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

Harper v. Payne [1841] NSWSupC 61

trespass quare clausum fregit - civil procedure

Supreme Court of New South Wales

Stephen J., June 1841

Source: Sydney Herald, 2 June 1841

Henry Harper v. George Payne.

            This was an action for trespass quare clausum fregit; the defendant pleaded the general issue and a public right of way.

            Mr. Darvall opened the pleadings.

            Mr. Windeyer stated the case, and said that he would endeavour to shorten the labors of the jury as much as he possibly could; the plaintiff's case which he should prove was that the defendant who had been indulged in some instances by the plaintiff having been restricted in some one of those indulgences became extremly violent and being a most passionate man trespassed upon the plaintiff's farm at Mount Rose and committed the injuries for which this action was brought and threatened many more.

            Thomas Norton, overseer of the plaintiff - lived at plainliff's farm at Rosemount, near Campbelltown, in 1840; saw the defendant often in December last with dogs and horses going through the plaintiff's rye and wheat, which was then ripe; he left he fence-rails down through which the neighbours' cattle entered and trespassed upon the plaintiff's land, and on the 12th December the defendant attempted to cut down the rails of one of the plaintiff's fences.

            Cross-examined by Mr. Foster - I have been only on the farm since September last; when I went to the farm first the rails were slip-rails, but I fastened them up by the plaintiff's order.

            By the Judge - There is fifty acres in the paddock; the defendant coming from Campbelltown or from Sydney need not go through the slip-panels, but coming from his own house he should go through them; there is a thoroughfare for people who were well-behaved through the plaintiff's paddock.

            John Butler, clerk to the plaintiff - I saw the defendant with three men on the 12th of December on the plaintiff's farm sawing one of the fences, and compelled them to desist; the defendant threatened that he would do it again; the farm is called either Rose Mount or Mount Rose, in the county of Cumberland.

            Cross-examined by Mr. Broadhurst - There was a slip-panel to the fence when I first went to the farm.

            Re-examined - Two years ago, when the plaintiff went to the farm first, it was a common; the plaintiff just fenced it in.

            John Wagstaff, assigned servant to the plaintiff; corroborated the other witnesses as to the conduct of the defendant in breaking into the defendant's paddock; the defendant did about £20 damages. With this evidence the plaintiff closed the case.

            Mr. Foster applied for a non suit on the ground of a variance in the name of the close.

            Mr. Windeyer applied for liberty to amend if necessary.

            Mr. Justice Stephen - I think there is evidence to go to the jury, and therefore I will not non-suit the plaintiff or compel him to amend.

            Mr. Foster then addressed the jury for the defendant, and contended that even on the plaintiff's evidence they should be satisfied that the close in question was called Mount Rose, upon which point the plaintiff had given them no satisfactory evidence; but, besides this, the plaintiff had proved that there was a thorough-fare through the farm; and the defendant would therefore leave the case to the jury, even upon the plaintiff's evidence alone.

            Mr. Justice Stephen said, that he was of opinion that the defendant upon the pleadings was entitled to a verdict, if the jury believed that there was a highway, or thoroughfare through Mount Rose Farm, and that the plaintiff ought to have new assigned.

            Mr. Windeyer and Mr. Darvall then submitted that according to Rule 51, p. g., [?]4, of the New Rules of Court, the defendant could not take advantage of the oversight, because he had neglected to attach a map of the close to his plea.

            Mr. Foster and Mr. Broadhurst contended that this was a mere irregularity which could not benefit the plaintiff now, and that he ought to have taken out a summons in the usual course, instead of lying by till the trial of the cause.

            Mr. Justice Stephen held that by replying to the plea, the plaintiff had waved the irregularity, and he then directed the jury that if they believed that there is a highway through any part of the close in question, they should find a verdict for the defendant, however, they might regret that the rights of the parties should be decided in this way, by the necessary subtleties of special pleading, which, after all, when properly attended to were best calculated to administer justice; but otherwise they should find a verdict for the plaintiff.

            The Jury then found a general verdict for the plaintiff, damages £10.

Stephen J., 23 June 1841

Source: Sydney Gazette, 26 June 1841

            George Payne v. Henry Harper

            This was an action on the case for the obstruction of a road leading from the main Campbelltown and Liverpool road, and dividing Fletcher and Mortimer's grants near Campbelltown.

After having examined a number of witnesses in support of his case, the plaintiff was nonsuited by the learned Judge, on the ground of a failure in the proof of the obstructions being caused by the defendant, or by his authority.

The Solicitor-General, Mr. Manning, and Mr. Broadhurst for the plaintiff; Mr. Foster, Mr. Windeyer, and Mr. Darvall for the defendant.

Published by the Division of Law, Macquarie University