Lord v Jackson, 1839

[civil procedure – ejectment – land law, adverse possession against crown – reception of English law, land law – terra nullius – land law, crown grant]

The particulars of this far-famed case are too well known, having so long formed the subject of private conversation and newspaper discussion, to require repetition here. Suffice it to say, that on the occasion of the actions for ejectment instituted by Mr. D. Lord against the parties to recover possession of the property for which he had obtained a grant, a verdict was returned (by consent) for the plaintiff, subject to the future decision of the following reserved point, viz:-

“Whether a grant from the Crown, of lands which had been in the possession of a subject for upwards to twenty-one years, adverse or undisturbed by the Crown, and for which no rents and profits have been paid, give a title to the grantees sufficient in an action of ejectment.

Mr. Horne for the defendant now rose to move for a rule to show cause why the verdict entered for the plaintiff, as above stated, should not be set aside and a verdict for defendant entered upon the point reserved [as above cited].

His honor the Chief Justice enquired whether any one was present on behalf of the Crown, and suggested that it would be necessary for notice to be given to the Crown, it being involved in the question, although not a party to the suit.

The Attorney General said, that as the motion was only for a rule nisi, he would consent on the part of the Crown to take that as notice.

The Chief Justice took an exception to the wording of the point reserved. A possession undisturbed by the Crown was consistent with a possession not adverse, and therefore the point as before the Court embraced two cases, both of which could not be true.

Some argument of little interest ensued, when his honor suggested that the words of the point should be altered to “21 years possession adverse to the Crown or 21 years in the absence of any lease undisturbed.” For it were possible, that a man might hold for 21 years under a lease from the Crown, and then claim an estate in fee.

Mr. Justice Montagu had no objection to the alteration suggested by his Honor, as he conceived the meaning was the same.

The Chief Justice thought there was a very material difference. The question as it stood would include a case, in which a party might hold under the Crown upon a lease for 25 years, and after the expiration of 21 years of such lease, the Crown having omitted to demand the rents and profits demand an estate in fee.

Mr. Justice Montagu now saw the distinction, and perfectly concurred that the difference was essential He would, however, remark, that the statement of the point reserved was penned by himself upon the trial - that it was intended as a mere memorandum from which a case was (his honor expected) to have been drawn up, and after being assented to by the counsel on both sides and approved by him, as the presiding judge on the trial, laid before the two judges for consideration.

The Attorney General was quite satisfied to take the memorandum as it stood - the words, “or undisturbed by the Crown” were inserted at his own suggestion, conceiving that it was possible the opposite party might set up the plea of a lease from the Crown.

The Chief Justice insisted that the memorandum in its present shape could not be considered, as it was vague, indefinite, and uncertain, and did not appear to meet the case to which it was intended to apply. If Mr. Horne persisted in moving upon that point, his Honor would tell him plainly that he should take it as including such a case as he had mentioned.

Mr. Horne could not see how the alteration was to be made. That memorandum was drawn up with great care by his Honor, on the trial, and he was willing to abide by it.

Mr. Justice Montagu replied sharply, that the memorandum certainly was penned by him at the suggestion of the Counsel on both sides, upon the understanding that if it were found in any way not applicable to the case, a more accurate one was to be prepared from it - approved by him, and submitted to the Judges. As the Counsel had not thought proper to do so, and as it appeared by Mr. Horne’s own admission that the point before the Court embraced matters which did not apply to the case. His Honor would not sit to hear any argument upon it. If Mr. Horne insisted on his motion, his honor was decidedly against him. The only alternative was to draw up a proper case for the Judges before the next sittings of the Court.

Neither the Attorney General nor Mr. Horne appeared willing to code one tittle of the point, when

Mr. Justice Montagu added, “If you take the matter as it stands, the major include the minor, and if that is fatal to you, away goes your case.”

A very long discussion in the same strain followed, in which, by the ingenuity of legal quibbling, the real point at issue was rapidly disappearing. We scarcely know which would be the most tedious, for us to write, or our subscribers to read a detailed report, which, to the public in general, would possess about as much interest, as reading the Riot Act. In the end, Mr. Horne made his motion for a rule nisi, on the authority of a case, reported in Bingham, Doe on demise, of Watt v. Morris, which the learned Gentleman patiently read throughout, and the learned Judges as patiently listened to - when it was concluded,

The Chief Justice remarked that the case cited only went to support one point of the motion, and before a rule could be granted, a case must be made out. Mr. Horne’s argument went no further, than that the Crown, if it suffered land to be out of its own possession for more than 20 years, could not grant it to any other person, unless judgment was first had by prerogative process, upon information of intension. His Honor would not take upon himself to say that if this were the law of England, it was of necessity the law here - it might be so; but the Court could not be called upon to give a judgment without knowledge of the facts of the case.

Mr. Horne contended that where a subject has taken land from the Crown, he holds only as a subject, and has no prerogative process, as the Crown would have had in the event of its continuing to possess the land.

Chief Justice. - The only way in which justice can be done in this matter, is to have the case stated.

Justice Montagu. - The Court knows nothing of the case. The facts did not transpire on the trial, I know nothing whatever of the case.

Chief Justice. - The Court cannot give any opinion, except upon a shewing of the case.

Judge Montagu. - Let a rule be taken to show cause why the verdict should not be set aside, upon a case to be submitted to me for approval in chambers, and I will decide what the point for consideration should be.

Mr. Horne was willing to take the case as it stood, and did not see how anything else could be done.

The Chief Justice was ready to grant the rule of the words, “or undisturbed by the Crown” were struck out.

The Attorney General objected to that being done, as Mr. Horne having suffered it to pass on the trial, could not now have the privilege of striking it out.

Judge Montagu - I am reluctant to assent to any thing which is not calculated to meet the justice of the case. We must see what the facts are:-

Chief Justice. - It appears to me that a wrong course has been adopted, certainly no judgment should be signed - the only way to get the opinion of the Court is, by both sides consenting in a statement of the facts. If this is not done, the case must go to a jury for a special verdict, because it is evident there has been a mistake, but if it can be turned into a case it would be much better.

The Attorney General would not give way, but insisted that Mr. Horne should not take nothing for his motion, and that the verdict should stand. The leaned Judge would recollect that Mr. Horne made several other objections on the trial, equally important, with the one under consideration; for instance, that Queen Victoria could not grant lands at all - or if she could, that her Majesty should be here to grant them. These his Honor had disposed of on the trial, and kindly consented to reserve this point to indulge his friend, Mr. Horne.

Mr. Horne (majestically) - Mr. Attorney General, be good enough to state to the Court what did take place, but without your own embellishment.

Mr. Justice Montagu presumed his report of the intention at the trial would not be disputed. The memorandum was not intended as any thing more than a mere memorandum of what was to be done. It was done on the good faith of both parties, in order that substantial justice might be done. It was never contemplated that a judgment should be snapped on either side. Now it is insisted that the judgment must stand or fall by this memorandum. The Court would never take any such course - the Counsel had been allowed every indulgence - he had been asked to submit a case, he had been offered the option of moving on a vase to be drawn, but no - he would have his bond - and his bond only be stuck to the memorandum as it stood, and therefore should take nothing by his motion.

Mr. Horne. - We are ready to submit a case if the other party will join in it. (The Attorney General declared that he was “perfectly satisfied with the case as it stood.”) Mr. Horne continued, that this was the first moment it had been found that the memorandum did not meet the case, and begged to be allowed to amend it.

The Attorney General said it was too late, he had agreed upon the point as it stood, and candidly told the Court that the case he had called was the only one he had to support his motion. He would not consent that any further latitude should be allowed to Mr. Horne.

Judge Montagu. - The Court will take care that a judgment shall not be snapped to do injustice one way or the other. I consider that I have been exceedingly ill-used by Mr. Horne throughout this case. He has endeavoured to take me by surprise, but still I will take care that injustice shall not be done.

Chief Justice. -No justice can be done unless upon a view of the case, and I should be very sorry to think I have been compelled to refuse the rule, if any judgment was to be signed upon it.

Mr. Horne. - (To Mr. Justice Montagu.) - I had not the least idea of wishing to take the Court by surprise.

Mr. Horne. - Because I considered that it would save expense and trouble to move upon the point reserved. The inapplicability of this memorandum has only just now been suggested by his Honor the Chief Justice, and I hope therefore that the Court will allow me till Friday next to endeavour to agree upon a case for their Honors consideration, when if the opposite party will not consent to a statement which will meet the justice of the case, probably your Honors will permit me to move for a new trial.

The Attorney General opposed any such proceeding, as he said merely to gratify Mr. Horne.

Judge Montagu. - I would suggest that such a point should be framed as will meet this case, and this case only, and if such a point cannot be agreed upon, I think that justice cannot be done except by a new trial, when we shall have the facts.

The parties must either agree to a case for their Honor’s decision, or a new trial will most probably take place.

The Attorney General rose in obedience to the call of his Honor the Chief Justice. The learned gentleman had, he said maturely weighed and deliberately considered the proposition made on Tuesday last, but could not in this instance consent to any special case. He had the assistance of the Solicitor General and they were resolved to refuse their assent to the proceeding suggested. They would adhere to the verdict which had been obtained, and would not risk either the Crown or their client by consenting to any such proposition. Mr. Horne had made his motion, argued upon it, and the rule had been refused; the verdict therefore must stand.

The Chief Justice said, that as the Attorney General did not reply, it could not be an argument. His Honor had refused the rule upon the point stated, on account of the wording of that point; according to which, let the decision be which way it might, it must still be for the defendant.

Mr. Justice Montagu said, that the only point was, did the statute of James extend to this colony or not.

The Chief Justice asked Mr. Horne whether he claimed by having adverse possession or possession by lease?

Mr. Horne could not say which it was, as the facts did not transpire on the trial. By consenting to the point reserved, the opposite party had admitted the possession whatever it might be.

Chief Justice. - If neither party will apply for a new trial, we ought to stop the judgment, as the only way of getting out the facts.

Mr. Justice Montagu was of the same opinion, and unless they shewed cause and good cause too, all proceedings should be stayed.

Mr. Justice Montagu had a great aversion to new trials generally, as being the occasion of a great deal of unnecessary expense. In this case he saw no reason for a new trial at all. The only point to be determined was, whether the statute of James is in force in this colony or not.

The Attorney General would immediately consent to argue that point, if he were only counsel for Mr. Lord and not an officer of the Crown.

Mr. Justice Montagu. - As counsel for Mr. Lord only you appear in this case, and as a Crown officer have no right to interfere between the two parties.

Chief Justice. - Certainly you have it, it[sic] turns out that the Crown is involved incidentally, but not otherwise.

After much discussion, it was finally agreed upon that there should be a new trial, for the purpose of taking a special verdict - the costs to be decided by the event.

The Attorney General requested that his Honor Mr. Justice Montagu would be pleased to deliver his judgment as to whether a new trial should be granted in this case.

His Honor considered that a new trial had been already commented to by the counsel on both sides.

The Attorney General said he did consent in consequence of what had fallen from the Chief Justice on a previous day, that if there were not a new trial the verdict must be for the defendant. He consented as an alternative, but had never shewn cause against it.

After much dispute, it was finally ordered that the point should be argued this day.

The Attorney-General for the plaintiff contended that the Court ought not to grant a new trial.

Their Honors were of a different opinion, and accordingly set aside the verdict, and directed a new trial. The parties agreed that the cause should be tried by a jury of twelve. - Advertiser.

This was an action of ejectment, brought to recover possession of certain premises in Collins-street. The case has been too often before the public, to require repetition at our hands. The plaintiff was non-suited, not having proved the registration of the deed of grant under which he claimed.

Mr. Attorney General McDowell and Mr. Ross for plaintiff, Messrs. Horne and Young for the defence.

This was an action of ejectment, brought to recover possession of a cottage, and land in Collins-street and was contingent upon the previous case. The evidence having been gone through, which is well known.

His Honor summed up. - The deed had been put in as an answer to the defendant’s claim, but it was contended by the statute of Ann, that the Crown cannot grant an estate in fee, if so, there could be none so unfortunate as the people of this Colony. For years the Governors had been directed to give such grants, in this and the Sister Colony, and they had given grants in fee simple; upon the security of such grants, emigration had taken place large sums of money had been expended, and people have died in the faith that the land would go to their posterity. The answer to the deed is, “we don’t claim ourselves any title from the Crown, but from the statute of James lst, if in force in this Colony, land being out of the possession of the Crown for 20 years, or no rents and profits having been received, the Crown cannot give a title until it has first established its own.” The effect, if I understand right, if the land has been out of possession 20 years, is to exercise its rights of a writ of intrusion, and by the intervention of the country, recover its right. If the parties on either side do not consent to a special verdict, I must enquire - First, does that statute apply here, and say, yes, and leave those who contend otherwise, to get a new trial, if they can; a special verdict, agreed upon, would prevent the necessity of any motion for a new trial, and set the matter at rest.

Both sides having consented to a special verdict, His Honor stated succinctly the real nature of the case.

1st. - That the land originally belonged to the Crown, at the first settlement of the Colony.

2nd. - That a grant was made in 1839, to David Lord of the land in dispute, but that no other grant was ever made of the same land.

3rd. - That Holsgrove was in possession of the land on the lst of January 1810, and remained so for fifteen years, until the time of his death.

4th. - That after Holsgrove’s death, the land remained in possession of the woman, commonly called Catherine Holsgrove, until her decease on the 13th September 1832.

5th. - That the daughter of the before-mentioned Catherine Holsgrove, remained in possession of the land, from the time of her mother’s death, until her own marriage with her present husband, the defendant in this action, which took place on the 31st January 1833, and defendant has been in possession ever since, until the commencement of this action.

6th. - That Mrs. Holsgrove was not married to Holsgrove by Mr. Marsden, but were reputed and lived and cohabited together as man and wife, and that Elizabeth McLaren was born during such cohabiting and reputation.

10. - That the Crown did not receive any rents or profits, from the time Holsgrove first took possession, to the present time.

11. - In the latter end of 1816 or beginning 1817, Mrs. Holsgrove went to live with Holsgrove.

12. - That the Crown has not been in possession since Holsgrove first took possession.

13. - That Holsgrove had not leave from the Crown, to take possession of the land, nor the mother, nor daughter after him.

In this case it appeared that the jury had omitted to find, in the special verdict returned by them at the last sittings, lease, entry, and ouster, three facts which were admitted at the trial by the defendant, and which are only rendered necessary in ejectment cases by a fiction of law.

The Chief Justice, before whom the case had been tried, had suggested to the parties, that in order to prevent the expense of a new trial, and as it was clearly a mere oversight, that a special case had better be drawn, inserting these facts.

The Attorney-General, as the defendant had refused to do so, had obtained a rule, calling upon him to show cause why these facts should not be inserted as a finding of the jury in the special verdict, or why a new trial should not be had.

Their Honors decided that they could not, as the defendant refused to consent, amend the special verdict, by inserting as a finding of the jury, “Lease, entry, and ouster,” and that therefore there must be a new trial.

Lord v.McLaren. - This was an action of ejectment. The particulars of this long disputed case, has been already laid in the fullest possible manner before the public. Verdict for the defendant.

[1] See also Tasmanian, 16 August 1839; Launceston Advertiser, 22 August 1839.

[2] See also Tasmanian, 23 August 1839; Launceston Advertiser, 29 August 1839.

[3] See also Hobart Town Advertiser, 20 September 1839, concluding with the following : “The above was the special verdict of the Jury, upon which their Honors will have to decide whether the action of ejectment can be supported, or otherwise.” See also Launceston Advertiser, 3 October 1839.