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[ejectment – land law, title to land – land law, possession for 20 years – Statute of James] John
Doe on the demise of Supreme Court of Pedder C.J., Source: The True Colonist, Before His Honor the Chief Justice and a Special Jury. Mr. Solicitor-General opened the pleadings. - In this case I should wish to have all the witnesses out of Court. It is an action of ejectment to recover certain lands at New Norfolk, now in the possession of the defendant. [Read declaration.] I should state to you, Gentlemen that the form of action is a fiction, John Doc. &c., merely made use of for legal purposes. [Explained meaning.] The only question to be tried is, whether the party has a good and indefeasible title. Mr. Edward Paine Butler had a grant from the Crown, on which he will probably rest his case, unless the defendant should offer any defence of another nature, which I shall then have an opportunity of rebutting. [Chief Justice assented.] Mr. Macdowell, for defendant, admitted lease, entry, and ouster. The Solicitor-General then examined Mr. Nutt, to prove demand of possession, and Mr. Sharland, to prove the locality of the premises. In the course of this examination, there was something said about an old chart of the township at New Norfolk, which had been in Mr. Sharland’s possession, and which the rats had most opportunely destroyed, so as to render it impossible to ascertain certain alterations which Mr. Sharland, as Government Surveyor, had made in the lines of the streets adjoining the allotments with which he had by some means been endowed in that town. This plan was spoken of to show that the name of the town was “Elizabeth Town,” not “New Norfolk,” as set forth in the declaration, and a good deal was said about changing the names of places and the divisions of the territory. Mr. Macdowell, however, made the requisite admissions as to identity, on which the case for the plaintiff closed. Mr. Macdowell addressed
the Jury for the defendant. - I appear before you to day as counsel
for the defendant, and, on the evidence before you, I submit that
the plaintiff has failed to entitle himself to your verdict. I am
called upon, in taking the objections which I have taken, to state
that the plaintiff having stated with such particularity the description
of the premises, has completely failed to establish the locality.
These objections may appear to you, Gentlemen, as merely of a technical
nature, but they are nevertheless legal objections, of which the
defendant has a right to avail himself. Mr. Nutt’s evidence, as
to locality, I regard as nothing, from want of experience; he told
you he had visited New Norfolk two or three times; my learned friend,
the Solicitor-General, told you that the grant corresponds with
the declaration - it is silent as regards parishes and hundreds.
The Letters Patent speak of no such thing as townships; they contradict
Mr. Sharland’s evidence; he told you that the township was included
in the parish - the greater in the lesser circle! he had a most
imperfect recollection when he came to speak of that. He now tells
you that not one portion of the Chief Justice. - Mr. Butler does not claim under the mortgage; he comes in as a purchaser from the Crown, with notice from a person who has no title. Mr. Macdowell. - I shall show that it was mortgaged to Lowe. Chief Justice. - As to the question upon the Statute. I am still of opinion that the Statute is not in force. Mr. Macdowell then called Thomas Allen Lascelles, Richard Burrowes, Samuel Blackall, and William Rayner, who all swore that the town was called Elizabeth Town - that the land in dispute had been given to Hugh Gordon in the year 1821 - that Gordon sold it to Triffet, by whom it was sold to the defendant Martin - that the witnesses had land given them in the same township at the time the land in question was given to Gordon - that in those days there were no “location orders” given, but merely a verbal order and possession by the Government Surveyors, which was then considered a good title on which to improve or to purchase land. Nathaniel William Todd
was called, and proved the execution by Gordon of a deed (feoffment
dated Chief Justice. - “Deeds convey nothing.” On which the case for the defendant closed. Solicitor-General. - The principal ground on which I object to it is, as to the 20 years’ possession. Chief Justice. - I wish to get rid of one objection first, as to the name of the place; if this is a good objection, no matter whether the Statute is in force or not. After Mr. Hone had referred to several old Gazettes, and to the Water Act, in support of Mr. Sharland’s evidence, to prove that the town was called New Norfolk, and submitted that the description was sufficient in ejectment. Chief Justice. - What is the legal signification of a town? [Read
case in Solicitor-General. - As to the next point, the application of the Statute of James to this question - before they can avail themselves of this they must show that the Crown has been out of possession for 20 years, or that it has not received the rents or profits for 20 years; as to the feoffment, the description of the land in the feoffment and in the grant do not bear the slightest resemblance to each other, and by what means they are to be identified I cannot conceive. Chief Justice. - That may be, but if the fact of 20 years’ possession of the land, as described in the feoffment be proved, that is not material. Solicitor-General. - As to the next position, I submit that there has been no evidence given to show that there was anything inconsistent with the right of the Crown - the circumstance so implicitly detailed by Blackall that no grant was made at the time clearly established that fact. Chief Justice. - Be it so; I admit there is no title whatever. The Surveyor-General measuring lands and authorising persons to take possession, gives no title - if they prove that the land was given by the first officer of the Crown, and that they have been in possession for 20 years. Solicitor-General. - I submit that they were mere tenants at will of the Crown. Chief Justice. - There can be no tenantry at will of the Crown. Solicitor-General. - I submit that there may, and the moment Gordon made that [the feoffment] he determined the will. Chief Justice. - Such a doctrine would upset the Statute altogether. Solicitor-General. - If this man was a tenant of the Crown, he cannot dispute the right of the Crown. Chief Justice. - Even so. If a man goes over my land; he is liable to an action of trespass or intrusion; but if I suffer that man to go over for 20 years, then the Statute comes into operation. Solicitor-General. - They have given in evidence that the title was the title of the Crown. Chief Justice. - I think not. Solicitor-General. - [Read Chitty’s Prerogatives of the Crown.] Then the whole case goes upon this - a tenant at will of the Crown making a feoffment, determines the will. Chief Justice. - Colonel Sorell could not make a tenant at will, although the Crown may. No Lieutenant-Governor could, at that time, make a tenant at will. The Governor saying to this or that person - take possession of that land, is no more than you or I telling a party to take possession. Solicitor-General. - I contend he is a mere licenser of the Crown - there may be a tenant at will, but not a tenant at sufferance. In a case of a mere licensee - [cited Doc dem Johnson v Major - Lord Denman’s observations.] Chief Justice. - The Crown cannot give lands, except under Seal; if the Lord Chancellor was here, he would have no more power than you or I have to give land. Solicitor-General
to the Jury. - Gentlemen, with respect to the first position, the
description of the land, I shall not trouble you with any observations
upon that point, which I think has been already decided by His Honor.
Is the witness’s manner of giving evidence such as to carry with
it the conviction of truth? - Have you any fixed datum to go upon?
- is it to be tested by such evidence as Mr. Rayner’s? - They all
say that there has been a possession of 21 years, [comments on the
evidence of Mr. Lascelles] take the rest of his evidence and see
what that amounts to; he says it was granted in 1821 or 1822 - are
you satisfied, Gentlemen, that it was before July, 1822? - are you
satisfied that Mr. Blackall did not know that Governor Sorell was
on the eve of his departure at the time? - are you satisfied that
Burrowes could not remember whether Governor Macquarie was here
or not? - are you satisfied that he could not remember the names
of the persons he says he went up to Sydney to prosecute, and still
could remember so distinctly that he saw the frame work of the house
in the latter part of 1821? - are you satisfied when the best evidence,
the person to whom the land was located, was himself at the door?
And whom I propose to call before you, as well as his wife. If Martin
had been so long in possession when Mr. Chief Justice. - I cannot receive any evidence of the caveat here - the Statute says, in so many words, that he shall not be turned out, but continue in his possession. Solicitor-General. - I will call before you the two persons I have named, and leave the matter in your hands. He then called Hugh Gordon, and Mary, his wife, who proved that they got the allotment from Colonel Sorell - they could not say exactly at what time, but the wife thought it was the latter end of 1822. Gordon appeared to think that it was in August 1822* Mr. Macdowell. - Gentlemen of the Jury, it is not my intention to trespass on your time long, indeed, it would be altogether useless to occupy you for any length of time. I shall not adopt the course pursued by my learned friend, the Solicitor-General, in endeavouring to throw discredit on the testimony of the witnesses - he asks you whether you have any fixed datum upon which to fix the possession. I shall ask you whether the supplementary testimony of that venerable old lady, Mrs. Gordon has given you any datum; she can’t tell; thinks, believes it was located in the latter part of 1822; what the birth of her first child had to do with the matter, I shall leave you to judge - whether the location of this land had come connexion with that event, and my learned friend thought it prudent to stop there, you will be able to determine. As to the testimony of Gordon himself, he says he received his emancipation in August 1821, and that it was within a year that this land was located to him. Mark how that accords with the testimony of all the witnesses I have called on the part of the defendant, there is not only the testimony of Blackall, but also of the man Raynor, Mr. Lascelles, and Mr. Burrowes, who are all nearly agreed as to the time of the location. I cannot conceive what connexion the advent of Mr. William Sorell was supposed to have with this matter, unless it was attempted to fix the location after the arrival of that gentleman, in which they have signally failed. Chief Justice to
the Jury. - This is an ejectment brought to recover possession of
certain lands at New Norfolk. John Doe is a name merely invented
for legal purposes. The plaintiff is bound to show that he has a
legal title. If the defendant has no title, it proves his (plaintiff‘s)
title, he gives the best evidence of a title that can be produced
in this colony, namely, the grant. There can be no doubt now, that
the land is the same as that now occupied by Mr. Martin. Mr. Sharland
states that the land is properly described in the grant - if that
were all, there could be no great doubt about it. There is no objection
taken as to the description of the land in the grant, as well as
the declaration. The objection is, that the evidence does not sustain
the description of it given in the grant. The declaration states
in the town of The Jury found a verdict for the Plaintiff - Damages, One Shilling, and stated - “we are of opinion that the Crown had been out of possession for 20 years previously to the 6th July last.”
Pedder C.J., Source: On Tuesday week, a trial of some public importance took place before His Honor the Chief Justice, and a special jury of twelve Merchants, and Esquires. It was an notion of ejectment, brought by Mr. E. P. Butler, the Solicitor, to obtain possession of a house and premises, at New Norfolk, at present occupied by Mr. John Martin, (the defendant), and known as the Star and Garter Inn; Mr. Martin pleaded a continuous possession of upwards of twenty years, thus relying upon the application of the Statute of James, for the successful maintenance of his plea. The Solicitor General, with Messrs. Butler, conducted the case for the plaintiff, and Mr. McDowell with Mr. Harrison, that of the defendant; the Attorney General had been retained, with Mr. McDowell, but in consequence of the point, relating to the Statute, having to be discussed, the learned Counsel threw up his brief. Some hours were occupied in proving that locality of the premises, some of the
witnesses declaring they were in New Norfolk, while others affirmed,
the township was called Elizabeth Town; this led to a rather long
discussion, between the learned Counsel. His Honor determining that
the locus in quo was properly described as being in the The point, relative to the applicability of the Statute, was ably supported by Mr. McDowell, who relied upon the celebrated cases of the Prince of Wales and St. Aubyni, respecting, if we rightly recollect, some mines in the Duchy of Cornwall; the learned Counsel maintained, that the right conferred by the Statute of James, was inalienable from any Briton, who resided in a British territory. His Honor, however, as we understood, remained unchanged in his opinion, that the Statute is not extended to this colony; nevertheless the jury, of which Capt. Read was the foreman, found, that the defendant had a title to his property by a continuous possession, of twenty-one years, and gave the plaintiff a verdict of ls. on his grant. There are several collateral circumstances, connected with this case, which are deserving of comment, but as we understand, that a new trial will most probably take place, we shall defer any observations thereupon till that is decided. There is, also, an additional reason for delay on one part in the existence of an equity suit, which is now pending between the same parties, with reference to the same property. In banco, Pedder
C.J. Montagu J., Source: In this case, which was tried before His Honor the Chief Justice, at the last Civil Sittings in Hobarton, Mr. Macdowell applied for a will to show cause, by the verdict should not be set aside, and a new trial granted, or a verdict entered for the Defendant. It was an action of ejectment to recover the possession of certain premises, situated at New Norfolk and held by the Defendant. On the trial certain questions arose, as to whether the situation of the premises had been properly described, evidence being given to show on the one hand, that the ownership was called Elizabeth Town, and, on the other, New Norfolk; this point, however, was overruled, and the case went to the jury, under the direction of his Honor to find for the Plaintiff, on the evidence; if, however, the jury were of opinion, that the Defendant had held possession for 20 years, they would find so; they did so find, and the point was reserved as to whether the statute of James applied to this colony or not. Since the trial, the learned Counsel said, that he had learnt that the mile-stones on the road to the township, had been inscribed Elizabeth Town. Mr. Justice Montagu observed, that the locality might have been amended at the trial; it was a mere technical error, if there were any other grounds, Mr. Macdowell would state them. The Chief Justice said, that, if the Statute of James applied to this Colony, the Plaintiff must be either nonsuited, or have had a verdict against him. Rule nisi granted. [From some remarks, which fell from his Honor, the Chief Justice, the decision
of the law officers of the crown in Pedder C.J. Montagu J., Source: Mr. Macdowell, in moving for the rule (obtained last week) to be made absolute, requested that, as the case was one which depended on the applicability of the Statute of James to this Colony, it might be permitted to stand over till the last day of term. Their Honors accordingly enlarged the rule. Pedder C.J. Montagu J., Source: In this case the rule obtained at a former sitting was enlarged till the first day of next term. Pedder C.J. and Montagu J., in banco, 7 February 1843 Source: In this case the Solicitor General applied for a rule to discharge an order for the appointment of a Commissioner to examine witnesses in Pedder C.J. and Montagu J., in banco, 10 February 1843 Source: The Solicitor-General in the case of Martin v Butler, having obtained leave to file a supplementary affidavit on the part of Mr. Butler now presented to the court; it went to show, that no unnecessary delay had been used by Mr. Butler in availing himself of the examination of Mr. Martin before the Insolvent Commissioner, which was proved to the satisfaction of their Honors. The court, however, decided, that the Commissioner to examine witnesses (Mr and Mrs. Collins) in England, should not be revoked, and that the suit proc[e]eding between the parties ought not to be decided without such evidence. Notes * Footnote in newspaper: We rented a lodging from Gordon, in Sept. 1822, and we know that he then spoke of this allotment as if he had possessed it for some time. |
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