[land law – trespass by director of roads and bridges – dwelling-house, injury to – land law, whether building could be freehold property – land law, Crown land]

Stewart v. Cheyne

Supreme Court of Van Diemen’s Land

Montagu J., 6 January 1842

Source: Launceston Advertiser, 13 January 1842[1]

            Before His Honor Mr. Justice Montagu, and the following jury - H. Bennett, R. P. Stewart, J. Flexman, R. L. Orr, H. Nicholls, P. Oakden, K. J. King, A. Anderson, T. Corbett, William Fletcher, George King

            This was an action for trespass brought by Mr. Stewart against Captain Cheyne, ex-director or roads and bridges. The declaration alleged that on the 27th March, 1837, Captain Cheyne by force of arms did certain injuries to a dwelling-house then occupied by the plaintiff on the race course, for which the damages were laid at fifty pounds. Another count set forth that the said dwelling-house was pulled down and destroyed, damaged £500; and a third, that Captain Cheyne carried away, disposed of, and converted the said house to his own purpose, whereby the plaintiff was forcibly ejected and had been deprived of the benefit of the said dwelling ever since; damages £1,000.

            To this the defendant put in four pleas; first, the general issue, and secondly, that the land in question was not the property of defendant in form and manner laid, the third and fourth pleas claimed the land as being at the time spoken of the property of Her Majesty the Queen, in right of her Crown, and that defendant removed the said house to a convenient distance, by command of Her Majesty, and in the lawful exercise of his duty, without any unnecessary violence.

            Mr. Macdowell appeared for the plaintiff, and the Attorney-General for the defendant.

            The counsel for the plaintiff opened the case at considerable length, but the space occupied by the evidence precludes us from giving his address. It is necessary, however, to make our report more intelligible, to state the leading particulars of the affair in which this action originated. Mr. Edward Abbott claims as heir at law of the late Major Abbott, two hundred and ten acres of land adjoining this town, called the swamp, part of which forms our present race course. In the year 1837 Mr. Abbott there erected a small dwelling, which he let on lease to Mr. Stewart the plaintiff in the case. The circumstance having been reported to Captain Cheyne, he gave instructions to Mr. Dawson the town surveyor to pull down and remove the building, which order was carried into effect on the 27th March, 1837. The action was not founded upon Mr. Abbott’s title to the land, but simply alleged that plaintiff whilst in the peaceable occupation of the house in question was forcibly ejected without lawful excuse or authority,. The first witness called was -

            Thomas Wood Rowlands, Esq., Attorney for plaintiff; I had some conversation with the defendant upon the subject of this action on the 13th November; Mr. Cheyne wished the action to be brought against Mr. Dawson as it was entirely a matter between Mr. Abbott and the Government, and as he (Mr. Cheyne) was out of office, he did not wish to be the defendant; he said he would see the Crown-Solicitor and let me know whether he would enter an appearance.

Joseph Penny, Esq. - I know the plaintiff in this action, he was residing on the Race Course in March last, in a wooden house built by Mr. Abbott; he lived there three or four weeks; I know Mr. Abbott built the house, because I acted for him in getting it built and paid about fifty pounds for it on his account. On the 27th March, saw Mr. Dawson at the house with about a dozen men out of the chain gang; I asked him what he was going to do; he replied he was going to pull the house down, I told him it was the property of Mr. Abbott, that he was committing a trespass, and that I should hold him or his superior officer responsible for any damage he might commit; he then said he did not care, he was acting under orders. I told Stewart and his family to go into the house and remain there until they were compelled to come out; they did so, and the house was pulled down over their heads; I assisted in removing the furniture; Mr. Dawson after the house was pulled down carted away the materials; I had reason to suspect Mr. Dawson’s coming.

            Cross-examined by the Attorney-General; cannot say exactly how long Mr. Stewart resided in that house, the races were held in the early part of March the house was finished about the first day of the races. There were a number of booths erected, they were not at all similar, this was built for a dwelling, it was composed of wood, there was a chimney to it.

            The Attorney-General was proceeding in this course of cross-examination, when his Honor enquired to what purport the learned Counsel was putting these questions which appeared altogether irrelevant to the case.

            The Attorney-General was desirous of eliciting from the witness the exact nature of the structure, there were certain descriptions of buildings which could not become freehold property, and this, as he was instructed, was of the nature spoken of.

            Cross-examination continued. - The chimney of the house was built of bricks like other buildings; Mr. Abbott entertained his friends in the house during the races; the other booths were removed immediately after the races.

            His Honor again interrupted the Attorney-General, but he really could not understand how these questions were in any way connected with the case.

            The Attorney-General considered them most material; if his Honor wished him to open his case to the opposite party, he would explain more at large his motives for enquiring so particularly into this part of the subject.

            His Honor had no wish of the sort; it was a matter of moonshine to him; both Counsel stood upon an equal footing in his eyes, but the examination seemed to him altogether foreign to the matter at issue. The simple question was whether the land in question was or was not the property of the crown.

            The Attorney-General replied that the house was claimed as the freehold property of the plaintiff, separately from the right of soil, and he wished to shew that the building could not become a freehold from its construction.

            Mr. Macdowell had no intention of arguing upon that point, but after the encouragement he had just received from the Attorney-General he should certainly contend that separately from the soil, the house was the freehold property of the plaintiff.

            His Honor laughed and said it appeared to him perfect nonsense; the only question was the ownership of the land, and defendant’s right to remove the house, depended entirely upon that question. An account for the erection of the house was here handed to the Attorney-General, having perused which he continued his examination of Mr. Penny as follows:- Most of the booths were covered with canvas, Mr. Abbott’s was shingled; the men who pulled the house down were armed with pickaxes, they did not injure any one; Mr. Dawson said he came by authority, I told him he should be held personally responsible.

            A letter from the defendant to Mr. Abbott was here handed in giving notice that unless the house were removed within a certain time, it would be pulled down by directions of the Government.

            His Honor understood from the Counsel for the plaintiff in opening the case that there were two letters which he intended to submit in evidence.

Mr. Macdowell replied that he had intended to do so, but upon reflection had altered his intention.

His Honor recollected a case in Carrington on Paine, where the Judge severely censured the Counsel for a similar act.

Mr. Macdowell, what! for changing his mind your Honor?

His Honor having explained the impropriety of such a course, Mr. Macdowell expressed his coincidence therewith, and handed in the letter in question which was addressed by Mr. Dawson to Mr. Abbott informing him that the materials of his house had been deposited on the Green adjoining the Government Garden.

            This closed the plaintiff’s case.

            The Attorney-General having addressed the Jury for the defence, called the following witnesses.

William Dawson - was Town-Surveyor in 1837, knows the 210 acres of Land called the Swamp, recollects the races in March 1837, the land was at that time in possession of the Government; that part where Mr. Abbott’s house was built is used as a race course, and for the purpose of grazing, it was under deponent’s charge, persons desirous of grazing cattle used to get permission from his office; also gave permission to parties to cart gravel. Up to the year 1837, deponent had management of the booths at the Race Course, that power was afterwards vested in the Committee. [A letter from Captain Maconochie was here submitted but rejected as not being evidence.] Deponent continued; he would have prevented Mr. Abbott from erecting his house had not his authority been transferred to the Committee, his house was occupied in a similar manner as the other booths, it differed from them in being shingled, the others were covered with canvas; they were all removed after the races with the exception of Mr. Abbott’s. From instructions he received, he gave Mr. Abbott notice that unless his house was taken away it would be pulled down; this order was afterwards carried into effect.

            Cross-examined. - There was a chimney to the house when taken down, Mr. Abbott’s was not the only booth, built of wood, but the others were put up in a temporary manner.

            Robert Power, Esq., Surveyor General, examined - Has the custody of official plans and records; knows the land in question; searched very minutely in the books, but found no entry of a grant or location order having been issued; part of the 210 acres is fenced in; cannot say whether it is occupied.

            Cross-examined. - This chart was brought from deponent’s office, there are the words, “210 acres, Edward Abbott” written in pencil, the present race course forms part of that portion of land.

            W. T. N. Champ, Chairman of the Caveat Board, produced two applications for Deeds of Grant made by Mr. Edward Abbott, in the month of November, 1838, and February, 1839, with the view of shewing that he had not at the time when the house was built received a grant for the disputed land. This witness was present, when the case came before the Caveat Board, his application was refused.

            C. B. Hardwicke, Esq., was a member of the race committee in 1837, waited upon Sir John Franklin to request the he would place the race course under the management of a committee for public use. [Witness was entering into the particulars of his interview with Sir John Franklin, but his Honor objected to any instructions or permission given by His Excellency being received as evidence. It did not amount to an act of ownership.] Witness continued; booths were subsequently erected under the directions and control of the Race Committee; private booths they did not interfere with; the ground has been used as a Race Course upwards of twenty years.

            Mr. Macdowell in replying pointed out a singular but glaring error in the pleadings, which alleged that the property was vested in her Majesty the Queen, by right of the Crown in 1837, at which period the throne was occupied his late Majesty William IV. His Honor consented to amend the pleas.

            His Honor in summing up said that the law of the case was extremely simple; it had been law since the reign of Charles II. If the land were the property of the Crown, Mr. Abbott was a wrong doer, and the Government as the representative of her Majesty, had an undoubted right to remove him by every reasonable force. If they could conclude from the evidence that the freehold did not rest with the Crown, they would find for the plaintiff and vice versa. The onus of proof rested with the Crown they were bound to make good their title, or the plaintiff was entitled to their verdict.

            The jury after a brief consultation returned a verdict for the defendant.

Montagu J., 6 January 1842

Source: Cornwall Chronicle, 8 January 1842

            Messrs. McDowell and Rowlands for the plaintiff, the Attorney General and Crown Solicitor for the defendant.

Mr. McDowell stated the case for the plaintiff, he said that this was an action brought by his client against Captain Cheyne, for having on the 22nd March, 1837, forcibly ejected him from certain premises, situated on the Launceston race course, and held by the plaintiff on lease, from Mr. E. Abbott, the lawful proprietor of the soil. Mr. Stewart further complained that the said defendant had then and there pulled down the said dwelling-house, and with force of arms carried away the materials thereof, without lawful pretext or authority. Defendant pleaded first the general issue; secondly, that the land in question was never the property of plaintiff’s landlord; thirdly, that the said house was then and is now the property of the Queen, in right of her crown; and fourthly, that he (defendant) had only removed the house, without doing any unnecessary damage, or committing any act of violence further than was unavoidable in carrying into effect the orders which he had received. The learned counsel felt that the circumstances of this case need occupy but a small share of the attention of the jury; with respect to the two first pleas entered in this case, in order to establish their validity it would be incumbent on the opposite party to prove that the said house was not in possession of the plaintiff at the time of his ejectment, since he stood upon his possessory right. As respected Mr. Abbott’s title to the land, he (the learned counsel) would tell the jury that he had endeavoured, by every possible means, to obtain it from the local government, but without effect, although in the first instance it had been duly granted to his father, at a time when the old grants were in force. In vain had he resorted to the course usually adopted upon such occasions. He had, by every artifice which ingenuity could suggest, been repeatedly driven from every court in the colony; for this the local government was not in any way blameworthy, positive orders having been issued by the authorities at home to oppose every obstacle to the object which he had in view, viz. to get possession of his own. All this had been done, notwithstanding that the grant had originally proceeded from the government of this colony, been acknowledged by that of Sydney, and confirmed by the Secretary of State for the time being. Mr. Abbott, however, he way intimidated by the behaviour adopted towards him, and conscious of having justice on his side, had resolved to bring the matter to an issue by erecting and leasing a cottage on the disputed property; the house when finished, was rented by the plaintiff; after a while came a notice from Mr. Cheyne, desiring him to move; this was followed by a similar notice from Mr. Dawson, the Town Surveyor, when three days after the receipt of the latter, came Mr. Dawson, accompanied by a detachment of the chain gang, and at once proceeded to demolish the building, notwithstanding the protest of Mr. Penny, who was there at the time. Mr. Stewart was absent during the perpetration of this outrage, but his wife was at home; he, the learned counsel, knew of no language adequate to express his reprobation of a government which could resort to such measures; even admitting that Mr. Stewart was an intruder at the time, were there not other and more becoming means of inducing him to quit, than by exercise of the strong hand of violence? Notwithstanding all that would be urged by the ingenuity of the Attorney-General in defence of such a proceeding, he (the learned counsel) designated it an outrage, and that of the worst description; for even supposing that the government’s claim was as righteous as a claim could be, still this did not justify the employment of such means as was in the country language from which the Attorney-General had just arrived, most significantly denominated “Lynch law.” No, he trusted that the jury would not lend its countenance to any such unjust and arbitrary proceedings. Subsequently, it would appear, the materials were carted away and deposited in the lumber-yard - the strong arm of Lynch law had accomplished its object, the inhabitants were dispossessed of their dwelling, and government triumphed in the act. It was in vain that Mr. Abbott had sought for legal redress, and he had at length been driven to the necessity of bringing the present action after four years forbearance.

The learned counsel would now call the attention of the jury to the second plea urged by the defendant, viz, that the house in question then was, and now is, the dwelling-house of Her Majesty the Queen, as also to the fourth, wherein it was alleged that the materials were merely carried away to a convenient distance without subjecting them to any unnecessary damage, doubtless because they were the property of the Queen; however, notwithstanding these allegations, he (the learned counsel) should, in obedience to his instructions, proceed to call witness, who would prove that the house was the house of Mr. Abbott and built at his expense.

            T. W. Rowlands, Attorney for the plaintiff, examined. - Knows the defendant in this action, and served him personally with a summons on the 13th November, being the last day within the term allowed by law for so doing. Mr. Cheyne then expressed his regret that the action should have been brought against him, that as it was merely a disputed case of property subsisting between Mr. Abbott and the government, and as he (Mr. Cheyne) was not now in government employ, he would certainly see the Crown Solicitor and endeavour to procure his interference.

            Joseph Penny deposed - Knows the plaintiff in this action; in the month of March, 1837, he resided in a cottage on the Launceston racecourse. At the time to which I shall have occasion to refer he had been living there three or four weeks; the house had been erected by Mr. Abbott, and was composed of wood; deponent acted as Mr. Abbott’s superintendent whilst the house was in progress, and paid on his behalf all expenses incurred in its erection - it cost upwards of £50; remembers the 27th March, 1837, and saw Mr. Dawson, the Town Surveyor, accompanied by a chain or town gang, in number about a dozen, proceeding to pull the house down; deponent asked him what he was about; he answered, that having received orders from his superior officer to that effect, he was about to pull Mr. Stewart's house down, deponent protesting against such a proceeding. Mr. Dawson said that nothing should prevent him from putting in execution the orders which he had received; the house was then pulled down over the heads of its inmates, who remained in it as long as it was safe to do so; deponent assisted in removing the furniture.

            Cross-examined by the Attorney-General. - Cannot say precisely how long Mr. Stewart resided there; expected Mr. Dawson there that night; at that time the races commenced early in March; the house was furnished about two days before; there were some booths erected on the opposite side of the course; does not recollect of what the chimney was built, the house itself was constructed of wood. (A paper was here put in, shewing a charge for brick, stone, and an iron bar for chimney.) There were other buildings upon the race-course at least there were several booths; they, were covered with canvas; Mr. Abbott’s house was shipped; Mr. Abbott entertained a few friends in it during the races; a day or two after the races all the booths were removed; the men who pulled down the house, were armed with pickaxes, they took it down over the people’s heads; deponent told Mr. Dawson that he should be held personally responsible. (Two letters were here put in and read - the one a notice to remove the house, and signed Alexander Cheyne, the other from the Town Surveyor, informing Mr. Abbott that the materials had been removed to the government-green.)

            His Honor could not see to what most of these questions tended. In reply the Attorney General begged to state, that he considered them highly important; most of them referred to the plea put in by the plaintiff, as to the freehold property of the house, and after some discussion the cross-examination proceeded.

            Deponent does not know that there was any attempt made to put the inhabitants in fear, further than by pulling down the house over their heads.

            The Attorney-General now addressed the jury for the defence. He never, he said, knew or heard of a case brought into court, and supported upon such inefficient evidence. Mr. McDowell had no doubt laboured to enlist upon the side of his client all the sympathy which eloquence could inspire, but he had failed in a most signal manner in proving the outrage which he so indignantly described. A gentleman comes into court, and tells the jury that he had a house upon Government-green, and leaves to them the discovery of his right to such occupation, further than by asserting that he rented it of a person who had no title to erect it; who he is (the plaintiff) or what is  (Remainder of this trial in our next.)

Montagu J., 6 January 1842

Source: Cornwall Chronicle, 15 January 1842

            (Continued from our last) the nature of Mr. Abbott’s claim, is also left entirely to conjecture. It appeared to the learned counsel that Mr. Stewart had been introduced merely for the purpose of exciting the sympathies of the jury, by a recital of the cruel manner in which he had been ejected. The jury would, however, do well to remember, that this was a court of law, and not a court of equity. It would have been a gross-dereliction of public duty in government officers, had they tamely suffered Mr. Abbott to possess himself of 210 acres of such valuable land, by means at once arbitrary and absurd. There could be little doubt that Mr. Abbott, senior, had long cast an eye of affection on so desirable a property, and it was by such means that he had sought to possess himself of it. Now, if Mr. Abbott had no legal title to the land in question, then he was guilty of a gross act of trespass in erecting a house upon it, and the government officers had done no more than their bare duty in removing such building; and if so, he should wish to know in what manner Mr. Abbott considered himself or his suppositious tenant hardly treated? The learned counsel on the other side had endeavoured to persuade the jury that his client had been sadly misused by the local government; nay, he had even gone so far as to assert that Mr. Abbott had been driven out of every court in Van Diemen’s Land. Yes, gentlemen, and unless you give him a verdict, he will assert that he has been driven out of this too. It seems, however, that the Caveat Board would not entertain the case of this impudent intruder; he preferred his claim there to the prejudice of an individual whose right he disputed, and what was the consequence? What satisfaction did he obtain? Just as much as his case merited.. Mr. McDowell has told you that his client’s right has been recognized by the Secretary of State; what proof has he of this? - just that of his own assertion. All lands originally belonged to the crown, and in the absence of any legal title on the behalf for Mr. Abbott, the right is still vested therein. He cannot, in support of his claim produce so much as a location order. Mr. Stewart’s occupation was a mere ruse to get possession, and no doubt when the building was first put up, Mr. Abbott contemplated his present proceeding. It appeared that in the month of February, 1837, Sir John Franklin paid his first visit to Launceston, when a deputation of gentlemen, who took an interest in the races, waited upon him with a request that he would issue orders to the Town Surveyor not to interfere with their arrangements - their request was acceded to, and Mr. Dawson received orders to leave that portion of his department to the management of the committee formed to conduct it. Gentlemen, it may appear unnecessary to warn you against the entertainment of any preconceived opinions as to the merits of this case, but nevertheless the caution may be salutary - give but a patient hearing to the evidence adduced before you this day, and I confidently anticipate the result. The learned counsel admitted all that had been urged concerning the conduct of Mr. Dawson, and if His Honor would permit it, he would undertake to shew that what he, the Town Surveyor, had done was perfectly justifiable.

            His Honor here said, that if what the Attorney-General had proposed was intended for his information, he begged that he would not give himself the trouble, as there could be nothing clearer than that if a party unjustly intrudes upon the property of another, the individual so injured may legally eject the trespasser. His mind was quite made up as to the law of the case in that particular.

The Attorney-General said that such being the case, he would not trouble either His Honor or the jury with any further remarks at present, but proceed at once to call his witnesses.

William Dawson examined - In the month of January, 1837, I was Town Surveyor in Launceston, and know the 210 acres called the Swamp, situated at a small distance from it. I recollect the period of the races in that year; those lands were then in possession of the government and in my charge - I mean that part of them called the race-course; it was on the race-course that Mr. Abbott erected his house; cattle belonging to the inhabitants were suffered to graze upon it, simply by obtaining my permission; I had charge of the land two years prior to 1837; people frequently obtained permission from me to get gravel on the race-course; at the races in 1836, people desirous of erecting booths applied to me; they were always removed a day or two after the races were over. [A letter was here about to be put in, but being disallowed, the examination continued.] I should, nevertheless, have resisted Mr. Abbott’s intrusion; it seemed to be occupied as other booths were, and was nearly similar in its construction, save that it had a shingled roof; I received orders to have it pulled down; my instructions came from the Private Secretary, Captain Machonochie, upon which I gave notice to the tenant, that if it was not removed by 12 o’clock on the following Friday, I would cause it to be pulled down.

            Cross-examined by the plaintiff’s counsel - The house was in no way dissimilar to other booths; it had a chimney; none of the booths were roofed with shingles; but with canvas; they were put up altogether in a temporary manner.

            Walter Power, Esq., deposed. - Is Surveyor General of the island, and has custody of all official charts, records, &c.; has been on the land claimed by Mr. Abbott, and has searched the records entrusted to his (witness) care. Witness has brought with him one chart and also a book of references, which he was subpoened to produce by Mr. Abbott. [His Honor could not allow the Attorney General to ask Mr. Power whose property he considered the land in question to be.] There were several allotments fenced in, and I should think that such portions were in the possession of other parties; witness does not know that there are any habitations at present on the land.

            Cross-examined. - The chart produced was brought from witness’ office; never allows it out of his own possession; the portion marked 210 acres, E. Abbott, is here, it is written in pencil; a part of that 210 acres forms the present race-course.

            By the Attorney-General. - Does not know the handwriting in which the words E. Abbott are marked on the chart; cannot say that it is a general practice to mark people’s names on the charts when they apply for land.

            W. T. N. Champ, Esq., deposed - Is chairman of the Caveat Board; produces an application addressed to the commissioners for a grant of 210 acres in the district of Launceston; knows the handwriting of Mr. Abbott; all the answers to the printed questions are in his writing; produces another application for the same land dated February 7th, 1839, and signed by Mr. Abbott; was present when Mr. Abbott’s claim was heard on that application; Mr. Abbott was himself present during a part of the examination; this paper was then produced in his presence; it was upon this document that he founded his claim; does not remember hearing any verbal statement of Mr. Abbott relative to his claim; this document is taken from the records now in my office on the 7th February, 1839; witness was chairman of the Caveat Board; the clerk usually has custody of these kind of documents; it was from his clerk that witness received it; has no doubt that it is in the same state as when first received at his office; witness puts in a third claim dated January, 1839; it is a similar document to the other, and is signed by Mr. Abbott; does not think that the body of it is in his writing; does not know whether any answer has been returned; his claim might have been entertained.

            Michael Kennedy, Esq., examined. - I know the handwriting of the late Major Abbott; the letter now produced is dated 11th January, 1832; the signature is his; the body of the letter is not of his writing.

            George Horne, Esq. - Remembers the Launceston Races of 1837; there was a committee appointed, of which deponent acted as secretary; has seen Mr. E. Abbott; does not of his own knowledge know in whose possession the race course was at the time; was at the races, but cannot positively remember whether he saw Mr. Abbott there or not.

            Charles Hardwicke, Esq., - Was present at the races in 1837; it was from the stewards that the publicans then derived permission to erect booths; there was an acting committee who managed these matters; deponent can answer for himself, as one of the members, that he never gave Mr. Abbott permission to erect a booth; licence was never granted to private booths; several had been erected at the races of 1837; the crown had never interfered since that time; a portion of the swamp has been used as a race course from witness’ own knowledge upwards of twenty years.

            Cross-examined. - The trespass, if such it be, was committed in March, 1837; His Excellency had arrived just previous; our jurisdiction was seldom carried beyond the outer run of the course, and the understanding was, that any person might if he thought proper put up a booth in the inner part, so long as it did not interfere with the public view; up to 1837 deponent believes that the Town Surveyor exercised a jurisdiction over the land in question.

            Mr. McDowell said, that he rejoiced to think a few observations would now suffice to place the matter in a clear point of view, the question which the jury had to decide, was one he was happy to find would occasion them but little further trouble; it gave him sincere pleasure to find that there existed so small a difference betwixt the Attorney-General’s of the matter and his own. There was no difficulty in determining the law of the case; it was quite evident that the plaintiff had been in peaceable possession when he was violently expelled, and as he stood upon his possessory right, it was quite clear that the crown had failed to shew that the land belonged to it. Now, as every body knows that in law, an Englishmen’s house is supposed and held to be his castle, what could be more palpable than that his client had sustained a gross injury at the hands of the defendant. The learned Gentlemen would fain know, if instead of Mr. Stewart having a good tile to the peaceable possession of his house, he had indeed been the mere trespasser which he was represented to have been, in what manner could the defendant justify the violent behaviour which he had adopted? Even supposing that the land belonged to one or other of the gentlemen whose names had been quoted to him as claimants, it would still be only themselves or servants, who could justify the having recourse to such a proceeding. The authority which must be shewn in extenuation of such a gross invasion, must not be a fanciful or problematical one, it must be clear, explicit, and conclusive; the crown had failed to establish any right to the land in question, and thus rendered the defendant liable to all the pains and penalties of his conduct. He would tell the gentlemen of the jury that the defendant’s plea was radically wrong; the transaction occurred in March 1837, whereas Queen Victoria did not ascend the throne of England until June 1838 - how then could the house have been her dwelling-house? This difficulty was sought to be avoided by a substitution which he contended was neither fair nor legal; true it was that in consideration of the utter hopelessness of defendant’s case, he, the learned counsel, had consented to relinquish that objection. They had seen the Surveyor General, Mr. Power, and the Chairman of the Caveat Board fetched over from Hobart Town, to prove nothing but what was distinctly favourable to his client. The former gentleman had produced from the archives of his office a chart, which was esteemed so sacred a deposit as not to be trusted out of his own possession for a moment, and that very chart had most essentially established Mr. Abbott’s claim. There was his name written upon the very location. What more could be desired in evidence of his unquestionable right? He referred to this circumstance merely as a corroborative one, for it was by no means necessary to the case, that Mr. Abbott’s claim should be established. It was for the crown officers to shew that he had not a right, and this having failed to do, the plaintiff’s claim to damages was palpable and self evident. In order to exonerate the defendant, it ought to have been shewn, that the freehold was the property of His Majesty King William the Fourth, and that Messrs. Cheyne and Dawson had merely acted as his servants. In what manner had this been accomplished? That was a question which he must leave to their determination. The evidence of Mr. Champ had proved Mr. Abbott’s application, which had been duly forwarded, and that was all he could say upon the subject. Had the Attorney-General produced even those individuals who claimed the property, and had they in turn produced the documents and grants under which they held, this would most materially have altered the case; but nothing of the kind had been attempted, and the jury were therefore bound to believe, that Mr. Abbott’s claim was too clear to admit of such a measure, and that he, and no other, was the rightful owner of the property in question. It was obtained by virtue of an old grant, and he (the learned counsel) could not see in what essential particular such grants were defective, save that they exempted their possessors from the infliction of quit-rents, which are paternal government had promised should speedily be called for. He confessed that upon coming into court, he had anticipated a much more arduous task than the one which had subsequently devolved upon him, he expected the evidence for the crown would have been so clear, strong, and convincing as to render his case next to hopeless, and was therefore happy to find how much he had been deceived. Mr. Hardwick’s evidence was equally nugatory with all the rest, it amounted merely to this - that his Excellency, upon coming to Launceston, being unacquainted, with the nature of Mr. Abbott’s claim, had in compliance with the wishes of a number of gentlemen who waited upon him, issued orders to the Town Surveyor not to interfere with their arrangements, but his Excellency at the time could have known but little what right either himself or the Town Surveyor had to meddle in the matter; the learned counsel then concluded by calling upon the jury to make their verdict a warning to all future government officers to act with more caution than had been exhibited by the Town Surveyor in reference to Mr. Stewart.

            His Honor summed up, and remarked upon the difficulty under which the crown officers laboured. If the right of a private individual was questioned, he could easily establish it by a reference to the Registrar of the Supreme Court. The crown, however, under similar circumstances could do nothing more than merely to shew that the land had never been alienated; the sole question for their consideration was, whether or not Mr. Stewart had been legally ejected from the building, he being at the time a trespasser upon government property. - The jury retired but a short time, and found a verdict for defendant.

            At the conclusion of the course, Mr. Rowlands moved for “speedy execution” against defendant, in the case of Moore v Wilson - not granted.

            The Attorney-General applied for “speedy execution” against the plaintiff in the action Stewart v Cheyne - not granted.