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

Perkins v McDonald [1833] NSWSupC 68

succession - dower - married women's legal disabilities - Pitt Town - conveyancing - signature, proof of - reception of English law, civil procedure

Supreme Court of New South Wales

Burton J., 21 June 1833

Source: Sydney Herald, 24 June 1833[ 1]

Perkins v. McDonald. - This was an action for the use and occupation of lands at Pitt Town, near Windsor.

There was the common count for use and occupation and plaintiff went for £500 for two years and a half rent.

The defendant pleaded the general issue.

It appeared that some time previous to the year 1791, a person named Menman was tried at Salisbury, where he pleaded by the name of John Benn, as he had friends of respectability and did not wish to expose them, he was found Guilty, and sentenced to be transported for seven years.  In 1791 he arrived in this Colony; on becoming free, he accumulated property to a large amount, and among the rest four farms on the Hawkesbury.  A few years before his death, which occurred in 1815 he married Lydia Griffen, by whom he had no issue and died intestate; the widow took out letters of administration, and possessed herself of his personal property.  She shortly after married the defendant and entered into possession of the defendant's real estates, when the friends of Benn sent home to his relations information of the circumstances, when a Power of Attorney was sent out to Mr. Richard Jones, by the heir at law John Venman; in consequence of which, Mr. Jones released to the widow a portion of the deceased's real estate in Fee Simple, as in satisfaction of her dowery.  Of the remainder, he, Jones, leased to defendant at £100 per annum four farms, formerly held by one Gilberthorpe, containing one hundred and twenty acres, situated on the Hawkesbury.

The plaintiff Mr. Perkins, having married Miss Mary Venman the neice of the heir at law, John Venman, he thereupon obtained from him a conveyance of all the property in the Colony to which he was entitled belonging to deceased John Benn, and by this title plaintiff sued as landlord of the property for the rent due between the date of his purchase in 1829, and the bringing the present action.

The assessors found a verdict for £200, being two years rent; with liberty for defendant to move for a nonsuit, on the ground that the identity of John Venman the heir at law was not sufficiently proved, but it appeared from the opinion of the learned Judge, and from the whole complexion of the case, that there was no reasonable ground to doubt the facts as put by plaintiff. - For plaintiff, Solicitor General, W. C. Wentworth, and W. H. Kerr, Esqrs., Solicitor, John Dillon, Esqrs.


Forbes C.J., Dowling and Burton JJ, 29 June 1833

Source: Sydney Herald, 1 July 1833[2 ]


Perkins v. McDonald.  - This was an action brought for use and occupation of certain lands situated on the Hawkesbury, when a verdict was returned for plaintiff.

Mr. Foster now moved to set aside the verdict, on the ground that the identity of John Venman, under whom plaintiff claimed, was not sufficiently proved, and that they ought to have been allowed to have called evidence to prove that he was not John Venman, heir to the property in question.  On the latter point he contended, that his being a special case, they ought to have been let in to have proved, that plaintiff was not what he pretended to be.  Again, there was not sufficient proof that the party signing the deed put in by the other side, as a conveyance from John Venman, was the John Venman who was entitled to this property.  There were two parties who witnessed the execution of the deed, but there was no proof that John Venman, whose signature was to the deed, was John Venman at all, or that he was the John Venman, whose title we were prevented from disputing; there ought to be some evidence besides the subscribing witnesses, something to connect him with the deed.  On the whole of the case plaintiff had not sufficiently maintained his title.

The Solicitor General, in reply, would trouble their Honors with but a few observations, as the principal objection now before the Court was too well settled to admit of much dispute.  In all cases, save one which had been cited by Mr. Foster, the hand-writing of the subscribing witnesses, was always sufficient without proving the handwriting of the obligor.  In Selwyn's Nisi Prius. 544, debt on bond, the writing of the subscribing witnesses only is necessary.   But on the Judges's notes it was clear, the identity is made out, as Perkins was proved by Jones to have been in company with him, and Venman on the subject of the very property.  Mr. Wentworth followed on the same side.

The Chief Justice remarked, that without touching upon, or being guided by the cases cited from the bar, yet he was of opinion that there was sufficient evidence of identity to go to the Jury, and at which they might arrive at a satisfactory conclusion.  It was impossible for any Court to do justice if some proof of identity was not adduced, especially being 16,000 miles away from where the deed was said to have been executed.  The question here was whether the John Venman, who plaintiff represents was the John Venman who executed a transfer of the property to the plaintiff?  The deed produced, and proved to have been duly executed by the hand-writing of the subscribing witness, and therefore a deed according to law as to name; then came the question, is it the deed of the identical Venman, who transferred to Perkins, and was Mr. Jones principal?  He thought there was sufficient to go to the Jury upon that point.  The verdict must stand.  The other Judges were of the same opinion.



[1 ] See also Sydney Gazette, 25 June 1833; Australian, 1 July 1833.

[2 ] See also Sydney Gazette, 2 July 1833.

This case was noted in Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 138, with the following statement of the judgment (pp 137-138): "Per Curiam.  Without affecting to bind ourselves by the modern nisi prius decisions cited on the part of the Plf, (which we think of doubtful authority as applicable to this country in a case circumstanced as this is) we think there were sufficient grounds for the Jury in presuming the identity of Jn.o Venn as the Jn.o Venn, who executed the conveyance.  There was evidence certainly sufficient to support the verdict.  R.R."  (The latter means rule refused.)

Published by the Division of Law, Macquarie University