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

Piper v. Beattie [1837] NSWSupC 67

land law, title - Court of Claims - restitution - assumpsit - infancy - death, presumption of

Supreme Court of New South Wales

Dowling A.C.J., 25 September 1837

Source: Sydney Herald, 28 September 1837[1 ]

Piper v. Beattie. - This was an action of assumpsit, brought to recover compensation for the use and occupation of premises, and for money received by the defendant for the plaintiff's use.  The defendant, who holds a situation in the Commissariat, came into possession of some premises in Kent-street, belonging to a person named Piper, who left the Colony in the year 1818, as carpenter of the ship David Shaw, and with the exception of a letter received six months afterwards from him at the Cape of Good Hope, he had not been heard of since.  The wife of this person with her infant son (the present plaintiff), went to Van Diemen's Land shortly afterwards, leaving the premises in the possession of Mrs. Dulcabella Wood, the mother of Piper, and Beatie's wife, and at her death they came into the possession of the defendant, and remained so until within a few months since, when young Piper arrived in the Colony and obtained a report from the Commissioner's Court in his favor.  Several witnesses were called, who proved that the defendant had received rent for the premises at different times at the rate of about seven shillings per week.  For the defence, a document releasing the defendant from all liability for rent for these premises, which was signed by the plaintiff before he was of age, was put in.  The Judge held that as the document was executed before the plaintiff was of age, and was merely intended to remove a temporary obstruction, it should not weigh with the Assessors, and told them that plaintiff as heir-at-law was entitled to claim under his father, so soon as he had been absent from the Colony seven years; as the law, if a person has not been heard of for seven years, presumes that he is dead.  Verdict for the plaintiff, damages £150.

Counsel for the plaintiff, Messrs. Foster and Windeyer; for the defendant, Mr. Stephen.

 

Dowling A.C.J., and Burton and Kinchela JJ, 7 October 1837

Source: Australian, 13 October 1837[2 ]

SATURDAY. - (Sitting in Banco.)  Before the three judges.

Piper v. Beattie. - This was a motion for a new trial, on the grounds of, first, that the verdict was contrary to evidence; and secondly, that the learned Judge misdirected the Assessors upon the trial.  The Acting Chief Justice read over his notes of evidence.  This was an action of assumpsit, for use and occupation of a house and premises in Kent-street, and for money had and received for Plaintiff's benefit.  In 1812, the Plaintiff's benefit.  In 1812, the Plaintiff's father was in possession of a piece of ground in Kent-street, on which he subsequently built a house.  In 1814, he inter-married with Mary Hogan at St. Phillip's Church, Sydney, and on the 30th august 1816, his heir-at-law, the present plaintiff was born.  In May, 1818, the plaintiff left the Colony for England, in the ship David Shaw, in consequence of some domestic disagreement, leaving his wife and child in possession of the house in question, which he himself had inhabited until his departure from the Colony.  The mother of the plaintiff received a letter from her husband in about six months after he had sailed, dated from the Cape of Good Hope, and this was the last time she had received information of his being alive.  In the same year Mrs. Piper and her son went to reside at Van Diemen's Land, where they had ever since remained until a few months since.  At her departure from Sydney, Mrs Piper left the house ad premises in possession of Mrs Dulcibella Wood, the mother of the plaintiff's father, who since her former husband's death, had inter-married with one Wood.  The defendant Beattie, had inter-married with a  daughter of Mrs. Wood, and in that capacity had collected the rents and proceeds of the house and premises in question for several years.  In the commencement of the present year, Mr Beattie went before the Court of Commissioners for claims to grants of land to obtain a grant for this land, stating that he acted as trustee and agent for the present plaintiff, who was supposed to have been killed by a mad bullock, but that he held himself to be accountable to the plaintiff for the rents and profits of the premises, should he be forthcoming.  In consequence of this statement, the Commissioners caused a notification of the circumstance to be made in the Van Diemen's Land newspapers, which meeting the eye of the plaintiff, he came to Sydney, to assert his right to the property.  The plaintiff took possession of the premises, without bringing an action of ejectment, and being desirous of disposing of the property, put it up to public sale, which sale the defendant forbade on the ground of illegality.  The defendant subsequently prevailed upon the plaintiff to accept £60 in compensation for his claim, and an instrument was accordingly prepared and executed to that effect by the plaintiff on the 22nd of May last, who was a marksman and a minor at the time, no attorney being present at the execution, and the deed being without seal.  The learned Judge told the assessors that the law assumed the Judge told the assessors that the law assumed the plaintiff's father to be dead, in seven years after the period of his having been last heard of as being alive, and that therefore the plaintiff's right of inheritance commenced in 1825.  That the plaintiff having executed the instrument relied upon in bar to the action, when he was a minor, in point of law he was not bound by it.  The assessors found a verdict for the plaintiff, damages £150.  Mr Sydney Stephen, on the part of the defendant urged that the plaintiff had not made out a legal title to the premises, and that he was therefore not in a condition to sue - he pressed this upon the Court, because there was no proof of it being freehold property, and that consequently the plaintiff could not be assumed to be seized in fee.  The Court overruled the objections without calling upon Mr. Foster to reply, their Honors being of opinion that the plaintiff having admitted to have derived the property from his ancestor, had proved all that he was bound to prove.  The Acting Chief Justice remarked that there was no great hardship in this case - that it had been entirely owing to the humane suggestions of the Commissioners, that the plaintiff was made acquainted with his claim, and that the defendant, as uncle, had been at no pains whatever to discover his nephew.  Motion for new trial refused.

Notes

[ 1] See also Sydney Gazette, 26 September 1837; and see Dowling, Proceedings of the Supreme Court, Vol. 142, State Records of New South Wales, 2/3327, p. 5, noting that the premises were at the corner of Kent and Erskine Streets, Sydney.

[2 ] See also Sydney Gazette, 10 October 1837; Sydney Herald, 9 October 1837.

Published by the Division of Law, Macquarie University