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

Greece v. Bullivant [1838] NSWSupC 59

succession, attestation of will - trespass to land - land law, forcible possession - self-defence - tenancy, self-defence

Supreme Court of New South Wales

Dowling C.J., 19 June 1838

Source: Sydney Herald, 21 June, 1838[ 1]

Greece v. Bullivant and another. - This was an action of trespass, damages laid at £500. The defendants, a publican, residing on Church hill, and a bailiff, went to the house occupied by the plaintiff and forced their way in, pretending they came for a week's rent; but, instead of producing a warrant of distress, or proceeding to take an inventory  in the usual manner, the bailiff said that he only wanted to get Greece out of possession.  The defendants acted in a very violent manner, by breaking the windows, tearing down the shutters, and putting the furniture outside of the house.  In defence, it was contended that the cottage had been devised to Mr. Bullivant by the late Mr. Ikin, and Mr. D. Chambers was put into the box to prove the Will. Mr. C. stated, that in consequence of a message delivered to him by a daughter of Ikin's, he went to Ikin's house, and found him in bed, "as sober as he could be," and received instructions from him respecting his Will, in one clause of which he devised the cottage in question to Bullivant; he went down two or three days afterwards with the Will, and found Ikin tipsy, but competent to execute a Will, and as he was afraid he would die he had it executed.  Afterwards, Mr Chambers discovered that the Will had not been drawn up exactly according to the instructions he had received, and as he was afraid that the first Will might be impeached he had a second Will drawn up, which was executed when Ikin was sober.  His Honor told the Jury that the plaintiff, being in quiet and peaceable possession of the premises, and having been trespassed upon by the defendants, was entitled to a verdict.  His Honor said, he very much regretted that an attorney, especially one who has always borne the character that Mr. Chambers has, should have suffered any one to sign a Will in a state of tipsiness. Verdict for the plaintiff, damages £50.

 

Notes

[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 151, State Records of New South Wales, 2/3336, p. 41; Sydney Gazette, 23 June 1838; and see R. v. Chambers, 1838 for the dramatic litigation which followed this case.

Published by the Division of Law, Macquarie University