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

Doe dem. O'Connell v. Pye [1839] NSWSupC 49

ejectment - Bligh, Governor, estate of - land law, title - tenancy, notice to quit

Supreme Court of New South Wales

Dowling C.J.,  10 July 1839

Source: Sydney Herald, 12 July 1839 [1]

Doe dem. O'Connell and others v. Pye. -- This was an action of ejectment, brought by the daughters of the late Admiral Bligh and their husbands, to recover possession of a certain portion of land at Parramatta.

In support of the plaintiffs' claim, a grant, under the seal of the Colony, dated August 10th, 1806, from Governor King to William Bligh, Esq., of one hundred and five acres of land at Parramatta, was put in.  Captain Wilson proved that he had examined the land contained in the grant, and that Pye's house was within the boundary lines; so are the King's School and the Female Factory.  Mr. Campbell M. C. and Mr. John Campbell, proved that the late Admiral Bligh, who died in 1816; had six daughters, Harriet, the wife of Mr. H. A. Barke[r]; Mary, now Lady O'Connell; Mrs. Elizabeth Bligh, now a widow; and Miss Jane, Miss Frances, and Miss Ann Bligh, in whose names the action was brought.  Mr. Campbell saw Admiral Bligh in England in the year 1814, and saw his death in the newspapers in 1816.  He was certain none of the family have been in the Colony since 1815, until lately.  Captain O'Connell, the son of Sir Maurice and Lady O'Connell, was in Ceylon when he heard of his grandfather's death: he was in England from 1819, and always heard that he was dead.  The grant described certain portions of the land as being held under lease by two persons named Caley and Eccles, and Mr. J. Raymond, from the Colonial Secretary's Office, was called to produce the records of the leases to these parties; he stated that he had been desired by Sir George Gipps to tender to the Court certain correspondence which had taken place respecting the grant to Admiral Bligh, but both parties appeared to be afraid of it, and therefore it was not produced.

Several technical objections were taken for the defendant, which were over-ruled by the Court.

Mr. a'Beckett briefly addressed the Jury for the defendant, pointing out to them that notwithstanding the ruling of the Judge, if they believed that there was not sufficient proof of the death of Admiral Bligh, or of the gentleman who married Miss Elizabeth Bligh, they must find a verdict for the defendant.  He also drew the attention of the Jury to the fact that the plaintiffs had permitted the claim to lie by so long, when, although they were not present, they must have known from their agents what improvements were taking place upon the land.

The Chief Justice said that the plaintiffs had made out a prima facie title to the land; and as the defendant had not attempted to shew any claim, the questions for the Jury to determine were simply whether Admiral Bligh, in whose name the original grant was made, was dead -- whether the plaintiffs were his heirs -- and whether Mr. Bligh, who married Miss Elizabeth Bligh, was dead.  The Jury found a verdict for the plaintiff -- damages, one shilling.

Counsel for the plaintiffs, Messrs. Foster, Windeyer, and Raymond; for the defendant, Messrs, a'Beckett and Broadhurst.

 

Notes

[1] See also O'Connell v. Bell, 1839.  For another ejectment case in which it was held that a tenant at will is entitled to a notice to quit, see Doe dem. Shields v. Hancock, Sydney Gazette, 2 March 1839.

Published by the Division of Law, Macquarie University