[land law, title to land – land law, reversionary interest – Launceston Swamp Case]

Abbott v. Cheyne

Supreme Court of Van Diemen’s Land, In Banco

Pedder C.J. Montagu J., 6 May 1842

Source: Launceston Examiner, 14 May 1842[1]

            This came before the court on demurrer. The declaration was in case for pulling down a house then in possession of plaintiff’s tenant, to the injury of plaintiff’s reversionary interest.

            The defendant pleaded - lst, the general issue; 2ndly, that the plaintiff had not the reversionary interest; and 3rdly, that the soil and freehold were in the Queen, and that defendant by her command pulled down the house because it encumbered the freehold.

To the 3rd plea the plaintiff replied, that the defendant of his own wrong, and without the cause by him assigned, committed the grievances complained of, which replication is commonly called the replication “de injuria sua prepria.”

The defendant demurred to this plea on four grounds -

1st. That the replication referred to the whole plea, and not the command only.

2ndly. That it put in issue matter of title.

3rdly. That the replication did not specially traverse the command alleged.

4thly. For being multifarious, and putting in issue several and distinct matters.

The Attorney and Solicitor-General and Crown Solicitor appeared for the demurrer. The former, at some length, argued in favor of the demurrer, and replied principally upon Crogate’s case, decided in 1608. Mr. Stephen was heard contra, and cited the case Pigott and Kemp, which referred to Crogate’s case, reported in the lst Meeson and Roscoe, 1832.

The court would take time to give judgment.

Pedder C.J Montagu J., 10 May 1842

Source: Hobart Town Advertiser, 13 May 1842[2]

            The Launceston Swamp Case. - On the opening of the Court this morning their Honors gave judgment on the demurrer which was issued on Friday last. Both judges were of opinion that the judgment must be for the defendant and in favour of the demurrer. The cases cited by the learned counsel on either side, viz. - Crogate’s, Pigot’s, and Kemp’s, on the part of the plaintiff; and Probett’s on the side of the demurrer, the two latter being the cases more particularly relied on either side and which at the time of the argument were said to be identical, were found by their Honors not to be so, but on the contrary the pleas in the two cases were essentially different. Mr. Justice Montagu said it was clearly laid down in Probett’s case that the plea in de injuria sua propria was not satisfactory where the right of title was raised. Had the pleas in the two cases been alike, the case of Pigott and Kempt involving as it did a more extensive principle than the other, their Honors could not have got out of acknowledging that as the authority which should guide them. The present judgment did not interfere with the plaintiff’s right, it merely decided his right to discuss the question of title in the present action.

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