[ejectment – land law, uncertainty of location – civil procedure]

Doe dem. Learmonth v. Barnes

Supreme Court Van Diemen's Land

Pedder C.J., 15 March 1843

Source: Hobart Town Advertiser, 17 March 1843

Juries of four Esquires. …

            The Attorney General and Messrs. Butler appeared for the plaintiff: Messrs. McDowell and Rowlands for the defendant.

            The aim was to recover 40 acres of land, granted to the plaintiff, by letters patent, in August last.

            Mr. Woodward, the surveyor, was called to certify that the description contained in the grant deed corresponded with the locals laid claim to. This gentleman stated that the length of the lines given in the marginal diagram corresponded with his own survey, but that the bearings were not laid down. The body of the deed, however, rectified the deficiency.

Mr. McDowell grounded his defence on the impossibility that the jury could, on the evidence given (for placed as they were there must be no arriving at conclusion) to satisfy themselves of the identity of the spot as specified in the grant deed. Verdict for the defendant.

Source: Hobart Town Courier, 17 March 1843

            Do dem Learmonth v. Barnes, for the plaintiff, the Attorney-General, with Messrs. Butler; for the defendant Mr. Macdowell with Mr. Rowlands.

            This was an action of ejectment brought by Mr. Learmonth, as lessor of the plaintiff (John Doe) against Mr. David Barnes, of Green Ponds, Plea the general issue.

            The Attorney-General stated, that the present action was brought to recover possession of a very small portion of land, consisting of 40 acres and 3 roods, specified in a grant to the plaintiff; the learned Counsel would shew, by the production of the grants the title by which the plaintiff possessed the property; and the production of that grant would shut out any former disputes, which might have arisen between the parties, procuring location orders, or other documents. If the defendant wished to dispute the plaintiffs’ right, his course would be to sue out a scire facias to repeal the grant; it was for him, the learned Counsel to shew that the land claimed was described in the grant, and what defence it was intended to put up, he could not possibly imagine.

            Certain admissions being made, the grant was put in, and evidence adduced to prove its validity. Mr. Woodward, the surgeon, was also examined, respecting the locality of the land.

            Mr. McDowell for the defendant, contended that the land, claimed by the plaintiff was not described in the grant, neither had Mr. Woodward defined it, as he was never asked the question. If the jury thought the land was confined in the grant, the learned Counsel quite agreed with the Attorney-General, that a scire facias would be the best mode of trying its validity. He, Mr. McDowell, was prepared with several witnesses to show that the land was improperly described, but that course would not be allowed by his Honor: if however, it was not clearly and satisfactorily shown to the jury, that the land was accurately described, for it must not be a matter of conjecture, the defendant would be entitled to a verdict.

            The jury retired for about five minutes, and returned a verdict for the plaintiff.