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

Jones v. Moore [1837] NSWSupC 19

succession, trusts, damages, appeal against jury's assessment of, covenant, breach of

Supreme Court of New South Wales

Burton J., 20 March 1837

Source: Sydney Herald, 23 March, 1837[ 1]

Monday, March 20th - Before Mr. Justice Burton and a Special Jury.

Jones and another v. Moore - The plaintiffs in this case were R. Jones, Esq., and James Norton, Esq., executors of the late Alexander Riley, Esq , and the defendant, Thomas Moore, Esq., J. P., Liverpool.  This was an action for breach of convenant, damages laid at £10,000, brought under the following circumstances:-

In the year 1806 Mr. Thomas Rowley, who was possessed among other property, of seven was possessed among other property, of seven hundred and fifty acres of land at Burwood, died, leaving Major Johnstone and Dr. Harris his executors.  Both these gentlemen left the Colony in the year 1808, without having nominated any person to act as executor in their place, so that the children of the deceased Mr. Rowley, were left without any guardian; upon the petition of Elizabeth Selwyn, who was joint legatee with Rowley's children.  Governor Macquarie appointed the present defendant, Mr. Moore, to act as sole guardian of the children, and trustee of the property, with a reservation however, that he should not alienate any landed property.  The defendant not having sufficient funds in hand to pay Rowley's outstanding debts, presented a petition to the Judge advocate's Court, in 1812 (then the only Court of civil Judicature in the Colony), praying to be allowed to sell the Burwood estate for that purpose, and leave being granted, the estate was sole by auction in the latter end of the year to Mr. Riley for £520.  At this time the only legal practitioner in the Colony was a Mr. George Crossley, who had been sent here for perjury, and he was employed to draw up a conveyance of the Burwood estate from Moore to Riley, and into which conveyance a clause was introduced, whereby Mr. Moore guaranteed the possession to Riley, notwithstanding any claim that might be made by Rowley's executors or devisees.  Mr. Riley took possession of the property, and remained quiet for eighteen years, when an action of ejectment was brought against him by Thomas Rowley and other children of the deceased Mr. Rowley, to eject Mr. Riley form the property.  The suit was in the Court for two years, when a special case was drawn up for the opinion of the three Judges, and, in the month of October, 1832, their Honors gave a verdict for the plaintiff, and Riley was accordingly ousted from his possession.  In 1833, Mr. Riley died in London, and the present plaintiffs were appointed his executors.  The present action was brought to recover the value of the Burwood estate at the time Riley was ejected by Rowley's children, and the law expenses attending the different actions which had been brought against him.  The defence set up was, that the indemnifying clause was fraudulently inserted by Crossley, who was Riley's attorney, and who informed the defendant that it was merely a common and usual clause, and that he ran no risk in signing it.  There were a great many witnesses examined, but the above are the whole of the principal facts of the case.  Verdict for the plaintiffs, Damages £5 391 2s. 6d.

Counsel for the plaintiff, Mr. S. Stephen, Mr. Kerr, and Mr. Windeyer; for the defendant, the Attorney-General and Mr. Foster.


Dowling A.C.J., and Burton and Kinchela JJ,, 29 March 1837

Source: Sydney Herald, 30 March 1837[ 2]

Jones and another v. Moore. - This was an action of breach of covenant, tried before Mr. Justice Burton and a Special Jury, when a verdict was returned for the plaintiff, damages £5,391.  A new trial was now moved for on three grounds - firstly that the damages were excessive; secondly, that there was not proof that Riley had been evicted from the estate; and thirdly, that there was no proof that Riley was alive at the time he was so evicted.

After hearing the arguments of the Attorney-General and Mr. Foster, in support of the motion, and Messrs. Stephen, Kerr, and Windeyer, on the other side, the Court suggested that it should be left to the Judges, to reduce the damages to what they thought a proper sum, or else a new trial must be granted on the first and third grounds.

Mr. S. Stephen said they were willing the damages should be reduced to £3,500, but on Mr. Justice Burton saying that he thought the damages ought to be reduced to £2,536, the plaintiffs declined taking that amount, and a new trial was ordered.


Dowling A.C.J., and Burton and Kinchela JJ, 31 March 1837

Source: Sydney Herald, 3 April 1837

Jones and another v. Moore - Mr. Kerr informed the Court that he had been instructed by the plaintiffs to consent that the verdict of £5,391 should be reduced to £2,536, in accordance with the suggestion of the Court, and also that the bill in equity which had been filed in the case, be dismissed with costs.


[1 ] See also Sydney Gazette, 23 March 1837.

On the complications following the death of Thomas Rowley, see also Jones v. Moore, 1836.

[2 ] See also Sydney Gazette, 1 April 1837; Australian, 4 April 1837.

Published by the Division of Law, Macquarie University