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

Doe dem. Byrne v. O'Dwyer [1841] NSWSupC 95

ejectment - Court of Claims - Appin - land law, informal title

Supreme Court of New South Wales

October 1841

Source: Sydney Herald, 28 October 1841

This was an action of Ejectment.

            THE SOLICITOR GENERAL, with whom was Mr. Windeyer, were for the lessor of the plaintiff, and Mr. Foster appeared for the defendant. Mr. Windeyer opened the pleadings, the Solicitor-General stated the case. It appeared that the land in question, had been originally granted to one John Dwyer; and the present defendant, bearing the same name, but not being the real grantee of the land, had succeeded (by a deception committed on the Commissioners of the Court of Claims) in getting a grant made out in his favour and had therefore gone to the land, succeeded in getting possession, and ever since had refused to give up the property.

            Mr. Thurlow - (for the lessor of the plaintiff) produced a conveyance from the genuine O'Dwyer, to Byrne the lessor of the plaintiff, the execution of which deed was proved by the witness and Mr. Roger Murphy.

            Mr. Simpson examined by Mr. Windeyer. Was a farmer at Campbelltown.Knew the O'Dwyer at Appin, (the defendant). Was once engaged in an expedition with a party of the name of O'Dwyer; this was not the O'Dwyer of Appin. The age of the one who went the expedition, was (in the year 1817) about twenty. He was a much younger man than the defendant. A grant of fifty acres was made to him, (witness,) for his services in the expedition; and he believed the same reward was given to O'Dwyer.

            Mr. John Byrne, the son of the plaintiff, saw the deed of O'Dwyer, to his (witness's) father, executed. This was by the O'Dwyer, who went on the expedition. In the year 1820, this O'Dwyer might be about 20 years of age. Some other witnesses were examined on the part of this plaintiff, to establish the identity of the party, who executed the conveyance to Byrne, with the O'Dwyer to whom the grant was made; and Mr. Norton the solicitor was called to speak to the handwriting of O'Dwyer, the grantee, which appeared on a ticket containing a memorandum of the grant given from the Surveyor General's office, and called a soldier's chit.

            Mr. Macpherson, a clerk in the Colonial Secretary's Office, was called by the Solicitor General, and produced a book containing a promise of a grant to O'Dwyerof Appin. The evidence was rejected, it being decided by the Court, that the original ought to be put in.

            Mr. Thomson called by Mr. Windeyer. Produced a map of Appin. In that map there were two distinct grants of fifty acres each, to a John Dwyer could not say that the grants did not both belong to the same person. That was the Plaintiff's case.

            Mr. Foster for the defendant contended that the Plaintiffs had not made out a case, and his Honour being of that opinion, the plaintiff was nonsuited. Attorney for the plaintiff, Norton - for the defendant, R. J. Want.

Published by the Division of Law, Macquarie University