was walking along with him, and I put down three posts by his order, as three boundary marks, there being a point of rock which answered for the fourth; I pointed out the place where the posts were, to Mr. Thorpe the Surveyor, on Saturday; I had some difficulty, at first, in finding out where they were, but I am sure I pointed out the right places; when this measurement took place, the lime-kiln was building; after that I recollect a post being put up, signifying that no one had occasion to seek after this ground as it was a grant from Governor Macquarie; the board was put up soon after the land was measured; it remained up about eighteen months.

Cross-examined - Plaintiff said the land was measured for him; I only know that for himself; I can't say whether he was a prisoner at that time; he was burning lime for the government and I collected shells for him; there were about fifty of us employed collecting shells; we were all prisoners together; I think plaintiff had rented the kiln at the time the ground was measured.

Re-examined - The lime burnt for the government was burnt at Bennilong's point; the shells were procured at Iron-cove; plaintiff had government men of his own who provided shells for him.

By the Jury - The kiln was on the ground at the time it was measured; it was built for the plaintiff by a man named Marman, who is now dead.

Edward Cureton - I am a stone-mason; I know plaintiff, and that he had an allotment of land in Cockle-bay, which is now fenced in by Mr. Munn; it is on this side of Jack the Miller's point; I did not see plaintiff's ground measured, but I saw the stakes after they were driven in; I had a piece of land measured the same day, at a little distance from plaintiff's; I saw a notice put up, after the land was measured, forbidding people to look after that land, as it was the plaintiff's; the Governor used to ride round that way almost every morning, and could not help seeing the notice; I built a house on the piece of ground measured to me, and sold it to a Mr. Hodges; I and my assigns have been in possession of it ever since; plaintiff's land might be an acre and a half.

Cross-examined - I put up no notice not to trespass on my land; I did not think there was any occasion; the notice was to state, that there was no need to apply for that land; there was no name to it; I did not see plaintiff's land measured then, I saw the posts after they were driven in; there were four posts, but I don't know who drove them in; I got more than half an acre of land; when I got my land I was a freeman; I can't say whether plaintiff was; I knew plaintiff in 1808; I don't know what became of him in that year; he began to erect his lime kiln about three weeks after the land was measured.

Robert Woodley - I know plaintiff; I know he had an allotment of land in Cockle-bay; I saw part of it measured by Mr. Meehan in presence of Governor Macquarie, while I was having some wheat grown at Leighton's mill; there was a lime-kiln on the ground when it was measured; plaintiff was burning lime there at that time, and for some years after; I am sure Governor Macquarie was present at the admeasurement; Leighton, when they were measuring observed, that they were taking the road leading to his mill, and plaintiff said, ``we won't be hard with you Mr. Leighton, we'll give you the road way."

Cross-examined - The Governor said nothing to all this, that I heard; it is twelve or fourteen years since; it is not twenty; I don't know whether plaintiff was a prisoner at that time, but I should consider that he was a free man; he was burning lime for Government then; I lived not five hundred yards from the land in question, and used to pass that way every day, but I never saw any board put up there; it was not usual for people to put up boards on their land; I never saw a board on plaintiff's land, and I passed that way almost every day.

By the Jury - Plaintiff used to burn lime there for Government several years.

By Mr Wentworth - I have heard him say, he was burning land for Government; I don't know whether he was paid for it; I know that people used to buy lime from him.

By Dr Wardell - I have heard that people bought lime of him; I do not know if of my own knowledge.

William Blue - I have occasion to know the plaintiff; he and I and the Governor were always together; we were together when a piece of land was measured to plaintiff; I was just the same as the Governor; he never countermanded any orders of mine; (a laugh) I saw plaintiff's land measured; I heard Layton say, ``don't take my road away"; the Governor said to Mr. Meehan, ``I cannot run the chain over Martin's ground;" I held the Governor's horse, just to accommodate him, while he walked about; he built the little octagon house at the corner of the domain for my especial accommodation; I was with General Wolfe in the American war, and with Lord Howe; I got the name of the old Commodore for being in charge of the old Enterprise at Tower-hill; I do not want more than fourteen or fifteen years of being a hundred years old; I do not recollect how long it is since plaintiff's land was measured but Cureton had a piece measured, and I had a piece measured the same day; I asked the Governor for a piece of land; ``Poh, poh!" says he. ``Billy, you have got land enough, you can use as much as you want;" ``Please your honour" says I ``I want a landing place;" ``Well come," says he, ``Show me the place;" and so, when I showed him the place, ``Jemmy," says he to Mr. Meehan, ``run the chain over the Commodore's land;" Lord bless you. We were just like two children playing (Laugher.)

Cross-examined - I frequently passed plaintiff's land after it was measured; there was a board put up with something written upon it, but it was soon knocked down; I don't know who knocked it down or whether it was knocked down by order of the Governor; - there was a lime-kiln on the ground when it was measured, and plaintiff burnt lime there for several years after, to accommodate the government and private persons.

Re-examined - Plaintiff sold the lime he burnt; the government lime-kilns were a good way lower down, and also at Bennilong's point; plaintiff had authority to turn in his lime to the Government when they wanted it, and he was paid for it; I am sure he was paid for it, for the Governor had a bit of the ``old brown" in him - he had too good a spirit to take any man's time without paying him.

Mr. William Davis - I know plaintiff; I have had occasion to buy a large quantity of lime in this country; I bought lime largely from him between the years 1816 and 1817; his lime-kiln was near Jack the Miller's point; I paid him for the lime and overpaid him, for he owes me a balance now; I paid him a shilling a bushel for lime.

Daniel Thornton - I am a schoolmaster, I know plaintiff; I have known him a number of years; in 1815, he employed me to write a letter for him to Governor Macquarie; the reply was not on the same sheet of paper, but on a separate sheet, which plaintiff shewed me.

Mr. Thomas Ryan - I was in the office of the Colonial Secretary, when Sir Thomas Brisbane assumed the government of the Colony; I was employed to arrange the papers of the office in 1820, shortly before the retirement of Mr. J.T. Campbell; the object of the assortment was to preserve what was of use, and destroy what were useless; the discretion of the assortment was left to me and Mr. Atkinson who was employed with me; at this distance of time I cannot state what papers we destroyed; but we destroyed about four bushels full of public papers.

By the Court - You certainly destroyed four bushels of the public records?

Witness - Yes

Cross-examined - I certainly would not have destroyed a paper relating to the claim of an individual to the possession of land; I should think this scrap of paper is part of something addressed to a party in the way of business, than as relating to land; I think it formed part of some communication relating to the gaol gangs, addressed to the plaintiff as overseer.

Re-examined - I will not take upon myself to swear that among the papers destroyed by me and Mr. Atkinson there was not a memorial to the Governor from the plaintiff respecting some land; the papers we destroyed were public papers and copies of letters.

By the Jury - The Governor was in the habit of issuing instructions to the overseers of gangs; such instructions were usually signed in the manner this scrap of paper is.

(To be concluded in our next.)


Dowling J., 22 and 23 October 1832

Source: Sydney Gazette, 27 October 1832


Mr. Joshua Thorpe[2 ] - I am a surveyor; I have compared this map with some boundaries pointed out to me; the witness, Williamson, was one of the men who, in conjunction with the plaintiff pointed out the boundaries; the map corresponds with the boundaries, with a very little exception; part of the land in dispute is in the possession of plaintiff - at least he told me so; part is in the possession of the defendant; and a small part in the possession of Mr. A B. Spark; the map was not made by me; I merely compared it with the boundaries as they were pointed out to me; there is about an acre and three quarters in the whole allotment; I should say there is a public road now through it; supposing it to have been measured as stated, part of it must have been measured over an old road - at least where an old road is said to have been; the piece of land now in the possession of plaintiff abuts upon that in the possession of defendant and which he now claims to be his.

Mr. Charles Nye - I am a clerk in the Colonial Secretary's Office; I have made diligent search in the office, and could find no documents relative to the land claimed by plaintiff - that is, between the years 1811 ad 1815 inclusive.

Cross-examined - I can't say whether such documents might not have found their way out of the Surveyor General's office; I was not in the Colony during the time I speak of, and therefore cannot tell the practice which prevailed them.

William Farrell - I am a labouring man; I had an allotment of land at the market wharf, which I wanted Mr. Meehan to exchange for one at Cockle-Bay, but he said the one I waned belonged to the plaintiff; he said Governor Macquarie had given it to plaintiff; Meehan, who was the Deputy Surveyor General, of the Colony is now dead; this a long time ago, but I can't recollect the year; Major Goulburn was Colonial Secretary then; when Meehan refused me, I sent a memorial to the Governor, and he returned me an answer stating that the land was given to plaintiff; I have not that answer now; I went up the country sometime after, and left my papers with a person in Sydney, and they were lost; it was more than twelve months, and less than two years before Governor Macquarie left the Colony.

Samuel Augustus Perry, Esq. - I am deputy Surveyor General of the Colony; some time ago, I directed a search to be made in the Surveyor General's office for papers relating to land claimed by plaintiff, but none could be found; Mr. Duncombe, the chief clerk, and Mr. Thompson, the chief draftsman, were the parties directed to make the search; any correspondence that existed on the subject would be found in the custody of the chief clerk.

Cross-examined - the Government do not recognize any claim to the land in question by plaintiff; if the land were not occupied it would be considered vacant.

Re-examined - The Government  would not recognize any claim to land in support of which there was no document in existence; the Government are not interested in this case; they leave the parties to litigate their claims, and the title to the land will depend upon the result of that litigation; this is what is called the old, or Harper's map of the town; defendant's land is marked in it; there seems to be something like rubbing here, but I cannot say that it is an erasure; if it is an erasure it is a very old one; there certainly are marks but they appear to be more like figures than writing; I saw this map on the last trial of this cause; it has not been in my custody since, but I think there has not been any further obliteration; I don't think -indeed I am sure - that there has been India-rubber work; there is an appearance of obliteration, and I won't swear there has not been any, it is a very old map, supposing this allotment to be plaintiff's.  I think it would be nothing more than a pretty fair allotment, such as were given in those days; the map was made about the year 1815; it would be a more than an ordinary allotment in 1824 or 1825; I should, perhaps, have laid it out as three allotments; I believe defendant claims all that now; it is three times as large as the contiguous allotments; I see a speck on the land in question which I think may denote a lime-kiln; had a lime-kiln been there when the survey of the town was made it would be put down of course; Mr. Harper must have had very great difficulties in laying down the plan of the town; it was very difficult to find the records, I have no doubt.

By the Jury - There is an allotment marked on the map to the defendant, but neither the boundaries nor the quantity are specified.

Daniel Thurston recalled - The witness appearing to have indulged so freely since he was in the box before, as to prevent his examination being proceeded with.  The learned judge, animadverted in stong [sic] terms on so gross and contempt of the court, and ordered him to be committed until the following morning.

William Buchanan - I am clerk in the department of public works; I made an application for a town allotment to Sir Thomas Brisbane; in consequence of the plan of Sydney being shewn to me by Mr. Oxley and an allotment in Cockle Bay pointed out as vacant, I went there and saw what I supposed to be that allotment; there was a dyke on the eastern side which I took to be a boundary; on the land inside that dyke there was a lime-kiln; this was in the year 1825; there were two other allotments pointed out to me as vacant, but as I was desirous of obtaining a piece of cleared land on which to build a cottage to reside in, I did not take either of them but preferred to wait till I obtained another more fit for the purpose which I was promised.

John M'Donnell - I am a lime burner; in 1820 I rented a lime kiln from plaintiff, for which I paid him £1 a week; it was in Cockle Bay; I kept it three months, and then gave it up to plaintiff.

John Thornton - About thirteen years ago I rented a kiln in Cockle Bay from the plaintiff; I gave him half the profits, which realised him £2 a week at that time; I kept it nine months and then gave it up to plaintiff; he used it himself to my knowledge, for twelve months after.

Jonas Kains - I knew a ma named Newberry, about fourteen years ago; he was a stone-mason; I knew he was to build a dry wall for plaintiff near his lime kiln, and plaintiff was to grout it himself; I helped to dig out the foundation, which was all that was done towards the work; I have passed the place frequently lately, but I did not go on the land to see whether there are any traces of the foundation there now.

Cross-examined - I don't know why the wall was not proceeded with; I don't know that he was ordered off by the Government.

By the jury - The wall was intended to enclose plaintiff's land.

David Allan, Esq. - I was in charge of the commissariat during the time of Governor Macquarie; the name of the plaintiff is quite familiar to me, with that of others, who supplied Government with lime, this was between 1813 and 1819 when I resigned; I am sure he was paid for his lime by the Government through me.

Mr. John Rickards - I was in the Commissariat of this colony; I know plaintiff and remember his supplying the Government with lime for which he was paid by the Commissariat; this was between 1814 and 1819, and I believe, after that, but more particularly in those years.

William Kitchener - I am at present a servant living in Parramatta; I have been in the habit of drawing memorials for people in the colony; I drew one for plaintiff before Sir Thomas Brisbane went away; I don't know whether it reached Sir Thomas; but plaintiff showed it to me afterwards, and it had then some writing on the back, with the signature of Sir Thomas Brisbane appended; I am sure it was his signature, for I was in the habit of receiving his signature daily when I was a clerk in the Lumber-yard.

Stephen Stock - I was employed in the Surveyor-General's office for several years; I remember plaintiff coming to the office to complain about some allotment in Cockle Bay, which he said had been taken possession of by the defendant; this was in 1812; I remember a memorial of the plaintiff being returned to the office from Parramatta, with some writing and the signature of Sir Thomas Brisbane on the back of it; this was also in 1825, I believe, and I left it there in 1827, when I left; I was in the office from 1823 to 1827; I did not look at its contents any farther than that it was complaining of Mr. Munn the boat builder, for having taken possession of his land; on one corner of it was written, in the hand-writing of Sir Thomas Brisbane, ``Let the memorialist be put in possession of his land.  Thomas Brisbane."  Mr. Oxley, on the same day took the town map, called Harper's map, and wrote plaintiff's name on it in pencil; I don't know that Mr. Oxley did any thing else with respect to the memorial, but defendant frequently  called at the office afterwards; I did not hear him have any conversation with Mr. Oxley, for he always received persons on business in an inner room called the map room.

Cross-examined - I was tender plotter to Mr. Kavenagh, in the Surveyor-General's Office; I left it in 1827; it was not a matter of taste which induced me to leave it; it was a matter of necessity; I decline answering why I left my employment; the cause would not disgrace me if told why I left it; it was for receiving perquisites for writing letters for several persons; it was called receiving bribes; I got twelve months to an iron-gang for it; after that I went to Emu Plains, returned again to Sydney and was clerk in the gaol, and then returned to Emu again, and then I became free; after that I was in the Court of Requests' Office; I left that because Mr. Allen said he had no occasion for my services any farther; I won't tell what charge was made against me then.

William Kitchener, recalled - I wrote a memorial in 1825, complaining of Mr. Munn for having taken his land; there was an answer on the back of it when I saw it again, but I can't recollect the words.

The Court adjourn at nearly seven o'clock in the evening, till ten o'clock to-morrow morning.


Tuesday, 23rd.

Doe dem. Martin v Munn

Daniel Thurston - This witness proved that he wrote a memorial from the plaintiff to Governor Macquarie, in 1815, respecting the admeasurement of the land in dispute, and that he afterwards saw His Excellency's answer, directing the admeasurement of the land by the surveyor, Meehan.

Previous to the witness leaving the box, the learned judge admonished him for the contempt he had been guilty of yesterday.  His Honour said he had authority to award a very severe punishment for his offence, but he hoped what he had already suffered would be a warning to him in future, when he had to attend the King's Court of Justice to appear in a decent and proper manner.

John Gurner, Esq. chief clerk of the Supreme Court; I hold in my hand the declaration in the case of Martin v. Munn tried on the 21st June last, before Mr. Justice Stephen and a special jury; it was an action of trespass, and a verdict was given for the plaintiff, damages one shilling.

Samuel Augustus Perry, Esq. - This is a number of the Sydney Gazette, dated 14th June, 1831; the Sydney Gazette was at that time the vehicle of communication of official documents; it contains a proclamation issued by General Darling respecting town allotments.

Cross-examined. - This purports to be a number of the Sydney Gazette; it contains what I have no doubt is an official order signed by the then Colonial Secretary, Major Goulburn, dated the 24th of November, 1821.

Mr. Randolph John Wont, clerk to Mr. Unwin, plaintiff's attorney, proved a notice being served on the defendant to give up possession of the land in dispute, on the 5th of September last, before action brought.

Mr. James Robertson - I arrived in the Colony in 1822; some time in that year I applied for the land now occupied by Mr. Munn; I do not know the boundaries, but he is on the very spot I applied for; my name was written upon the chart, but I relinquished the land, as I did not like the place, and I took another allotment; I have had some conversation with the defendant about the land, and I understood him to say that there was some difficulty in getting the land measured; he said Mr. Oxley had objected to measure the land; he told me after that, that it was all settled; this was in 1824 or 1825, and a good while after defendant had been in possession of the land.

Cross-examined. - the land I got had a lime-kiln on it; Mr. Harper told me that it was an old lime-kiln that had been used for several years, and abandoned by the government.

Re-examined - I was in possession of this land for three or four months, but I did not like it, and relinquished it for another allotment; when defendant arrived in the Colony, and was looking out for an allotment, I told him of this, and he went to the Surveyor General's office and had his name substituted for mine on the chart; he stepped into my shoes, in fact, and seemed very glad of the opportunity.

This was the plaintiff's case.

Dr Wardell addressed the jury at great length on the part of the defendant.  He was surprised by the reference of the learned counsel on the other side to what took place on a former occasion; but that surprise was heightened when it came to his knowledge that the defendant, on the last trial, had been absolutely precluded from making any defence at all.  The documents on which he relied, and which would be laid in evidence to day, could not be found, although a most diligent search had been made for them in the public offices - so that, in fact, it was only after the trial that the defendant's case turned up.  Besides, the jury should understand, that, in the former case - which was an action of trespass - all that the plaintiff had to prove was possession: in this case he was to prevail, not by the weaknesses of the defendant's title, but by the strength of his own; and he would ask, what kind of title he had established?  The plaintiff was certainly the most unfortunate fellow in the world; seeing that although he had, as represented by himself, been taken under the special carte of Governor Macquarie, not one record of his claim, on which any reliance could be placed, was to be found.  In the first place, the original application for the land in question was no where to be found.  The next unfortunate circumstance was, that the Governor's answer to that application was lost.  A few years more were then suffered to pass, and a letter of complaint was written to His Excellency - that also was missing, and the answer putting him in possession, which reached the hands of the defendant himself, was non est.  A further lapse of years takes place, and another memorial was addressed to Sir Thomas Brisbane, which was returned to the office of the Surveyor General, with the answer endorsed upon it - and, lo, and behold! that can't be found; and the jury were now left to rely upon the fleeting memories of a gaol-gang, of which this plaintiff had formerly been the overseer.  Yes; the jury had a regular gaol-gang arranged as witnesses before them this day; the value of whose testimony would be duly appriciated [sic] from the fact, that though they all professed to recollect the most minute circumstances that occurred sixteen or seventeen years ago, not one of them could state what the condition of the plaintiff was at that time - whether he was a prisoner or a free man!  Was is to be contended because the plaintiff had permission to erect a kiln to burn lime for the Government - or for himself, he (Dr. W.) would take it either way - was it, he said, because he had that permission, that he was therefore entitled to the fee simple of the land on which it stood?  There had been an utter failure of proof as to the extent of the permission given, or the extent of the right exercised by the plaintiff at any time.  The whole of the evidence tended to show the good feeling of the Government towards the plaintiff; and what, he would ask was the reasonable inference, but that the fullest investigation had taken place; that the Crown decided he had no equitable claim, and that the land was vacant?  But there was also another misfortune happened to the plaintiff, which he (Dr. W.) had omitted to notice.  It was stated that the plaintiff's name had been written on the map, and that it had been errased [sic] by the contrivance of the defendant.  A witness had been put into the box who swore that he say Mr. Oxley write the plaintiff's name on the map - and yet, that map was produced, and we had the evidence of Captain Perry that there was no trace whatever of any errasure [sic], but that the map was still as it always was!  Then it had been put to the jury, ``could a subsequent grant do away with a previous grant?" Certainly not.  But what grant or title had the plaintiff produced.  The defendant, on the other hand, would produce a grant, on what was equivalent to a grant, made after the fullest investigation of the plaintiff's claim; and yet, that did not satisfy him, but he must come into Court and contest the title against the Crown, by attempting to oust the legal grantee - in fact, because he was formerly allowed to burn lime on the ground, he now laid claim to two acres of land!  The learned counsel then proceeded at great length to point out the discrepancies in the evidence of the plaintiff's witnesses, and closed the defendant's case by proving and putting in evidence various correspondence between the defendant and the Government in the year 1825, and Sir Thomas Brisbane's permission to take possession of the land applied for, on condition of his appropriating it, within a reasonable time, to the purposes stated in his memorial; otherwise it was to revert to the Crown.

Mr. Wentworth replied.

The learned Judge summed up the evidence, and told the jury if they believed the numerous witnesses, it appeared to him that the case was wholly without in defence.  The strength of the plaintiff's case rested on the fact of the actual seizing of the land measured to him by Governor Macquarie, and the subsequent exercise of a dominion over it by using and letting it as the owner.  There were three questions, therefore, for the consideration of the jury: - first, were they satisfied, upon the evidence, that there was a promise of the land to the plaintiff, by Governor Macquarie? secondly, was the land measured to the plaintiff, and did the Governor see him put into possession of it, as stated by the witnesses? and, thirdly, was such promise, and acquirement, and possession, consistent with the admeasurement?  If they were satisfied of these facts, then His Honor held that the lessor of the plaintiff was entitled to a verdict, although his title was not completed - subject, however, to the opinion of the Court on a point of law, namely, whether a party in possession of land for a number of years could maintain an action of ejectment without a grant from the Crown.  With respect to the question whether a subsequent Governor had power to do away with the grant of a former Governor, His Honor held, in point of law, as well as upon every principle of reason and justice, that he had no such power.  If a subsequent Governor, in ignorance of an act of his predecessor, should grant land which had been granted by his predecessor, the title of the second could not prevail against the first donee.  The learned Judge concluded by stating that if the jury desired it, he was prepared to read through the whole of his notes of the evidence on both sides.

The jury stated, as they had a perfect recollection of the evidence, they would not trouble His Honor.  They then retired.

After they had been out of Court for a considerable time, His Honour sent for the jury, and enquired if there was any point on which he could assist them?

The Foreman of the jury said they could not agree upon their verdict, now [sic] were they likely to agree.

Mr. Justice Dowling - Gentlemen, the simple points for your consideration are those which I have already stated to you, and which are solely questions of evidence.  You will excuse me for it, but it is my duty to tell you, to avoid any misconception on your parts, that with the law you have nothing whatever to do.  You are to take the law from the Court; it is your peculiar province to decide upon the facts.  The Judges, on their solemn oaths, are sworn to administer justice according to the evidence.  It is my duty, therefore, again to tell you, that if you believe that witnesses for the plaintiff, you are bound to find a verdict in his favour - subject to the opinion of the Court on the point of law which I have reserved.  If, on the other hand, you believe those witness have come forward and committed wilful and corrupt perjury, of course you will find for the defendant.  However, as this is a case of importance, I think it is better that I should refresh your memories by marshaling [sic] the whole of the evidence before you, on the one side and on the other.

His Honor then read over the whole of the evidence; and the jury having again retired for a short time, found a verdict for the plaintiff.

Counsel for the plaintiff, Mr. Wentworth and Mr. Unwin; for the defendant, Dr Wardell and Mr Foster.


Dowling J., 23 October 1832

Dowling, Proceedings of the Supreme Court, Vol. 78, State Records of New South Wales, 2/3261[3 ]

[p. 11] Dowling J.[4 ]

It is a general rule of law that a plf in Ejectment must prevail by the strength of his own legal title, and not by the weakness of the Defts.

It is a general rule of law also, that the Crown cannot alienate land without deed.

But the law of England must adapt itself to the circumstances and condition of this Colony, & the ability of the Crown itself to perfect its own intentions.

It is judicially known to the Court, that the Governors of this colony have the power of alienating Crown lands.  - Govr. Macquarie had authority to do so.  - Regard must be had in this case, to the state and condition of the Colony in the time of [p. 12] that Governor.

If the Jury believe from the evidence, 1st. that Govr. Macquarie actually promised the plf the land which is the subject of this action. -  2d. that he was actually present at the admeasurement of the land & saw him in possession without molestation - & 3d. that there was a possession & enjoyment consistent with such promises, and admeasurement, then I hold in point of law, that the plf has such a legal title as will enable him to maintain Ejectment, though [p. 13] his title remains only in pais - that is not reduced to a formal grant.

It is notorious that a vast proportion of the waste lands in this colony are held only by a ticket of occupation, a [?] permission to cultivate upon certain conditions - the right to which may or may not be perfected by the Crown.  - This state even as to Town allotments is publicly recognised by an act of the Government in General Dowling's time few having been granted prior to 1823.

I am not called upon to determine whether an occupation under such circs co.d maintain Ejt. agt the Crown; but as between subject & subject, I think it wd. [p. 14] be an alarming doctrine to hold that a person holding lands by such a long possessory title could not maintain Ejectment against an intruder having a posterior title of the like kind. - ie. without a legal grant.

This wd. unhinge a sensible title to law which wd. be productive of the most alarming consequences.

If this were a mere pard licence to make lime at a govt. lime kiln - that of course wd. be a revocable licence. - by the Crown.  But has it been revoked?  But is this [p. 15] consistent with the evidence?

I apprehend that if a subsequent govr. in ignorance of a lawful act of authority done by his predecessor, gives a way land to another person, the latter's title cannot prevail agt. the first donee of the same land.

The jury retire & find for

See post p. 21.

[p. 21]  Dowling J. summing up.  Ante 11.

The jury retire and find for. 

The jury desired to have the evidence read over.

I did do so - & they again retired & put in a verdict for the plf.


Forbes C.J., Dowling and Burton JJ, 16 March 1833

Source: Sydney Herald, 18 March 1833[ 5]


Doe demise Martin v. Munn. - This was an action of ejectment, tried during the last term, before Dowling Justice, and a Special Jury, when a verdict was returned for the lessor of the plaintiff.  Dr. Wardell now moved to set aside the verdict and to enter a nonsuit, on the ground that plaintiff had not made a sufficient legal title to the lands, to enable him to maintain an action of ejectment - and that no demand of possession of the premises was made on the defendant, until the day after the demise laid in the declaration - and failing in that, he moved for a new trial, on the grounds, that the verdict was contrary to law and evidence, and that new and material evidence had been discovered since the trial.  The last motion was made on the affidavits of David Leighton, and Thomas Ryan, and Messss. Eagan, Walsh, Chapman, and Walker.

Mr. Wentworth opposed the motion, with respect to new and material evidence having been discovered since the trial, the affidavits themselves showed that it amounted to nothing; as to Dr. Leighton, he was now only 22 years of age, and had in his affidavit spoken of transactions which must have taken place when he was only four years old; Messrs. Eagan and Welsh were in a similar position, being now only 25 years of age.  R. S. Walker was a seafaring man, who had been backwards and forwards to this Colony for the last twenty years, but most of that time he had been at sea, his evidence therefore could amount to nothing; Ryan, who had also made an affidavit was a witness at the trial, and he could have been then asked any questions they might have considered necessary.  As to the law of the case, 1st, that certain documents were withheld at the time of trial; this he considered had been satisfactorily accounted for, as a witness had stated that on departure of Macquarie, four bushels of public documents had been burned; 2d, that plaintiff proved no title.  His learned friend must have forgotten the case of Remond v. Hughes, tried in that Court, which was precisely similar.  In Harris v. Rivington, 2 Saunders 111, it was held that in ejectment, if it appear on the record of special verdict, that plaintiff had priority of possession, then he shall have judgment.  The same doctrine was also held in Taunton.  It had also been argued on the other side, that there was an abandonment of possession, but the contrary was the fact; it was proved that  plaintiff had commenced to build a wall, and a brick kiln, which he had built, stood there to this day.  As to the last objection, that there was no demand until after the day laid in the demise; that was a mere act of supererogation on the part of the plaintiff; notice was necessary where the relation of landlord and tenant did not exist.  On these grounds he contended the verdict should stand.

The Court would reserve their judgment as they wished to examine some official documents relating to the case.


Forbes C.J., Dowling and Burton JJ, 28 March 1833

Source: Sydney Herald, 1 April 1833[6 ]


Doe de Martin v. Munn.  This was an action of ejectment, in which plaintiff sought to obtain possession of certain lands situated in Cockle Bay, tried last Term before Dowling, Justice, and a Special Jury, when a verdict was returned for plaintiff.  A motion had been made for a new trial, and the case argued, the Court now proceeded to give judgment.

Chief Justice.  It had been contended in the arguments used before the Court for a new trial, that a plaintiff in ejectment must prevail by the strength of his own title; that was positive law, and could not be disputed.  In 1st Bower, 120, it was laid down that plaintiff must how titled, as well as right, of property.  He hoped that nothing which fell from him that day could be construed to impeach the principle of law as laid down in 2d Saunders, 111, 4 Taunton, 47, and again reported in Morgan, 347, in the case Doe de Hughes v. Dyball.  That priority of possession will sustain ejectment; if the case had rested here, he should have considered the verdict right, and that the plaintiff had a right to succeed.  Dr. Wardell had argued that a record of titled should be produced, as nothing but a title from the crown could give title.  But he was of opinion, that a person having parole possession under the crown could not sustain an action for trespass against the crown, but against every one else, 4 Barnwell and Alderson, 574.  He thought it would not be going too far to say, that under a possessory title from the crown without record, the permissive occupant had a right to sustain ejectment against an intruder.  If the case had rested merely on these proofs he should have considered the verdict right, but a fact had transpired during the trial that entirely altered the features of the case, namely, a resumption of the land by Sir Thomas Brisbane, and where the crown resumed land held under such a tenure as that in dispute, the occupant ceased to have any title; that would be one point, and a sufficient one why the case should be again sent to a Jury.  A Governor might resume possession, and put another in possession, that was law, clear law, and the Court here with respect to the law of real property, could only be guided by those land marks laid down for its guidance.

It was judicially known to the Court, that the Governor could alienate the crown lands by an instrument under seal, and recorded, and not till then was it binding.  As against the crown, the plaintiff could not prevent a resumption of the lands then; he considered there was evidence enough to have raised this point for the consideration of the Jury whether they did resume; the plaintiff's title was good against all the world, except against the party that came in under the crown.  For these reasons, he considered a new trial should be granted.

Judge Burton was of opinion that the decision of this day could not shake the title to property in this Colony; the departing from the landmarks of English law, would, indeed, have that effect; if any inconvenience should arise it could not be avoided, they could only decide by the law of England as laid down by the Lord Chief Justice, and cited in Selwin's Nisi Prius, where Lord Mansifed, reasoning on the nature of an action of ejectment, held that a plaintiff must recover on the strength of his own title, and not by the weakness of the defendants'; again, the title must be a legal right before an action of ejectment could be sustained.  It had been argued that the plaintiff in this case could not sustain ejectment, he having no grant from the Crown, he would repudiate this at once, the plaintiff having possession by license from the Crown could sustain an action of ejectment against all except those who had a right to possession.  It should have been left for the Jury to have said whether plaintiff and defendant derived their titles by license from the Crown, and defendant being in possession, whether he was entitled to keep it against the plaintiff.

Judge Dowling, after a mature consideration of the case, thought the Court ought to grant a new trial.  It was a case of considerable importance, and being the first time that ejectment on parole leave without a grant from the Crown had been tried, it was a novelty to the Court.  After mature consideration he thought the question had not been clearly put to the Jury.  The cardinal point in the case was, whether such tenure was or was not determined by the Crown, when Sir T. Brisbane gave defendant possession.  Plaintiff rested his case on parole permission and long possession and enjoyment of the land.  He was of opinion that one Governor's permission to occupy could be revoked by a subsequent Governor.  He told the Jury that a subsequent Governor could not revoke any legal act of a former Governor, but that must apply to a perfect act, a grant could not be cancelled unless good and clear reasons were shown.  In this case there being no grant to the plaintiff, only the bare license to occupy, there was sufficient evidence to go to the Jury to say whether Governor Brisbane resumed the land.  In sending the case to another trial he was not to be supposed to hold any doctrine to shake the title of the numerous land-holders in this Colony who held possession by primary grants or letters of occupation, they could maintain possession against all the world except the Crown.

This important case has been sent to trial on terms that the evidence of Marmon, as taken by his honor Judge Dowling should be admitted, he having died since the trial, and that the case should come on as of term.  The case will be tried at BAR before a Special Jury.


Dowling J., 28 March 1833

Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264[ 7]

A motion having been made for a new trial in this case on a former day in this term, the Court took time to advise upon it.

Dowling J.  After mature consideration of all the circumstances of this case I think it is one in which the Court ought to grant a new trial.

It is a case of considerable importance, and the very first, I believe, in which an ejectment has been sought to be maintained in this Court upon a title founded in a  mere parol licence from a governor to occupy crown land without any deed of grant being executed to the party of the land, so occupied.  It was a case, to me, of perfect novelty.

The trial of the case lasted two days.  After a careful review of all the evidence adduced on the one side & on the other, I think that the proper point to which the case ought to have been narrowed, a nice consideration of the whole matters present to the court, was not left with sufficient distinctness to the Jury.

Admitting that the Plf had made out a prima facie case of legal title to maintain ejectment, by reason of long possession of the land in question with the consent or acquiescence of the Crown, & that for the purposes of this cause he might be considered as a tenant at will, or by sufferance, and that he had a good title against all the world, except the Crown, until his tenancy, such as was proved, was determined.  I apprehend the main and cardinal point of the case resulting from all the circumstances was whether, such tenancy was or was not determined by the crown at the time the ejectment was brought.

It is an indisputable proposition that Crown lands can not be alienated without grant.  Here the plf clearly had no grant; he rested his case entirely upon a parol permission from Governor Macquarie to take possession of the land in question, coupled with evidence of long possession & enjoyment of the land under such permission.  In this point of view it was in strictness competent I apprehend for the Governor who gave this permission to revoke it at any time.[8 ]  It was also competent I apprehend for a subsequent Governor to revoke such a permission.  It is true that I told the Jury that a subsequent Governor could not annul any lawful act of authority done by his predecessors; but that doctrine must be understood to apply to some perfect and complete act of authority performed in pursuance of the King's instructions, not to any inchoate acts.  A grant of crown land executed by one Governor, could not of course be cancelled by a subsequent one, without good & sufficient cause arising upon a clear case of forfeiture.  In this sense only can my direction be taken, as applicable to this particular case.  There being therefore no grant executed to the Plf, & his title resting upon a bare parol licence to occupy, & a possession under such licence, the question is whether there was sufficient evidence to go to the Jury of Governor Brisbane's having determined the tenancy such as it was, upon which alone the Plf relied.  Now certainly there was some evidence, that the plf for a considerable time prior to the month of August 1824, had ceased to occupy the land, that is, had ceased to carry on his business of a lime burner, and no longer appeared to the world to have any beneficial enjoyment of it. -  Apparently, according to the Defts evidence, it was waste & abandoned land, though there was an old lime kiln, & an old wall visible upon it.  In this state, it was, when in Augt 1824 the deft applied to Gov.r Brisbane by letter for an allotment of land abutting on Cockle Bay, comprizing the land in question.  Upon this application, that Governor wrote the words in his own hand "To be allowed, but tied down, so that in the event of his not turning it to the above purpose, in a reasonable time, - to revert to the Crown."  In addition to this evidence, there was the testimony of John Gordon who swore that about 8 yrs ago, that is in 1824, he saw Bryan the Surveyor measuring this very land to the Deft.  It further appeared that on the October 1825, the deft being then in possession of the land applied to the Governor for a grant of it, informing the Governor that it had been measured to him on the 2d Sept. 1824.  Upon this letter the Governor wrote in two places, "Referred to Mr Oxley to report upon." T.B.  "A grant will be made of this allotment in conformity with the regulations." T.B.  It is this part of the case, which I think was not sufficiently called to the attention of the Jury, as going to shew that whatever legal title the Plf might be considered as possessing, it was not determined by the competent act of General Brisbane.  It may be that Gov.r Brisbane was not at this time aware of the licence previously given by his predecessor to the Plf; but as at present advised, I do not think that makes any difference, when called upon to determine the legal rights of these parties in a Court of Justice.  How far the executive might be governed in the actual execution of a grant to the one party or to the other, upon a considerate and equitable view of all the circumstances of the case, is a matter not within the scope of our province to determine.  If one Governor may lawfully determine a parol licence given by another to hold and enjoy land under the peculiar circumstances of this case, the only question is whether in this instance the licence given by Gov.r Macquarie to occupy this land, was not effectively determined by Gov.r Brisbane, in giving the like authority to the Deft in 1824 to hold & enjoy the same land.  I think that question deserves further consideration & with a view to the mature determination of it, I think there ought to be a new trial.  In sending this case to another trial, however I beg to guard myself against being understood to hold any doctrine which may tend to shake the legal titles of the vast multitude of land holders in this Colony, who have nothing to shew but primary grants or letters of occupation to protect their rights.  As against all the world, except the Crown, the holders of such primary grants, & those claiming under them, have I apprehend such a legal title as will enable them to maintain ejectment against a mere stranger, who has nothing to shew that such title has been legally determined.


Burton J., 2 May 1833

Source: Sydney Herald, 6 May 1833[9 ]


Thursday. - Before Judge Burton and a Special Jury.

Martin v. Munn. - This was an action of ejectment to recover possession of a piece of land situate in Cockle Bay.  The case has already been tried twice before in trespass and ejectment both of which had been decided in favour of the plaintiff.  During the last sittings of the Court a new trial had been granted by their honors in Banco, on the ground that the case had not been put properly to the Jury, whether the land claimed by Martin had been resumed by Government and given to Munn.  The particulars of this case have been already so often before the Public, that it is unnecessary to again detail them.  Judge Burton put the case to the Jury on the following points - Had Martin a permissive occupancy of the land in question from Governor Macquarie?  Did Governor Brisbane strip him of that occupancy and clothe Munn with it, if he did do so he had full power and they must find a verdict for the defendant, if this had not been done plaintiff would be entitled to their verdict.  The Jury after a short absence, for the third time found a verdict for the plaintiff.  His Honor consented to certify that it was a proper case to be tried by a Special Jury.


Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Sydney Herald, 17 June 1833[10 ]


Martin v. Munn. - This was an action of ejectment tried during the last term, before Judge Burton and a Special Jury, to recover possession of a piece of land situated in Cockle Bay, when for the third time, a verdict was returned for plaintiff.

His Honor who tried the case having read over the notes of the trial, Dr. Wardell addressed the Court - The reason of his moving for a new trial in this case, was the necessity plaintiff was under of producing a legal title to the land, and showing that to prevail at the time of trial.  The grounds for a new trial in this case, were that the verdict was contrary to the direction of his Honor who tried the case, and to evidence.  As to the first point, he did not mean to argue that the verdict was contrary to the  positive direction, but to the implied direction of His Honor, he should not press that point.

Judge Burton. - I think it fair to both parties to state that I am of opinion the verdict was contrary to the weight of evidence; you had better direct your arguments to that point.

Dr. Wardell would direct the attention of the Court, to that part of the evidence relative to the  documents spoken of by plaintiff's witnesses, not one of which were however forthcoming.  It must also be a matter of surprise to every one, that Martin should have permitted any one to take possession of his land, if it was his, and build upon it for a series of years without interruption.  It was proved that a person named Buchannan, was put in possession of the land in question by Sir Thomas Brisbane, but not finding it suitable he relinquished it, when it was given to Mr. Robinson who kept it for some time, and then selected another portion; yet during all this time no claim was made by Martin, then Munn obtained possession, legal possession, which is clear from all the documents put in, there was first the application, then the reasons for that application, then the answer recognising those reasons, then as to the measuring and obtaining the grant, all these satisfactorily proved that his possession was legal and recognised by the Crown.  In the evidence there was reason to presume that the land was resumed by Governor Macquarie, as he calls Martin a drunken fellow, and tells him that he ought to have built a house on the land.  Under these circumstances, the learned gentlemen considered that if they were bound by the laws that existed, and Munn having possession from the Crown, he was not liable to be turned out, and if not, then the verdict of the Jury was erroneous.  He also had affidavits filed, which stated that the Jury considered from their verdict that neither the plaintiff or defendant would derive any benefit, but that the Crown would resume possession - and that one of the Jurymen was so deaf, that he did not hear three words.  He however, did not mean to press these points on the consideration of their Honors.

Mr. Wentworth opposed the motion.  As to the affidavits, any one might speak as to his own feelings; but it was arrogant for him to presume what was going on in the breast of the remainder, especially as the deaf Juryman had been the informant on the occasion.  Respecting that part of the motion he should not trouble himself, that being no ground.  If the case had not terminated here, the motion should have been for the verdict to have been entered for the defendant, and not for a new trial; the Court could not grant a new trial: the learned Judge admitted that the verdict was contrary to the weight of evidence, this was proof that there had been evidence on both sides.  There had been three trials in this case before three Juries, and the motion now was not that there was no evidence, but as to the weight of evidence, but it was laid down in 3 Taunton 232, ---- v. Marquis of Stafford, that where there had been two concurrent verdicts, that was no ground for a new trial; if that was not a ground for a new trial in England a fortiore, it was not here, as the Act by which their Honors sat on the Bench, gave greater importance to the verdict of the Jury than to that of assessors, in the case above quoted, where the circumstances had been fully in possession of the Jury, and a verdict given twice the same way, although the Judges were of opinion the evidence preponderated against the verdict, they refused to grant a new trial.  In this case therefore, the Court could not grant a new trial; presuming all that had been said on the other side to be true.  This principle was quoted in Archibald's and Tidd's Practice, and recognised.

The Chief Justice was of opinion that a new trial should not be granted in this case.  This case had been formally tried before two Juries, the evidence had been considered sufficient to go to them, and they had both given the same opinion upon it; the authority cited, and the necessity of making some point where cases should terminate, were in his opinion sufficient to refuse a new trial.

Judge Dowling. - If a verdict had been given against evidence, he should have granted a new trial; but here was evidence on both sides, and two Juries given a verdict on it the same way, he therefore considered it should not be disturbed.

Judge Burton was of the same opinion.


Forbes C.J., Dowling and Burton JJ, 15 June 1833

Australian, 21 June 1833[11 ]


Martin v. Munn. - In this case Dr. Wardell applied to the Court for a new trial, on the ground that the last verdict was against the weight of evidence, and the opinion of the learned Judge who tried the cause.

His Honor Mr. Burton read his notes of the trial, and stated, that the verdict was, in his opinion, against the weight of the evidence.  Dr. Wardell contended that the whole tenor of the evidence produced by the plaintiff, went to shew that he was a mere permissive occupant of the disputed land; his own proceedings shewed that the considered himself so, the mere question then that remained to be tried was, whether such permissive occupancy had been concluded by an Act of the Government, in giving Mr. Munn, the defendant actual possession; it had been urged by the plaintiff's Counsel, that Sir Thomas Brisbane had acted under erroneous impresssons [sic], derived from the mis-statements of Mr. Munn, of the land being unlocated; of this, however, there was no evidence, and if there was, it could not affect the question before the Jury: that Munn had received the possession, was undoubted; the act of Sir Thomas Brisbane was complete, it was conclusive evidence of his intention, and it was absurd to enquire whether he had been misled in forming that intention.  Such an argument might have its weight in another quarter when it came to be decided to whom the formal grant of the land should eventually be given, but was clearly out of place in the present action.  The learned Doctor complained that the plaintiff's Counsel had made use of highly improper arguments to the Jury, that he had endeavoured to inflame their passions to make them consider the case as their own, and to withdraw from their consideration the real point for their decision.

Mr. Wentworth in opposition urged, that there was a period in all cases where litigation should have an end, and he cited a case from Taunton in which it was decided, that after two trials in which concurrent verdicts have been returned, although the Judges may be of opinion that such verdicts were contrary to the weight of evidence, yet the court will not interfere to grant a third trial.  The case was exactly in point with the present, evidence had been given on both sides, and there would be no end of litigation if a new trial should be granted, because the views of the Judges upon that evidence should happen to differ from those of Juries; he also contended that he case had not been fairly left to the jury, inasmuch as the judge had withdrawn from their consideration the circumstances of fraud and misrepresentation, by means of which Munn had procured possession.

The Chief Justice. - I am of opinion that no new trial should be granted in this case; a necessity exists to put some bound to litigation, and although I am of opinion, that the evidence greatly preponderated in favour of the defendant, yet I cannot say after two verdicts, that the Court should interfere to grant a third trial.  The simple question for decision was, whether Munn had been actually placed in possession by Sir T. Brisbane. - now there was evidence for and against this position, the jury may have discredited the whole of the testimony given in behalf of the defendant on this point, at any rate there was conflicting testimony and the case cited at the bar, was too strong for the Court to get over.

As to the question whether there had been any fraud in procuring the possession from Sir Thomas Brisbane, I cannot conceive how it could be raise in the present actions without entering into metaphysical arguments, it is enough to say that the act governs the intention until the contrary be shewn, and that in circumstances of fraud could be evidence to shew what the intention was.

The Learned Judge, proceeded to observe, that with respect to the province of the Jury, it had long been defined, and was quite settled.  Doubtless a question may arise, in which the facts may be so interwoven with the law of a case as to inseparable, and so far, it would be the duty of a Jury to decide upon the law as well as upon the fact, they might however return a special verdict, but it was clear beyond dispute, that the mere province of the jury is to decide upon the facts; that of the Judge to decide upon the law.

Mr. Justice Dowling took the same view of the case with the chief Justice.  His Honor observed that he considered the weight of evidence was on the side of defendant, but even if the refusal ofs [sic] a new trial might do an injustice to him, yet it was the general good, that after a fair trial in which there was conflicting testimony, that the concurrent verdict of two Juries, should be final and conclusive; litigation otherwise have no end.

Mr. Justice Burton after stating his concurrence in the opinion of his learned brethren, in refusing a new trial observed, that from what had fallen from the learned Counsel, it became his duty to correct the erroneous impressions which he seemed to entertain regarding the mode in which the case had been put to the Jury.  It should be remembered that a Counsel brought to Court the feeling of his client, that he was impressed with the accuracy of his statements, and the justice of his cause, that he was betrayed into a warmth of language, apt to mislead the Jury; it was the business of the Judge to remover those impressions, which might be derived from the eloquence of ardour of an advocate.  When a Jury was told to place themselves in the same situation with one of the parties, that his case might be their own, that they were not to mind the opinion of the Judge, but to decide upon the whole question before them, and form their own opinions upon the law as well as upon the fact, it became the bounden duty of the Judge to point out to them their province, and to confine their attention to the real question which it was their part to decide.  The learned Judge said, to make such remarks, either in addressing a Jury or in print, is highly improper, it is wicked, and can only serve to bring the office of Jurors into disrespect, and to destroy their usefulness.


Forbes C.J., Dowling and Burton JJ, 15 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 79] This was an Ejectment for an allotment of land in Cockle Bay.  A new trial had been granted in this case.  The first time had been tried before Dowling J & a special jury.  The second time before Burton J. & a special jury.  In both trials the verdict went the same way namely for the plf.  At the last trial the question was whether the Gov.r Brisbane, had determined the licence or holding desired by plf from Gov.r Macquarie.  On this point there was evidence on both sides, which went fully & fairly to the jury.  The judge now declared his [p. 80] opinion to be that the verdict of the jury was certainly agt the weight of evidence.

Wardell now moved for a new trial on the ground that the verdict was agt evidence.

Wentworth opposed the application, & contended that supposing the verdict to be against the weight of evidence, still as the case had been left to the jury & they found a verdict for 2d time for plf the court could not grant a new trial.  He cited & relied upon (3 Taunt 232) Swinnerton v Macquis Stafford as an authority directly in point.

Forbes C.J.  Although the verdict of the jury may be contrary to the justice of the case, yet I think we ought not to interfere with the province of the jury in a case where there was conflicting testimony.  It was their province to determine the credit due to the evidence on the one side & [p. 81] on the other, & having drawn it we must be bound by their determination.

Dowling J.  If the verdict of the jury were entirely contrary to the evidence, it would be a matter of very little importance how often the cause had been tried, because in such case we should be bound to prevent injustice, by granting a new trial.  Against a perverse or entirely false verdict, the court must always exercise a control over the jury - but in no other case.  Where there has been evidence on both sides, & the case has been fully & fairly left to the jury by the judge, I think the court ought not to interfere with a verdict found under such circumstances.  The verdict of a jury is always to be held sacred, where deliberately pronounced, in the due exercise of their province.  To hold otherwise [p. 82] would be establishing a precedent of most dangerous tendency. 

Burton J of the same opinion although he was satisfied that the verdict was agt the weight of evidence.

Wentworth had objected in the course of his argument that the judge had misdirected the jury in telling them that they ought to lay out of their consideration the intent, & the circumstances, under which Gov.r Brisbane had signed the papers on which the deft relied as evidence of the Gov.r having put an end to the plf's possessory title. 

Forbes C.J. & Dowling J were however clearly of opinion that the judge had properly directed the jury on this point.  As between the parties to this record, any latent motive or intention of the Governor in signing the papers [p. 83] in question, was wholly foreign to the inquiry.  The acts or the paper writings were to speak for themselves.  The intent, whatever it was, must be looked for only in the papers. -  The presumption in such a case must be that a man in such high authority as Governor, had acted fairly, honorably, & after due consideration, & therefore in this case the court could not go into the collateral motives of the Gov.r in doing the act which was relied upon by the deft.



Stephen J., 21 June 1832

Source: Sydney Herald, 25 June 1832[12 ]


THURSDAY. - Before Judge Stephen and the following Special Jury, Samuel Augustus Perry, Esq. Foreman, John Connell, Merchant, George Cavenagh, merchant, Joseph Hickey Grose, merchant, Thomas Icely, Esq., George Cox, Esq., Joseph Thompson, merchant, John Tooth, merchant.  (Tales Men), George Acres, Esq., Samuel North, Esq., David Allen, Esq., and John Verge, Esq.

Martin v. Munn. - This was an action of trespass quare clausam fregit, the declaration contained two counts, the first charged the defendant on the 1st January, 1831, and on the other days, with breaking and entering a close belonging to plaintiff and destroying a lime kiln without the leave and license, and against the will of the said plaintiff.[13 ]

The second count varied the nature of the trespass.

The defendant pleaded the general issue.

The intent of this action was to try the right and title to a piece of land situated at Jack the Miller's Point.  The following is an outline of the case.  In 1795 plaintiff arrived in this Colony and continued from that time till 1805 as an overseer in the employ of Government, when he obtained a ticket of leave; in 1813 Governor Macquarie in consideration of the plaintiff's long services, allowed him to select a piece of land on which he might erect a lime kiln; plaintiff accordingly selected the spot in question, and Governor Macquarie and Mr. Meehan the then Surveyor, went to the spot and marked out the land to him, the Governor also gave him a letter of possession, with part of which plaintiff's daughter had subsequently curled her hair, the sense was thereby partly lost; plaintiff erected a kiln on the land in dispute, and worked at it form some years, when he quitted it.  About six years since defendant in enclosing some land belonging to himself adjoining that of the plaintiff took in plaintiff's at the same time, although notified to the contrary.  The defendant endeavoured to prove that he had title to the land under Governor Brisbane, but failed. - The Assessors found a verdict for plaintiff, damages, one shilling, thereby establishing plaintiff's title to the land.

Messrs. Wentworth and Unwin for plaintiff; and Messrs. Foster and N. Allen for defendant.


Burton J., 21 June 1833

Source: Sydney Herald, 24 June 1833


Before the business of the civil side of the Supreme Court convened on Friday morning, Judge Burton remarked that he never had been in the habit of noticing remarks in the public papers animadverting upon his conduct, if they were correct, but statements had gone abroad, which had been copied from one paper into another, which made him to state principles that were abhorent to his feelings.  In Martin v. Munn he had been made to say that it was a wicked doctrine to say that Juries were Judges of the law, as well as the fact.  He had said that it was a cruel principle and wicked doctrine, for those who addressed Juries either orally or through the papers, to inform them that on their oaths they were to find a verdict upon any law they might themselves set up, instead of the law upon evidence.  Any remark might be made upon this, but what he had been made to say was abhorrent to his feelings, and contrary to every principle he ever laid down, or entered into his mind.  Juries were judges of the law, as well as of the fact, when they went both together.[ 14]



[1 ] This report begins with proceedings on the 22nd of October 1832.  It is taken from the Sydney Gazette, 25 October 1832.

See also Sydney Herald, 25 October 1832; Australian, 26 October 1832.  For the trial notes, see Dowling, Proceedings of the Supreme Court, Vol. 78, State Records of New South Wales, 2/3261, pp 1f, and the last pages of Vol. 77.

[2 ] This is the beginning of the report of Sydney Gazette, 27 October 1832.

[3 ] At the end of his notes of evidence, Dowling J. included the following statement of his summing up.

[4 ] This page includes the following marginal note: ``Hard upon a poor man - [?] irregularity in which vouchers kept.  Macquarie.  Idol of the people.  Brisbane good natured man cd not say nay!!  Orders for land not nessy given."

[5 ] See also Sydney Gazette, 19 March 1833; Dowling, Proceedings of the Supreme Court, Vol. 81, State Records of New South Wales, 2/3264, p. 46.

[6 ] See also Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 33.

[7 ] This document is inserted into this notebook on separate leaves of paper.  It is Dowling's own account of his judgment delivered on 28 March 1833.

[8 ] Side-note in manuscript: "Possession of Plf was in fact possession by Crown being only by parol."

[9 ] See also Australian, 3 May 1833.  For commentary, see Australian, 10 May 1833: it said that if the doctrine laid down by Burton J. were the law, then very few occupiers of land had valid title to their estates.  It followed this comment with a thoughtful analysis of the difference between land holding in England and New South Wales.

This is one of a number of cases in which Burton J. appeared to prefer rigid application of English law to its flexible adaptation to local circumstances.  See also MacDonald v. Levy, 1833.

[10 ] See also Australian, 21 June 1833.

[11 ] This report is included as well as that of the Sydney Herald, because of the controversy generated by the comments attributed to Burton J.  Burton's comments on that are included at the end of this report.

[12 ] See also Australian, 29 June 1832.

[13 ] See also Bettington v. Munn, 1832.

[14 ] This important clarification was in response to a comment by the Australian, 21 June 1833, itself commenting on the views of the Monitor and those allegedly stated by Burton J.

The parties were back in court in 1834: see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3286, vol. 103, p. 213.

Published by the Division of Law, Macquarie University