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

Thompson v Leburn [1835] NSWSupC 78

tenancy, oral - conveyancing, informal - perjury - conveyancers, unlicensed

Supreme Court of New South Wales

Forbes C.J., 29 September 1835

Source: Sydney Gazette, 1 October 1835[1 ]

Thompson v. Leburn.  This was an action brought by the plaintiff, Mr. Jas. Thompson, against the defendant, Mr. Joseph Leburn, to recover the sum of £44 for use and occupation of certain premises situate in Cumberland-street, tenanted from the plaintiff to the defendant.

Mr. Foster stated the case for the plaintiff.  It appeared that the wife of the plaintiff having some time in the month of May, 1834, casually gone into the defendant's public house, called theSheer Hulk, situate in George-street mentioned in the course of conversation, that she was about to let her public house the Coach and Horses, situate in Cumberland-street, upon which the defendant's wife immediately observed, ``do not let it to any one else, for I will take it."  Upon this a verbal bargain was made between the parties to the effect, that possession of theCoach and Horses should be given to the defendant on the 1st day of July afterwards, at the rate of £2 15s. per week, it being understood, according to the statement of seemingly unbiassed [sic] witnesses, although it could not be proved to have been expressly stated, that the term of demise was one year.  The defendant afterwards on this bargain entered into by his wife, took possession of the Coach and Horses at the appointed time, having made the usual previous application for a victualler's annual license for that house, commencing from the 1st of July, 1834.  On his entering the house, the plaintiff tendered him a written agreement for signature, binding him as a tenant for one year, which the defendant refused to sign, alleging that he had come from a good home to a strange place, and it was not likely he should stop in it unless it suited him.  He alleged that his agreement was as a weekly tenant, and that if the house suited him, he would remain in it; if not, he would leave it.  Upon this a dispute arose between the parties and the plaintiff went away in a great passion - the agreement, however, was not signed, nor did the defendant leave the premises, as some of the witnesses stated he said he would do, if he were not allowed to continue merely as a weekly tenant.  The defendant continued in occupation for some time, when not liking the premises, he under-let them to a person named McLeish, at the same rent, (a most extraordinary course in him surely, if the statement of his witnesses be the truth), who also disliking the premises, at the expiration of a few months, surrendered them up to the tenant in chief.  Upon this a fresh negociation was opened by the defendant, through the medium of Mr. John Raine, (a more than half-lawyer, as Mr. Foster termed him, who practices as a sort of notary public) with a person named Crawley, for the tenantcy of the same premises; and Mr. Raine, for the defendant, called upon the plaintiff to propose a reduction of five shillings per week in the rent, which he stated was agreed to by the plaintiff.  Crawley, however, required a further abatement of rent, and the consequence was that the negociation miscarried.  Mr. Raine having learnt, in the course of conversation with the plaintiff, that he held no written agreement binding the defendant as an annual tenant, thought he could relieve the defendant from any further responsibility to the plaintiff; and accordingly, as thelaw adviser of the former, he gave the letter written notice on the 10th of February, 1835, that he should quit the Coach and Horses on that day month, which he did, paying the plaintiff all arrears of rent up to the 10th March, and taking his receipt.  Upon tendering the key of the premises however, the plaintiff refused to accept it, and it was bandied about from one to another in the street until lost altogether.  The premises then remained untenanted until the 1st July last, when they were re-entered upon by the plaintiff.  The present action was brought to recover the amount of 16 weeks' rent, namely from the 11th March, to the 30th June, 1835, at 2l. 5s. per week, amounting to 44l.  Certain documentary evidence was also put in one the part of the plaintiff - namely the defendants application to the magistrates for an annual license for theCoach and Horses in Cumberland-street, for the period commencing 1st July, 1835; and also the customary recognizance entered into by the defendant to that effect; in order to establish a strong presumptive proof that the tenanty [sic] was for one year; but Mr. Wentworth for the defendant, in a speech of great length and ingenuity contended, that the presumption was equally in his client's favor, inasmuch as the local enactment authorised not only a quarterly transfer of license from party to party; but also upon forty-eight hours' notice, a removal of the same from house to house.  But the most unsatisfactory part of the case, was the very conflicting nature of the verbal testimony adduced on both sides, leaving not the slightest doubt but that the grossest perjury must have been committed on the one side, or on the other.  The witnesses for the plaintiff swore positively that the reason given by the defendant for not signing the agreement was merely that he objected to the presence of a person named Brown, who the plaintiff had purposely brought to witness the execution of the document.  The witnesses for the defendant on the contrary swore that Mr. Leburn at once objected to being anything else than a mere weekly tenant, and that he threatened to take his things away again out of the house, unless he were considered in that light.  It was evidently a question as to which side could outswear the other; though in point of number and resoluteness of the witnesses, the plaintiff was completely sworn out of court.  An attempt was made to prove the plaintiff had tampered with one of the defendant's witnesses, but proof of that entirely failed.  The Learned Judge, in a most elaborate and impartial summing up, put the case to the Assessors as a question entirely of evidence, on which conclusions were to be drawn in equal ratio upon both sides of the question before them.  His Honor regretted the loose nature of the testimony adduced on the part of the plaintiff, which left the presumption equally strong against as for his suit.  The documentary evidence also which had been put in, was quite as vague and unsatisfactory - the conclusions to be drawn from it would operate as much for the defendant, as for the plaintiff; but it was for the Assessors to say, after maturely weighing the evidence on both sides, and after deliberately considering the opposite conclusions to be deduced from the documents before them, to which side their credence and their judgment inclined.  The Assessors returned a Verdict for the Defendant.

[We cannot too deeply deplore the general demoralized state of the community in which we live.  This case affords a lamentable proof of the wholesale system of perjury which every day infests our Courts of Justice.  To which side soever the truth may incline in this case, a frightful account of false swearing is presented on the opposite one.  The crime of perjury is justly ranked in our code of laws as the most infamous in its nature, inasmuch as it goes to sap the very foundation of justice, and to destroy that lawful restriction which the infirmities of the human race render it necessary for man to exercise over his fellow man.  But if perjury itself be a crime of such infamous turpitude, so demoralizing in its nature, and so pernicious in its consequences, what shall be said of ``subornation of perjury" - the still greater heinousness of hiring or procuring another ``to bear false witness against his neighbour;" and to give instruction to him, how his false testimony may be successfully made to resemble its opposite - sworn truth?  In ordinary occurrences of civilized life, how frequently do we see men of intelligence, on whom the imputation of falsehood cannot rest, differ most materially in a simple relation of facts fresh in their recollection, and particularly drawn to their attention: yet with an avowed in distinct remembrance of past transactions of months, nay years - do we see others daily mount the witness box, and swear positively to circumstances alone which bear upon the question at issue, forgetting all other contingent transactions, while in the same breath they admit that their attention at the time of the occurrence was not particularly called to either.  And in some instances, as was the case in the trial above narrated, with all these disadvantages of irrecollection, do a succession of witnesses not only swear most positively to the same story, but in the same precise form of words.  The circumstance tends to shew how baneful to the interests of society is the drilling or instructing of an intended witness.  Against all such instructors the penal visitations of ``subornation of perjury" cannot be too severe.]

 

Notes

[ 1] See also Australian, 2 October 1835; Sydney Herald, 5 October 1835.

On 5 October 1835, Burton J. told the Solicitor General in court that deeds and conveyances were being prepared by persons who were not attorneys of the Supreme Court, and otherwise incompetent.  This practice was contrary to the law of England, and calculated to do general mischief.  He therefore requested the Solicitor General to prepare a bill to be submitted to the Legislative Council to remedy this evil.  The Solicitor General replied that he had been unaware of it until that morning, when he found that 20 deeds had been registered in one month by a person unconnected with the profession.  Source: Australian, 9 October 1835.

Published by the Division of Law, Macquarie University