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

Ready v Brooks [1833] NSWSupC 63

trespass to land - Bankstown - land law, title, proof of - conveyancing - legal practitioners, professional privilege - evidence, admission of documents

Supreme Court of New South Wales

Burton J., 13 June 1833

Source: Sydney Herald, 17 June 1833

Thursday. - Before Judge Burton, and J. Lamb and T. Icely, Esquires, J. P.'s. Assessors.

Ready v. Brooks. - This was an action of trespass quare clausam fregit, brought to recover damages for a trespass committed by defendant upon land held by plaintiff.

The declaration contained five counts, setting out the trespass complained of, and varying it to have been committed at Irish Town and then Banks Town.  To these counts the defendant pleaded the general issue, and a justification.  The plaintiff denied the justification, on which issue was joined.

Mr. Keith having detailed the case to the Jury, called the following witnesses:-

John Whalen - I live at Banks Town, and am a settler; I know plaintiff and defendant; I live about half a mile from plaintiff; I know a paddock called Captain Brooks' paddock, in which plaintiff was growing crops three years ago; there were crops of wheat, rye, peas, and potatoes there last September; the paddock was fenced; the paddock contained about fifteen acres, ten of which were in crop; there was no grass of any consequence; there were about 20 acres of it, but it was eaten very bare; I remember defendant and Mr. Allan coming to my house in September last in a gig; he ordered the horse to be taken out, and to be taken to his farm; I mean that in possession of Ready; when we came to that part which was cropped, he ordered a pannel [sic] of the fence to be taken down, and his horse to be turned in on the crop; he ordered my cattle to be turned in likewise, about ten or twelve head; it was done; he said it was his ground, and to feed my cattle on it; I did so more than once; the crops were destroyed in consequence; he also ordered any cattle to be impounded that came on his farm; he gave it to me in writing; here it is; (put in and read;) that was given me before I went to the paddock; it was some days before; the horse could as easily have been turned into the paddock under grass as into that with crops; Captain Brooks must have known the other to be cultivated ground; defendant told me that Ready had a lease of the ground, but that he had given it up; Ready put in the crops; I impounded a cow and calf, which was in the grass paddock, before the cattle was turned in on the crop of wheat; the cow and calf were rescued from my man by Ready.

Cross-examined by Mr. Norton - The crop was not good; there were about 6 acres of wheat which would turn out about seven bushels to the acre; the rye was past my opinion, it was so bad, also the peas; I would not pay the labour of the whole crop if it had been given me; before I broke down the fence, the cow and calf were sent to the pound; they never sent there, as my servant told me Ready rescued them; I have known the land about three years; Ready was the tenant of defendant; both told me there was a lease, but defendant said plaintiff had given it up; Ready continued to crop it up to the time of turning in the cattle; there was no altercation; Ready told me it was Captain Brooks' land, and that he paid £25 per year rent.

Peter Fox - I know plaintiff and defendant; I put up some fencing for plaintiff, on Capt. Brooks' farm, in the district of Liverpool, either at Banks or Irish Town; it is about 15 miles from Sydney; I know where Ready lived; the farm is about a mile distant off the road; I put up 80 rod of three rail fence six years ago, but none since for plaintiff; I know nothing about the crops; the fence was all I ever did for Ready.

Cross-examined - I put up the fence six years ago, at which time Ready was defendant's tenant, and paid £25 per annum.

By the Court - It is called Chapman's farm, it being his grant; it consists of 100 acres.

Aaron Barnett - I know plaintiff; I was lodging in his house at the time he took the farm of Captain Goodwin; I was there about two months before; it is better than two years ago; the crops were good or bad, according to the season; I was there in September last,. But I can tell nothing about the crops.

Cross-examined - Last year was bad for crops; I showed Captain Goodwin the farm.

Edward Myles - I was nine years in the employ of Ready; I know the paddock called Captain Brooks' farm; it was in the possession of Ready; it is about 18 months since I left plaintiff; Ready used to get inferior crops from the paddock; I can't say how many bushels of wheat to the acre; he might have thirty acres in cultivation, more or less; the most he had off the land used to pay Mr. Brooks for the rent.

James Norton, Esq. - I do not produce a lease and release of fifty or one hundred acres of land, from Captain Brooks to Captain William Lushington Goodwin.

By the Court - I am the Attorney of Captain Brooks, and have not the deeds in my possession.

Mr. Wentworth - It is ridiculous, your Honor will observe, to ask us for deeds, the custody of which are in Captain Goodwin.

Judge Burton - You are quite right, Mr. Wentworth; if Mr. Keith can prove the deeds are lost, then I will admit parole testimony, but all you can get from Mr. Norton will not advance your case.

Mr. Norton examined by the Court - I remember the execution of some deeds to have taken place before me between Brooks and Goodwin, but I can't say about the time; they were in my possession before the commencement of this suit, and at the last trial.

Mr. Keith - What has since become of them?  Mr. Wentworth objected to this question.

Judge Burton - Do you know what has become of them, except as the Attorney of Brooks.

Mr. Norton - I do not.

Judge Burton - Then I shall not compel him to answer that question.

Patrick Purcell - I know plaintiff and the paddock in dispute between him and Captain Brooks; I am in possession of it; there are fifty acres; it was fenced when I took possession; the day after Christmas Day that ground was measured to me by Mr. Armstrong, it being my property.

Cross-examined - Mr. Armstrong measured the ground, pointed out the boundaries, and I took possession; I bought it of Mr. Meehan, about five months ago; I took possession without any resistance, having given notice to Brooks' man in charge; Ready was tenant to Captain Brooks, and paid him rent; there was no one on it when I took possession, but Whalen's cattle were there, I took possession by putting my cattle on it.

Mr. Andrew Allen - I know nothing of a set of deeds of lease and release between Brooks and Goodwin, from Captain Brooks or otherwise.

Mr. Charles John Windeyer was called to prove the memorial of the registration of the deeds between Brooks and Goodwin, but was resisted by Mr. Wentworth, on the ground that it was secondary evidence.

Judge Burton - I am sorry to say, Mr. Keith, that you cannot give that in evidence, that is another proof of the inefficacy of the Registration Act; the effect of the Act is to do no good to the public.

This closed the plaintiff's case.

Mr. Wentworth replied, observing that the whole scope of the evidence that had been given went to prove that plaintiff had for many years been the tenant of Captain Brooks.  Something had been said about a Captain Goodwin, but if the plaintiff wished to derive any benefit from that, he should have gone on and proved that he was the tenant of that gentleman.  The statements of the case were these - Brooks had been in possession of this land for many years, and by an instrument dated 1826, the plaintiff became the tenant of the land, at £25 per year, but not being able to pay the rent, Captain Brooks considerately consented to cancel the lease, which was done accordingly on the 30th December, 1830, when plaintiff consented to give up quiet possession; instead of doing so, he continued cropping the land as usual, when Mr. Brooks finding that he would not deliver up possession, asserted his right as the owner of the soil, and His Honor would inform them that he had a right so to do.  As to the enormous damage, they must be aware that in this Colony, in the month of September, it was impossible to tell what crops would produce; he held in his hand an estimate which valued the wheat at £1 5s., and the rest of the grain at four shillings.  He would ask then whether they would permit their lands to be dealt with in that way.

Mr. Andrew Allan - This is the counterpart of the lease held by Ready; he gave it to me, and at the same time he gave me up possession of the land, on which I put a man in possession for Capt. Brooks; the lease was given up at the instigation of Ready, as he was very much indebted to Captain Brooks, which debt was to be cancelled; I went with Captain B. as a witness to the land on which Ready was living, as he was surprised at his being there; he turned in his horse and cattle, as he wished to obtain possession; the crop on the land was so bad, that I would not have had it for the harvesting.  (The surrender of the lease read by the Clerk of the Court.)

Cross-examined - It was signed the 30th Dec. 1830, and possession was given me of the farm, on which I left one of my men, named George Oaks, who was to thrash out some barley Mr. Brooks was to receive.

This was defendant's case.

Mr. Keith - I do not consider it necessary to offer any evidence in reply.

Judge Burton - I have been thinking whether the memorial might not have been put in as evidence of the admission of defendant, that he had parted with his interest in the land.

Mr. Wentworth contended that that could not be, as the contents could not be looked at, the registrary of a deed being merely evidence of the fact of registration, and so the Chief Justice held on the last trial as cited in 1st Colls and Beaufoir.  To make the memorial secondary evidence, which was all it could be, it must be proved that the deed was lost or destroyed, and even then the execution must be proved.

Judge Burton - I shall not admit the evidence, but in a case of Doe v. Watson, cited in 2d Starkie, Lord Ellenborough did admit such evidence, but in a more recent case, Pollack v. Fugilliar, 1st Brian and Budie 187, in which case Chief Justice Abbot refused to admit it.  I shall therefore reserve the point for liberty for Mr. Keith to move that the memorial ought to have been received as an admission on the part of the defendant.

The learned Judge then summed up, observing that in 1832 there was no proof that the land did not belong to Captain Brooks, and the lease being evidence that plaintiff recognised defendant's title, and there being no proof that he held possession under any other title, he was consequently in illegal possession, and not entitled to damages; they must therefore find a verdict for defendant.

Mr. Keith for plaintiff, Messrs. Wentworth and Norton for defendant.


Forbes C.J., Dowling and Burton JJ, 27 June 1833

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


[p. 123] Trespass to land situate at Irish Town.  Plea Not Guilty.  At the trial before Forbes CJ the case was that although the deft had originally put the plf in possession of the locus in quo, yet the deft had since sold his interest in the land by public auction & had conveyed the same to one Goodwin.

Three points were made.  It seemed to be admitted as a fact that some deed relating to the land in question had been executed by the deft.

Mr Norton defts attorney was put into the box, & he was asked what had become of a certain deed of lease & release which had been in his possession.  He [p. 124] said he knew nothing of the deed but in his professional character as an attorney to the Deft.  The Judge on the ground of privilege would not compel the witness to answer the question.

The plf then offered to give in evidence the memorial of the deed, as secondary evidence of its contents; not until it was sworn what had become of the original & that it could not be produced, the Judge would not admit the memorial.

He also refused to admit the memorial as an admission on the part of the deft that he had sold the property.

These points were now brought before the Court by Keith on a motion for a new trial.  Sed

[p. 125] Per Curium.

We think this case properly disposed of at Nisi prius. -  The attorney was not bound to answer the question put.  Neither was the memorial admissible either as secondary evidence - nor as an admission of the fact of the Deft. having disposed of the property.  If it had been admitted for such latter purpose, it would have been competent to the deft by parol to explain away such admission, so that the plf would have gained nothing by it.  An admission must not be taken partially but with all qualifying circumstances.

Rule Refused.

Wentworth for the Deft.

Published by the Division of Law, Macquarie University