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

Frewin v. Kinghorne and another [1837] NSWSupC 70

trespass, bushrangers, squatter, title of - land law, title to squatter's run

Supreme Court of New South Wales

Burton J., 10 October 1837

Source: Sydney Herald, 12 October 1837[1 ]

Frewin v. Kinghorne and another. - This was an action of trespass, brought to recover compensation from the defendants for breaking into and setting fire to the plaintiff's house, and carrying away his goods.  The facts of the case appeared to be as follows: the plaintiff, who is a shoemaker, had squatted on a piece of Government ground joining Mr. Kinghorne's land, about sixteen miles from Bathurst.  Mr. Rankin having obtained the contract for supplying road parties with rations, entered into an agreement with the plaintiff to act as carrier for twelve months; as this would cause the plaintiff to be absent from home for some time, he hired a man named Monaghan to take care of his farm while he was away.  During one of Frewin's journeys, his wife was ravished, and on her way up to Sydney to give evidence she was killed, whether accidentally or not has never been satisfactorily ascertained.  Frewin's house thus became in the entire charge of Monaghan, who was suspected to harbour bushrangers, and a search warrant being granted, some stolen property was found in it, and Monaghan was taken into custody, and subsequently transported.  On the occasion of the house being searched, Mr. Kinghorne, accompanied by Mr. Lambert, the other defendant, and a Mr. Campbell, went to the house, and as soon as Monaghan was removed, Mr. Kinghorne had all the things that were left in the house put on a dray, and filling the chimney with firewood, set fire to it, and burned the house down.

The defence was, that the ground on which the house was built belonged to the defendant's father, and was a perfect receptacle for disorderly characters; that the things were taken away by Mr. Kinghorne for safety, and that the burning of the house was accidental.

His Honor told the Jury, that as the defendants had not entered a plea of justification on the record if they believed that the defendants had either burned down the plaintiff's house or removed his goods, they must find a verdict for the plaintiff.  No proof having been given as to whom the ground belonged, they must suppose it to belong to the  owner of the house; but even if the plaintiff was a squatter, he certainly, while in possession, had a good title against any one but the owner of the soil.  The plaintiff certainly came before them as a man of good character, for if he were in any way connected with Monaghan, he was easily to be found and could have been punished; and if he had made himself obnoxious to his neighbours, there were lawful ways of removing him.  The defendants, the Jury would bear in mind did not appear to have acted with malice, but only under a mistaken notion.  Verdict for the plaintiff, damages, £100.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, Mr. a'Beckett.

Notes

[ 1] See also Sydney Gazette, 12 October 1837; Australian, 13 October 1837.

Published by the Division of Law, Macquarie University