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

Septon v Cobcroft [1833] NSWSupC 110

trespass to land - felony attaint - convict indents - convict, proof of conviction - convict rights - married women's legal disabilities, wife of convict - appeals - law reporting

Supreme Court of New South Wales

Dowling J., 30 October 1833

Source: Sydney Herald, 4 November 1833[ 1]

We have been furnished by a correspondent with a more correct report of the late important case of Septon v. Cobcroft and Others, than appeared in our Journal of the 31st ult.


Wednesday. - Before His Honor Judge Dowling, and a Special Jury.

Septon v. Cobroft, and others.  - This was an action of trespass for breaking and entering the dwelling-house of plaintiff, situate at Richmond, and turning him out of possession in the month of January last.

The defendants pleaded the general issue.  Not Guilty, and filed a notice that they would give in evidence that the plaintiff was a convicted felon under sentence of transportation for life, ``as would appear by the indent," under which he was transported.[ 2]

It appeared in evidence, that the plaintiff, being a ticket-of-leave holder, had married a woman named Smith, who had occupied the premises in question for upwards of twenty years, and died, leaving the plaintiff in possession thereof.  The defendants, claiming to be the heirs of the plaintiff's wife, turned him out of possession of the house by stratagem, under the impression that he being under sentence of transportation without a pardon, though holding a ticket-of-leave, could not acquire or hold any property, by operation of the late Act of Parliament, 2, and 3, Wm. 4, s: 2, and consequently could not maintain any action at law.

To support the defendants notice, the indent of the ship Eliza, No. 1, was produced, by which it appeared that a person of the plaintiff's name was tried in 1819, at the Sessions of Pleas holden at Chester in that year, and sentenced to be transported for life.  The indent was wholly silent as to the nature of the offence for which the sentence was awarded.  Reasonable evidence was produced of the plaintiff's identity as the person named in the indent.  No other proof was offered to shew that the plaintiff had been transported for felony, and the defendant's case was left on this point, solely upon proof of indent.

The learned Judge told the Jury, that this being merely a possessory action, a bare possession without title, was sufficient to support it against a wrong doer.  At the time of the trespass the plaintiff was in the peaceable possession of the premises, and it appeared that the defendants had wrongfully turned him out, for they had made out no legal title to dispossess him, Prima facie, therefore he had a right to a verdict with such damages as the justice of the case demanded.  The question then was, whether the defendants had produced sufficient proof to sustain their notice of plaintiff's disqualification to maintain the action; namely that he was a felon transported fore life?  The defendants had undertaken by their notice to prove ``by the indent," that he was a felon transported for life.  Now the indent certainly did not support that averment, (which was matter of substance and not merely of form,) for it was wholly silent as to the nature of the offence for which he had been transported.  It was not an irresistible conclusion of law, that though transported for life, he was so transported for felony - a fact which the defendants had undertaken to prove by the indent.  Had the defendants confined themselves to a notice that they would give in evidence, simply that the plaintiff was a person transported to this Colony, no matter for what offence, then probably the indent would have been sufficient evidence of that fact, to sustain the disqualification so expressly recognized by the late Act of Parliament --- the policy of which was not now in question.  A late local Ordinance had made the indent with proof of the party's identity, sufficient evidence of the fact of a person having been transported to this Colony.  It seemed that an express law was required even for this purpose.  But laying that Ordinance entirely out of view, and venturing at present no opinion, whether without that Ordinance the indent was sufficient evidence of a conviction and judgment of felony in any case, he (the Judge) directed the Jury that the defendants had failed to prove by the indent, (taking it to be the best record that could be produced), that the plaintiff had been a felon transported for life.  The defendant's notice must be considered in the nature of a special plea, which required strict proof of all matters of substance.  It was matter of substance that the plaintiff was a felon.  The defendants had tied themselves down to the medium of proof, namely, by the record - that is, by the indent, which is the only record that can be produced in this Colony.  This appeal to the medium of proof, he apprehended, could not be treated as matter of surplusage, but the defendants must stand or fall by the evidence they adduced, which in his judgment had failed to substantiate the notice.  Failing, therefore, to make out the disqualification, which from every analogy, must be proved strictly, the plaintiff now stood before the Court as much entitled to the protection of the law for being forcibly dispossessed of his house, as any one of the Jury themselves; and in that view, he apprehended, (subject to any corrections his decision might hereafter undergo), that the plaintiff was entitled to a verdict, with such reasonable and temperate damages, as a person in his situation of life was fairly entitled to, for being turned out of his house by fraud and stratagem, and compelled to seek a residence elsewhere.

The Jury retired for a few minutes, and found their verdict for the defendants.


 Forbes C.J., Dowling and Burton JJ, 2 December 1833

Source: Sydney Herald, 5 December 1833[ 3]


in banco.

Monday - Septon v. Colcroft and others. - This trial took place on the 30th October last, in the Supreme Court, before Judge Dowling and a Special Jury, when verdict was given for defendants.

A new trial was moved for on the grounds; 1st, that the verdict of the Jury was contrary to evidence; 2nd, that it was contrary to law; 3rd, that it was contrary to the direction of the learned judge.  The learned Counsel said he appeared there on behalf of the plaintiff, on grounds set forth in the notice. - The defendant's plea of Not Guilty, he would not rely on.  The verdict given was general.  The heirs at law under whom Sarah Cobcroft claimed, were then living in England.  The jury had made themselves Judges of the law, as well as of the fact.  It would be contended, that an Act of Council does away with original record, and admits secondary proof.  The indent produced on the trial had no offence mentioned in it.  The record of indent and the proper identity, ought to be given before the plea could be supported.  There was no legal evidence to prove that this man was a transported felon.  The indent itself was not sufficient evidence.  The strictest proof ought to be given in this case, or it was most penal in its consequences.  The jury giving verdict contrary to the decision of the Judge was sufficient grounds for the grant of a new trial.  No offence was stated in the indent; and he would therefore submit, that the verdict should be set aside, and the case be sent to another July.

Dr. Wardell, for the defendants, said, that he did not expect to hear that if a Judge decided contrary to law, and a Jury, according to law, that this could be ground for a new trial.  How would he (the Counsel) like to be placed in such a situation.  Lord Ellenborough had seen cases when verdicts were given in opposition to his dictum.  The second and third pleas over that the plaintiff was, and is, a transported felon.  One objection raised to-day was the admission of the indent under the Act - It is necessary, not having the record of name, of- offence, and sentence, to take secondary evidence. - It was the order of transportation - and the order and the indent are the same.  What is the rule of primary and secondary evidence?  The rule is pretty plain.  Secondary evidence must be given when the primary cannot be obtained.  It is an application of rules to the state of things existing.  It was justly said that the law does not compel us to do impossibilities.  No indent from England does contain the offence.  There was a sufficient plea to meet a declaration.  Common sense given a sufficient reason - there was sufficient, and more than sufficicent, to prove the case.  The proofs went to show that plaintiff was, and is, a convict.  What offence short of felony could have sent him here for life?  The plea is complete.  There is abundance of proof that he was and is a transported felon.  He (Dr. Wardell) knew of no case where, for misdemeanour, the sentence was for life - and certainly not from England.

Their Honors consulted for a considerable time, when the Chief Justice said he saw no ground on which they ought to grant a new Trial, and this was on account of the plaintiff not being qualified to sue in law.  There was another heir at law - but it was not legal for plaintiff to sue.  Every man has a right to come into Court except he be disqualified by law.  A certain person of the name of plaintiff was tried at Chester, in April 1819, and transported here in the ship Eliza.  It appears that plaintiff was, and still is, a transported felon. -  There was no legal ground for a new Trial, and he was obliged to come to this conclusion.

Judge Burton was of the same opinion as the Chief Justice.  The indent is in nature of a warrant of execution,[4 ] and at all events such an indent was admitted.  He knew of no offence short of felony, where the sentence was for life.

Judge Dowling differed in opinion from the other Judges.  He observed, that entertaining as he did, unfeigned respect for the opinion and judgment of his learned brethren, he expressed his regret that he could not concur in their view of the present question.  The defendants had relied upon the plaintiff's incapacity by law, to maintain any action, on the ground of his being a transported felon.  They had given notice that they would prove in evidence by way of special plea, this fact; first, by the indent or warrant under which he was transported; and secondly, by general evidence that he was a transported felon.  It appeared to his Honor that the evidence adduced did not support either of the pleas.  Undoubtedly it was proved that the plaintiff had been sentenced in 1819, to be transported for life, but for what offence did not appear, nor was there any evidence upon which a Court of Justice could act, that he had been transported for felony; which, as it appeared to him (Judge Dowling), the defendants had undertaken by their notice of special matter to prove.  He apprehended that as the defendants had bound themselves to prove so material a fact, as that the plaintiff was a transported felon, they must make out their plea strictly, and that the Jury could not be called upon as mere matter of inference to conclude that the plaintiff was a felon, because he had been transported for life.  No doubt seemed to be entertained that the plaintiff's disqualification must be pleaded specially, and if so, the defendants must stand or fall by the proofs in support of their special plea.  He (Judge Dowling), apprehended that proof of a part of their plea was not sufficient to make out the plaintiff's incapacity.  A plaintiff, no doubt, in many cases, was not bound to prove the whole of his declaration, for, provided he could make out sufficient to sustain a verdict, he would be entitled to recover.  This rule, however, did not apply to a defendant's special plea, which went not to the merits of the case, but to a complete disqualification.  If there were really any virtue in a special notice of this kind, it ought to be made out strictly; otherwise, he saw no use in such a course of proceeding.  By the common law of England, certainly a convict felon could not maintain an action at law, and a plea of attainder duly proved, would be a bar to an action.  This law was in operation in this Colony prior to the passing of the late Statute 2 and 3 Wil. 4, c. 62, s. 2.  That statute was in affirmance of the common law, although it certainly went somewhat farther, by enacting that a person merely transported, without reference to his crime, was incapable of acquiring or holding any property, or maintaining any action at law, until he should have duly obtained a pardon from the Governor.  If the defendants had confined themselves in their notice of special matter to the proof of the simple fact, that the plaintiff was a person transported to this country, whose sentence remained unexpired, then he (the Judge) was no prepared to say that the evidence in the present case, was insufficient to entitle them to the benefit of the plaintiff's disqualification; but as they had gone farther, (say unnecessarily,) and had undertaken to prove that he was a transported felon, they were so tied up, it appeared to him, that the last mentioned fact must be clearly proved, and not left to mere inference and conjecture.  This was matter of description, not form, and they should have "hit the bird in the eye."  Until the passing of the late local ordinance of the Governor and Council, 3 Wm. 4, No. 3, 24th Aug. 1832, it would seem that difficulties were entertained as to what proofs should be deemed sufficient to establish the fact of a person having been transported as a convict to this Colony; and to remove such difficulty, it was enacted that the indent, or order, or an examined copy thereof, ``containing the name of the party transported, and the offence for which he was transported, together with evidence of identity, should be deemed sufficient proof in all cases where any question should arise, whether the party had, or had not been a transported felon or offender."  This, it would seem, was considered by the local legislature as a departure from the inflexible common law mode of proving such a fact; for by the 36th section of the same ordinance, an express exemption from the operation of that law, was made in favour of persons holding what are called tickets-of-leave, whose right of suing in a Court of Law is distinctly recognized.  This exception, it would appear, was enacted by way of compensation for the short and compendious mode prescribed by the 35th section, of proving the fact of a person being a transported felon or offender.  By the law of England, as now declared by the 2nd section of the Statute, 2 and 3 Wil. 4, c. 62, the two sections 35, and 36, of the local ordinance, clearly could not stand together, because the last mentioned section was virtually repealed by the English Statute.  It remained, therefore, now to consider whether the 35th section was applicable to the present case.  If it were applicable, then the defendants had not complied with the mode therein pointed out of proving the fact by the indent, or order, or examined copy thereof, because they had not produced an indent showing the offence for which the plaintiff was transported.  As the defendants had resorted to a special plea, containing matters of important substance, going, not to the merits of the case, but to a total disability in the plaintiff to maintain an action; he (Judge D.) apprehended that from all analogy, they were bound strictly to prove by some evidence at least, that he was a transported felon, and not leave it to the Jury, from inference and conjecture to conclude what his offence was, merely from the fact of his having been transported to this country for life.  The onus lay upon them to prove the affirmative allegation that he was in fact a felon.  In no case had this Court gone farther, than to hold that the indent coupled with proof of identity was sufficient evidence, as a warrant of execution, to protect Officers of Justice from dealing with the parties therein named, as persons in execution under a lawful sentence of transportation; Hogan v. Hely.  In civil actions, between party and party, the same doctrine had never yet been held.  Without adverting however, to the merits of this particular case, or alluding in any way to the policy of the late Act of Parliament, which went to disqualify a vast number of persons who had heretofore been allowed, without question, to acquire property, and sue and be sued in the Courts of the Colony; he was fearful upon general principles, applicable to pleas of a similar nature, of allowing so important a fact as that which the defendants had undertaken to prove, to be eked out by mere matter of inference and conjecture.  If he were in error on this point, that error was now corrected by the revising judgement of his learned brethren, to whose view of the case he was bound to defer; but differing in opinion from them, he was under an obligation to state conscientiously the grounds of his dissent, and the reasons why he still adhered to his own view of the case.

New Trial refused.



[1 ] See also Sydney Herald, 31 October 1833; Australian, 1 November 1833; Dowling, Proceedings of the Supreme Court, Vol. 90, State Records of New South Wales, 2/3273, p. 1.

The Sydney Herald, 1 July 1833, also reported the following: ``In the case of the King v. Horden.  The Attorney General moved for the Court to issue a writ to ascertain what goods and chattels Horden was possessed of at the time he was convicted of felony.  The Court directed him to apply to the Sheriff, whose duty it was to issue writs in such cases ex-officio."

[2 ] The Australian, 1 November 1833, also summarised the argument of Wentworth, for the defendant, on another point.  He moved for a nonsuit because the property belonged to a Mrs Smith, the plaintiff's wife.  He could only derive title through marriage, but not to realty, which went to the heir at law.  In reply, Foster argued that the marriage could be proved, and that as against the defendant, the plaintiff had only to prove possession to sustain trespass; there was no evidence that Cobcroft was the heir at law.  Justice Dowling thought that the plaintiff should have proved the actual marriage as he derived title through it, but would not stop the case at this point.

[3 ] See also Australian, 6 December 1833.  It reproduces the same judgment of Dowling J., which suggests that the judge handed down a written version of the judgment for publication, as sometimes happened.  The archival record is less complete: see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3276, vol. 93, p. 5.  Dowling noted at p. 7: ``see a more detailed note of my judgmt in the Sydney Herald of Decr 5th, 1833."

[4 ] According to the Australian, 6 December 1833, Burton J. here relied on the court's decision in Hogan v. Hely on this point.

Published by the Division of Law, Macquarie University