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Decisions of the Nineteenth Century Tasmanian Superior Courts

Shoebridge v. Dunn [1836]

assault - trespass - land law, title, location order - Caveat Board - pleading - new trial - costs

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 12 April 1836

Source: Tasmanian, 14 April 1836[1]

The Chief Justice then proceeded to deliver the judgment of the Court in this case - it was an action of trespass, and for assault and battery. The circumstances are already so well known, that a very short retrospect of them is necessary. The plaintiff, Shoebridge, had been in possession of the land in question, about two acres, for many years, and he could have proved (had the issues in the action allowed him) that such possession was originally given him by the then Surveyor General. A few years back Mr. Dunn received from the present Surveyor General a location order of ten acres, which includes the "locus in quo". The plaintiff resisted the right of the Surveyor General to deprive him of that land; and that question must of course go the Caveat Board, where it still remains (as do so many others to the greatest inconvenience, and in some cases to the absolute ruin of the parties) in dispute and undetermined. For all that appears, the result may be in the plaintiff's favor - if so, how strange will all which has occurred in this matter, this suit, and its enormous expense look to the world! The man, as will be seen, loses his property, at least for the time being - loses his damages - his costs - enormously heavy, almost to the ruin of his family, because the Government will not do its duty, in affording the King's subjects here, something like reasonably prompt decisions upon their rightful claims! Shoebridge, suffering under unceasing anxiety, harassed with long delay, even in the Courts to which he went to have a common question of trespass and assault decided, DIES, and now he being no more, the Court proceeded to give its judgment! The Chief Justice went through the declaration. His Honor stated, that the action was for assault and trespass, charged to have been committed by the defendant, in seeking to obtain possession of the two acres of land located to him, part of ten acres as above stated by the Surveyor General. The pleas were special, and very long. That the land was a "close of the King's," and that the defendant entered thereon by the King's command. That the assault was "son assault demesne," which Norman Patois, being translated, means that the plaintiff commenced the battle. The plaintiff's "replication" was, that defendant was not in possession of the "close," and that the King did not command him. The Jury found for the plaintiff on the assault, one farthing damages, and for the trespass, £25. Against this verdict, Mr. Gellibrand moved for a new trial, upon the ground, that the evidence as to possession, was against the plaintiff - that the "locus" was part of ten acres, located by the Government to the defendant - that the defendants acquiring possession of eight acres thereof, gave him legal possession of the whole ten, that if it did not, he took possession of the "locus" when the entry charged on a trespass was made, and that when that entry took place, it was sanctioned by the location order, and therefore that it was by the King's command - that plaintiff could not maintain trespass, being himself an intruder on the property of the Crown.

The Chief Justice delivered his judgment at considerable length, His Honor went through the whole of the evidence with appropriate comments. He stated, that the great difficulty which he had felt, had been as to what really constituted a right to possession. The cases decide, that if a person has such a right, then possession by him at any time, however slight, will enable that person to maintain trespass. His Honor here cited the cases of Catteris v Cowper; 4 Taunton; Crosby v. Wadsworth; 6East; Bulwer v. Bulwer, and thence was induced to consider that the defendant's possession of the eight acres was equivalent to, and in law amounted to, possession of the whole, if the whole was in one parcel. As for the allegation that the defendants were the servants of the King, and entered by his command, &c. His Honor apprehended that the finding of the Jury in the plaintiff's favour, was in point of law right. It would be indeed a very forced construction to suppose any such command in this case. His Honor here referred to the case of Chambers v Dickenson, which confirmed him in the opinion he had formed. On these grounds his Honor came to the opinion that the verdict ought to have been for the defendant on the general issue, and on the issues raised by the special pleas, the verdict for the plaintiff was right and ought not to have been disturbed.

Mr. Justice Montagu. - The whole of our judgment lies in a nutshell. We have excluded all the points raised except one. It was admitted that Shoebridge had actual possession, but it was proved that Dunn having a right to that possession, by the authority of the highest Survey Officer of the Crown, had put his cows on the land. I think that this put him virtually into possession of it, and that Shoebridge could not therefore maintain this action. His Honor here referred to the case of Crosby v Wadsworth, which was that of a gentleman who sold the growing grass crop upon a piece of land for £20, but after the buyer had entered upon it, but before he had cut it, finding that he could get £25 for it, he put a padlock on the gate and refused to let him in. For this the buyer brought an action of trespass, as having been committed by the proprietor of the land himself upon his own property, and the decision was that it was trespass. His Honor here commented in the very strong terms upon the system of special pleading [2] at present practised here, "Mr. Murray, " said His Honor, "has complained in the preceding case of the immense mass of matter put into the plaintiff's declaration, which he was called upon to answer. It is a monstrous system that any person should be so situated, in a country like this where there are only four common law special pleaders, and but one equity draftsman. It may do in a country like England, abundant in talent and intellect, but here it is most iniquitous. I have repeatedly complained of it, and I cannot express myself too strongly on the subject. This whole case might have been comprehended, on both sides, in half a sheet of the very smallest note paper, and yet it had been swelled out by this monstrous system of special pleading to an enormous extend!"

A conversation of some length then took place between the Court - the Attorney General for the defendant, and Mr. Gellibrand for the plaintiff, as to the dilemma consequent upon the death of Mr. Shoebridge, the defendant Mr. Gellibrand insisted upon his right to the new trial which had been ordered by the Court. The Attorney General stated that it could not be had in consequence of the death of Mr. Shoebridge, the defendant, during the long interval which had taken place between the verdict and the present delivery of judgment by the Court. The Judges then expressed their wish, that the parties could, under these circumstances, come to some agreement, and it was finally agreed that the formal delivering of the judgment by the Court should be deferred to Tuesday.

Thus, after an enormous expense incurred in law, upon a matter, the whole of the pleading in which, on both sides, but for the "inquisitions system of special pleading," Mr. Justice Montagu openly declared, and the Chief Justice by his silence confirmed, could have been comprehended on half a sheet of the smallest note paper! Lord Brougham mildly designates this system as being only "abominable". Mr. Justice Montagu more forcibly, and more correctly describes it as "monstrously iniquitous." AND SO IT IS!

Tuesday, April 12

The Attorney General stated, that he had endeavoured to so arrange the decision of the Court, if their Honors should think proper to concur therein as suited as well their Honor's views as those of the opposite side. He proposed that the verdict on the first count for the plaintiff should remain as it stood, and that he would enter a "nolle prosequi" on the others, which would be tantamount to a verdict for the defendant, except as respected costs, which point would of course go to the Master to determine, and if he was of opinion that upon the pleadings the costs would be against the plaintiff, he, the Attorney General, would not urge any objection. That it was quite clear - he had a right if he chose to abandon his verdict upon the second count for £25, which he did in order to put an end to the contention. It was quite absurd the moving for a new trial when it was obvious that the death of Shoebridge prevented such being had. The Attorney General insisted that upon every consideration he had a right if he chose to say to the defendant "I give up my claim to the damages the jury have awarded me." No difficulty could exist in respect to the Postea or the Record. It is quite clear that a verdict is a dead letter without judgment. The only evidence of a verdict is the Record. That cannot be complete without judgment entered thereon, and as there will be none, so in fact there will be no verdict. The Attorney General repeated his willingness to allow the verdict on the second and third counts, to be entered for the defendant, and that the question of costs should be left entirely with the Master.

Mr. Gellibrand for the defendant, Mr. Dunn, considered this a fair proposition and that he should advise Mr. Dunn to accede to it. He would thus have to pay the costs of that part of the declaration which refers to the assault, and the verdict being entered for the defendant upon the other counts, the costs would be decided by the Master.

The Court acceded to this arrangement, and Mr. Butler, Mr. Dunn's solicitor, was to confer with his client thereon, to which it he consented, and of which there could be no doubt, this long standing matter is thus terminated, with advantage to neither party but to the lawyers.


[1]              See also True Colonist, 15 April 1836, which includes a copy of one of the affidavits in the case, by the plaintiff. For the views of the True Colonist, 29 April 1836, on this and other cases, see True Colonist on the Judges, 1836. For earlier proceedings in this case, see Shoebridge v. Dunn, 1835.

[2]              This refers to Murray v. Murray, 1836.


Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania