Skip to Content

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

Thompson v Balfour [1833] NSWSupC 111

trespass to land - land law, title

Supreme Court of New South Wales

Burton J., 22 October 1833

Source: Sydney Herald, 24 October 1833[1 ]

Thursday. - Before Judge Burton; John Lamb and John McLaren, Esqrs. Assessors.

Thompson v. Belfour. - This was an action for Trespass, to which defendant pleaded the general issue.  The declaration set forth, that defendant having claimed some land in Cockle Bay, of which plaintiff had long had possession, and which claim was denied.  Defendant had proceeded, in company with eight men, to forcibly pull down a weather boarded house erected thereon, and nearly finished, and to burn the materials near the spot.

Defendant's Counsel produced documents, and called witnesses to establish prior right, but failed in proof of legal transfer.

His Honor, in summing up said, that no constructive possession could support an action for trespass.  The point of transfer insisted on by defendants Counsel, having failed, the case could not proceed, and the Assessors accordingly gave a verdict for plaintiff - Damages £6 10s. 0d.

Mr. Wentworth and Mr. Chambers, for Plaintiff, Dr. Wardell and Mr. Keith, for defendant.

After this case had closed, His Honor recalled a witness named Dempsey, and admonished him for having repeatedly prevaricated in his evidence.

 

In banco, 2 December 1833

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

 

[p. 161][2 ]Trespass quare clausum fregit in Darling Harbour.  Plea soil & freehold derived by conveyance through one Dempsey, & ultimately from Cooper & Levy who had purchased from Hathaway who purchased from Meehan.  Dempsey when called repudiated the deed, & swore it was executed by fraud & circumvention, although there was proof that he had received the consideration therein stated & gave a receipt for the amount.

The Court held the Defts title insufficiently proved & the Plf had his verdict upon a bare possessory title.

 

Notes

[1 ] See also Sydney Gazette, 24 October 1833, stating that this hearing was held on Tuesday, 22 October 1833.  It reported the case as follows: "This was an action of trespass, to recover a lease of land in Cockle Bay.  Mr. Wentworth appeared for the plaintiff and Dr. Wardell for the defendant.  Witnesses were called, but no proof being adduced as to the transfer, the Judge observed, they could only give a verdict sufficient to establish the right of possession by the plaintiff.  Verdict for the plaintiff £6 10s."

See also Australian¸ 25 October 1833, stating that the defendant pleaded the general issue (not guilty), liberum tenementum, and that the soil and freehold was in Cooper and Levy.

[2 ] Marginal note in manuscript: "This case was argued on 5th November 1833.  See post for further report thereof.  Decision given 2d Decr 1833."

Published by the Division of Law, Macquarie University