Skip to Content

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

Bingle v. James [1834] NSWSupC 82

land law, title, informality - Court of Commissioners - American precedents

Court of Commissioners Hearing, August 1834

Source: Sydney Herald, 4 August 1834

COURT OF COMMISSIONERS[1 ]

For determining Claims to Grants of Land.

Memorial No. 231.

In this case the Memorial was filed by Mr. Bingle, and opposed by Mr. T. H. James; the circumstances of the case were as follows:   In the year 1825, Mr. Bingle purchased a portion of land, consisting of 640 acres, situated at Hunter's River, from a Mr. John Robson, who had obtained a grant of 2000 acres from the Colonial Government; 1360 acres of which, however, were granted subject to the approval of Earl Bathurst, then Secretary of State for the Colonies.  The 640 acres so purchased, for the conveyance of which to Mr. Bingle, Mr. Robson entered into a bond, joined a similar portion, the property of Mr. James, who expressed a desire to purchase it; and finally, an arrangement was made, in 1827, for the mutual exchange of land, Mr. Bingle agreeing to convey to Mr. James all his interest in the 640 acres purchased of Mr. Robson; Mr. James, in return, agreeing to convey a grant of 600 acres, purchased from a person named Snelgrove, the original grantee, who had left the Colony, and also 300 acres granted to J. Weyland.  The 600 acres had never been selected by Snellgrove, who merely held an order, and which, on disposing of to Mr. James, he transferred by power of attorney; the said order for the selection of 600 acres was again transferred by Mr. James to Mr. Bingle, on the ratification of the agreements which were entered into between the parties, on the exchange of their property, by the following memorandum:-

``8th February, 1827.

``I hereby agree to make good the conveyance of 600 acres of land, granted to J. Snellgrove, and 300 acres granted to J. Weylands.

``To Mr. Bingle.

(Signed)``Thos. Horton James."

Mr. Bingle, at the same time, delivered to Mr. James, Mr. Robson's bond for the conveyance of the 640 acres, and a similar memorandum of agreement.  Matters being thus settled, Mr. Bingle, by virtue of this authority, selected 600 acres as Snellgrove's grant, and commenced improving it, to the amount of some thousands of pounds, making occasional purchases of other property in its immediate neighbourhood.  Subsequently to this transaction, Mr. James left the Colony, empowering Mr. Norton, as his attorney, to dispose of certain property, of which the 640 acres purchased from Mr. Bingle formed a part; by virtue of his instruction, Mr. Norton sold the said land to Messrs. Wiseman and Pringle, who paid the purchase money for the same.

In 1829, Snellgrove returned to the Colony, when it appeared by a document now exhibited in the Court, that Mr. James had again seen him on the subject of the land, although he, Mr. James, had absolutely parted with all his interest in the same, as above shewn, and obtained from Snellgrove, who was ignorant of the transaction, a formal transfer of the grant, which, after a lapse of five years, during which time no further communication took place between the parties, is now brought forward as the groundwork of the claim set up by Mr. James.

On entering the Court, Mr. James, after hearing a portion of the history of the transactions, as stated by Mr. Allen, counsel for Mr. Bingle, addressed the latter gentleman in nearly the following words:- You ought to be ashamed of yourself, Sir, in presuming to face a public Court in this transaction, which you are aware is one of absolute swindling, and which I will be able to explain to the Court presently.

Mr. Allen. - These imputations of swindling come with a bad grace, Mr. James.  At the suggestion of the Commissioners, these inflamatory observations were discontinued.

The circumstances of the case being laid before the Commissioners, witnesses were called.

Mr. Jones. - I produce papers, the property of Mr. Wiseman, viz. - A bond for the conveyance of 640 acres of land, from John Robson to John Bingle, dated 2nd February, 1825; appended to which is a memorandum, transferring the same to Thos. Horton James, signed J. Bingle, and dated 8th February, 1827; also, a lease and release from Thos. Horton James, to Messrs. Wiseman and Pringle, dated 1st and 2nd June, 1832; I am acquainted with the transaction as relates to the  sale of the said land, by Mr. Norton, as agent for Mr. James, to Wiseman and Pringle; I know that the deeds are genuine; and that the purchase money was paid; they were deposited in my hands by Mr. Wiseman, for safety.

Mr. James being asked if he could recognise his own handwriting on the various documents produced, ratifying the aforesaid agreements, on the strength of which he had disposed of the land obtained from Mr. Bingle, he exclaimed, after some hesitation, ``it is of no use beating about the bush, Mr. Bingle, I admit all these; but you are aware that I never received the full consideration for Snellgrove's 600 acres, expressed in Robson's bond to you."

Mr. Bingle. - Our agreement certainly did not embrace any definite understanding respecting the 1360 acres, over which I never had any controul; you knew the circumstances in which that 1360 acres was involved, and you must be aware, relative to your observations respecting it at the time, that I informed you, that if you could, at any future period, obtain possession of it by virtue of Mr. Robson's bond, transferred by me to you, in the body of which some allusion is made to it, I should never set up any objection to your right; to look to me, after a lapse of five years, (during which time no application whatever has been made to me repecting this claim, in any way,) for a specific conveyance of this 1360 acres, under these circumstances, is perfectly ridiculous.

These were the grounds on which the opposition was sought to be established.

Mr. Norton contended, that Mr. Bingle had failed to perform a certain engagement which he was bound to shew he had complied with, before he could establish a right to the land in dispute; he had not only not done so, but he had, by releasing Mr. Robson from all liability as to the 1360 acres, expressed in his bond, put it out of the power of his client to recover it on that bond.

Mr. Norton, examined.  -  Shortly after the departure of Mr. James from the Colony, Mr. Robson casually visited this port, when I took an opportunity to see him on the subject of the 1360 acres, and demanded of him a conveyance of the same, as the residue of his grant of 2,000 acres, sold by him to Mr. Bingle; he, Mr. Robson, refused to execute any conveyance, stating that he held a release from Mr. Bingle, from any further liability as to that bond.

Cross-examined. - I did not see the release, but I was given to understand that it was reduced to writing.

A discussion arose as to the admissibility of the evidence of Mr. James.

Mr. Sydney Stephen observed, that he should never, under any circumstances, encourage so dangerous an incentive to perjury and fraud, as to assent to the admission of the evidence of a principal, in his own case; he wished his sentiments on that score to be universally understood. - The evidence of a memorialist had been received in cases where there had been no opposition, but never otherwise.

Mr. Therry begged to dissent from his learned colleague, as to the propriety of admitting such evidence; in many cases the principals were the only parties who were enabled to speak as to matters which became important considerations for the Court; proper deductions could be made after hearing such evidence.

The Court, however, finally decided, that the evidence of the parties could not be heard.

Mr. Allen observed, that it was clear to the Court that the conduct of the parties betrayed a consciousness that there was no claim against Mr. Bingle; had it been otherwise, was it not clear that Mr. Norton on his interview with Mr. Robson, would have communicated immediately with Mr. Bingle on the subject of his responsibility as to the 1360 acres, which he had never done, so little did the matter press itself on his consideration, that he did not even satisfy himself as to the existence of the release stated by Mr. Robson to be in his possession.  The Court immediately decided in favour of Mr. Bingle, and made their report accordingly.

 

Notes

[1 ] The informality of the crown grant process in earlier years was a constant headache for the Forbes Supreme Court.  When asked in 1833 for their opinion on the appropriate procedures to decide such claims, the judges recommended the appointment of ``three of more competent persons giving them power to hear and determine upon all such claims according to Equity and good conscience and to admit all evidence whatever which may seem entitled to moral credit, in reference thereto: with a right of appeal within a limited time to His Excellency the Governor in Council. ... For the course which we have now the honor to recommend we find a precedent in the American Colonies, where a similar difficulty appears to have existed, and to have been obviated in a similar mode."  Judges to Colonial Secretary, 18 May 1833, Chief Justice's Letter Book, 1824 - 1835, State Records of New South Wales, 4/6651, p. 331.

For the background to the establishment of this court, see A. Castles, An Australian Legal History, Law Book Co., Sydney, 1982, pp 215-216.  The founding statute was (1833) 4 Wm 4  No. 9 (New South Wales), later incorporated in the Crown Lands (Claims) Act, (1835) 4 Wm 4 No. 21, when the court was established on a more permanent basis.  The court became known as the Court of Claims.  It consisted of three commissioners, and was established to advise the governor on the validity of individual claims to Crown land.  On the receipt of the commissioners' advice, the governor could, at his discretion, issue a new grant.  This system was established in response to the informality under which many people held title to land, due to the haphazard way in which Crown grants were sometimes made.  See, for example, R. v. Cooper, 1825.

The court first sat on 10 April 1834 (Australian, 11 and 14 April 1834).  The Australian disliked the new court, which it called the Humbug Court (11 July 1834, and see its issues of 14 April, 9 May, 20 June, 11 and 25 July 1834).

By (1833) 4 Wm 4 No. 10, the governor was also authorised to appoint Commissioners of Crown Lands to oversee the crown lands of the colony.

Published by the Division of Law, Macquarie University