[reception of English law, Statute of James – statute of limitations, against Crown – land law, adverse possession – land law, uncertain title – ejectment – Millbrook estate – in forma pauperis – appeals – trusts – land law – Caveat Board]

Doe dem. McKillop v. Lascelles

Supreme Court of Van Diemen's Land

Pedder C.J., May 1843

Source: Murray’s Review, 5 May 1843

            A motion having been made in the well-known case of the Milbrook Estate, so long considered Mr. Lascelles’s, His Honor the Chief Justice stated in effect, that the Local Act of Council, declaring the Statute of James, which gives right of property to lands after twenty years’ uninterrupted possession, had been disallowed “at home,” and that consequently that statute was in force in Van Diemen’s Land. This decision perfects Messrs. Jackson and Addison’s title to their houses in Collins-street (the office of his journal and others) which has been so long contested. It also confirms many other titles to long and uninterruptedly possessed estates, the owners of which were anxiously expecting it. It will be recollected that the Judges differed in opinion as to this statute. The Chief Justice did not consider it to extend to the colonies. Mr. Justice Montagu was decidedly of opinion (and gave his reasons in writing why) that it did so extend. It appears the Crown Lawyers at home have confirmed Mr. Montagu’s decision.

Pedder C.J. and Montagu J., 6 August 1843

Source: Hobart Town Advertiser, 11 August 1843[1]

            This morning, being the second day of term, his Honor Sir John Lewes Pedder, the Chief Justice, and his Honor Mr. Justice Montagu, sat in banco; J. Hone, Esq., Master of the Court, and the High Sheriff sat on the bench with their Honors. Only two cases were mentioned for hearing, and, as will be seen by the subjoined notices, neither were decided, but left by their Honors for further hearing.

Doe dem, McKillop v. Lascelles

            The Solicitor General appeared for the plaintiff; attorney, Mr. Perry;- Mr. Harrison, for the defendant; attorney Mr. Dyne.

            The application to the court was, to make absolute a rule nisi (obtained as nearly as we could collect from what transpired in court, and a reference to former notices of this important case in our journal) under the following circumstances:-

            On March 16, 1840, an action of ejectment was tried before his Honor the Chief Justice, by which the mortgagee sought to recover possession of the Milbrook Estate, situate at New Norfolk. The jury was special, and consisted of twelve, a majority of whom (three-fourths) coincided in a verdict for defendant.

            On the 12th May, 1840, (about two months after the trial), Mr. Stephen moved the court for, and obtained, a rule nisi, to shew cause why there should not be a new trial. This rule, which has been enlarged from term to term, it was now moved by the Solicitor General, should be made absolute.

The Chief Justice said, one material question for the decision of the court was, whether the statute of James (which is a statute of limitations to the crown with regard to lands), is, or is not, applicable to this colony.

Mr. Justice Montagu desired the Solicitor General to mention the points argued at the time the rule nisi was granted.

The Solicitor General said there were several grounds of application for a new trial. The first was, for misdirection by the learned Judge, in directing the jury that, if they found that the crown was out of possession for twenty years, without receiving rents and profits during any part of that time, they would find for the defendant; and also for misdirection, in stating that the twenty years were to be reckoned up to the time of bringing the action of ejectment, instead of the date of the grant. Then, there was a second ground, that the verdict was contrary to the evidence, inasmuch as the defendant had himself given in evidence a letter, written by him in 1821, to the then Lieutenant Governor, to apply for leave to select this land; that the defendant did not shew a continuous possession for twenty years in those through whom he claimed and in himself and his assigns; that defendant did not shew an adverse possession for twenty years; and, that the jury was led into a mistake as to the time when the Governor-in-Chief sanctioned the first possession of the land, as it occurred in 1821; whereas it was represented by defendants’ witnesses to have been in 1811.

On these grounds being mentioned, their Honors differed as to the applicability of the Statute of James to this colony; and an act was passed by the Legislative Council, declaring that the act of limitations of the Crown, where no rents or profits had been received for twenty years, was not in force; but with a suspending clause, that the local act should be inoperative, until the opinion of Her Majesty’s law officers in England could be received. In due time the act was disallowed, but without any express direction from the Home Government, as to the course to be adopted with regard to titles like the one which had given rise to the present application.

The Chief Justice (after a brief conference with Mr. Justice Montagu, which was inaudible to the reporters), stated that, notwithstanding the annulling of the colonial act by the Government, he still retained his opinion that the Statute of James is not applicable to this colony. His learned brother (Mr. Justice Montagu), and himself, would confer together, and come to some conclusion before this day fortnight (Tuesday, August 22) when they would state their final decision. The Chief Justice added that the opinion of the Court on the motion of the Solicitor General, depended in the first instance, on the decision to which it might come as to the applicability of the Statute of James; if that was settled in favour of the defendant, then the other points mentioned might be argued and considered.

Pedder C.J. and Montagu J., 11 August 1843

Source: Hobart Town Advertiser, 15 August 1843

            This important case was again mentioned, and a conversation on the subject gone into between their Honors and the Solicitor General. It was intimated by the court, that the other grounds of application for a new trial, irrespective of the question of applicability of the statute of James, might be gone into.

            Mr. Macdowell, although not in the present case, observed that there were other actions, in which the parties deferred proceeding further, until the decision of the court, with regard to the statute of James, was known.

It appeared, also, that neither the Solicitor for the plaintiff, or the counsel for the defendant were present; and, ultimately, it was intimated by the court that no alteration would be made in the arrangement for giving a final decision on Tuesday next, August 22, as to the applicability of the statute.

Pedder C.J. and Montagu J., 1 September 1843

Source: Hobart Town Advertiser, 5 September 1843[2]

A new trial in this cause has been granted, without reference to the Statute of James, as will be seen by the following.

JUDGMENT

Chief Justice. - We are of opinion that there is so much absurdity in some of the facts found by the Jury that there should be a new trial in this case. I believe that I was guilty of an error in telling the Jury that the time should be computed from the commencement of the action, and not from the date of the grant; but if it was an error, it is said there was still a possession of 20 years found - that point is not at all clear. I directed the Jury to consider whether there was a clear adverse possession of 20 years, but they have not done so; I think there should be a new trial to ascertain what the nature of the possession was.

Mr. Justice Montagu. - It seems unnecessary in deciding this case to give any opinion whether the Statute of James is in force in this colony or not. It does not appear what the nature of the possession was;- it may be such a possession as not to come within the operation of the Statute. It appears His Honor the Chief Justice told the Jury that if they applied evidence to the land in question they were to state whether the possession had been adverse for 20 years or not; but they have not stated whether or not they did so. If they had stated that the possession had been adverse all the time, or if they had said that the defendant was an intruder all the time, we should have known how to deal with the case. It may be that the defendant was an intruder at the time he wrote the letter requesting permission to occupy the land. The Government might have consented, and yet not have put the party in possession; - the Government might have merely said we permit you to occupy the land. If the party was an intruder from first to last - that is adverse possession there can be no doubt. It may be the Jury thought the possession was that of an intruder part of the time, and the rest under that letter; - or it might be the Jury thought the defendant had some other right to possession from first to last. I cannot tell on what grounds the Jury have found their verdict - it is a very difficult case. (His Honor here read from Chitty’s Prerogatives of the Crown under the head “Inquests”) I do not know whether the Jury thought the man was an intruder from first to last; I do not know whether they thought he was part of the time an intruder, and part a permission occupant; - I do not know whether they thought he had any other right to the possession, and I therefore think we should again have the opinion of a Jury as to the facts.

A new trial ordered.

Pedder C.J., 18-19 September 1843

Source: Hobart Town Advertiser, 22 September 1843[3]

            The following gentlemen were sworn as special jurors in this case:- John Ogle Gage, foreman; Charles Baker, William Thomas Parramore, Daniel Ogilvy, John Geiss, Henry Scott Thompson Henry Bridger, Askin Morrison, Frederick Arundel Downing, Arthur Corbett, James Turnbull and William Lawson.

The Solicitor General and Mr. Fleming for the plaintiff; Attorney, Mr. Perry

For the defendant Mr. Macdowell and Montagu; Attorney Mr. Dyne.

Mr. Fleming opened the pleadings. This was an action of ejectment, brought to recover possession of a farm of 401 acres, situate in the parish of Wellington, county of Buckingham, in this colony. The declaration was in the usual form, and the defendant had pleaded the general issue.

(We may remind our readers that the judges in Banco had granted a new trial, on various grounds stated by the plaintiff. The original trial was upon a grant to Thomas George Gregson and John Dobson of the locus in quo, dated 3rd May, 1837.)

The Solicitor General said, the nature of the present action had been correctly described by his learned friend. Not knowing the precise course that would be adopted by his learned friends on the other side, he should proceed with the ordinary proofs of the facts stated in the declaration, and reserve for the present, those remarks which the case naturally suggested.

Mr. Macdowell said he would at once admit that the defendant is in possession.

Mr. Sorell (Registrar of the Supreme Court), produced a proclamation, dividing this Island into parishes and counties, and which had been duly enrolled. This proclamation stated that the Parish of Wellington is in the county of Buckingham, and that it is bounded on the north-west by the Derwent, commencing at its junction with the Derwent River; hence on the _______ by that river to the Black Snake rivulet; on the south-west by Glenorchy parish; on the south by a line running westerly by the Lachlan river, and on the west by that river. This parish embraces the township of Bridgewater, and part of New Norfolk. A mortgage deed of the property in question was then read, enrolled the 19th June, 1843.

Mr. Hillyard, (clerk to Mr. Dobson), then produced a mortgage deed, dated 14th June, 1837, between Thomas George Gregson and his wife and John Dobson of the one part, and McKillop of the other part; to secure the payment of £2000 by McKillop, in June 1838. Witness proved the due execution of the mortgage, of which he was attesting witness, having seen it signed, sealed and delivered. He also produced the receipt for £2000 paid by McKillop.

Mr. Macdowell said. - The mortgage deed having now been put in, he would ask the witness whether the receipt was endorsed on the back of the deed. In the body of the deed there was a condition to pay, but on the back of the deed no receipt.

The Judge. - There was a contemplated payment in the deed, and the receipt has been put in.

George Woodward. - I am a surveyor, employed in the government survey office. I know the estate at New Norfolk, called Millbrook, the subject of the present action. It is situated in the parish of Wellington. I have been over the ground mentioned in this grant; the boundaries mentioned are those of the Millbrook Estate. The parish of Wellington is in the county of Buckingham.

James Wright, (clerk to Mr. Dobson), examined by Mr. Fleming. - I served the defendant in this action with a copy of the declaration in ejectment. The service was effected on the premises. On presenting him with a copy, I read the notice attached. Mr. Lascelles said the premises on which we were then standing were the premises described in the declaration. The document now handed to me is a true copy of the declaration I served; I compared it with the original.

Mr. Macdowell said, it now became his duty, as counsel for the defendant in this action, to give a brief outline of the facts which he should prove in evidence; and, having done that, he could have no possible doubt of a favourable verdict for his client. He would admit that the defendant, Mr. Lascelles, is in possession of the property in dispute beyond all question, and that the estate, for the purpose of the plaintiff’s claim had been sufficiently described. He should show that Dennis McCarthy was in poss[ession] of the estate at so remote a period as the year 1814; that he so continued in peaceable and undisturbed possession until his death, in the year 1820. Mrs. McCarthy, who had been living with her husband on the estate, remained there, and was subsequently married to Mr. Lascelles, the defendant, who, as husband of Mrs. McCarthy, had remained in possession to this very hour. And he should shew that if any of these parties had ever disposed of the estate for a time, or had let it, they were in possession of the rents and profits. All claim that the crown might assume to grant a title to any other individual was stopped by McCarthy and his representatives having been in undisturbed possession, and in receipt of rents and profits for a period of twenty years. True there was a doubt as to the application of the statute in this colony (the 21st of James, the lst, chapter 14), but they would hear from his Honor, when he came to lay down the law of the case, that in England the lessor of the plaintiff could not maintain the present action. In February, 1814, Dennis McCarthy obtained from the crown a grant of this land, in reward or consideration of services performed by him for government, in laying out and superintending the construction of roads. He retained possession himself until 1817, (three years before his death), when he sold the estate for £500, to a person of the name of Crosswell. This man, after remaining on the estate for some time, finding that he could not complete the stipulated period, entered into an arrangement with McCarthy to be released from further liability and the estate naturally reverted to the original grantee, who, as he had already said, retained possession, with his wife, until the time of his death, the widow remaining there until her marriage with the defendant in this action. In 1827, the land was let by Mr. Lascelles to Mr. Nichol, at a stipulated rental, for a term; but before the period had expired, the tenancy, with consent, was transferred to Mr. Sharland; and at the expiring of Mr. Sharland’s tenancy, the defendant again went to reside on the estate, where he has ever since remained; his right to the property never having been disputed, except by the claim now set up by the plaintiff. He should prove these facts, and the duty of the jury would be clear and straightforward. The crown having granted the land to McKillop; having been out of possession for 20 years, could not possibly perpetrate such a wrong as to make a grant to another party. The land had become valuable by industry, the outlay of capital, and exertion; and yet the jury was now told that in 1837, a grant of this land was made to Messrs. Gregson and Dobson; they mortgage the estate to McKillop, and he comes here as plaintiff in this action, to turn the defendant and his wife - formerly the wife of the original grantee - out of possession. He was sure that no jury would tolerate or sanction such a wrong.

Wm. Maum examined by Mr. Macdowell. I am acquainted with the late Dennis McCarthy. He first lived in Hobart Town, and afterwards at New Norfolk, in a house which he built himself in the time of Governor Collins; it was called Birch Grove. I know the Millbrook Estate; that is not the same as the property at Birch Grove. I knew McCarthy to have been in possession of the Millbrook Estate in 1814, and received some bullocks from him there at that time. I went to Sydney in the same vessel with McCarthy; he did not return with me. I remember his death; I believe it was in 1820; he was drowned. I accompanied his widow to New Norfolk after his death, but not to Millbrook; we travelled through the Millbrook Estate on our way. Mrs. McCarthy took possession of the premises at New Norfolk, but I do not know how she took possession of the Millbrook property. I do not know who was in possession at McCarthy’s death; a year or two before he was in possession himself.

By the Solicitor-General. - I received the bullocks from McCarthy, on my private account, before we went to Sydney; in 1814. At that time McCarthy lived at Birch Grove; I had not seen him on the Millbrook Estate for a year or two before his death.

By the Judge. - The land now called the Millbrook Estate is the same on which I hear Mr. Lascelles has been living for some time.

By the Solicitor-General. - There was no land enclosed in those days, nor any cleared by the hand of man. There was a hut on the land; the government stock ran there; so did McCarthy’s; there was no fence; the stock of Ingles and Lord ran there in the same way, and every man’s stock at New Norfolk.

By the Judge. - There was no grant in those days, I do not know what right of possession McCarthy exercised; he held such possession as was enjoyed by other settlers, by being allowed to do so by the government. I do not recollect when it was enclosed, or when any building was put up. When I went up with Mrs. McCarthy, I saw a fence on the land; there had been a dwelling-house built by Mr. Lord, in 1810; but it had fallen into dilapidation.

Re-examination. - When I went up with Mrs. McCarthy I saw a fence on the ground. There had been a dwelling-house built by Mr. Lord, but it was in a state of dilapidation; that would be in 1810 or 11.

By Mr. Macdowell. -  In 1814, there was a hut on the land, occupied by McCarthy’s people. I never lived nearer to New Norfolk than Hobart Town, and my visits were “few and far between,” I have not been there since I went with Mrs. McCarthy.

By a Juror. - The persons I saw in the hut were McCarthy’s own servants; I saw no one else there.

William Rayner examined by Mr. Macdowell. - I live at New Norfolk, I have lived there about 30 years; I first went in about 1813. I knew the late Mr. McCarthy; I do not recollect exactly when he died, but it was about 1820. I first became acquainted with him in 1811; he was then living at New Norfolk; I have known a property there called the Millbrook property, upwards of 30 years. When I first knew the property there was a house upon it, but no inhabitant in it. Dennis McCarthy was the first person who was in possession of it; he was making improvements on the land, and had cattle running upon the estate, but did not live there. That was in 1816; there was then a hut upon it occupied by a servant of Dennis McCarthy. McCarthy was in possession up to the period of his death in 1820; his widow remained in possession after that; afterwards she became Mrs. Lascelles. Since 1820, Mr. Sharland lived there for a short time; then some one for Mr. Lord; I think his name was Nichols. I do not recollect a person of the name of Cooley living upon it, since 1820.

Cross-examined by the Solicitor General. - When I first knew McCarthy he lived at a place on the other side of the Lachlan river, at Birch Grove; then he lived on the township side, but not on the estate. To my knowledge he never lived on the property called Millbrook. When I knew it, 30 years ago, it was not called Millbrook; it was then a distinct property; there was a hut upon it, and some land was cleared about the house. It was then called “Lord’s Farm”. Upwards of 30 years ago there was a hut and a small portion of land cleared; I do not say the land was in cultivation; no one lived in the hut. I first knew the hut in 1816, before that time I do not remember to have seen it; it was a stock-yard.  The estate was not then fenced in; it was called Lord’s Farm, but I never went over the boundaries of it, nor of the present estate called Millbrook. When I went to New Norfolk, 30 years ago, I remained there three or four months; I next went to reside there in 1833. I was at New Norfolk in 1814, occasionally for a day or two; from 1814 to 1833, I resided in Hobart Town; at one time as Commissariat storekeeper; I was Commissariat storekeeper in 1816, and went occasionally to muster the invalids who were victualled there; the road then ran through this property, and I merely passed through it on the road to New Norfolk; I never knew Mrs. McCarthy to live on the Millbrook estate until after her marriage with Mr. Lascelles; the old Government stock yards were not on McCarthy’s land, but on the land on the opposite side of the rivulet; I saw some improvements on the land in McCarthy’s life time; but there was no considerable improvements in 1816; there was a hut, and some open land; I was not on the land in 1816, except in passing along the road; I swear there were improvements in 1817, the same as in 1816; it might be more; when Government storekeeper, I was compelled to go to New Norfolk, sometimes once a week, or once a fortnight, and I may have allowed one month to elapse; I was storekeeper until September, 1822; I knew McCarthy to be in possession in 1816, by his having a man working on the land, and his cattle running there; I cannot say how long Dyas resided on it.

Henry Crosswell deposed that he knew Dennis McCarthy about thirty years ago; I was then living with Mrs. Hayes, now Mrs. Hooker; I went to live at New Norfolk about twenty-seven or twenty-eight years ago; I have known the property now called the Millbrook estate 28 or 29 years; it was then called McCarthy’s farm; it belonged to me 26 or 27 years ago; I bought it of McCarthy, but never paid for it, and gave possession of it back to him again; when I took possession there was a house on it, and some stock; I built a hut, and lived in it myself, and have known the property up to the present time. McCarthy, until he was drowned, and his widow afterwards, lived on the estate; Mr. Nichols had it for some time, then Mr. Sharland, and afterwards Mrs. Lascelles, who with her husband, had occupied it ever since; all the time that I have been speaking of I resided at the Falls, in the district.

Cross-examined by the Solicitor-General. - I have not been a witness in this case on a former occasion; I was first summoned to give evidence in this case to day; I have had no communication with any body else about it; I received my subpoena on Saturday night; nobody applied to me to give evidence before I received the subpoena; I did not before know that I was to give evidence; I have not been in town on this matter; I saw Mr. Dyne three or four days ago, but it was on my own business; I did not come to town on any other business; but, when I went to Mr. Dyne, I asked him about this case.

By the Judge. - I did not understand that Mr. Dyne wanted me to give evidence here; the cattle were running, when I was Government stock-keeper, about three miles from New Norfolk; when I ceased to be Government stock-keeper, I went to live in the town; I was a Government man when I bought the property from McCarthy; I was to pay him £500; I had then property of my own; about 40 or 50 sheep; I had then no ticket-of-leave.

By the Solicitor General. - I had my ticket-of-leave when Governor Davey went away. I never saw McCarthy live in that house, or on the farm, it was first called McCarthy’s farm, about 33 years ago; I was then Oliver Smith’s government man, I cannot say I ever heard of Birch Grove; I have seen Mrs. McCarthy in possession; in 1816 the property was called the 500 acre farm; I was then Government stock keeper, and bought the estate for £500; it was not cleared; when I first went to New Norfolk it was called “Lord’s Farm.” I was told the Government stock did run there before that time; I do not recollect seeing the Government stock or Mr. Lord’s, or Mr. Ingles, running there; I gave McCarthy my note of hand for £30, to take the property back again; it was my own note of hand, and I gave it up to Lascelles after McCarthy’s death; I did buy the farm, and was the first who ever ploughed it; this was more than three years before McCarthy’s death, and whilst the property was in my possession; I never saw any other hut on the land except the one I built; before the last trial, I had told Mr. Lascelles what I have said now; I do not know why I was not a witness then.

Re-examined by Mr. Macdowell. - I gave Mr. McCarthy £30 by a note of hand when I gave up the farm; I cannot say that I ever paid it to him; I have paid a note to Mr. Lascelles after McCarthy’s death; I cannot say what the amount was, nor what for; but I believe it was a note to McCarthy; during the time I was in possession, I ploughed with my own hands about half an acre; that was to take possession. I had a man living with me at that time; I do not know his name.

By the Judge. - I gave up a note to Lascelles after McCarthy’s death, but I cannot say what it was.

Mr. Henry Nichols, examined by Mr. Macdowell. - I occupied it about 14 months, in 1827 and 1828 from Mr. Lascelles; it was under an agreement for a seven year lease, but which was never executed I paid rent to Mr. Lascelles.

William Stanley Sharland examined. - I reside at New Norfolk, and know the Millbrook estate; I was in joint possession of it with Mr. John Lord’s agent, several years; from 1829 to 1836; I had receipts for the rent from Mr. Kerr, Mr. John Lord’s agent, part of the time, and the other part from Mr. Goldie; I gave up possession of the house and a paddock of ten acres of land to Mr. Lascelles, a year before the expiry of the lease, retaining the other portions of the land; eventually I gave up the whole to him.

Cross-examined by Mr. Fleming. - I became a tenant to Mr. Lord in the year 1829; I was preceded in the occupation by Mr. Nichols; I treated with Nichols and Lascelles for the occupation; I applied to Lascelles previous to the occupation of the farm, to extend the lease which had been granted to Nichols, for seven years; I always paid the rent to Mr. Kerr, Mr. Lord’s agent; I never paid rent to Nichols; but I took the farm from him previous to the termination of the second year, and on taking possession I paid for the crops but not for the rent; I first derived possession from Henry Nichols; Lascelles paid me £50 or £60 to give up possession of the house, and a paddock of ten acres, before the termination of the lease; Lascelles applied to me to advance money on the farm; I advanced a certain sum, but the arrangement was not carried into full effect, as I had obtained a legal opinion as to the title.

By the Judge. - The lease commenced in 1829; Mr. Nichols had property before that.

This being the defendant’s case. William Sorell, Esq., Registrar of the Supreme Court, was again called. He produced an original bill and answer in equity, in which Edwin McCarthy, (son of the late Dennis McCarthy), is plaintiff, and Thomas A. Lascelles, Thomas George Gregson, John Dobson, and - McKillop, are defendants.

The bill was filed by McCarthy on the 28th February, 1839.

Mr. Macdowell observed that to that bill, the plaintiff and defendant in the present action are both defendants.

The Judge deemed that circumstance to be perfectly immaterial to the present issue.

Mr. Thomas Nicholson examined by Mr. Fleming. - I was, in 1837, one of the Commissioners of the Caveat Board in this colony. The deed now shewn to me, the date excepted, is in my hand-writing. It is a grant of 421 acres of land, called the Millbrook Estate to Thomas George Gregson and John Dobson, and bears date, the 3rd May, 7th William IV. I was Commissioner when the grant was applied for and passed; it was applied for first of all, in the name of Thymas Allen Lascelles, but was eventually made out to Mr. Gregson and Mr. Dobson, as trustees for the parties interested.

By the Judge. - Mr. Lascelles gave instructions to the Commissioners.

By Mr. Macdowell. - The grant was originally advertised, as applied for by Lascelles, but not by Dobson or Gregson to my knowledge; it was not so expressed in the application. Lascelles applied for a grant absolutely; Gregson and Dobson did not apply at all; they were appointed by Lascelles to act as trustees; the deed was made out in their names at Lascelles’ express request, instead of in the name of himself. There ought to have been a deed of trust I presume.

By the Judge. - It was stated that the old deed of grant by Sir Thomas Brisbane was in the possession of Mr. Gellibrand, but it could then be found; but it was afterwards found in the possession of Mr. Kerr. I think Lascelles eventually produced the deed to me; the deed to Dobson and Gregson was in trust for the benefit of the real representatives of Dennis McCarthy.

Mr. Macdowell congratulated the jury on the unexpected turn which this cause had taken. The learned gentleman enumerated the main facts of the case, as disclosed in evidence; and contended that the defendant’s case had been fully made out. McCarthy had not only been in possession in 1815, but had exercised the right of ownership in selling the land, and afterwards releasing the purchaser from his bargain, on giving up possession, and on the payment of £30 by a note of hand. He would admit that it did seem a little singular that Crosswell, a government storekeeper and a prisoner of the crown holding no indulgence, should contract for the purchase of this property; but it must be remembered, that at so early a period in the history of the colony, there was a great lax of discipline, and many things were done by servants of government much more strange than the transaction between Crosswell and McCarthy. The grant to Messrs. Gregson and Dobson was only in trust for the real representatives of McCarthy, and who are they? The estate belonged to the wife of the present defendant on the death of her husband, and had since been let and rents received, from two different parties. There was the clearest testimony that the crown had been out of possession for more than twenty years; and another grant could not issue. There was no proof that Messrs. Dobson and Gregson had ever executed deed of trust, and he confidently relied on their giving the defendant a verdict in his favour.

The Solicitor General replied to the arguments of his learned friend, and went through the evidence to shew that the defendant had utterly failed in his endeavours to prove a continuous adverse possession. But if he had succeeded in that object as completely as he had failed, he would put it to the jury to say in what position he would stand. Why, failing to raise money upon the estate, there being a legal doubt about the title, he applied for a new grant, in his own name absolutely; this at his own request was afterwards made out to Messrs. Dobson and Gregson, and for what? To enable him to raise the sum of 2000l upon the estate, and which was mortgaged for that sum to McKillop the plaintiff; the money having been paid. Was the defendant, having so acted, to come here and attempt to defeat his own act, by producing evidence of adverse possession?  He first applied for and obtained a grant from the crown of this identical property, which grant he turned to a valuable account. He then says the grant so obtained was worthless, as the crown had no power, the property being previously his. Was he to blow hot and cold in that way; or could the jury tolerate such conduct? The tenancy of Nichols and Sharland did not serve the defendant’s cause, for it should have been shewn, at an earlier date. The evidence of the purchase of the property by a prisoner of the crown, of his having never paid a penny for it, and of his giving a note of ha[n]d for 30l to get rid of it - which he never paid, and which was in his possession at the time of McCarthy’s death, and given up by him to Lascelles, was altogether so loose, unsatisfactory and incredible, that no weight could be attached to it. The defendant having no title in 1837, applied for a grant to himself; then petitioned that the grant might be made out in the joint names of Messrs. Dobson and Gregson, and having obtained this, and turned it to a beneficial account, he turns round and says, I repudiate my own act; the crown had not the power to make a grant. Would the jury tolerate that?

The Chief Justice summed up, and thought that, if the jury believed the evidence of Mr. Nicholson they must find for the plaintiff. If they had any doubts, he would address to them a few observations on the evidence, and law of the case, as to adverse possession.

The jury retired for a short time and returned into court with a verdict for the plaintiff.

TUESDAY, SEPTEMBER 19, 1843

The Chief Justice took his seat on the bench this morning at ten o’clock.

MCKILLOP V LASCELLES

The Solicitor General applied to the Court to grant a certificate for a speedy execution in this case.

Mr. Macdowell said, he had received instructions to move the Court, at the proper time, for a new trial, on the following grounds:-

1st Your Honor did not submit to the jury whether Mr. Gregson and Dobson, who held the estate in trust, had power to charge the same with the payment of £2000.

2nd. Because your Honor excluded the question from the consideration of the jury, whether the Crown had been out of possession for twenty years.

3rd. Because there was no demand of possession or notice to quit proved.

The Chief Justice said, it was too much to expect him to give an opinion on those questions now; but he was not so much wedded to his own views as to refuse to consider the points mooted.

The subject being mentioned again before the rising of the Court, his Honor refused at present to grant a certificate for speedy execution.

Pedder C.J. and Montagu J. in banco, 10 November 1843

Source: Hobart Town Advertiser, 14 November 1843

            With the leading features of this case, on readers are familiar. It was an action of ejectment, and on the first trial, a verdict was given for the defendant. At the last sittings in banco, a new trial was granted, for reasons mentioned in this journal at the time. The trial came on before His Honor the Chief Justice, at the civil sittings, on the 15th September, and was fully reported in our following number. In this second action the verdict on the former trial was reversed. The Solicitor General (leading counsel for the plaintiff), then applied that speedy execution might issue; but which application was refused by his Honor, on an intimation by Mr. Macdowell, (leading counsel for defendant), that he was instructed to move, when the proper time should arrive, for a rule nisi, on grounds which he then stated. The property at issue in the Millbrook estate at New Norfolk.

            This morning, the defendant, Mr. Lascelles, appeared before the bar of the court, to plead personally forma pauperis; he went through the entire case at great length, reading extracts from the evidence of the former trials, and citing copiously from the law books. We do not say that the old age was verified, that a man who is his own lawyer has a fool for his client; quite the contrary - but the defendants’ want of ‘practical’ acquaintance with the rules of pleading, rendered his address of nearly three hours duration necessarily discoersive. We can only give those points of it most material to the case.

            The first ground of application for a rule nisi, calling upon the plaintiffs to shew cause why a new trial should not be granted was, on the allegation that his Honor the Chief Justice, in his charge, had excluded the question from the consideration of the jury, whether the crown had been out of possession 20 years. The defendant contended that this formed a material part of his case, and that, probably the jury would have given a different verdict, but for his Honor’s direction. The second ground of application was, for admitting as evidence, at an improper stage of the case, the defendants’ answer, and the testimony of Mr. Nicholson, who was a member of the Caveat Board, at the time an application was made for a new grant in trust. What the defendant now complained of was, that after the plaintiffs’ had called witnesses, and the case for the defence closed, his Honor the Chief Justice had allowed the plaintiff to put in the defendants’ answer to the bill in equity, and to call Mr. Nicholson. He contended that the plaintiff, having full notice of the defendants’ case, he ought in his opening to have stated and proved the additional evidence in the first instance, and then to have objected to the reception of the defendants’ evidence; and, if his Honor the Chief Justice had then ruled that it was then inadmissible the defendant was prepared to have tendered a bill of exceptions, the effect of which would have been that the whole case would have been left to the jury. The defendant then cited the case of “Thiller v. Warre, 1 Carrington and Payne, p 239;” in which it was laid down by Mr. Justice Park, that on a bill of exceptions the case always goes to the jury; but that, on a demurrer to evidence it is otherwise. From this decision, it seemed to him (the defendant) perfectly clear, that the defendants’ answer, and Mr. Nicholson’s evidence were received in an improper stage of the case. He next cited the case of Rees v. Smith, 2 Starkie p 31, and the judgment of Lord Ellenborough upon it (p 32) in which his Lordship laid it down that a plaintiff cannot go into half his case, and reserve the remainder. The defendant next read the evidence (given on the trial) of Thomas Nicholson, Esq., at length (as reported in this journal at the time), commenting upon it as he proceeded, and pointing out how injurious that evidence was to his cause. Hid (the defendants’) learned counsel was completely taken by surprise; he was, at the time, labouring under severe indisposition; although he (Mr. Macdowell), as he always does for clients, exerted himself to the utmost, but ineffectually, after the summing up of his Honor the Chief Justice, to remove from the minds of the jury the impression which Mr. Nicholson’s evidence had created. The new grant was applied for - first, in the name of himself, and subsequently, by his (the defendants’) own consent, granted to John Dobson and Thomas George Gregson, in trust for the parties interested. But, no trust-deed had been executed; which, according to Mr. Nicholson’s evidence, ought to have been. Mr. Dobson had promised to the Caveat Board, that a trust-deed should be executed, but he had not fulfilled his promise.

            Mr. Justice Montagu. - Was any evidence adduced on the trial, to show that Mr. Dobson was to be the trustee of the parties interested. Was it shown that Mr. Dobson had represented to the Commissioners of the Caveat Board, before they allowed the grant, that he had or was about to prepare a declaration of trust.

            The Defendant. - There was no evidence, except Mr. Nicholson’s.

            Mr. Justice Montagu. - You must be very cautious as to what statements you make at that bar. You have no right to make a declaration as to any fact, or alleged fact, not given in evidence. To that you must confine yourself. You are charging Mr. Dobson with a breach of duty, as trustee; if that were proved, he being a solicitor of this court, it would be a very serious offence indeed; and he would be liable to punishment in various ways. You might confine your observations to the evidence on trial; if evidence of what you have stated was not given, you have no right to make that declaration here.

The Defendant. - Mr. Dobson acknowledged that he was only a trustee. I apprehend it was not merely in accordance with law, but justice, that he should have executed a deed of trust. Every inducements has been offered for him to produce his accounts; but he says he is in possession of the legal estate, and refuses to do so.

Mr. Justice Montagu. - Is that in evidence?

Defendant - No; it is not. As I have already said, the learned counsel who appeared for me was not only taken by surprise, but labouring under the most acute suffering. The third ground of application for the rule was, that his Honor the Chief Justice did not submit to the jury whether Messrs. Dobson and Gregson, to whom the estate was granted in trust, had executed a declaration of trust, and had power to charge the estate with the payment of £2,000. The effect of Mr. Nicholson’s evidence and the defendant’s answer, he contended was, that he (the defendant) consented to the grant being made to Dobson and Gregson, subject to a condition which has not yet been fulfilled; viz: the execution by them of a deed that they held the estate in trust for the parties equally interested in, or entitled to the estate; and as it was not intended that the estate should vest in Dobson and Gregson until they had executed the declaration of trust, which was in the nature of a condition precedent, they have committed a gross breach of trust in charging the estate with £2,000; and therefore he (the defendant) submitted that the Chief Justice ought to have left Mr. Nicholson’s evidence, under the Statute of James, to the jury.

The Defendant, in support of this view of the case, quoted from Baines Abridgment, title Condition, p. 121, where it is laid down that conditions precedent are such as must be punctually performed before the estate can vest. He also cited Harvey v. Aston, 1 Atkyn’s, p 374, in further confirmation; and contended that as Mr. Dobson was solicitor for the plaintiff in this transaction, and therefore this case came within the rule laid down. He also quoted Doe dem. Wills v. Martin, 4 Dunford and East, p. 39; to show that the principal is civilly responsible for the acts of his agent; and the judgment of Lord Kenyon on the case, p. 66. The defendant read the charge of his Honor the Chief Justice to the jury, and submitted, with all due deference to their Honors, he had shown sufficient case for the court to grant the rule prayed for.

The Chief Justice observed that he was not inclined to say, whether the rule applied for should be granted or not. The action was one of ejectment, brought upon a demise. The evidence for the plaintiff was as brief as possible. The defendant attempted to prove a former grant by Sir Thomas Brisbane to the late Mr. McKillop; the defendant setting forth that he was Mr. McKillop’s legal representative. Then, to rebut this testimony, the plaintiff offered evidence to show, that afterwards, by the defendant’s consent the new grant was made out by the Caveat Board to Messrs. Dobson and Gregson. The evidence of Mr. Nicholson was strengthened by extracts read from the defendant’s own answer to the bill in equity; - that Messrs. Dobdson and Gregson were to be trustees of the Millbrook Estate in the benefit of the parties interested. He (the Chief Justice) directed the jury with regard to the Statute of James, but not in the terms which had been read by the defendant from a report which, he had said, was not taken by himself, but furnished to him by his solicitor. After adverting to the Statute of James, (the Chief Justice), setting aside any difference of opinion on the subject, as to whether the statute is applicable to this colony or not, treated it as if really in force. And, supposing it to be actually in operation, he directed the jury that, in the case for their consideration it did not apply. The statute was to protect persons in possession of crown land, having no title or grant, but who had been in undisputed possession for twenty years; the crown not having been in possession during that period, and received no rents or profits. The defendant’s case was, that Mr. McCarthy was in possession so early as 1813, and that he, by marrying Mrs. McCarthy, is legal representative of the parties interested. But here, by consent, he transfers his interest to two other parties. Without such consent, the grant to them could not have issued. By the issuing of the grant, the legal estate was vested in them; and therefore he directed the jury that, even if the Statute of James was in full force in this colony, it could apply to the case before them.

Mr. Justice Montagu delivered his opinion at considerable length. He differed from his Honor the Chief Justice, and thought that, under the circumstances - no need of trust having been executed by the parties to whom the grant was made in trust - the defendant (Mr. Lascelles), was still the legal representative. He thought the application for a rule nisi should be granted; but would give no further opinion on the subject, until he had heard the arguments of counsel to showing cause against the rule being made absolute.

Rule nisi granted.

Since the last sittings the interior of the hall of justice has been cleaned and purified, so far as the operations of wall-stains, and varnishes of wood work can effect it. The appearance is much for the better.

Pedder C.J. and Montagu J. in banco, 17 November 1843

Source: Hobart Town Advertiser, 21 November 1843

            We gave in a recent number a report of the arguments urged in this case by the defendant, to induce their Honors to grant a rule nisi, calling upon the plaintiffs to shew cause why a new trial (the third) should not be granted. The Court granted the rule, and the Solicitor General, leading counsel for the plaintiffs’ at the last trial, now appeared to shew cause.

            Mr. Fleming appeared, also, for one of the parties interested; and the defendant, Mr. Lascelles, again presented himself at the bar, to plead in propria persona; and not as our former notice would imply, in forma pauperis.

            The Solicitor General stated the nature of the action, with which our readers are already familiar, and which at the last civil sittings of the court, came on for re-hearing before his Honor the Chief Justice.

            Mr. Sorell, the Registrar of the Court, then read a description of the locus in quo; - the Millbrook Estate at New Norfolk, as set forth in the Government Gazette, describing its respective situation, dimension, and boundaries. The Solicitor General then called upon the Registrar to read the notes of his Honor the Chief Justice, taken at the last trial, which was done accordingly. A full report appeared in this journal at the time. The conditions of the deed of grant, issued by the Caveat Board; were also read, granting the property in question, at the request of the defendant himself, to “John Dobson and Thomas George Gregson and Elizabeth his wife,” on the payment of 2000l for the benefit of all parties interested.

            The Chief Justice said, it might be well to state in the way of explanation, before the Solicitor General addressed the Court, that, on the conclusion of the last trial he had charged the jury that, even supposing the statute of James to be in full and undisputed force in this colony - the object of which was to estopp the government; from reclaiming crown land after 20 years undisputed possession, without their having received rents or profits - yet the law could not apply in this action. The statute provided that, in cases such as those he had mentioned, if the crown filed a writ of intrusion the defendant might plead the general issue. But here the circumstances were widely different; for it appeared that the defendant had, by his own voluntary act, transferred his right over the property, for certain considerations, specified, to third parties. So far as regarded the defendant, therefore, as it appeared to him (the Chief Justice), the provisions of the statute, whether in force in this colony or not, were inoperative.

The Solicitor General had a distinct recollection of his Honor having so put it to the jury; and also of his charging them, that if they believed the evidence of Mr. Nicholson - a gentleman, whom they all knew, and who, at the time the defendant applied to have the grant made out to Dobson and Gregson, and not himself, was a Commissioner of the Caveat Board - they must find for the plaintiffs. The learned gentleman had not been in court at the time the rule was applied for, but, he understood that the defendant had complained of the manner in which the plaintiffs’ case was conducted; and that, in fact, a “masked battery,” as he called it had been opened upon him after his own evidence was closed; and by which he now alleges, he was taken by surprise. The course adopted was forced upon him (the Solicitor General), and his learned friend Mr. Fleming, by the conduct of the defendant himself. Had the defendant complied with the notice served upon him, calling for the production of certain documents, it would neither have been necessary to call Mr. Nicholson into the box, nor would the defendant’s own answer to the bill in equity have been put in, and extracts read from it. The Solicitor General then went through and ably refuted the three grounds urged by the defendant for a new trial. These were, lst. That the Chief Justice had excluded the question from the consideration of the jury, whether the crown had been out of possession 20 years. This had been answered by his Honor, who had accurately called to mind, the facts, as deposed in evidence, of the defendant having caused the grant of the Millbrook Estate to be made out to other parties, and thus debarring himself from any relief under the statute of James. The learned gentleman contended, that in so directing the jury, the Chief Justice was right. The complaint of the defendant, of misdirection by the learned Judge, must, therefore, fall to the ground. It was alleged, secondly, that his Honor had admitted as evidence, at an improper stage of the case, Mr. Nicholson’s testimony, and the defendant’s answer to the bill in equity. This he had already in part disposed of, by shewing that Mr. Nicholson was called, and the answer to the bill in equity proved, only in consequence of the omission of the defendant himself, in having refused to produce certain documents in accordance with legal notice. He (the Solicitor General) and his learned friend Mr. Fleming, were, therefore, by this omission of the defendant, left completely in the dark as to what would be the nature of the defence. He therefore stated, in his opening, that he was unaware of the nature of the defence; that he should consequently, merely offer evidence of a grant to Messrs. Dobson and Gregson having been executed, and afterwards call witnesses to complete his case. This course, the learned gentleman contended, he had a right to take; but at all events, his intention was distinctly stated, and no objection was taken up to it by the other side. Why, then, did the defendant now come before the court, and set up a complaint of having been defeated by a “masked battery.” Than this, nothing could be more erroneous. The defendant refused compliance with a notice to produce the necessary documents; he was fully cognizant of the plaintiffs’ case, and he, and his counsel, had full and fair warning of the intention, under the circumstances, to call Mr. Nicholson, and put in evidence the defendant’s answer to the plaintiffs’ bill. As to the case cited of Thiller v. Warre, in l Carrington and Payne, p 239, nobody doubted the law, as there laid down, that a case always goes to the jury on a bill of exceptions; but here the circumstances were very different. He (the Solicitor General) had no wish to throw discredit on any statement made by the defendant; but what evidence had the Court, that a bill of exceptions was ready to be produced, had the whole case been gone into in the first instance? None whatever. The defendant, primarily, positively refused to put the plaintiffs in a position to prove their case; and then, after being apprized in open court, that evidence would be adduced to rebut the defence, and making no objection to it, now shifts his ground, and says, I was taken by surprise. What surprise could there be? Why merely that the plaintiffs were put to an inconvenience in proving their case, from the attempt, on the part of the defendant, to keep out of view the necessary documents. Then there was a third ground of application for the rule - His Honor the Chief Justice it was alleged, did not submit to the jury whether Messrs. Dobson and Gregson, to whom the estate was granted in trust, had executed a declaration of trust; and had power to charge the estate with the payment of £2000. Why no such objection was on the pleadings, and he (the Solicitor General) was not bound, in conducting the plaintiffs’ case, to take notice of the subject. Undoubtedly, had the defendant offered evidence of the fact, he should have done so, and that too satisfactorily. The defendant had said, that Mr. Dobson promised to have executed a deed of trust. Of that allegation was there a single particle of evidence? No, it rested on the mere assertion of the defendant. The Court would not act upon that, but upon the testimony given at the trial. Why then had this subsequent charge of deception or fraud been set up? That there had been deception of the raskest character during the trial, he (the Solicitor General) was ready to admit. But by whom practised? By the defendant; who had masked his battery, by refusing to comply with the notice to produce the necessary papers. The learned gentleman then proceeded to rebut the arguments of the defendant, as to the alleged “condition precedent,” of the grant to Messrs. Dobson and Gregson being specifically contingent on their executing a declaration of trust. The defendant could not hold the estate in trust, because he had voluntarily resigned his right, whatever it might be, to other parties. The Solicitor General concluded a learned address, by calling upon their Honors to dismiss the rule.

The defendant briefly replied, contending that he could not by any mere “verbal” request to the Commissioners of the Caveat Board, alienate his right to act as the representative of the late McCarthy in trust for the parties interested.

The Solicitor General at the suggestion of Mr. Justice Montagu, addressed the Court on the subject of adverse possession; for upon that, his Honor observed, hinged the entire question.

The Court took time to consider. The arguments occupies several hours.

Pedder C.J. and Montagu J. in banco, 3 December 1843

Source: Hobart Town Advertiser, 8 December 1843

            We have reported the arguments of the defendant, who applied, in propria persona, for a rule nisi for a new trial; and the arguments of the Solicitor General, in shewing cause against the rule. It was announced this morning that the Court had deferred its decision until the first day in next term.