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

Sparke v. Weller, 1837

injunction - ejectment - Court of Claims

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 6 October 1837

Source: Sydney Herald, 9 October 1837[ 1]

Sparke v. Weller. - This was an argument on a demurrer to an injunction obtained to restrain the proceedings in the case of Weller v. Sparke, an action of ejectment.  It appeared that the original holder of the land sold it to two persons, but in consequence of the neglect of Mr. Sparke's agent, Weller obtained a decision of the Court of Claims in his favor, and the Governor, acting on the recommendation of the Court, issued a deed of grant.   An action of ejectment was commenced by Weller, and on producing the deed, a verdict went in his favor.  An application was then made to the Equity side of the Court to restrain the proceedings; to this application a technical objection was made which now came on for argument.  After hearing counsel, the Court without giving any opinion on the case said, they would hear the merits of the case on Friday.

 

Dowling A.C.J., and Burton and Kinchela JJ, 21 October 1837

Source: Sydney Herald, 26 October 1837[2 ]

 

Sparke v. Weller. - The Acting Chief Justice delivered the judgment of the Court in this case, which was that the injunction restraining the defendant from taking possession of the land, must stand until cause is shewn, and that the defendant's plea and demurrer were both overruled.

 

Notes

[1 ] See also Sydney Gazette, 10 October 1837; and see Dowling, Proceedings of the Supreme Court, Vol. 142, State Records of New South Wales, 2/3327, p. 97.

For the ejectment proceedings between the parties, see Sydney Gazette, 14 March 1837; Sydney Herald, 16 March 1837: verdict for plaintiff, damages one shilling.  See also Sydney Herald, 27 March 1837 for the grant of the injunction restraining Weller from taking out a Writ of Possession for property at Maitland.  See also Australian, 3 October 1837, for further preliminary proceedings.

For a summary of Court of Claims cases in 1838, see Australian, 3 April 1838, taken from Govt Gazette 28 March 1838; also Australian, 17 April 1838.

[ 2] See also Sydney Gazette, 24 October 1837.  For a brief note of the proceedings on 20 October 1837, see Sydney Gazette, 24 October 1837.

Published by the Division of Law, Macquarie University