Dent v. Lyons, 1841

[Berkeley estate – land sales – false advertising – misrepresentation – Gosford – Brisbane Water – Tuggerah – Wyong]

In this case the Solicitor-General, with whom was Mr. Manning, were for the plaintiff, and Mr. Windeyer and Mr. Broadhurst appeared for the defendant.

The Solicitor-general, in proceeding to state the case, said, that he was afraid the repetition of the words Berkley Estate, would not be very pleasant to their ears; but both he and the jury must endeavour to overcome their disgust at the sounds, and look steadily to the facts of the present case. The plaintiff by the present action, sought to recover back a sum of money, being the deposit paid by him on a portion of the Berkley estate, purchased by him at the auction, which some time back was held by the defendant Lyons. The Solicitor-General then enumerated the advertised advantages of the property in question, with which the public have been already made familiar by the numerous references to them in the late trials, and concluded by saying, that the present action had been brought in consequence of the misrepresentations which by the above descriptions had been practised on the plaintiff, and which he now considered, entitled him to throw [up his] purchase, and recover his deposit.

Mr. Staddon, examined [by Mr. Manning]:-- Was a clerk of Mr. Lyons at the time of the sale of the Berkley estate, and saw the purchasers sign the sale book. The witness pointed out the lots in the sale book purchased by Messrs. Dent and Greenwell. Received two promissory notes from Dent and Greenwell for the deposit money on the purchase. They were for £68 each. Did not know the hand-writing in the body of the notes; had heard of advertisements inserted in the newspapers by Mr. Peek; did not know whether the advertisement was directed by Mr. Lyons to be copied from one newspaper into another.

Cross-examined by Mr. Windeyer: -- The papers handed about the auction room on the day of sale were not made out by Mr. Lyons; believed that Mr. Lyons had no interest in the property, and merely sold as the auctioneer of Peek.

On further examination by Mr. Manning, the witness pointed out a long succession of entries of lots purchased by different parties, but which were struck out in consequence of the sales never having been completed.

Cross-examined by Mr. Windeyer: - It was a common thing in every sale for some of the purchases to stand uncompleted; did not know the reason of the lots not having been taken by the purchasers whose names were attached to them in the book produced.

Bryce Ross examined by Mr. Manning: - Was a clerk at Messrs. Pite and Preston’s: was at the sale of the Berkley Estate. Remembered papers relating to the property being handed about the room. Had purchased two lots at the sale; and afterwards went in a small schooner to inspect his property: started out on Monday, at one o’clock, and got to East Gosford on Tuesday afternoon. Three blacks conducted them to the property; Mr. Goodall, the surveyor, pointed out the different allotments. The front allotments were about a foot under water. Tried the depth of Tuggerah Beach Lake by walking through it. It was about two feet and a half deep. The breakers were close in shore, and the entrance to the lake appeared to be very dangerous. Saw no road at the back of the front allotments, and what roads he did see, were only found by parties engaged in procuring shingles. In returning from East Gosford to Sydney, they started at twelve o’clock in the day, and got to Sydney about six in the evening.

Cross-examined by Mr. Broadhurst – In going to East Gosford, they had stuck for an hour on the flats. Did not know what winds were blowing that caused the breakers. Knew that it was blowing weather at the time.

Mr. Goodall examined by the Solicitor-General: -- Had inspected the Berkley Estate in his character as surveyor. Was seven hours and twenty-two minutes going by the steamer from Sydney to East Gosford, the first time; returned by the steamer, and made the passage in six hours. Was four hours and fifty-five minutes in going from East Gosford [?] the Berkley Estate. They walked at the rate of very nearly four miles an hour. Went over the estate, and besides measuring the boundary lines thereof, he surveyed the different allotments for the information of the purchasers. On number three allotment, there were a few small trees, that would not rep[a]y the cutting, besides a quantity of tea trees and vines. Next to this land is a scrubby sandy sort of soil, for a considerable distance evidently a depo[s]it from the water. The soil was certainly not a deep black soil, nor were the trees fit for ship-building. One in a hundred was a fair average of the proportion of the trees fit for cutting down, lots 41, 42, and 43, are covered by sand and tea-tree scrub. No road marked, corresponding with that on the vendor’s plan. Such a road would not be pracricable, on account of Tuggerah Beach Creek, and Wyong Creek lying in the way. From the outside of the Berkley Estate to East Gosford is ten miles and chain. There were gates on private properties lying in the way, and they were compelled to ask permission of the owners of the properties, to pass though [sic] these gates. The depth of the latter for about two hundred yards from the shore, was not up to the breast. The mouth of the lake was so rough with breakers, that no vessel or boat could safely enter. Crops growing on the Berkley Estate could not be shipped there on account of the shallowness of the water. Cross-examined by Mr. Windeyer – First went to the estate in April last, being employed for that purpose by Mr. Cooper Turner the solicitor. Some lots have more wood on them than others; and the estate varies considerably in its soil, in different parts. The soil generally sandy. The best brush soils had a very trifling proportion of sand in them, consisting chiefly of decomposed vegetable matter. The difference between high and low water marks, might be five or six feet; and the tide at the time some of the party walked in the lake, was very nearly at flood. Saw no road marked out, it was a mere cattle track, which in England would be described as a foot path.

James Reynolds examined by Mr. Manning: - Was at the sale; there were a great number of copies of the plan of the property on the counter of the sale room; witness asked Mr. Lyons if the plans were true, and the answer was, they were.

Cross-examined by Mr. Broadhurst: - Saw Dent, one of the plaintiffs, after he (witness) had been to see the land, and told him (Dent) he was robbed, and that the land was in fact very different from the description of it; Dent told him he did not believe it, and he knew different.

William Turton: - Was at the sale in question, and inquired of Mr. Lyons about the character of the property; Mr. Lyons referred witness to Mr. Wells, the surveyor, saying, “You need not be afraid, when you see the surveyor of the property purchasing,” People afterwards surrounded Mr. Wells, and appeared to be intending purchasers; this was the same Wells who afterwards went with them, the purchasers to look at the property. Went to the property a second time; walked round the property, but saw no sign of any road; believed he was more particular in observing the land than any others of the party; observed the lake, in which birds were standing upright at a considerable distance from the shore; lots were knocked down to Wells at the sale; he was bidding against other parties; Mr. Lyons, at the sale, laid great stress on the new road from the estate to Wyong and Maitland; witness would never have bought but for such account of the new road.

Cross-examined by Mr. Windeyer: - Paid the first bill to Lyons a short time after his (witness’s) return from viewing the property; paid the bill because he did not know what else to do from his ignorance of the law; witness met Dent about a fortnight after returning from the land, and asked him how he liked his purchase, saying at the same time that he (witness) had been to see the land, and that his (Dent’s) land, was water; Dent got into a passion, and would not believe witness, but walked away; The purchasers of the property had never regularly met together to consult, at the Bulls Head, or at any other place. Had not seen Mr. [Dent] a dozen times in this last four months.

Rober[t] Anderson gave his evidence, varying in no material [p]oints from that of the previous witnesses; adding t[hat] he had never during a residence of fifteen years [at] the district in question, seen any thing larger than [a] boat put across the mouth of the Tuggerah Beach La[ke].

Peter Magner examined by the Solicitor general: - He had attended at the sale, and at the request of Mr. Peek had purchased on his account three or four allotments; Mr. Peek having expressed a wish to have a few lots bought in for himself, if they did not fetch a certain price.

Cross-examined: - Went to the sale, merely to buy for Mr. Peek; and did not bid for any lots after other people; had bidden beyond the limit set by Mr. Peek. Peek’s instructions were contained in a paper; - which witness had long since lost.

Mr. Windeyer now applied to his Honor to strike out the evidence of the witness, the paper not being produced, nor proved to be lost.

His Honor overruled the objection, upon which a party of the name of Hargreave was called, who stated that he also at the request of Mr. Pe[e]k had purchased a lot, on behalf of that gentleman. Recollected bidding for three or four lots, all of which save one, were knocked down to other parties.

Cross-examined by Mr. Broadhurst: - Would not swear he had bidden for more than lot [?]2. Mr. Peek had said to witness, that he (Peek) did not wish the property to be sacrificed, and therefore desired witness to bid for [cer]tain lots, up to a certain mark. Some of the land was as fine as [t]he witness had ever seen; and he had been a farmer for several years. Lots 41, 42, and 43, were as fine land as any in the Colony. On these lots there were many trees fit for sawing purposes. Considered East Gosford a flourishing place ever since.

William Underwood: - Had been to Brisbane Water a short time after the sale of the Berkley estate. Wished to pass the bar in a whale boat, but c[o]uld not do so for the breakers. The weather at the time was tolerably fair; and the boat might be about six inches deep in the water.

Cross-examined by Mr. Windeyer: - Had never been to Tuggerah Beach before or since. Battley had taken witness and his companions in custody, taking them for a party of bushrangers. Seeing the breakers they knew the boat could not carry them, so then they carried the boat. They passed over the land with it, until they reached the lakes.

William Rowe stated, that he was one of a surveying party in company with Mr. Larner, the government surveyor, and that he knew of no road to Wyong or Maitland, any part of which ran nearer to the Berkley estate than three or four miles. The timber was very poor, not more than one tree out of a hundred being fit for sawing purposes.

This closed the plaintiff’s case. It being now past 4 o’clock, the Chief Justice, on the suggestion of the Counsel for the defendant, deferred going into his case until to-morrow morning at 10 o’clock.

Mr. Windeyer in opening the defendant’s case, moved the Court to nonsuit the plaint[i]ff on the authority of a case in the 2nd East’s R[e]ports, which went to show that where a party had paid money, with a full knowledge of the facts, or the means of obtaining the knowledge, his paying that money although in ignorance of the law, would be a bar to such an action as the present. And in that respect distinguished this from the previous actions.

The Chief Justice said, that the point was too important for him to take upon himself to decide alone, but he would reserve it, and let the case go to the Jury.

Mr. Windeyer then addressed the Jury for the defendant. He said that it would be unnecessary for him to impeach the case made by the only one of the plaintiff’s witnesses, who spoke to any one of the definite facts relied upon by the other side. Mr. Goodall, the Surveyor, stated that lot 3 was of the description given by the defendant’s advertisement, but had certainly proved that there was no large timber on it. If, however, they looked to the advertisement, they would find that no timber at all was pretended to be upon lot 3. Again Mr. Goodall proved that lots 41, 42, and 43, were not in his opinion heavily timbered, but neither was that promised by the advertisement. Other lots were spoken of as having almost inexhaustible supplies of timber, but it so happened that these lots were only spoken of, as being timbered with black butt, blue gum, &c., and Mr. Goodall had proved that they were all so timbered. The next point on which the plaintiff relied was on the fact that the Berkley Estate was ten or eleven miles from East Gosford, whereas it was spoken of in the advertisement, as being at a short distance from a flourishing town of East Gosford. Now he (Mr. Windeyer) contended that this was a very different point from the last; to state that a farm had particular timber upon it when it had not was a misdescription of a specific fact, of which all men could judge without dispute, but the statement at present in question was of the most vague and indefinite description and such as should only put parties upon enquiry. That the town of East Gosford was flourishing at that time, was proved by the fact, that it had continued since to flourish. That the land in it had risen in value from two or three pounds to a hundred and sixty pounds per acre, for it appeared from one of the plaintiff’s own witnesses that Mr. Edye Manning had lately given to him £80 for half an acre. With respect to the “short distance”, and the “immediate” neighbourhood, which had been spoken of as deceiving purchasers, they were vague relative terms, varying in meaning according to the situation of the parties speaking of the matter spoken of. In London a man speaking of his neighbour or of those living near to him would be supposed to speak of those living in the sae or next street, while the same party going to his country house at Blackheath, in speaking of the respectable neighbours by which he was surrounded, would include all within a circle of two or three miles. Further, in coming to a still more thinly populated district, such as might be found in America or in Australia, places and persons would be spoken of as being in his near neighbourhood, who were ten or twelve miles off. He would put it to them all who had lived in this conntry [sic], whether, as they increased their distance from population they did not find that the meaning of those term varied. Again, with respect to the expression, within three hours sail of Sydney although taking one part of the advertisement by itself it would appear as if the estate were meant, yet taking other parts in connexion with it, it was indisputable that East Gosford was meant. He believed that in point of fact it could be proved that it was possible, under favourable circumstances, to go by water to the Berkley estate within three hours. But supposing it were not so, it was mere vague assertion, manifestly depending upon wind and weather, and should only have put a purchaser upon enquiring what was the specific distance. He granted, that if that the estate had been represented to be a[n]y given number of miles from Sydney, any variation from the truth would be a misdescription that would vitiate the sale; because that was the statement of the fact, not depending upon opinion of contingency of any kind. The mile must be a mile under all circumstances; but the three hours sail might be a day’s or a week’s sail. This was the principle on which the case of the Duke of Norfolk against Worthy, cited by the other side depended, for there the estate was described as a mile from Hensham, when in point of fact it was two or three. In short, the Jury would have to find that there was a warranty of wind and weather, in order to make out the plaintiff’s case on this head. He the more dwelt on this point, because it was the importance that one of the Judges appeared to attach to it, which had occasioned a verdict, in another case, in favour of Mr. Lyons to be set aside. But if the Jury, or any one of them, should differ in opinion with the Judge who laid stress upon that point, it would be a proof that the former Jury was right, and that his (Mr. Windeyer’s) present argument was sound. For the fact of such a difference of opinion between the intelligent and impartial people, established the character of vagueness and indefiniteness he now sought to affix to these terms. What would those of the Jury who were merchants say if any contract they had made a year ago, for the sale of a parcel of sugar, should be set aside and they called upon to refund the purchase money, not because it did not answer the warranty of being Mauritius sugar, or because of a want of any other specific character they gave it, but because they had happened to have said that it was the best sugar within three hours sail, or that there was no such sugar in the Colony, or had used other vague and indefinite terms of commendation? The learned gentleman then cited Sugden on Vendors and Purchasers of Estates and other authorities, principally decided in Equity; and it was upon the equitable principle the Jury would have to decide on this form of action, to show that where estates were sold with defects of quality which were open to the view; a purchaser who did not choose to inquire and inspect, should have no relief; and also to show that where a description was vague and indefinite a purchaser could not, and ought not to be supposed to have been guided by it, and that the only effect of such description should have been to put a purchaser upon inquiry. With respect to the road to Wyong and Maitland through the Berkley estate, although Mr. Goodall and Mr. Bryce Ross had not been able to see either it or the marked trees, he should be able to show them, beyond the shadow of a doubt, that such a road did exist and had existed for many years, and that the description Mr. Lyons was said to have given of it at the sale, as being better than the old road over the Kangy Hangy hills, was perfectly correct: it certainly did not run in so straight a line as the reserved road shown upon the plan, but although it did twist in and out, there it was, and all that was said in the advertisement was that the estate was on the road. With respect to what had been called the puffing, there was no proof that more than one person had bid for the owner more than one bid for any one lot; and it appeared from a summary of the cases in [S]ugden’s Vendors and Purchasers, that although it had been supposed once or twice that such a course as had been taken by Mr. Peek could not be supported, yet upon a review of all the cases it was clearly settled that when the sale did not profess to be without reserve, and this sale did not so profess, the seller might have a person present to prevent his property being sacrificed. The learned gentleman then read from Sugden to shew that where even the bid immediately preceding that of the purchaser was fi[c]titious, the sale would be supported; and that the only case in which a sale would be set aside for puffing, unless the sale professed to be without reserve, was where there was no real purchaser competing with the ultimate bidder. Now in this case it did not appear that Mr. Peek had done more than he was entitled to do protect his interests. All those parts of the case upon which he had been hitherto addressing them went to the defendant’s right to a verdict under the general issue. And he should li[k]e to have their verdict under that issue, as it would probably lead to a settlement of all the other cases. But whatever becam[e] of that issue, the defendant had certainly entitled himself to a verdict on the special plea[s]. Those pleas, in substance, admitted that the plaintiff had been imposed upon; but then they set forth that Mr. Lyons had no hand in the misdesc[r]iption complained of; that he was merely employed as an auctioneer; that the plaintiff had, by himself or agents accepted a conveyance of the property; and that Mr. Lyons had settled with his principle. A great portion of this part of the case had been proved by the plaintiff’s own witnesses; and indeed the Solicitor-General had appeared to admit that it must be proved; but had told them too that it was no defence in law, and that it would be very hard on him (Dent) of it were. He (Mr. Windeyer) however thought that His Honour would tell them that it was a defence in law. And at all events, he would tell them that if it were not, the plaintiff, instead of taking issue on it, might have demurred, or hereafter in some other way take advantage of it. It would be proved to them, that Mr. Dent had given instructions to have a conveyance of the property drawn [f]or him, and that it had been drawn and executed according[l]y. In considering both [this] and the first part of the case it was open to them also to consider, the point he had [a]d[dr]essed to the Court, viz., that Mr. Dent, after having had notice of the facts and full means of [i]nformation conveyed to him, or placed within his reach voluntarily said the three bills produced to them. If they were sellers of p[ro]perty, could they not, under such [circumstances], have expected Mr. Lyons to ha[n]d them over the purchase money? They could no doubt have been entitled to it; and that proves that Mr. Lyons could not be subject also to have it demanded of him by the purchaser. If they found for the plaintiff, it would in effect, amount to saying, that no auctioneer should pay money over to his principal till after the lapse of six years; for the statute of limitations alone would be to him a sufficient protection. This was the common sense view of the subject; and whatever might be said to them in reply, upon the binding nature of the supposed warrantry contained in this vague hand-bill, he should trust to their deciding on his view of the subject.

Mr. Langley examined by Mr. Broadhurst; and gave evidence confirmatory of Mr. Goodall’s, as described in Mr. Windeyer’s speech as to the quality of the land.

Mr. Battley a gentleman residing on Tuggerah Beach lake, proved that the lake was navigable; that a keeled boat was used upon it, drawing about a foot and a half of water, and that he himself used a punt, for the purpose of conveying timber across the lake from Berkley Estate. He also spoke to the good quality of the soil and timber of the Estate.

Mr. C. H. Chambers stated that in consequence of instructions he received from both the plaintiffs to obtain a conveyance of their purchase at the Berkley Estate sale from Mr. Peek, he had prepared such conveyance, and got it executed, by Mr. Peek. Mr. Peek signed sealed and delivered it absolutely in his witness’s presence. The Deed was executed in July or August. He had seen both Dent and Greenwell two or three times on the subject.

Cross-examined: he was also an Attorney for Mr. Peek: and had prepared and served other conveyances of parts of the Berkley estate. He was almost certain that Dent had had other business in his (witness’s) office previously; but he was certain subsequently; now he recollected Dent being there about twenty times. It was not in virtue of his retainer from Peek, or partly so, that he had drawn this conveyance. Mr. Peek had given no particular instructions upon this matter, but had given him the usual instructions, to get the business completed as quick as possible. He recollected Dent telling him that he had made a purchase, and requesting him to prepare a conveyance. He recol[l]ected that Dent afterwards told him, that it was to be made out in his (Dent) and Greenwell’s joint names. He saw Greenwell, who repeated these instructions, and it was so made out accordingly. He did not recollect informing them that the deed was executed; but Dent had, he believed, had an account in which he was charged with it, and he believed Dent was at the office three or four months back, and was then shewn the account in their books. It was not his practice to communicate to parties that their deeds were executed; and if not called for, they frequently remained in the Attorney’s office for years. This deed was not delivered by me on any other account than D[e]nt and Greenwell’s. He understood that a part of the purchase money had to be paid, and that he was not to deliver up the deed until he had aut[h]ority from the auctioneer or from Mr. Peek. It was not delivered to him as an escrow but absolutely and remained in his possession for about a month, after which he heard it got from Peek’s possession into that of Lyons.

Mr. John Want proved that the deed had for some time been in the possession of Mr. Lyons, or of himself as Mr. Lyons’s Attorney, and that it was so in conformity with one of the conditions of sale, which allowed the auctioneer to require security on the property. He also proved that this was the usual mode of giving the security, in order to save the expense of a mortgage deed.

Mr. Donnis[o]n examined by Mr. Windeyer: Said that he was a settler at Brisbane Water; that he knew the property well; that the land was, in a great part, above the average quality; that there was a narrow strip of bad land immediately adjoining the lake; but that as you recede from the lake the land becomes bushy and good; that the narrow strip of bad land was occasioned by the sea occasionally being blown over it, and this it was that killed the timber that was lying there dead, as represented on Mr. Goodall’s map. He had crossed the entrance to the lake frequently on horse-back, and had been sometimes obliged to swim his hor[s]e; but for the most part the water was not deep enough to require that. He should say that he average depth at the crossing place was at low water, four feet; further out it was eight feet. He had frequently swum cattle across there, and knew by that that the water was deeper. He saw no breakers, and a small steamer might get into the entrance. It was possible, under favourable circumstances to take boat at the Berkley Estate, come out, embark on board a steamer, and reach Sydney in three hours. He did not mean to say that he should like to embark in the specu[l]ation, and indeed no steamers paid just now; but he had no doubt that a steamer of sufficient power and proper draught could be got to go the distance within the three hours. The distance from Sydney to the Berkley Estate by water, was but little more than that from Sydney to East Gosford. He had never been entirely along the road through the Berkley estate to Wyong, not having occasion to do so, but he had been on it in several places when searching for cattle: the old road over the Kangy Hangy hil[l]s was by no means a desirable one, and he had joined in an application to have a government road marked, which there had been lately, which would go between the old road and the Berkley estate, almost touching the Berkley estate. With regard to the road from East Gosford to the Berkley estate, it at present went through a gate of his, which he had consented to its doing, and he did not stop it, the gate having been there befor[e] the road went by that particular spot: as to the gate at Mr. Bean’s, there never was a gate there in Mr. Bean’s time, but Mr. Bean’s successor had, six or eight months ago, applied to him (witness) for stuff to make a gate, in order to prevent people going through his stock yard. The road, originally made by drays, going from house to house. But on becoming frequented, it became desirable to prevent the stock yard being intruded upon, and this gate was put up; but so far from turning people out of their way, it sent them the shorter way, which was inside the fence. It made no going round about to get from the Berkley estate to East Gosford but left the other road open. Mr. Donnison had been on the property at least twenty times, looking after his stray cattle.

Re-examined by Mr. Windeyer: Understood the words in the bills, “when steamers ply between East Gosford and Sydney,” to involve a contingency: thought it possible that steamers might make the passage in three hours, and that they might be able to enter the mouth of the lake. Could go in an hour on horseback from the Berkley Estate to East Gosford: quite possible to go from the estate to Sydney and back again within the day. East Gosford in 1841 was a flourishing place; since the commencement of the building of East Gosford, land had risen in value a hundred per cent.

William Fletcher: Has known the district of Brisbane Water this last fifteen years: there is a bridle-road from East Gosford to Wyong. There is another over the Kangy Hangy Range of Mountains. The road through the Berkley Estate was nearest. Knew the lake, and has been on it in a vessel of about four or five tons burthen: other settlers might have done the same. Had left the entrance of the lake and reached Sydney by water, in five hours. Has known the road through the Berkley Estate, and driven cattle along it for fifteen years past.

Cross examined by the Solicitor-General: Never saw a dray go from East Gosford to Wyong, through the Berkley Estate. Never told any one that, during the seventeen years he had known the lake the entrance had been stopped up, on an average, for seven years. Mr. Underwood had blundered into a wrong mouth, mistaking it for the mouth of the lake.

John Turner: Knows a road to Wyong through the Berkley estate. It is a bridle road, and a dray can go on it all the way. Knows of another road, not so good a one, over the Kangy Hangy Hills. This latter was marked merely for a Government road, but not yet finished. Has [?] examined the soil of the property near the lake, and [t]hou[gh]t it good enough to grow anyt[h]ing.

Cross-examined: Had never told any person that the land was not worth sixpence an acre; but had said that some of the land was not good.

David Wishart examined by Mr. Broadhust : Was master of the Thistle steamer, and could run from the wharf to the Nobby’s in six hours and forty minutes. Could run from Tuggerah Beach, to get abreast of Sydney Harbour, in three hours.

Henry Watson, examined by Mr. Windeyer : Knew the beach of the lake. The distance from Tuggerah Beach to East Gosford one way is about seven miles, and by another about ten or eleven miles. Has known the road through the Berkley Estate to Wyong six or eight years.

Cross-examined by Mr. Manning : Never measured the distance, but merely estimated it by having frequently walked it.

Thomas Wilson, examined by Mr. Broadhust : Had seen the Berkley estate; went to examine it at Mr. Peek’s request; saw lots 41, 42, 43, which seemed very fine land, being covered with a thick brush; had had much experience both in colonial and home soils; in witness’s opinion the land he had seen was equal to land of the Illawarra; on the lots mentioned were a great many forest oak tress; there were many tr[e]es fit for sawing purposes; some were a hundred and fifty feet high; had seen black butt, blue, and spotted gum trees in good number; a single tree of some of these cut up would be worth seventy or eighty pounds; had seen a great many trees cut up; the land was thickly timbered.

Cross-examined by the Solcitor-General : Had gone to the estate in company with Mr. Peek, Mr. Horsburgh, and others; could not say into how many planks or shingles a tree could cut; although the expense of bringing wood to Sydney was great, witness still thought that a tree cut up, including the expences of carriage, would be worth the sum he had named.

Mr. Horsburgh, examined by Mr. Windeyer : Was a settler in the v[i]cinity of the property; the soil of the land near the lake was a deep rich one; there was a marked bridle road near the lake; on some parts of the estate was some of the finest timber he had ever seen; he thought that ten trees to the acre might be the average number fit for sawing purposes.

On cross-examination this witness said, he had only specially examined such spots of the property as his attention had been called to by Mr. Peek, but had gone over and looked at other parts also.

Mr. Nott examined by Mr. Broadhust : Was Clerk of the Bench at Brisbane Water; had been concerned in growing bananas, onions, and other vegetables at his own property; had made in one year, by onions and corn, at the rate of one hundred and sixty pounds per acre; formerly, he believed the Sydney market was almost exclusively supplied with these vegetables from Brisbane Water; a light sandy soil was peculiarly well fitted for the growth of such vegetables; has two acres under bananas; from what he has already cropped of these, he calculates he is making at the rate of seven hundred a year per acre by the bananas; he had been from Sydney to Broadwater just on this side of East-Gosford, by the Kangaroo steamer in three hours and a half, and then they had a stoppage of about twenty minutes; it would have taken them about ten minutes longer to go on to Tuggerah Beach Lake.

Cross-examined by the Solicitor General: His property was about fifteen miles from the Berkley estate; there were no gardens within five miles of the estate, which as yet was uncultivated.

Mr. Randolph, examined by Mr. Broadhust : Knew of a settlement of accounts between Mr. Peek and Mr. Lyons respecting the Berkley estate; witness had been present at the settlement; the first payment was made in a promissory note for £2,000 about a fortnight after the sale; two other notes for the same amount had been received afterwards and a fourth for a smaller amount, which he (witness) considered to be for the balance; witness had no doubt all the notes had been paid, and that they were paid as the purchase money of the Berkley estate; knew this from the account.

Mr. Manning objected that as this account was in writing it ought to be produced.

The Chief Justice allowed the examination to go on, subject to the objection reserved.

Mr. Purkis, clerk to Mr. Lyons, proved the payment of the above sums for the Berkley estate.

Cross-examined by the Solicitor General : The witness produced an account, in which Peek was debited with a certain sum paid by Lyons, on Peek’s account, t[o] Unwin and Want; did not know whether this money was paid by Lyons to Unwin and Want as the attornies of McIntosh, who would not complete his purchase; had only been told by Lyons to retain in his hands the price of M[c]Intosh’s purchase; Lyons had charged no discount on the notes according to his (witness’s) interpretation of discounting; witness considered discounting to be “the paying a man less tan his due and charging him for the accommodation.”

Mr. Lemon, one of Messrs. Chambers and Thurlow’s clerks, produced the book containing an account of the conveyancing and other expenses incidental to Mr. D[e]nt’s purchase. Mr. Dent objected to one item, but not the charges generally. Had never heard Dent say that he intended to bring an action about his purchase; but would not swear he had not said so.

The Solicitor-General replied upon the evidence, and said that all his learned friend, Mr. Windeyer, had said, had not got rid of this one insurmountable fact, that his (the Solicitor-General’s) client had been deceived. Great efforts had been made and many witnesses examined, in order to prove that the estate in question was within three-hours’ sail of Sydney; and when it must be evident to any reasonable mind, that this must be understood to mean a three hours’ passage under average circumstances. The defendant calls witnesses to shew that, under extraordinarily favourable circumstances, the trip has been once or twice made in about three hours and a-half; and thus pretends to assume he has realized to purchasers what he promised in his advertisements. A witness for the defendant too could prove that once he had seen a boat on Tuggerah Beach Lake, and this boat is immediately multiplied into magnificent fleets, which are forthwith sent scudding about in the most lively manner, over the face of the plan, exhibited to the unfortunate purchasers. Then on comparing the evidence of the road “being intended to run near that property to Maitland,” with the description in the advertisements, that the estate was actually on the high road to Maitland, to what conclusion could we come, but that the defendant had described his land in a most incorrect manner! He (the Solicitor-General) would not go into the question respecting the character of the soil, because he did not consider that one of the most important point for their consideration.

The learned gentleman then commented at length on the evidence of the defendant, and then contended that the sale, (independently of all considerations about evidence,) was void on account of the puffing, which evidently, from the testimony of Magner, had occurred at the auction. The learned gentleman concluded by expressing his confidence that the jury would not allow their judgments to be warped by the sophistical arguments of the other side, nor refuse the plaintiff a verdict if, from an impartial review of the whole evidence, they believed he had been deceived.

The majority of the jury now expressing great fatigue, and at the instance of their foreman, His Honor consented to adjourn the proceedings until eleven o’clock this day.

His Honor said, that the case had now arrived at that stage, when the jury were called upon for the exercise of their important functions. Divesting their minds of the effects of Counsel’s eloquence, and after the repose of the night, they then came well qualified to do justice between the parties; and his Honor was sure gentlemen of station, education, and character, such as composed the jury, would not suffer themselves, in considering their verdict to give weight to any thing but the great and important facts of the case.

It was a general rule of law, that if money were paid under a mistake or misapprehension of facts, it was recoverable at law, where it could be shewn that any deception had been practised on the purchaser.

The case might be divided into two branches. First, could the plaintiff recover under the general issue; and secondly, assuming he could was the defendant Lyons a party from whom he could recover. By the statute of frauds, it was laid down that no contract for the sale of lands could be sustained without a note in writing. The three points the plaintiff must be called upon to prove were, the note in writing, the money paid, and the consideration. The first point was proved by the entries in the sale books, the second by the witnesses who had proved the payment by the promissory note, and the third, being the one by far the most important for their consideration, was the one which by their verdict they must decide. The plaintiff sought to avoid his contract, on the ground of the deception alleged. If the plaintiff could establish his allegation, it was not because the defendant was an auctioneer, that he was to be exempt from any process at the shit of the plaintiff. The auctioneer had acted as a principal, and if he suffered from the deception of his employer, he must recover against him for any loss he sustained, by reason of that deception.

It appeared that the plaintiff had purchased lots 41, 42, and 43, at the auction in question; and he now sought to avoid his contracts, on the following grounds: the alleged infirmity of the soil, the deficiency of the wood, the absence of a road, and the alleged great distance of the estate in question from the town of East Gosford. If the jury thought that any misdescriptions in the defendant’s bills were proved by the evidence to be material, then the plaintiff would be entitled to recover under the general issue. The poetry and puffing of an auctioneer’s advertisement, the jury must lay out of consideration, and simply try whether the representations made, were materially false.

His Honor had hitherto applied himself to the facts on the part of the plaintiff. Now if they thought that the bills of the defendant were only such as should have put purchasers on their guard, they would find accordingly. In respect to the charge of puffing, the facts proved were, that there had been four bidders, who had bidden for Peek the vendor. Now it was for the jury to consider, whether these men had attended for the mere purpose of taking advantage of the eagerness of buyers, and screwing up the price. Another important point, which had been most powerfully and eloquently put to them by Mr. Windeyer, was, for the jury to consider, whether the words “within three hours; sail of Sydney,” were to be interpreted to mean a description amounting to a warranty, that people might invariably pass from Sydney to East Gosford in that time. He could not put the point better than in the words of Mr. Windeyer himself, “did they consider this as amounting to a warranty of wind and weather, or merely as fringe and ornament, setting off an auctioneer’s advertisement?”

His Honor now approached another part of the case. The defendant by his special plea had traversed the facts stated in the plaintiff’s declaration, and if the jury thought the defendant had supported his pleas by his evidence, he would be entitled to their verdict.

The defendant’s plea was, that he was employed by Mr. Peek to sell the property for him under incorrect descriptions; that the plaintiff became the highest bidder of the lots in question; and that subsequently the plaintiff accepted a conveyance of the property, and settled for the purchase money. The defendant by this plea had put two important points in issue for the consideration of the jury. First, whether a conveyance had been executed, and secondly, had a settlement taken place. The evidence respecting the conveyance had been furnished by Mr. Chambers. Now there was one point connected with this part of the subject, his Honor must notice in terms at the very least of strong censure, viz.: the frequency of professional men employing themselves as the agents of two opposite parties at the same time; a practice which was quite incompatible with that impartiality, or exclusive devotion to a client, which should always be found in every professional man. Now the deed in question, after execution had lain in the hands of the attorney for a long space of time, the defendant’s plea asserted the acceptance of the conveyance long before the commencement of the suit; a clerk of the attorney at the same time showed, that, the conveyance being prepared, the bill of costs had been sent in and paid long after the commencement of the action. Now it was quite reasonable to suppose that the defendant, although he complained of being defrauded, might have consented to pay an innocent party for the labour of making out a conveyance, without having any intention of waiving the fraud of which he complained. It appeared that the deed had passed from the hands of the attorney into those of Peek, and it did not absolutely appear from the evidence whether the defendant had ever seen the conveyance. It was therefore for the jury to consider whether any conveyance had actually been made to the defendant, when he was cognisant of the facts, as, if there had been, then undoubtedly the defendant’s special plea would be supported, and he would be entitled to a verdict.

In all human transactions the great principles were plain honest integrity between man and man, principles to be expected and demanded of auctioneers as well as from other people. And his Honor would lay it down before the bench, that although he admitted that men should be vigilant and look carefully after their own affairs, yet he would most unqualifiedly and emphatically denounce and discourage the practice so common in this country, of puffing off property, beyond what its merits would warrant. Common honesty should correctly describe the thing to be sold, and he would not allow settlers to take advantage of credulity or ignorance by first deceiving, and then insulting the deluded, by telling them they should not have given their belief so easily.

The plaintiff appeared from the evidence, to have placed implicit confidence in the descriptions of the auctioneer, and if they (the jury) thought that the plaintiff had been deceived thereby, he would not be on account of that confidence deprived of a right to have their verdict.

His Honor concluded a most effective summing up by saying, he had given the case his best consideration, he had no doubt the jury would do the same, and if they should find themselves compelled to see the facts in a different light from that in which they appeared to him he trusted he had no such over-weening sense of his own infallibility, as to have any desire, that they should be guided by him any further than their own judgments should approve.

The jury then retired, and in about five minutes returned into Court, with a verdict for the plaintiff. Damages £236 17s. 7d.

ERRATA - In yesterday’s report of his Honor’s summing up, for “infirmity of soil”, read “inferiority of soil;” for “before the bench,” read “from the bench;” for “settlers” read “sellers.”

[1] See also Sydney Gazette, 11 and 13 November 1841.

[2] See also Dent v. Lyons, 1842