[ferry, rental of service – scire facias­ – crown, action by – civil procedure]

R. v. Murdoch

Supreme Court of Van Diemen’s Land

Pedder C.J. and Murdoch J., 11 November 1840

Source: Hobart Town Advertiser, 13 November 1840[1]

Before both the Judges, and a special Jury of 12

            For the Crown - The Attorney and Solicitor Generals, and Crown Solicitor.

For the defendant. - Mr. Horne and Mr. Anstey, and Mr. Allport, solicitor.

            This was a proceeding by scire facias in extent in aid of the Crown, to recover the sum of £1045 found, by an inquisition holden on the 7th April last, to be due from the Defendant to the Queen for rent of a certain Ferry at Bridgewater. The scire facias alleged the finding of the inquisition, and called upon the defendant to shew cause why judgment should not forthwith issue.

            To the scire facias a plea of non indebitatis mode ac forma was filed; and issue being joined by the crown, the case now came on for trial at [????] crown was the commission and inquisition declared upon in the scire facias.

            Mr. Horne for the defendant argued that the case must fail as there was no evidence of any ferry being in existence, and further, there was no proof of any demise.

            The Court ruled that the inquisition was prima facie evidence of both facts, which it was for the defendant to rebut if he could. Any objection to the record should have been made the subject of demurrer.

Mr. Horne could not demur, but after the decision of the Court would apply for leave to amend his plea; by traversing the ferry and the demise.

Mr. Justice Montagu could not allow any such mode of proceeding, he had pleaded the general issue and must abide by his election.

Mr. Allport wished to say a few words to shew that the defendant had been concluded by the conduct of the Crown Solicitor who had stated it was no use his attending on the inquisition.

The Court ruled he had no right of audience.

Mr. Horne then addressed the Jury, pointing out the difficulty in which he was placed by the course adopted on the other side. He would shew by evidence that there was no such thing as a demise of the ferry, and further that there was no ferry at all. He would also shew under what circumstances what was called a ferry was taken; and moreover that the crown having failed in the performance of the conditions had no right in equity and good conscience to recover. The demand was for rent, in the name of rent, and he would shew that there was in fact no such thing. A ferry, even supposing it to be one, was an incorporeal hereditament which could only pass by deed, and therefore there was no tenancy and could be no rent.

Captain Cheye, the Director of Works, was then called and examined by Mr. Anstey with a view to shew what the conditions were on which the Ferry was taken.

The Court thought that the evidence was irrelevant.

Mr. Anstey contended that under the Statute of Henry VIII, he had a right, under the plea of non indebitatis in scire facias to prove any facts which would overthrow the right of the crown to recover, in equity and good conscience.

The Court could not allow the evidence unless the defendant had pleaded it.

The Attorney General to save time would admit there was no lease under seal.

Mr. Anstey continued the examination of Capt. Cheyne when he was interrupted by the Court. He had been told that no evidence touching the breach of the condition would be allowed, and it was highly improper in any advocate to persist in a course contrary to the decision of the Court. The question was simply was there a holding under the Crown.

Capt. Cheyne in reply to a question from the Chief Justice said that he had given the defendant possession, and he had retained it until witness retook possession in December last.

After a great deal of irrelevant matter, Mr. Justice Montagu said he wished the Attorney General would show that the Crown could recover rent without a deed.

The Attorney General contended that Mr. Horne had no right now to raise that objection, he ought to have demurred.

The Solicitor General was of the same opinion.

The Court thought otherwise, and called upon Mr. Horne to establish his objections.

Mr. Horne contended that a ferry being an incorporeal hereditament, could not pass by seisin, and that as there could be no rent in nomine rent accruing to the Crown except under lease, the objection was fatal.

Neither of the Crown officers offered any argument in reply, and

The Court unanimously declared the objection fatal, the Chief Justice observing that although the Crown could not recover rent except under lease, it was a very different case with regard to proceedings for uses and occupation.

Verdict for the defendant by direction of the Court.