[ejectment - land title, surveying - land law, Crown grants invalid - Caveat Board]

Terry v. Spode

Supreme Court of Van Diemen's Land

16 October 1835

Source: Tasmanian, 23 October 1835[1]

This was an action in ejectment, brought by John Terry, the plaintiff, against Josiah Spode, the defendant.

Mr. Attorney General and Mr. Gellibrand appeared for the plaintiff, and Mr. Solicitor General and Mr. Hesse for the defendant.

Mr. Attorney General opened the case, by explaining to the Jury its nature. In the year 1823, Mr. Brooks (the former possessor of the land, which Mr. Terry now holds) had obtained a grant from Sir Thomas Brisbane for 500 acres of land, a portion of which was the land now disputed, between the plaintiff and defendant, in this action. The grant set forth, that these 500 acres were to commence from the mouth of, and to be bounded by a certain small creek. It appeared, that Mr. Spode was in possession of land adjoining that of Mr. Terry’s; that, some time ago, Mr. Spode had found out that it would be much to his advantage to possess a portion of the land that had been occupied by Mr. Terry, and an investigation was set on foot; the Surveyors were employed to measure the land, and by making the mouth of the creek commence higher up than it did when first measured; it was agreed that Mr. Terry should give up a certain portion of his land to Mr. Spode - Mr. Spode having got a little way up the creek, wanted to get more a little higher up, and get a little bit more land. Now, though the Attorney General perfectly admitted all the wonderful powers of the Survey Department, and seeing his worthy friends Mr. Frankland and Mr. Sharland, both before him - for both which gentlemen he had the greatest possible respect, and whose great surveying and trigonometrical talents, he did not mean to call in question, but how they or any men possessed the means of altering the situation of the mouth of a creek, was to him quite inexplicable - for the mouth of a creek must be the mouth of the creek, and nothing but the mouth. He contended his client was entitled to rely on the tenor of his grant, and that expressly stated, that his land was to commence from the mouth of a small creek. Now, the Survey Department had found out that the original mouth was not the right mouth of the creek, but the right mouth was at Mr. Spode’s favorite spot, and had given to him part of the land which they contend was the rightful property of Mr. Terry. If Mr. Terry had been in possession of the land for twenty years, he could have maintained an action of ejectment without any title at all. He also contended, that when two parties having had a dispute about land, and both agreed to have it settled by arbitration, that the party in whose favor the arbitration was settled, could maintain an action of ejectment against the other party. Now Mr. Spode had placed himself in the same situation, if Mr. Terry still claimed that part of the ground which the arbitrators had given to Mr. Spode, and upon which Mr. Spode had sat himself down - not contentedly, for he had now found that Mr. Terry had still too much land, when, in fact, he had much too little. He would very much like to know, how much higher Mr Spode would wish to go up the creek, he expected, he would get up by degrees, till he got to the other mouth, for he supposed a creek had two mouths, and then he would say, "oh, this is the mouth that was meant in the grant" - but, how the mouth could be half-way up the creek, he could not imagine; in fact while he, Mr. Spode, was banked by Mr. Sharland and also by Mr. Frankland, he knew not where he would find the right mouth, as they were so well versed with trigonometry and so forth. He did not doubt, for one moment -they might be very well enabled to depict the face of nature on paper, but how they possessed the extraordinary power of not only changing the position of creeks, but of altering them altogether, he had yet to learn. He argued, as another ground of this action, that Mr. Terry possessed the ground by license from the Crown - as the Crown had, by the hands of Mr. Moore, the Collector, received Quit-rent for the same, up to the end of the present year.

Mr. Gellibrand then proceeded to call his witnesses.

Mr. R. L. Murray deposed, that he had resided several years in Sydney, was well acquainted with Major Goulbourn, the Colonial Secretary; the signature of Registry to the deed produced, was his hand-writing.

Cross-examined by Mr. Solicitor General for the defendant. - Did you know that Mr. Goulbourn was Registrar of Deeds. Grants used to be sent from the Surveyor General to the Colonial Secretary’s office, and from thence to the Governor, for his signature and seal to be affixed thereto; they were then registered, and returned to the Surveyor General to be issued to the parties; was not aware of any other process; was not at Sydney when Sir T. Brisbane arrived; went up in the Midas; General Macquarie went up in the Caroline. Does not believe Sir Thomas Brisbane’s Commission was published in the Gazette.

Mr. Maurice Smith deposed, he was the attesting witness to the deed produced; it was a deed of mortgage of the premises for £300; knows both the parties concerned in it; George Brooks and John Terry, and was present when it was executed.

Mr. Moore deposed that the Quit-rent for the ground in question, was paid up to December 31, 1835.

Mr. Frankland deposed, that there were two copies of the grant, one kept in Hobart Town, the other at Sydney; the one produced, corresponded with the Hobart Town; was aware that the boundary of Brooks had been disputed; - Mr. Spode made a written communication respecting it; - Brooks abandoned part of it, and it was located to Spode; the chart of the land, was, in point of fact, inaccurate, and the land now in dispute formed part of Mr. Brooks; if it was measured according to the grant; the old chart showed the line to be taken on one side of the mouth of the creek, so that it did not agree with the grant; Brooks relinquished all the land between his and Cummins’s; but until the land was surveyed, it was not known where Brooke’s line was.

Cross-examined by Mr. Solicitor General. - The grant did not agree with the Sydney register; the latter did not mention the creek.

Mr. Ballantyne deposed that he had been in the Colony thirteen years; that Mr. Brooks he knew had relinquished 30 or 40 acres of his land; witness at one time wanted to go over the creek, but was not permitted.

Cross-examined by Mr. Solicitor General. - Was present when the land was measured by Mr. Scott to Mr. Brooks remembers a cottage, which stood near the lower creek, about four hundred yards from it; Brooks was present at the measuring. Mr. Scott measured to a bridge on the creek, about twenty yards from the Derwent; Emmett’s hut was on Brooks’s ground, by Mr. Scott’s shewing; Mr. Scott pointed out to me, as my boundary, the middle of the bridge.

James Clarke examined. - In January 1821, was servant to Brooks; Brooks built up to the upper creek; I know that Mr. Spode got possession of twelve or thirteen acres.

Goodwin examined. - Has known the land about sixteen years; Brooks occupied from creek to creek; about fourteen years ago, Mr. Spode had some taken off; about two years ago, Mr. Spode took another piece - the first was the largest.

This closed the plaintiff’s case.

The Solicitor General, for the defendant; contended, that plaintiff ought to be nonsuited, and that there was no case to go to the Jury, as the validity of the grant, under which he held possession, had not been proved - he took the following objections to the grant deed:-

Because it is in the name of the Governor instead of the King.

For uncertainty as to quantity and description.

For informality.

Because rent is reserved to the King and not to the Grantor

Because it has not been enrolled according to Law.

Because there was no evidence to shew that the approbation of the King, being a condition precedent, was obtained before the grant was made.

Because no title in Sir Thomas Brisbane was shew; if this grant is to operate as one from Sir Thomas Brisbane, his title should have been shewn.

Because if consideration (which is rent) fails, the grant fails, as the King was deceived.

His Honor, in summing up, thought the only question for the Jury was, whether the land in question was part of that set forth in the grant or not; as to the validity of the grant, it was a question for a future consideration.

The Jury, after some consideration, found a verdict for the plaintiff. The important question as to the validity of the grant deed, remains to be argued next term. Will the judges unsettle the whole Colony, by declaring all, except Colonel Arthur’s void?

Source: True Colonist, 23 October 1835

During the last week three trials have come on in the Supreme Court, which have, on various accounts, given rise to a great deal of talk. One of them, Terry v. Spode, for trespass to try to title to a disputed piece of land, was the occasion of calling forth from the Chief Justice a remark on the validity of Sir Thomas Brisbane’s Grants, the repetition of which, in the present case, (although the same opinion had previously gone forth from His Honor,) has raided great alarm in the public mind, and will most probably lead to numberless trespasses and intrusions. His Honor has often said, that no man could maintain an action for ejectment, under the title conveyed by one of Sir Thomas Brisbane’s Grants. It is frightful to contemplate the consequences that may arise, nay, that are already proceeding from this opinion having gone forth from the Judges. It appears that no man can now defend his house or his land against an intruder, at least against one who has obtained possession. There are two remarkable instances of the application of this opinion delivered by the Judge. A farm of 500 acres, at the Coal River, belonging to Mr. Terry, at Sydney, as the representative of Captain Marsh, had lain idle for many years. At last a man, who had heard of Judge Pedder’s law, takes possession of the land, and is cultivating extensively, expecting, no doubt, to be able to hold it against the right owner, who has only a Brisbane Grant. And we have heard that some similar appropriation of "Jemmy the Marine’s" Grant has for some time been contemplated by His Excellency Colonel Arthur, and by his neighbour, George Weston Gunning, Esq. J. P., &c. &c. These mighty powers look upon poor Jemmy’s land as the Austrians and the Russians looked upon Poland - we advise them not to touch it. By the way, this brings to our recollection a case of one of the most impudent claims for compensation on a land question, that ever was started, but we will relate it elsewhere - it is that of James Hobbs, Esquire. We hope the Association will lose no time in bringing under the notice of Parliament the state of the titles to land, according to Judge Pedder’s law, which we, with all due deference, submit is utterly inconsistent with common sense, although it does not follow that it may not be very sound lawyer’s law. We will shew this in ten words. The land belongs originally to the King, his agent, Sir Thomas Brisbane, comes here, acredited as the King’s Representative, and gives various grants of land - every body is satisfied with these grants, until a learned Judge discovers that Sir Thomas Brisbane gave the grants in his own name, but by virtue of the authority vested in him as the King’s Representative. It does not appear that the validity of these grants has ever been questioned by any one on behalf of the Crown; and surely a person holding, By Sir Thomas Brisbane’s title, has at least a better right than the man who can shew, no title at all, as between the two parties; and if Judge Pedder, as a Judge, can know nothing but what is in his books, yet, as a Legislator, and Member of the Executive Government, he ought, long before now, to have seen the necessity of getting the ill-effects of these grants corrected by an Act of Parliament. Indeed, it was his duty as a Judge to have represented this; for, when a Judge finds himself bound by the absurdities of the law to do injustice, he ought to point out the injustice to the Legislature. We really are unable to finish this article - our readers must excuse us.

Source: Launceston Advertiser, 28 October 1835

The Gazette of last week contains the long expected Act for the Settlement of Claims to Grants of Land. We have given it our best consideration; and the result is a feeling of general approbation with respect to the measure, qualified however with a great dissent from those maxims of territorial policy under which so complicated a piece of legislation has become indispensable. For our parts, we should say that on every principle of expediency and good government it is desirable that all distinctions as to the tenures of land were abolished; so ridding the country of one fruitful source of internal agitation and discontent in times to come: - and further indeed, that it would be well to abolish Quit Rents altogether - though not on the foolish plea of the Colony being unable to pay them. It would seem however to be part and parcel of the British colonial system, to accumulate the greatest possible mass of public mischief for existence at the future period when the Colonists shall take upon themselves the task of Civil and Religious Reformation. But these considerations aside, and taking things as they are, we repeat that we are disposed to give a general approval to the Act before us, as regards the objects it proposes to attain. There are some of the details however to which we strongly object.

The design of the Act is to appoint a Court of three Commissioners, who shall have authority:-

"To examine into and report their opinion upon all claims and applications for Grants of Land to be issued by or in the name of his Majesty, his Heirs and Successors, under the public seal of the Colony; or to any particular estate or interest in or lien on such land; whether such claims or applications be made by persons claiming in their own right by location order, or other authority from any Governor of New South Wales or any Lieutenant-Governor of Van Diemen’s Land; or by or on behalf of persons claiming derivatively only through or under any other person originally claiming by any such location order, or other such authority as aforesaid; and also, according to the regulations which shall in each case appear to such Commissioners to be justly applicable thereto, to report their opinion as to the reservations and conditions, amount of quit-rent, and other terms (if any), to be contained or mentioned in such grants respectively, - and also all other matters in anyway relating to the issue of such grants, including the amount of fine (if any) payable in respect thereof. And every such report shall be in writing under the hand or hands of the Commissioner or Commissioners and be addressed to the Lieutenant-Governor, and in any case where either of the persons preferring or opposing the claim shall after due notice neglect to attend the report may be made exparte."

And in order to give effect to the authority of this tribunal, the Commissioners are empowered to summon witnesses, to examine them on oath, and to award costs for vexatious opposition to claims of grantees. The decision of the Commissioners given, the issue of the Grant is, in general, supposed to follow; but where no opposition is offered the Grant is issued by a mere official process.

In few words the above contains the principal features of the new Act; and thus stated they seem appropriate enough to the circumstances of the Colony. But why three Commissioners? Why so increase expense for a decrease of efficiency? Why divide responsibility? and encourage inactivity? The appointment of three to do badly, what one might do well, - this is precisely illustrative of the worst days of Tory jobbery.

Again, too, - nothing in the Act is "to compel the Lieutenant-Governor to make or deliver any Grant, in any case, unless His Excellency shall deem proper so to do." This is highly objectionable. We conceive that if, by the decision of the Commissioners, - backed in case of Appeal (which is allowed) by the Supreme Court, - a claim to a Grant is made out, the title deed should be issued as a mere matter of course; so arbitrary power being vested in any quarter to supercede a deliberate judicial decree in question affecting the rights of property. We saw no more upon this point at present, it is likely we shall have occasion to touch more largely upon it hereafter.

There is only one other point which appears to us to demand immediate notice. The last Section of the Act contains the following:

"And in every case in which it shall appear to the Commissioners present at the final hearing, or the then Judges in cases of appeal, that any claim or caveat, or counter claim under this Act has been preferred or prosecuted vexatiously or without reasonable or probable cause it shall be lawful for such Commissioners or Judges to award such reasonable sum as costs to be paid by one party to the other as such Judges or Commissioners shall then or afterwards think fit to order. And in case of non-payment the amount of such costs may be recovered by Action of Debt in the Supreme Court or (if under thirty pounds) by suit or plaint in the Court of Requests holden in and for the district of Hobart Town."

We should like to know why the Commissioners, since they are to be vested with the greater power of awarding costs, are to be deprived the minor one of enforcing payment of them? Why this gratuitous increase of litigation, to the manifest injury of every body but the legal profession? The Act, however, whatever its defects, is now the law; and it may be asked, what use to fine fault with it since it is passed? The answer is plain - there is no knowing in this country what a law is until we have it promulgated in the Hobart Town Gazette; and although a law may be passed one week, experience has already shewn that in V. D. Land there is little difficulty in repealing it the week after.

Source: Cornwall Chronicle, 31 October 1835

ACT FOR SETTLEMENT OF CLAIMS TO GRANTS OF LAND

It being deemed expedient, that measures should be taken for the quieting of Titles, &c - an Act has passed the Legislative Council, for the purpose. We give a summary of it.

1. Lieutenant Governor to have the power to appoint Commissioners.
2. Lieutenant Governor to have the power to appoint Clerks to Commissioners, and such other ministerial officers, as to him shall seem requisite and proper, and order the payment of such fees as he may think fit.
3. Commissioners oath.
4. Commissioners shall have power and authority to examine into claims, &c., and to report their opinion to Lieutenant Governor.
5. Commissioners shall be guided by equity and good conscience only, not by law, and may examine men and their wives.
6. Commissioners may issue summonses for witnesses to attend, fine of Lieu[?] and imprisonment, ad libitum for refusing to attend.
7. Commissioners being satisfied that the claimant is entitled to his grant, in equity and good conscience, shall prepare a grant, and transmit it, so prepared, to the Lieutenant Governor, for his signature.
8. Provided always that the Lieutenant Governor shall not be compelled to make such grant, unless he shall deem proper to do so.
9. Makes it lawful for the Lieutenant Governor, if he is not satisfied with the equity and good conscience of the Commissioners in their decision, to appoint a Law Officer of the Crown to interfere.
10. If Commissioners cannot agree, the Judges of the Supreme Court to settle disputes.
11. Every appeal to be openly heard and determined in a summary manner by the Judges, in any place they may appoint.
12. Judges may adopt such means to settle disputed matters, as shall appear to them best calculated to attain the substantial ends of justice.
13. The like power in certain other cases.
14. Chairman (whom the Lieutenant Governor appoints) to decide upon clear and undisputed cases.
15. Commissioners required to do substantial justice to paries whose lands are under mortgage.
16. Appropriation of fees - poor people exempt from the payment of them, at the pleasure of the chairman.
17. Payment of fees.
18. This clause empowers the Lieutenant Governor to nominate any other Chairman and Commissioners, in particular cases.
19. Term Lieutenant Governor.
20. This Act shall be deemed a public Act.
21. Punishment for perjury.
22. Every commission issued under this Act, and every power and authority granted by his Act to any Commissioner shall cease, determine, and be void, so soon as the Lieutenant Governor shall think fit.
23. Empowers the Lieutenant Governor, and any two Commissioners, to make rules and orders - any Caveat, &c., made vexatiously, Judges may appoint reasonable damages, &c. This power not to extend to the Commissioners - and the clause does not contain any provision in favour of the Lieutenant Governor.

Here Colonists, is another Law, the fruit of the labor of a close door Divan. Is it a law adapted to satisfy the inherent principles of Englishmen? What should our countrymen at home think, if the British King chose to run the risk of making such a law? It is not possible that British Majesty could issue a law to the following effect: "Whereas, certain matters in dispute, amongst my subjects require arranging - now, be it enacted, that I, by virtue of my power - which is greater than any monarch upon earth - hereby ordain, order and appoint three men, to enquire into, and to settle disputes that are brought before them; that if it please me at any time, one man only shall decide, and not three men - that, either three men, or one man, shall settle all matters - not by law, but by equity and good conscience only - that, if it pleases me neither the one man, nor the three, shall settle matters by equity and good conscience, but by law - that I will if I am so disposed, take the power from any of the men I appoint, and command, that the Chief Justice shall act in their stead - that, the one man, or the three men at my bidding shall decide, or neither of them, and notwithstanding the power. I now give them, they shall not act without it seemeth to me fit and properly, and every power and authority I give to any person by this Act, shall cease, determine and be void, when I shall see fit."

Now we put it to our fellow subjects under this Government, whether the British King, could make such a Law. The Governor of Van Diemen’s Land, has done it, consequently, he has greater power than the King of England. We pronounce it to be an arbitrary law, insomuch as, none of its provisions can be carried into effect without the Lieutenant Governor shall see fit. The Commissioners made decide, the Judge may approve, but in order to the issuing of a grant, (the object of the Commissioners) the Lieutenant Governor’s sanctions must be obtained - provided always that the Lieutenant Governor shall not be compelled to make such grant, unless he shall deem proper to do so.

Who after this, dare say that the Commissioners are any thing more or less than Automatons. The Lieutenant Governor can make them, and he can unmake them, at his pleasure; he can create, and he can destroy with a breath. He does do, what the King of England has not the power to do, and he will continue so to do until we possess the advantages of a free and unfettered Representation; Colonists cannot too [??] desire so great a blessing.

Pedder C.J. and Montagu J., 28 November 1835

Source: Tasmanian, 4 December 1835[2]

His Honor the Chief Justice delivered the judgment of the Court in this case. The facts were shortly as follows: A gentleman, named Brooks, received a grant of land near New Norfolk. He obtained a Grand Deed in the form adhered to from the establishment of these Colonies, from Sir Thomas Brisbane, the Governor-in-Chief of New South Wales, of which this Island was then a Dependency. He sold a part of it to Mr. Terry, the present plaintiff. Mr. Terry entered upon that part and had possession for many years. Mr. Spode, a gentleman having property adjoining believing that the description in the Grant Deed gave an excess in the quantity - that the excess, if Mr. Terry had no legal right thereto, would fall to himself, he applied to the "Caveat Board" (as the Board of Claims for Grant Deeds is called) and obtained, by the decision of that Board, a Grant Deed from Lieutenant Governor Arthur, in which was included the excess before referred to; and he took possession of it accordingly. Mr. Terry was thus compelled to seek to recover possession by ejectment, as being the rightful possessor under his Grant from Sir Thomas Brisbane. The cause was tried at the Sittings after the last Term, before His Honor the Chief Justice and a Special Jury, composed of some of the most respectable and intelligent men in the Island. At this trial, when Sir Thomas Brisbane’s Grant Deed was produced in support of Mr. Terry’s claim, it was objected to upon several grounds, the whole of which, and as we believed, a successful combating of them, will be found in our number of October, 30. The Chief Justice decided, that those objections to the Grant Deed should be reserved for argument in Banco, and the case went to the Jury upon the merits, and upon these the Verdict was for the Plaintiff. The validity of the Grant Deed was afterwards argued before their Honors the two Judges, Pedder and Montagu, and this day the former delivered the judgment of the Court. The Chief Justice stated the origin of the case as above recited. "It was proved," said His Honor, "that the plaintiff has had possession of the land in question for many years, and upon the facts of the case a verdict was given for the plaintiff, but the validity of the Grant Deed itself was objected to upon a great number of grounds, two only of which we think it necessary now to refer to, giving no opinion upon the others. First. - That the Instrument itself was not properly enrolled in a Court of Record. Secondly. - That it run in the name of the Governor - not of the King. In respect to the first point, evidence was given by Mr. Murray to the signature of Major Goulburn (who was Secretary to Government, and acted as Registrar) - to the certificate of enrolling in the Grant Deed; and, as far as he knew, no Grant Deeds were taken to the then existing Court to be registered; they were all taken to the Secretary for that purpose. Upon reference to the powers contained in the Commission of the Governors in this respect, we find little, if any difference between that of Governor Brisbane, and those set forth in Stokes, a writer, we believe, of the best authority upon Colonial subjects. The only difference is, that the latter states that "Grants shall be enrolled by such persons as shall be empowered so to do." The Commission of Sir Thomas Brisbane is verbatim alike to that of General Macquarie, and no doubt of all his other predecessors. Whether, however, Major Goulbourn had proper authority to enrol these Grants, is a question which we do not consider it necessary to go into; and we proceed to the second objection - the form of the Grant Deed itself. It was not pretended at the trial that the Governor granted away his own land; it was avowedly the King’s land which he so disposed of; and the question then was whether the Grant should not have been in the King’s name. The powers deputed by the King to the Governors are fully recited in the Deed. (His Honor read the recital, for which we refer to our number of October, 30th.) We see nothing herein to take this case out of the ordinary rule of Law; that is, that any conveyance of land must not only be in the name of the owner, but must also purport to be absolutely executed by him. The case in Moore’s Reports, Fountain and Small, (we are not certain of this, for His Honor spoke in a low tone of voice, and the construction of the Court is so unfavourable to the transmission of sound, that with every possible attention, and with every advantage, by the favour of the Court, of a very convenient position for hearing, much of what fell from His Honor but indistinctly reached us) in that case the principle appears to be clearly laid down, that where any person has authority to convey, the estate of another, the instrument of conveyance must run in the name of the principal, not in that of the Attorney. There is also another case in which the rule of Law appears clearly fixed; it is in the 5th and 9th of Cooke. In this case it is decided, that although the Attorney may make Livery of Seizin, yet that the Deed of conveyance must be in the name of the real owner. In the present case, nothing was urged to shew that there was any authority possessed by the Governors either by Act of Parliament or otherwise, to enable them to convey the King’s land, otherwise than in compliance with the usual rule of Law; and we are therefore of opinion that this Grant is Void. It has been argued that the intent of the Crown being evident, that the land should pass by these instruments, and the payment of rent under them, render them valid. No doubt the intent was, as is contended for, and that the Governor in issuing the Grant, also intended that the land should pass. But we consider it to be clear Law, that if the instrument is void in itself, no intent whatever can make it otherwise.

In reference to the argument that the affixing of the King’s Seal to the Grant Deed rendered the instrument the King’s because the Seal was everything in all Deeds, His Honor observed, that this process at Home was certainly exactly as had been described. The Privy Seal was the warrant to the Lord Chancellor for the affixing the Great Seal, of which he had the custody. Here, there is no Privy Seal. The Governor of the Colony is the keeper of the Great Seal, and his Commission is his Privy Seal warrant, not only for every particular case, but for all cases. No other warrant being to be had here, none other can be necessary. But when the Great Seal is affixed to a conveyance from the King, the King’s name must be used - and in his name alone his Seal must be affixed. His Honor here adverted to a reference made by Mr. Horne in the course of his argument in favor of the validity of the Grant Deed, as to the disposal of Crown Church Patronage by the Chancellor. "No doubt," said His Honor, "the Chancellor disposes thereof, just as in the same manner he exercises his right of appointment to the Magistracy. But when the Great Seal is affixed to the instrument bestowing the one, and to the Commission of the other, both run in the King’s name, and not in the Chancellor’s. So also here, the Governors have the power to appoint Magistrates, but their Commissions run in the King’s name. So ought the Grant Deeds; and as they do not, we are of opinion that they are altogether void, and that there is no authority here to remedy the defect."

The verdict for the plaintiff set aside, and a nonsuit entered.

_______

Since the above article was in type, we have been favored with a communication from a communication from a friend, on this important subject, to whom we are obliged for many similar favors. Much of its contents being a repetition of what we have above expressed, we shall only insert, as in common impartiality we are bound, ad alteram partem extracts, upon such points as we have not touched upon. The following are the most material:-

"The decision however cuts two ways. It is of great importance in respect to persons possessed of landed property under old grants who have not either legal conveyances, or to others whose parents or relatives may have died intestate, or without making a will in legal form, so as to pass the freehold to those to whom they may have wished it should go, perhaps to natural children, not known as being so from long association of the parents, but of whose marriage, perhaps no legal proof exists, whereby distant relatives in England or elsewhere would possess property, never intended to go to them, leaving those for whom it was intended, destitute. In all cases like these, there can be no doubt but that the decision will work much good. It will enable a wise and paternal Government, after a close investigation of the claims of all parties, to bestow the property upon those best entitled in equity and good conscience. It will be besides, the means of doing away with unjust, frequently fraudulent conveyancers, obtained by artful men for insufficient, in some cases no consideration, and will place the Government in a situation to judge fairly between all parties, and to do justice to all. It will do away with most of that shameful land jobbing, by which many persons have made large fortunes, and will place these bargain makers, upon a fair footing with those who they would have bargained out of their property. (We have more than one instance of this within our own knowledge of shameless indecency, which as our Correspondent so well says, will now become subject to the equal hand of justice, leaving "the bargainers" obtaining as they suppose, large properties without one shilling of payment, to the operation of even-handed justice. - Ed.) There are many other great advantages to the great body of the community, which will be derived from this decision. You may rest assured, there is not a single professional man of experience, who will not bear me out in this. The crying injustice which all those in extensive practice, know to have been perpetrated, in the way of "bargain making," not without instances, by their professional brethren, and which therefore were so cunningly managed, that but for this decision the lay would have secured to them, the produce of their dishonest ingenuity. It has been suggested, if I am not misinformed, to the Government, that the best course in the present conjuncture would be, to issue a public notice, that grants in the correct form would be issued for all of the former Governors, in the name of the original grantee, leaving the rightful owner to prove his way to the possession of it. I think the reasons I have given above are convincing, that thereby the opportunity would be lost of doing justice to the hundreds, who from the ignorance of the forms necessary by law, to pass real property, would have been deprived of their just rights but for this, in their cases, very fortunate event. It may be said, that it is too much in a country such as this, to look to strict forms in all conveyances, made perhaps, when there was not a lawyer, or other individual in the Colony, who knew what the law required on such subjects, and that where the intention of the parties was clear, the Courts should confirm that intention, let the forms of expressing it, be never so deficient. Good. But if so, and if also the law as the Court holds, knows no difference in such matters, between the Crown and the subject, what becomes of the decision against the Grant Deeds where the intention of the Crown - of its attorney, and of all concerned was clear and undenied! Thus you see, the decision cuts both ways, and upon the whole, I am convinced, it will work much more good than evil."

Thus far our Correspondent. There can be no doubt but that all he asserts, being bottomed upon strict justice and equity, is entitled to the fullest consideration. We know well, that numerous iniquitous robberies have been perpetrated, and more have been, and are attempted to be perpetrated under the name of "bargains" secured by "legal conveyances." We know well how many hundreds of widows - orphans - whose families would be driven to absolute want, if the strict interpretation of the law was to be held in all cases of the disposition of property. The public well knows this, and well has our Correspondent expressed it. But here again, a fresh consideration of infinite importance arises. We allude to the absolute necessity, of such a system of investigation of the claims, which in such unnumbered quantities, will now come before whatever tribunal the Government may appoint for that purpose. We need not say - for we believe, there will not be two opinions upon the subject, that the recent Act of Council for the re-modelling the Caveat Board, will now never do. It must be a tribunal of a very different construction, to which the people here should in common justice, be referred upon so important a matter, as the disposition of perhaps, their whole worldly possessions. The "Board" should be employed in alone arranging and placing in proper order the claims brought forward. Those claims should then be referred to the Judges, one of whom should sit publicly, at least, twice a week upon that purpose, and there should be in all cases, power to appeal to the Executive Council, the appellant to be there heard by Counsel if he pleases. Upon such a vitally important concern as this, there should be a consideration bestowed, which should not leave in the possibility of doubt, the strict equity and justice, with which every claim preferred, should be decided. When the title to the whole property of the Island is unhinged, the whole wisdom and integrity of the whole Government should be open to the people thereon. It is most momentous subject - we have now only disclosed its outline - we shall not fail to devote our best energies to its embodying.

Notes

[1] See also Hobart Town Courier, 23 October, 13 and 27 November 1835. For the significance of this case see A.C. Castles, An Australian Legal History, Sydney: Law Book Company, 1982, pp. 290-92. For the Caveat Board see R. Snell, ‘The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859’, Tasmanian Historical Research Association Papers and Proceedings, vol. 42, no. 4, 1995, pp. 192-213.

[2] See also Hobart Town Courier, 4 December 1835. The Tasmanian, 4 December 1835 published a long editorial on the decision, followed by this report of the judgment and the further commentary published here.