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Decisions of the Nineteenth Century Tasmanian Superior Courts

Willison v. Maine [1836]

trespass to land - land law, title - Crown grants, uncertain - fieri facias, land - Lieutenant Governor's Court - conveyancing, informal - land law, location authorities - Caveat Board - Lynch Law

Supreme Court of Van Diemen's Land

Montagu J., 13 May 1836

Source: Tasmanian, 13 May 1836[1]


This was an action brought by the plaintiff to recover damages for trespass committed by the defendant in forcibly entering upon the plaintiff's farm at Sandy Bay, and taking possession thereof by "the strong hand"We have already stated the circumstances of the case as an instance of Lynch Law attempted for the first time in this Island - thus this appeared in evidence.

The premises in question consist of a Macquarie grant of 30 acres of land, made to a person named Macleod, who died a few years ago. In the year 1817 a Writ of Execution issued forth of the Lieutenant Governor's Court, the only tribunal then in the Colony, against Macleod, under which the Provost Marshall sold the estate to a person named Gunn. He sold it to Mr. Chaffey of Sandy Bay, who gave it to his son, who sold it to the late Captain Welch, by whom it was sold to the present plaintiff. It was not the custom in the olden time to have any formal conveyances, a receipt for the consideration money was in general considered sufficient. And so it was. That is to say, sufficient equitable title passed to secure the right of possession to the purchaser. And although by the strict constructions of lawyers, the "legal estate" as they call it, did not pass, yet as the "equitable estate" (in their cant jargon) did pass, the legal title could be at any time (by the means of course of due process of law with concomitant charges) fully completed. The defendant is the son-in-law of the grantee Macleod. He having ascertained that no legal conveyance had been made by the Provost Marshall to Gunn the purchaser under the Writ of Execution, was advised by some lawyer that the property had devolved to the heir at law of Macleod; from whom a conveyance was executed to him for a nominal consideration, evidently a collusive one, in order to enable the defendant to try the question of right to the property. Impatient however of the long delays of Courts and Caveat Boards, he determined to try the effect of the strong hand, and accordingly one fine night in January last, he proceeded with a framed house to the opposite side of the farm to that upon which the plaintiff resided, and in the morning, there he was, in full domicile with his whole family! The plaintiff, full of astonishment at this strange invasion, attempted by every means to dispossess him, but in vain. Fair means and foul - constables and hired servants - the defendant held possession, and successfully defended his position. Under these circumstances the present action was sought to recover damages for such a trespass, which when we reported it amongst other passing events, we designated as an admirable illustration of what is known in America as "Lynch Law". The Attorney General and Mr. Gellibrand were for the plaintiff - the Solicitor General for the defendant. It may be readily understood that the latter had "his work to do" to make even a shadow of defence, under the utterly unjustifiable conduct of this defendant. He exerted himself with much ingenuity and ability, and did all that was possible. It is only justice to Mr. Attorney General Stephen to state that, perhaps never before did he exert his well-known talent with greater effect. His reply was exactly of that length which kept up the attention to the very last word, comprehending at the same time, every particle of the case. In common with the whole auditory, we heard him with infinite pleasure - we regret that we have no report of his admirable address, and it is impossible to do it justice by attempting to give a summary of it. One portion, however, we cannot pass by. It was that in which he succeeded in convincing us (against the opinion which we had hitherto held, and which we believed to be the strictly correct one) that the decision of the Court, in declaring void (as respects the conveying the legal estate) the old Grant Deeds, would be the means of working infinite good and relieving the Colony from much oppression and injustice. And that while it so operates, no really just claim can be possibly defeated. The manner in which Mr. Stephen explained this, was so very clearly convincing that we only speak the sentiments of all present, when we state that he carried every one with him. The effect of that decision is (again we regret that we cannot give it in Mr. Stephen's admirably selected words) substantially as follows:-

The old grand deeds convey only an equitable estate. They are in fact mere "location authorities." The legal estate does not pass by them. If it did, there is not perhaps one conveyance in an hundred of those of the olden time, which would pass that estate to the persons to whom the conveyers intended it should pass. Thus a door would be opened to the extreme oppression and injustice of heirs at law, perhaps in England, who had never even thought of the grantee until they found that his property was thus open to them, ousting the really rightful possessors, perhaps widows - children - purchasers in numerous succession, who not having had the legal estate technically conveyed to them, for defect in Lawyers formalities, might thus become absolutely ruined, driven to extreme want. The Act of Council by which the present Caveat Board is established most wisely and providently steps in to prevent this; and while it presents to holders of the older grants and their assigns, every interest which they can respectfully claim, yet the Commissioners are sworn to pass by all technical difficulties, and to see substantial justice, and substantial justice alone done, in all cases. Now was it not for the fortunate error in the wording the old Grant Deeds, by which no legal estate is conveyed to the grantee, this really extreme good could not have been effected. Had a legal estate passed, the whole possessors of estates, held by perhaps numerous succession of conveyances, the first or any other of the succession of which, might have been defective in form, would have been subjected to most vexatious and oppressive claims, of which the present case forms a convincing illustration. And yet no injustice can be worked by this defect in the Grant Deeds, because the Caveat Board are sworn to rectify it, in every case where the claimant has justice and right with him. We have no hesitation in avowing that the opinion we formed of the evil consequences which we apprehended from the decision of the Judges, in declaring void all the old Grant Deeds, was erroneous, and we now consider that decision as one of the greatest benefits which the people could receive. Mr. Stephen convinced us of this, and we cheerfully and unhesitatingly avow our error.

The Jury taking the circumstances of the defendant into consideration, and believing him to have been misled by some uniformed Lawyer, returned only the very moderate verdict for the plaintiff of £25 damages. It will, however, effectually prevent any repetitions of these Lynch Law attempts, which, assuredly, had they not been thus defeated, would have ended in blood-shed.


[1]              Also mentioned in True Colonist, 13 May 1836; Hobart Town Courier,  13 May 1836.


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