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

Doe dem. Howarth and others v. Elder and others [1837] NSWSupC 35

ejectment - land law, title by prescription - land law, rights of Crown

Supreme Court of New South Wales

Dowling A.C.J., 5 June 1837

Source: Sydney Herald, 8 June 1837[1 ]

Doe dem. Howarth & ors. v. Elder & ors. - This was an action of ejectment, brought to recover possession of a piece of land situated in Phillip-street, Parramatta.  The plaintiff proved a lease for twenty-one years from Sir Thomas Brisbane, dated in 1823, in favor of the plaintiff.  The Attorney-General, for the defendant, contended that the defendant was in possession for many years before the lease was granted, and had been in possession for upwards of twenty years.  The facts were admitted by Foster, for plaintiff, who contended that unless he had been in possession for sixty years before the date of the lease, there was no bar to the right of the Crown to give possession.

Witnesses were then called, who proved that thirty years ago the land was in the possession of a man named Standford, and was by him given to one Matthews, who sold it to the defendant, and that plaintiff knew nothing about the deed being in his favor until he accidentally found it a few months ago in the Surveyor's Office.

His Honor held there was no defence in law, and the Assessors returned a verdict for the plaintiff.

Counsel for the plaintiff, Mr. Foster; for the defendant, the Attorney-General.


Dowling A.C.J., and Burton and Kinchela JJ, 24 June 1837

Source: Australian, 30 June 1837[ 2]


Doe dem. Howarth v. Elder. - This was a motion for a new trial in an action of ejectment, on which a verdict had been obtained during the present term, on the ground of no proof of identity having been given in evidence of the lessor of the plaintiff.  The Acting Chief Justice (Dowling) read over his notes of the evidence.  The circumstances of the case were these:-- An old man named Stamford had, between twenty and thirty years ago, squatted on a piece of ground in the township of Parramatta, and erected a tenement upon it.  At his death one of his lodgers, named Tully Matthews, who had taken care of Stamford in his old age and last moments entered into possession, and after he had held it for fourteen or fifteen years disposed of the premises by public auction to Mr. James Elder, who died about twelve months since, and whose widow is the defendant in the present action.  The lessor of the plaintiff, Isaac Howarth, claimed by virtue of a lease for twenty-one years, dated 30th June, 1823, under the hand of His Excellency Major-General Sir Thomas Brisbane, K.C.B., Governor of the Colony, and the Seal of the Territory - that being the first acknowledged deed of grant by the Crown of the land in question, the former holders being only squatters without deeds, and it being usual formerly to obtain mere permission from the Government to occupy Crown lands.  Isaac Howarth had been a resident in Parramatta for many years, but had never claimed title to the land in question until very recently, the first demise in the declaration being laid on the 26th January, 1836.  Howarth had been declared insolvent in 1828, and in his schedule on the files of the Supreme Court no mention whatever was made of this allotment of ground: in fact, it was admitted that up to August last Howarth was ignorant that any such grant existed, but having occasion at that time to go to the Surveyor General's office he saw the allotment described in the Parramatta town chart as ``Howarth's Grant," upon which he went to Mr. Hugh Taylor, of Parramatta, and, being a poor man, obtained money from him for the purpose of paying the fees and other charges on the grant, and then secretly, and without at first demanding possession from the defendant, obtained the instrument from the Collector of Internal Revenue's office, and thereupon commenced his action.  The above facts were proved in evidence, and Mr. Hugh Taylor, who had himself resided in Parramatta for about twenty years, deposed that he knew of no other person named Isaac Howarth in the Colony except the lessor of the plaintiff.  This was the only proof offered as to the identity of Isaac Howarth.  No proof was adduced as to any promise of land being made from Sir Thomas Brisbane to the lessor of the plaintiff.  The learned Judge before whom the action was tried left it to the Assessors, as a question of evidence for their consideration, to say whether the lessor of the plaintiff was the Isaac Howarth named in the deed of grant, and the Assessors found a verdict for the plaintiff.  The Attorney-General now moved for a new trial, and addressed the Court at considerable length on the merits of the case.  The learned Advocate also endeavoured to argue that an adverse possession of twenty years and upwards had been proved; but upon that point the court was against him, as the crown had an undoubted right of possession up to the 30th June, 1823, the date of Sir Thomas Brisbane's lease.  Mr. Foster, on the other side contended that the court must assume until the contrary was shewn, that the Collector of Internal Revenue had delivered the lease to the party entitled to it.  If there was any thing applying for them, the defendant should have proved it.  It was his duty to have put Mr. Macpherson into the box, and to have established his case in evidence.  But in the absence of all proof, the court could not assume such to be the fact.  If they did so they must necessarily infer, that the officer entrusted with this particular duty, had been guilty of grossly negligent conduct; an inference which he, the learned gentleman, was sure the court would not make except on unexceptionable testimony.  Then again, if the plaintiff was not the Isaac Howarth described in the deed, why did not the real Isaac Howarth step forward?  The defendant did not derive her title through any Isaac Howarth.  Mr. Foster concluded an able address by stating, that he felt convinced the court would not step out of its way, and come to a decision contrary to law, from any principal of equity, however forcibly impressed on their honor's minds.

The acting Chief Justice said, that primá faciae it was not necessary for the lessor of the plaintiff to establish his identity; but in a case where that identity was shaken to such a degree as existed in the present one, the plaintiff should have produced the best possible evidence as to his identity.  The court was of opinion, under all the circumstances of the case, that a new trial should be granted.

Mr. Justice Burton expressed his assent to a new trial being granted.  His Honor observed, that he should have differed in opinion with the assessors; and have come to the contrary conclusion from the evidence, that the lessor of the plaintiff was not the Isaac Howarth named in the lease.

New trail granted.  Costs of former trial, to abide event of second.


[1 ] See also Australian, 9 June 1837; Dowling, Proceedings of the Supreme Court, Vol. 135, State Records of New South Wales, 2/3319, p. 146.

[2 ] See also Sydney Herald, 26 June 1837.

Published by the Division of Law, Macquarie University