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

Holt v. Hadley (1841) N.S.W. Sel. Cas. (Dowling) 707; [1841] NSWSupC 77

ejectment - Evan - land law, title

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 31 July 1841

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 201 [1]





                                                                     In Banco

                                                              Cor. Dowling CJ.      Saturday

                                                                     Burton J.                        31st July 1841

                                                                    Stephen J.

Ejectment for 80 acres of land in the district of Evan in this Colony & Not Guilty pleaded. At the trial before Stephen J. & two assessors on the 22d March 1841 it appeared in evidence that the lessor of the Plf derived title from one Samuel Foster, who dies in England seised of the premises in July 1819. This action was commenced on the 15th September 1839. in July 1819, the defts father purchased the land in question at auction in Sydney, and under him the deft set up an adverse possession for more than 20 years, and the learned Judge being of opinion that the action was not brought within time, directed a nonsuit. Preparatory to the trial of the cause the Plf had obtained a commission to examine certain witnesses by name in England and all other witnesses whom he might be desirous of examining, touching three points, namely the "due execution, contents, & custody" of [p.202] the will of the testator. It appeared that some of the witnesses had been examined to other matters not within the terms of the commission, and amongst others, as to the lessor of the Plf being the legal representative of the testator, and without whose testimony a link in the chain of his pedigree would have been wanting. Objection was made in the course of the trial, to this infirmity in the Plf's case, but the learned Judge received the evidence and saved the point, directing a nonsuit solely, however, on the ground that the action was not brought in time to save the statute of limitations. A motion was made on the part of the lessor of the Plf to set aside the nonsuit, obtain a new trial on three grounds. 1. That there was evidence to go to the assessors, which the learned Judge ought to have left to them, & the Plf ought not to have been nonsuited. 2. That the nonsuit was mistaken, for the Statute of Limitations, & the facts given in evidence, did not bar the Plf's claim & 3. That the witness who spoke of the time when the sale by auction, to the Deft's father took place, had forgotten the precise day, but that on recollection, he was now enabled to swear that it took place on the 30th July 1819 which was clearly after the death of the Plf's executor.

[p.203]            The principal facts upon which the Plf relied to support his prima facietitle were, that Foster the testator, had prior to 1814 exercised acts of ownership in the land in question called Griffiths farm by granting leases and receiving the rents thereof. One lease granted would not expire until Nov. 1819. In 1814 he left this Colony & lived near Birmingham in Warwickshire being possessed of this & other lands, and of houses in New South Wales. He left two persons named Rose &Charles Hadley in charge of his property, the latter having the management of his land, & the former of his houses. After he left, Hadley received the rents of the land in question & paid them over to Rose. In July 1819, the land in question was sold by auction by one David Bevan, & Charles Hadley became the purchaser & took possession & his sons, the now Deft in possession. It was considered & sold asFosters property & knocked down to Hadley. Rose, who is now deced, was present at the sale, & told the auctioneer that he had Fosters authority to sell and he shewed him a letter. The cattle of Foster after this sale, remained in Hadley's care, & continued to depasture on the land as late as 1828. In March 1819, Foster made his will inEngland devising his lands in New South Wales to two person named Holt & Lowe then in England, & to their heirs of the Junior of them. Holt & Lowe hath decided [p.204] & the lessor of the Plf claims as heir of Holt, the survivor. The testator died onthe 7th July 1819. The testators will was proved in Doctor's commons & the original was produced before the Commissioners, and the Copy produced & now returned was proved to be a true copy. But for the fact of the commissioners having received proof of the pedigree of the Plf, there was no other evidence adduced at the trial of his being the son & heir of Edward Holt. To this evidence it was objected 1st. That the commissioners had exceeded their jurisdiction in examining witnesses to any other points than the "due execution, contents, & custody "of the testator's will, & 2d. That a will of lands could not be proved by a copy & that the original should have been produced at the trial, or that at all events there should have been proof of the utter improbability of bringing the original will to New South Wales, by any process of law. Theses points were saved by the learned Judge. It was then contended that the Plf had made out no title within 20 years to maintain ejectment against the Defts adverse possession in him & his father. According to the evidence the testator died on the 7th July 1819, the sale took place of the land to Hadley about a week before the 12th July which would make it to have taken place two days prior to Fosters death, so that he was then a party dispossessed within the meaning of the stat. 3 & 4. W. 4. C. 27 & as the action was not brought until the 15 Sept 1839 it was barred & the Plf was not within the benefit of the exception of that Statute. If Foster was [p.205] dispossessedby the sale by auction on the 5 July & he died on the 7th then the statute would begin to run from the time of the sale & 20 years & two months would have lapsed before action brought. Also it was contended that as Mr Hadley's agency had never been determine, he was trustee for Foster, & he could not be said to have any adverse possession against his principal, - that Foster's cattle were running on the land till April 1828, & that there was still a subsisting lease of a part of the land from Foster to one Francis, which would not expire until November 1819, so that the possession must be considered at all events until that time in Foster or in the devices under his will. In reply it was contended that it lay on the plf to recover upon the strength of his own title, & shew that the action was brought within 20 years. The learned Judge ruled, that according to the evidence the sale by auction to Charles Hadley must be taken to have been in Foster's lifetime and that the action should have been brought within 20 years from that event, or at all events within 10 years after Fosters death, & if the Plf had failed in bringing himself within the exceptions of the Statute, there must be a nonsuit. The nonsuit having proceeded entirely on the ground that the action was barred by the statute of limitations, the question is whether, assuming, that the learned Judge ought to have left the case to the assessors [p.206] the Court is now bound to direct a nonsuit to be entered upon points made & saved at the trial, and which would have been conclusive, had not a nonsuit taken place, upon a different ground. The new fact now disclosed upon affidavit, namely that the auction did not take place until the 30th July, which was thirteen days after the testator's death, was one which would have made a material feature in the case at the trial had there been no other objection to the Plf's right of recovery, & would have been sufficient to call upon the Deft to go into his case. Although I incline to think, that the case ought to have gone to the assessors upon the evidence which the Plf had adduced, yet as it is probable that upon the then state of facts, the Assessors would have found for the Deft, in which event a new trial could only have been obtained upon payment of costs on the affidavit now produced, I think the Plf could now be entitled to set aside the nonsuit only on the like terms. The new fact now sworn to would shew that Foster was not dispossessed in his life timewhich was the whole gist of the nonsuit. Then are we now fettered by any rule, which compels us to enter a nonsuit upon another ground although reserved by the learned Judge?  It is clear that the whole merits of this case have not been disclosed. If we were now to direct a nonsuit [p.207] the Plf would be for ever barred for a new action would be clearly out of time. The other objections proceeded upon points quite beside the real merits of the case. There is moral proof of the facts upon which the Plf relies to make out the wanting link in the chain of evidence to shew his title as representative of Foster & which would have been established but for the omission in not making the commission to examine witnesses large enough. It may have been, however, that the Plf was in a condition to make out that part of his case by other evidence, had not the nonsuit proceeded upon the statute of limitations. The objection to the non production of the original will, was one which could not be anticipated, and which sown is one of very doubtful validity inasmuch as the rule of law which require an original will of lands to be produced at the trial of a cause respecting lands in England, can scarcely be deemed applicable to this Colony where a will made in fact & proved in England, is to operate upon land in New South Wales. It is true that the statute 9 Geo. 4. C. 83 says that all laws in force in England at the date of that act shall be in force in this Colony so far as the same can be applied here, & when any question of their applicability arises, it is here to be the duty of the Judges to determine their applica- [p.208] -bility. The very object of a Commission is to examine witnesses abroad, who cannot conveniently be produced on a trial where the cause of action arises. It is a legal mode of elongating the vision of the Court, & bringing within its knowledge facts which cannot otherwise be established. The same reason which prevents a witness being brought a great distance applies also to the production of original instruments in the possession of a constituted judicial depository. In order to save expenses or another trial, I hold broadly that a copy of a will of land registered in England duly certified by Commissioners to be a true copy is receivable in evidence on a trial in this Colony.

Adverting however to the very peculiar circumstances of this case, where the testator - his devisees - & his representatives were all out of the Colony at the time the Defts assumed right of possession to this property accrued & adverting to the very peculiar nature of the adverse possession set up, I think the Justice of the case requires that we should set aside the nonsuit & grant a new trial on payment of Costs.


Burton J. of the same opinion

Stephen J genlly concurs.

Source: Sydney Herald, 24 March 1841

DOE. DEM. HOLT V. HADLEY. - This was an action of ejectment, brought by the trustee, under the will of the late Mr. Samuel Foster, deceased, for recovery of a farm of 80 acres, in the district of Evan. It appeared, from the plaintiff's case, that in the year 1813, Mr. Foster purchased a moiety of forty acres from Griffiths, and the other moiety he purchased from one Ryan, who had previously purchased from Griffiths - that Foster leased to Griffiths, for five years, the portion he had so purchased from Griffiths: and that in November , 1814, he leased the other portion to one Francis, for five years. It was proved that both Francis and Griffiths had paid rent to Foster until his leaving the Colony for England, and that, previous to his leaving, he appointed one Thomas Rose and Charles Hadley (the father of the present defendant his agents, to collect his rents, &c. That Foster left the Colony in 1815. That Griffiths and Francis continued to pay rent to Hadley as the agents of Foster until July, 1819, when Hadley pretended that he had purchased the farm. A commission had been sent to England, which had been returned, proving the death of Foster in England, on 7th July, 1819. His will, and sundry marriages, births and deaths, deducing the legal estate to the former plaintiff. It was submitted in behalf of the defendant, that the commission was defective in consequence of the copy of Foster's will, accompanying the commission instead of the original will itself although the original will had been produced to the witnesses examined thereunder at the time of their examination. That the several documents put in and proved by the plaintiff, were inadmissible, inasmuch as they were merely bargain and sales, and not enrolled pursuant to the English statute on Enrolement.

            That from the date of Hadley's pretended purchase, the possession had been adverse and that the statute of limitation, 3rd and 4th Wm. IV., operated against the plaintiff, and that he was bound, on the other hand it was coutended by the plaintiff, that Hadley being the agent of Foster, he could not purchase, and that the possession by him was possession by and on behalf of Foster as such agent.

            The plaintiff was nonsuited. It is understood that an application will be made for setting aside the nonsuit, upon which motion, the above important objections will be argued and settled. Council for the plaintiff - Messrs. A'Beckett, Windeyer, and Broadhurst; Smith, solicitor. For the defendant - Messrs. Foster and Manning; Nichols, attorney.


[1]             See also Australian, 19 June 1841 (adjourned).

Published by the Division of Law, Macquarie University