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Decisions of the Nineteenth Century Tasmanian Superior Courts

In re Edward Abbott v. The Commissioner of the Caveat Board [1841]

mandamus - trial by jury, right to - public officer, entitlement of to land on retirement - Supreme Court, power of to compel commissioner to send issue to trial - "swamp case" - Caveat Board - law reporting

Supreme Court of Van Diemen's Land, In Banco

Pedder C.J. and Montagu J., 4 May 1841

Source: Hobart Town Courier and Van Diemen's Land Gazette, 7 May 1841[1]

            In this case, which arose out of the decision of the Commissioner of the Caveat Board in what is generally known as the "Swamp-case," Mr. Fielding Browne applied for a rule nisi why a mundamus should not be granted against the Commissioners for enquiring into titles to land, compelling them to order a feigned issue to be tried between D'Arcy Wentworth and Edward Abbott, Esqrs., relative to the land to dispute. The learned counsel proceeded at great length to argue that the Court had the power to grant the rule. The Board, of which the Commissioners were the members, had been established for a public benefit, and was in fact a tribunal under the authority of the Supreme Court, whose mandate it was obligatory upon the Commissioners to obey. In England, when a fact is disputed in the Court of Chancery, it is sent upon a feigned issue for trial in the Court of King's Bench. The Lord Chancellor did not issue a mandamus to that High Court, although he had the power to do so.

            Chief Justice. - Do you not recollect that the Vice-Chancellor, Sir John Leach, had often refused to grant a mandamus?

            Mr. Browne replied in the affirmative, but stated that although that learned judge had the power, and had often exercised it, of refusing such an application, yet if upon an appeal to the Lord Chancellor it should be deemed necessary, the feigned issue was ordered. The learned counsel proceeded at great length to show the right of the subject to trial by jury, upon the benefits of which he descanted with much animation, pointing them out as the most perfect protection to the rights and liberties of the British people; he quoted Magna Charta, and several learned opinions, in support of his arguments, and concluded as animated address upon that palladium and bulwark of British liberty, by contending that it was in the power of the Supreme Court to compel the commissioners to order the feigned issue, and in other respects to interpose its high authority for the protection and security of the subject.

            His Honor, the Chief Justice was of opinion that the court had no power, in the present instance, to grant a mandamus; the clause is the Act of Council empowered any one of the commissioners to send a fact for trial upon a feigned issue, should he deem such a course expedient, but there was nothing in the Act to authorise the court to compel them to do so, unless a want of duty had occurred; in this instance no such occurrence had taken place; had they refused to hear the claimant or any of his witnesses, or otherwise misconducted themselves, the case would be different, and the court would no doubt have the power to compel. The commissioners had performed their duty according to their judgment, and the court could not interfere.

            His Honor, Mr. Justice Montagu entirely concurred in the opinion of the Chief Justice. The learned counsel, who applied for the rule, had spoken most eloquently and at great length upon the advantage of trial by jury, and had quoted from Magna Charta, and other old authorities, several passages in proof of his observations. His Honor gave every praise to trial by jury, which was the best and fairest mode of trial that could be established; and adverting to the trouble and annoyance which the old manner of procuring grants through the government occasioned, His Honor explained the origin and institution of the Caveat Board, which was expressly established to relieve the government, and to afford claimants and disputants the means of having their several cases fairly and openly examined. The Act of Council was quite explicit on the subject; had it not been so, and had His Honor any doubt, he should have taken time to consider, but he had none. The motion was consequently refused.

[We have endeavoured in this case, the first of the kind that has occurred here, to give the substance of their Honor's decision, but from the low tone of the Chief Justice's voice we could not collect one half of His Honor's remarks. The unfavourable situation of the reporter's box becomes more obvious every court day.]

Pedder C.J. and Montagu J., 4 May 1841

Source: Hobart Town Advertiser, 7 May 1841

MANDAMUS

Ex-parte Abbott.

            Mr. Browne, in a long and elegant speech, moved for a Mandamus to be directed to the Caveat Commissioners, commanding them to send an issue for trial before the Supreme Court, as between Mr. Abbott and Mr. D'Arcy Wentworth, touching the facts involved in Mr. Abbott's claim to 210 acres of land at Launceston. The motion was made on the following affidavit:-

            In the Supreme Court of

            Van Diemen's Land

            Personally appeared, Edward Abbott, of Hobart Town, in Van Diemen's Land, Esquire, who maketh oath and saith that he is the eldest son and heir at-law of Edward Abbott, late civil Commandant of Launceston, in Van Diemen's Land, deceased, who faithfully served the Crown of Great Britain, in various civil and military capacities, for the space of fifty-two years. And this deponent further saith that the said Edward Abbott was in the year one thousand eight hundred and fourteen, appointed Deputy Judge Advocate of Van Diemen's Land, the duties of which station he continued to fulfil to the satisfaction of the Government, until the year one thousand eight hundred and twenty-four, when, in consequence of the alteration which was made in the judicial establishment of the Colony, by Act of the Imperial Parliament, the office of Judge Advocate was then discontinued.

And this deponent further saith, that it was heretofore usual and customary for public officers in the Australian Colonies to receive grants of land as a remuneration for their services, on their retirement from office? but it being deemed inexpedient to issue grants to persons during the time of their being in actual service, it was usual and customary for such public officers during their continuance in service to request and to receive permission from the Governors-in-Chief and Lieutenant-Governors in the said Colonies, to select locations of land in such situations therein as might be suitable and convenient for their purposes, in which instances such selected locations of land were nominally "reserved to the Crown," by the Governor-in-Chief, and were denominated "Crown reserves, and endorsed under such description in the books, in the several departments of the Colonial Secretary and the Surveyor-General, for the purpose of the same being confirmed to such public officers by grants from the Crown, on their retirement from office, and in the meantime secure such selected locations, and prevent their being disposed of to any other persons.

And this deponent further saith, that on the prospect of the loss of his office as Deputy Judge Advocate, by the said Edward Abbott, and on the ground of his long and faithful services, he did before ceasing to perform the duties of his office, in the early part of the year one thousand eight hundred and twenty-four, make an application to his Honor William Sorell, Esquire, at that period the Lieut.-Governor of the Colony, for permission to make a selections of two several locations of land, the one consisting of three thousand acres, at St. Paul's, Bathurst district, the same being adapted to pastoral purposes, and the other consisting of two hundred and ten acres, near Launceston to the Launceston district, intended for the purposes of a private residence, with which application the said Lieutenant-Governor Sorell was pleased to comply, and was pleased to authorize George William Evans, the Deputy Surveyor-General of this Co- to locate the said two several pieces of land to the said Edward Abbott, and to admeasure the same, and describe the same, for the benefit of the said Edward Abbott, and the said Deputy Surveyor-General having in obedience to such directions from the said Lieutenant-Governor Sorell, located, admeasured, and described the same, the said Lieutenant-Governor Sorell was further pleased, in the usual and customary manner, to address a letter to the Colonial Secretary of New South Wales, in the words and figures following, that is to say:-

                                                         

                                                                                                                                                                                   Hobart Town, April 1, 1824

            SIR. - The Deputy Judge Advocate having requested a reserve of land, on retiring from office, I have directed reserves for the Crown, subject to the Governor-in-Chief's approval, or otherwise to be made, of the lands described in the enclosed paper, and I shall be much obliged by your honoring me with his Excellency's orders thereon. - I have the honor to be, Sir, your most obedient humble servant.

                                                                        William Sorell

            Major Goulburn, &c. &c. &c.

            And this deponent further saith that the said Lieutenant-Governor Sorell sent enclosed in the above mentioned letter to the said Colonial Secretary, descriptions of the said locations of land so made by the said Surveyor-General, in the words and figures following, that is to say:-

                                                                                                                                                                                   Edward Abbott, Esq.

                                                                                                                                                                                   3000 acres,

                                                                                                                                                                                   Bathurst District

Bounded on the west wide by a line bearing south 15° west, 280 chains, commencing at a mark on a stream called St. Paul's River, on the south side by a line bearing east 15°, south 120°; on the east side by a line bearing north 15°, east 200 chains to the river, and on the north side by the river.

                                                                                                                                                                                    Edward Abbott, Esq.

                                                                                                                                                                                    210 acres

                                                                                                                                                                                    Launceston District,

Bounded on the south side by a west line of 12 chains, 50 links, commencing at the south-west angle of the burial ground; on the west side by a north line to the North Esk River, on the north and north east sides by that river, and on the east side of a grant to William East and the Burial Ground.

                                                                                                                                                                                    G.W. Evans

                                                                                                                                                                                    Deputy Surveyor-General

And this deponent further saith, that his letters bearing date respectively the tenth day of May, one thousand eight hundred and twenty four, were addressed and sent by Major Goulburn, then the Colonial Secretary of New South Wales, to the said Lieutenant-Governor Sorell, in the words and figures following, that is to say:-

                                                                                                                                                                  Colonial Secretary's Office, 10th May,1824

            SIR. - I am directed by the Governor to have the honor to request that two hundred and ten acres, in the District of Launceston, Van Diemen's Land, bounded on the west side by a line bearing south 15°, west, two hundred and eighty chains, commencing at a mark on a stream called St. Paul's River, on the south side by a line bearing north 15° east,twohundred chains to the river, and on the north side, by the river, may be reserved for the use of the Crown. - I have, &c.

                                                                                                                                                                          F Goulburn

            His Honor Lieutenant-Govenor Sorell, &c. &c. &c. Van Diemen's Land

            Colonial Secretary's Office, 10th May, 1824

            SIR. - I am directed by the Govenor to have the honor to request that two hundred and ten acres in the District of Launceston, Van Diemen's Land, bounded on the south side by a west line of twelve chains fifty links, commencing at the south-west angle of the burial ground; on the west side by a north line to the North Esk River; on the north and north-east sides by that river; and on the east side by a Grant to William East, and the burial ground, may be reserved for the use of the Crown. - I have, &c.

                                                                                                                                                                          F Goulburn.

            His Honor Lieutenant Governor Sorell,

                        &c.                  &c.                  &c.

            And this deponent further saith, that in or about the month of June, in the year of one thousand eight hundred and twenty-four, the said Lieutenant Governor Sorell addressed and sent a letter to the said Edward Abbott, in the words and figures following - that is to say:

                                                                                                                                                                           New Norfolk, Saturday

            MY DEAR SIR. - I received yesterday, per Mermaid, numerous letters from the Colonial Secretary amongst which approval of the two locations of land, which I submitted for you, upon your retirement from the Colonial office that you have filed; I forward the letters to Colonel Arthur, with a note therein, explaining the appropriation for which the reserve had been selected. - I am, &c.

                                                                                                                                                                             W. Sorell

            Edward Abbott, Esquire

And this deponent further saith, that he has inspected a Registry Book in the Survey office of this Colony, in which was the following description of the said location of two hundred and ten acres of land:-

                                                                        Edward Abbott - 210 acres,

                                                                        District of Launceston

Bounded on the south side by a west line of twelve chains fifty links, commencing on the south-west angle of the burial ground; on the west side by a north line to the North Esk River; on the north and north-east sides by that river; and on the east side by a grant to William East, and the burial ground.

And this deponent further saith, that he has likewise seen an official map in the Survey office, in which the said 210 acres of land are described as located to the said Edward Abbott.

And this deponent further saith, that the said Edward Abbott, on the receipt of the said two several letters of the tenth of May; one thousand eight hundred and twenty-four, from the said Colonial Secretary, by the said Lieutenant Governor Sorell, had ceased to hold the said office of Deputy Judge Advocate, whereby he became entitled to take possession, and accordingly did, with the sanction of the said Lieutenant Governor Sorell, take possession of, and enter upon the said two locations of land, and placed his stock upon the said location of two hundred and ten acres near Launceston, and continued for a considerable time in the possession and enjoyment thereof by himself and his agents. And this deponent further saith, that the said Edward Abbott quitted this Colony some time in the year one thousand eight hundred and twenty four, and arrived in England, and that in the same year the said Lieutenant Governor Sorell, relinquished the Government of Van Diemen's Land, and His Excellency George Arthur, Esquire, was appointed Lieutenant Governor thereof. And this deponent further saith, that some misunderstanding on the part of the said Lieutenant Governor Arthur, with respect to the reserve and location of the said two hundred and ten acres of land having occurred and intimation thereof having been communicated to the said Edward Abbott of England, by his fri[e]nds in the Colony, he was upon Lord Bathurst, then His Majesty's Secretary of State for the Colonies, on the subject of the right to the said two hundred and ten acres of land, and his Lordship being perfectly convinced of the clearness and the justice of the claim of the said Edward Abbott, as well to the said location of two-hundred and ten acres, as to the location of three thousand acres, was pleased to confirm both the said locations, and to signify such confirmation in a despatch, addressed by Wilmot Horton, Esquire, then the Under Secretary of State for the Colonies, by directions of the said Lord Bathurst to the said Lieutenant Governor Arthur. And this deponent further saith, that a letter bearing date the twelfth day of January, in the year one thousand eight hundred and twenty-six, was addressed by the said Lieutenant Governor Arthur to the said Edward Abbott, from which the following is an extract:-

            Government House, Hobart Town, Jan. 12, 1826

SIR. - I beg to inform you that Mr. Horton has communicated to me that you had stated to Lord Bathurst that a grant of land had been provisionally made to you, consisting of 3210 acres, and Lord Bathurst has therefore desired that the location which shall appear to have been given to you may be confirmed upon the same conditions under which lands are at present granted to individuals receiving grants.

And this deponent further saith that a grant of the said location of three thousand acres was made to this deponent, the said Edward Abbott, but no grant of the said location of two hundred and ten acres was ever made to the said Edward Abbott in his life time, or to this deponent since the decease of the said Edward Abbott, or to any of the relations of the said Edward Abbott, but several portions thereof have been disposed of by the said Lieutenant Governor Arthur to different persons.

And this deponent further saith, that the said Edward Abbott departed this life some time in the year of our Lord one thousand eight hundred and thirty-two.

And this deponent further saith that in consequence of the said location of two hundred and ten acres of land, so made as aforesaid, in favor of the said Edward Abbott, having been thus disposed of to other persons, instead of having been issued by a grant thereof to the said Edward Abbott, or to his representatives after his decease, this deponent was advised to prefer an application for a grant thereof to the Commissioners for examining into applications for grants of land, who are for that purpose appointed by the Act of Council passed in the sixth year of the reign of his late Majesty William the Fourth, number eleven, entitled An Act for the settlement of Claims to Grants of Land, and for other purposes relating thereto; the said Commissioner being by the said Act directed to report upon claims made, whether by location order, or other authority of any Lieutenant Governor of Van Diemen's Land, and this deponent did accordingly on the first day of November, in the year one thousand eight hundred and thirty-six, prefer an application to the said Commissioner for a grant of the said location of two hundred and ten acres in the usual form, and the usual advertisement as required by the said Act of Council, having been made, calling upon all persons desirous of entering caveats or counter claims to such applications, to do so before the ninth day of February following. Caveats were put in by the following gentlemen, that is to say, Thomas Archer, Felix Wakefield, Michael Connelly, and Henry Jennings, but on their being made acquainted with the nature of the rights of the said Edward Abbott, and of this deponent, as his heir-at-law, to the said location of two hundred and ten acres of land, and being convinced of the justice of his claim thereto, and of the extreme hardship of depriving the family of an old officer of their patrimony, did severally by letter inform the said Commissioners of their intention to abandon the caveats which they had put in to the application of this deponent.

And this deponent further saith, that his said application for a grant to the said location of two hundred and ten acres came on to be heard before the said Commissioners on the 12th day of November, one thousand eight hundred and thirty-nine, on which occasion Her Majesty's Solicitor General attended to watch the interests of the Crown in the said two hundred acres of land; and that this deponent adduced proofs of the several documents heretofore set forth, and other evidence in support of his said application, and on the twenty-first day of the said month of November the Chairman of the Commissioners was pleased to deliver the opinion of the said Commissioners in the following words:-

"For the application of Mr. Edward Abbott for 210 acres situate near Launceston - The Commissioners having given this case every consideration to which it is entitled, are of opinion that Mr. Edward Abbott, the applicant, is not entitled to a grant for the land he applies for. It appears that the land was reserved in favour of the late Major Abbott, but it does not appear that the reserve ever became a location."

And this deponent further saith that having observed an advertisement in the Hobart Town Gazette of an application having been made by D'Arcy Wentworth, Esquire, to the said Commissioner, for a grant of nine acres and twenty-five poles of land the same being a portion of the said location of two hundred and ten acres; this deponent lodged a Caveat or counter claim with the said Commissioners against grant deeds of the same being issued to the said D'Arcy Wentworth.

And this deponent further saith that previously to the hearing the said application of the said D'Arcy Wentworth coming in before the said Commissioner, he, this deponent, did address a memorial to the said Commissioners, a copy whereof is hereto annexed, marked with the letter A.

And this deponent further saith that in the twenty-fifth day of March last, the application of the said D'Arcy Wentworth came on to be heard before the said Commissioner, on which occasion this deponent was advised that in consequence of the opinion which had been expressed by the said Commissioners on the hearing of the application of this deponent for a grant of the said location of two hundred and ten acres on the twentieth of November, one thousand eight hundred and thirty-nine, it would be inexpedient to offer before the said Commissioner in support of his counter claim, the same evidence which he had already adduced before them on the hearing of his original application. The facts on which the title of this deponent rested being precisely the same on both applications, and this defendant therefore abstained from then adding a second time the evidence which was already before the said Commissioners, and having referred the said Commissioners to the said memorial which he had addressed to them, and in order to avail himself ot the commands of the Right Honorable the Secretary of State as expressed in the said dispatch of the ninth day of August, one thousand eight hundred and thirty-eight, mentioned in the said memorial, that is to say "that he should be referred to the decision of the Supreme Court," this deponent humbly prayed the said Commissioner to direct the trial of a Feigned Issue between the said D'Arcy Wentworth and this deponent, for the better enquiry into and determination of the facts in the said memorial, and in this his depositions herein before set forth, but the said Commissioners refused to grant the application for such Feigned Issue so made to them by this deponent.

And this deponent further saith that he has annexed copies of the said application for the said two hundred and ten acres of land, so made by him for the said Commissions, and Caveat or counter claims so made by this deponent to the application of the said D'Arcy Wentworth, marked with the letter B.

Their Honors ruled that as the Act of Council left it to the discretion of the Commissioners to send such an issue to trial or not, as they might deem expedient. The Court had no power to interfere in this case.

Pedder C.J. and Montagu J., 4 May 1841

Source: Hobart Town Advertiser, 14 May 1841

MANDAMUS - THE SWAMP CASE.

            In our paper of Friday last, we inserted a report of the first application for a writ of mandamus ever made in Van Diemen's Land, and the result of that application. We offer no comments on the case, but merely subjoin the speech of Mr. Browne, on making the motion, as it may perhaps be useful to others who may have the misfortune to suffer from the acts of that anomalous tribunal or quasi Court, the Caveat Board.

            Mr. Browne said that he would not attempt to argue in support of the Court possessing the power to grant a mandamus here as all the powers of the Court of Queen's Bench were held by the Supreme Court in this Colony. According to Blackstone, the writ of mandamus issued out of the Court of Queen's Bench, on a suggestion of rights affected, and a denial of justice in any inferior Court. The affidavit of Mr. Abbott contained such a suggestion, and complained of a denial of justice on the part of the Commissioners of the Caveat Board, to repair which he now applies to the Court to grant him that justice denied to him in the Court below. The denial of justice complained of was the refusal to send a feigned issue of the facts to be tried before the Supreme Court, in accordance with the XIIIth clause of the Act in Council, which empowered any Commissioner to send such an issue for trial by a Jury (Clause read).

            The Chief Justice could not conceive the Court in reference to that clause had power to compel the Commissioners to send any feigned issue for trial if they thought it unnecessary.

Mr. Browne contended, that however much it might at first sight appear to be left to the discretion of the Commissioners to grant or refuse say [???] by Mr. Abbott, and denied by the opposite party - they depended upon a long chain of documentary and other evidence. If ever there were a case which required the intervention of a Jury, it was this. It was quite clear the Legislature never intended to invest the Commissioners with so dangerous a power as that of deciding upon titles, depending upon controverted facts without such intervention, for the Act itself expressly directs them to "examine" and "advise" and "report" to the Governor upon titles to land. There could be no doubt the Governor was in a manner bound by their decision - if not, of what use are they? Or to what end their investigations? It might be said that if the Commissioners were bound to grant a feigned issue in every case, they would have nothing to do - better be it even so than the principles of the constitution be violated. But such an argument would not be tenable, it might as well be said that the Court of Chancery would have nothing to do if it sent all disputed cases to the Queen's Bench. That tribunal, however, did not assume the powers of Judge and Jury, and overthrow the principles of the constitution - it exercised its power of deciding facts "tenderly and sparingly," and when requested by either party to take the opinion of a Jury upon a fact or facts controverted, that high tribunal never refused. If this were the course adopted by the highest tribunal of the Empire, composed of men selected from the most distinguished members of the profession, surely, inferior Courts like the Commissioners of Caveat, might be expected to follow such an example. The Commissioners might however feel perfectly secure that they would not be deprived of any considerable portion of their duty. There was a sufficient safeguard that the right would never be abused, in the shape of costs. The expences of a law suit was no slight terror - surely a sufficient one to prevent any man from exposing himself to consequences so serious upon vague and insufficient grounds. His client was so sure of the justice and legality of his claim that he had no apprehension on that score, feeling convinced that had he the opportunity of getting the verdict of a Jury, that verdict must be in his favour, therefore, if the expences were ten times greater. Mr. Abbott would be willing to incur them.

Notes

[1]              See also Launceston Advertiser, 13 May 1841; Austral-Asiatic Review, 18 May 1841.  For the Caveat Board see R. Snell, 'The Caveat Board: An Overview of a Key Colonial Tribunal 1835-1859)', THRAPP, vol. 42, no. 4, 1995, pp. 192-213.

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