Bilton v. Smith

Supreme Court of Van Diemen's Land
Pedder C.J., 15 May 1830
Source: Tasmanian and Austral-Asiatic Review, 21 May 1830[1]

Mr. Gellibrand stated the Plaintiff's case. It was an action brought by Mr. Bilton against Smith for the use and occupation of an estate at Glenarchy. The defence Mr. Gellibrand apprehended to arise out of the conveyance to Bilton, which being a legal question, would, if it should be insisted upon, be a reserved point, and be argued next term.
Mr. Sorrell, the Registrar, produced various official document connected with the case of no public importance.
Michael McShane. - I am brother of Hugh McShane. I have a third share in a farm at Glenarchy. The other two-thirds were sold under an execution against my brother, to whom they belonged. I know Mr. Thomas Smith, I heard him bid at the sale. Mr. Bilton was at the sale. It was contested between us who should be the purchaser. He would have it, for he laid himself out to have it, right or wrong. I thought he should not bid so far, as it was a family affair. It was knocked down to him. Smith also bid against me, and I was equally displeased with him.
Cross-examined. - I have received rent up to October 1829. Mr. Bilton has property in the neighbourhood.
Mr. Gubbett. - I reside at Glenarchy. I know Defendant. I served a notice upon him on the 8th Dec. 1828. This is a copy of it. (produced) I read it to him. He said it made no difference to him to whom he paid the rent, he knew he must pay it to somebody.
Cross-examined. - He told me he could not read. I do not recollect that he acknowledged any rent to be due.
Hugh McShane. - I was Defendant in an execution at the suit of Young. I possessed two-thirds of ninety acres of land at Glenarchy. My brother had the other third. I had managed the wh[o]le before that period. This estate and much more property was sold along with it. I feel sore about it, and I expect to have a try for it. The estate was let to Mr. Smith more than once or twice before that. Smith was then the tenant at £30 per annum for that year. I think the year commenced in February 1828. The estate was not rented at all, the year before that, because he had rented it at a pretty smart rent the previous year, and his crop missed. I think he had the estate, and crop in the ground, and the use of 4 bullocks, for £70. I have received the £30. I was rather pushed for money, and I got my rent from Smith in May, for the year running, commencing in February. It is more than 18 months since I received it. I am sure it is more than 12 months ago, and to the best of my calculation it is 18 months. I received it in Hobart-town, and not a man nor woman present but ourselves. He paid me £17 10s. the last payment, and £12 10s. before. The first payment was in April. I gave no receipt. No one was present when he paid the first 12l. 10s. It was in Liverpool street. I did not tell the sheriff. He would not hear me. I never told Mr. Bilton.
Mr. Nickoll. - I was overseer to Mr. Bilton. I know the estate in question. I knew Smith. He occupies one third share of it. I went there the 15th April twelvemonth.
Cross-examined. - Mr. Bilton's and Smith's cattle were running together over the land when I went up.
Johnathan Edwards. - I live at Glenarchy. I know McShane's farm. I never saw Smith upon it. I have seen Smith's cattle feeding upon it. I have seen Smith's boy with them.
Cross-examined. - Mr. Bilton's cattle and Smith's ran over the land together.
The deed from the sheriff Nov. 3rd, 1828, to Plaintiff, read conveying two-thirds of the estate in question to Plaintiff.
This was Plaintiff's case.
The Solicitor General for Defendant, stated, that there was no agreement but with Hugh McShane. That Smith paid the rent to him, and that all Mr. Bilton's cattle have been upon the land ever since the date of his deed. Thus that Smith did not occupy the land from the time that Plaintiff became owner of it. That the deed from the sheriff did not furnish Plaintiff with a legal title, which being a pure point of law, must, if it became necessary, be considered hereafter. Upon these three grounds, Mr. Stephen claimed a verdict for Defendant.. Mr. Stephen's objection to the sheriff's conveyance to Plaintiff, was two-fold. First, -- that there was no legal investiture of the fee estate in McShane, and secondly, -- that there were no words whereby the fee, supposing it had been in McShane, was legally conveyed to Bilton. In a word, that the deed was neither a release nor an enfeoffment.
The Chief Justice. - "As this question is now before me, I do say it would be one of the greatest evils possible to be imagined, if the whole property of the colony is to be impeached and ripped up upon such an objection as this. It is quite necessary that an immediate Legislative measure should be adopted, to protect the colony against such an evil. And I must say, that a conveyance of half-a-dozen words from the sheriff, ought to be established to have as much validity, as twenty skins of parchment."
Mr. Gellibrand expressed his great satisfaction at what had fallen from His Honor, the necessity of which, was every day more and more apparent; for it was public and notorious, that nothing could be more bare than the nature of nine-tenths of the conveyances by which estates were hel[d] in the whole colony. Some even on the backs of letters, and many by endorsement upon endorsement.
Mr. Stephen said, he had suggested this in writing to the Government, five years ago.
George Marshall. - I know the land in question. I remember Mr. Bilton buying it. I remember Mr. Nickoll going up to reside there. From that time there were cattle of Smith's and Bilton's running on the land. More of Bilton's than Smith's in general. I have seen them almost every day. When Mr. Bilton's men came up, they brought up working cattle with them before the sale of McShane's property.
Cross-examined. - I can't tell how many cattle of Mr. Bilton's; more than twenty. I think they were there from April. I had an action brought against me by Mr. Bilton for his men rescuing his cattle from off my ground. I had to pay for it. I believe Smith has about ten or a dozen head of cattle.
Re-examined. - I think Mr. Bilton's cattle were at Mr. Gull's farm, from harvest to April. I do not think Mr. Bilton had more cattle up before April. I saw Mr. Bilton's cattle generally on the land from April to August 1829.
This was Defendant's case.
Mr. Gellibrand replied. He contended that the whole of the defence had fai[l]ed. To apply a former expression of the Solicitor General's, it cut its own throat. If the man had been evicted, why pay the rent? When Mr. Gubbett served the notice demanding the rent, why say, "it is immaterial to me, to whom I pay the rent." Why not say, "I have paid it in advance to M,Shane, in Liverpool-street." Mr. Ge[l]librand argued at some length, the whole circumstances of the case, and submitted that he was entitled to a verdict.
The Chief Justice summed up, and in respect to the conveyance from the sheriff, His Honor said, that being a question of law, he would not trouble the Assessors to consider it. You are not bound to consider the rent before paid, as any thing more than a measure by which to guide you as to what you may think is a proper value of the use and occupation of the farm, unless you shall be of opinion, that the rent had been paid in advance by McShane, in which case, of course the action is at an end. The Chief Justice adverted to the answer made by the Defendant to Mr. Gubbett, and pointed out to the Assessors, the whole bearings of the case.
Verdict for the Plaintiff. - Damages £6 13s.

Notes
[1] AOT SC 139/1, p. 71, gives the names as Henry Bilton, shipping agent, and Thomas Smith, and the damages as £6 13s 4d.