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[trespass to land, squatting - jury, majority verdict - appeals, principles of new trial]
Beckham v. Potter
Supreme Court of New South Wales
Stephen C.J., Dickinson and Manning JJ, 4 April 1848
Source: Sydney Morning Herald, 5 April 1848, in Supreme Court Collection, Vol. 2, p. 58
BEFORE the full COURT.
BECKHAM v. POTTER.
This was an action of trespass, and was what is popularly called a squatting action. The declaration was in the usual form, and stated the trespasses to have been committed to the plaintiff's station, called “Cavan,” in the Murrumbidgee district. The defendant pleaded not guilty, and not possessed. The case was tried at the last Goulburn Assizes, before His Honor Mr. Justice Dickinson, and the Jury (consisting of four) not agreeing unanimously, after they had been locked up for six hours, the verdict of the three-fourths was taken in favour of the defendant on both issues.
At the trial, the plaintiff presented the following case to the Jury: Major Lockyer, some fifteen years ago, had purchased two detached portions of land; and in right of them he had fed over the surrounding station; six years ago Major Lockyer removed his sheep into the New England district, thereby abandoning the station; the plaintiff then took up the same station, and it was upon this, that the trespasses were committed.
The defendant, however, who is the son-in-law of Major Lockyer, set up this defence, viz., that Major Lockyer, through whom he claimed, had never totally abandoned the station; it was true, he removed the greater bulk of his sheep, but left behind some sheep, cattle, and a man or two; always having an intention of returning; and the defendant said that the plaintiff was an intruder upon him.
His HONOR, in leaving the case with the Jury, said, a mere trespasser cannot by trespassing gain a right of possession against him who is in lawful possession, unless the party trespassed upon acquiesces in the trespasses, or delays in proceeding to reinstate himself in his possession.
The plaintiff had filed a notice of his intention to move for a new trial, on the ground that the verdict was against evidence.
The Attorney-General and Mr. Darvall appeared for the plaintiff, and Mr. Michie for the defendant.
The ATTORNEY-GENERAL and Mr. DARVALL, now in support of the notice of motion, drew the attention of the Court as to how the verdict had been given, viz., that scarcely had the Jury retired when it was discovered that they would not arrive at a unanimous verdict, and they sent for the Jury Act to see how long they must be locked up before the verdict of three-fourths could be taken; this no doubt was a legal verdict, but looking to the law of the colony as Juries, that persons on Juries are not in ordinary cases so many, as in England, and that unanimity is not required at their hands, it was a circumstance that ought to weigh with the Court, in construing the rules adopted in England, and which are applied in this colony to the granting or refusing new trials. When one of the four on the Jury is found to differ in opinion from his brother Jurors, it does create some dissatisfaction in the minds of those whose interests are thus bound by the verdict, and does show that there is such a doubt in the case that a new trial ought to be had, in order that it might be dissolved. It was next contended, that from the evidence adduced at the trial, it appeared that Cavan station was very comprehensive, and was applied to many runs that Major Lockyer never did lay claim to; no doubt he had, up to 1841, fed sheep over the land adjoining the purchased lands; but, after that date, he abandoned it, leaving but a few sheep, and these were so small in number, that they were fed upon the purchased lands, and he ceased to take out a license for the station. Nothing had been shown in the course of the trial, by the defendant, to rebut the strong proof that had been adduced of the abandonment of the run in question by Lockyer. It had been shown that the defendant had been in possession of the close for four years without any dispute, and without any notice of being a trespasser; during these four years he took out a license annually for the station, and whilst there he had made various improvements on it; it was not until February, 1847, that the plaintiff was, for the first time, told that he was a trespasser, and that the defendant claimed the station in question. In the October prior, the defendant wished to increase his run, and take out a more comprehensive license. The plaintiff, the defendant, and the commissioner of the district, met about this subject; the defendant then asked for a license, he was told by the commissioner, that he could only have a license for cattle, as the plaintiff was running sheep on the adjoining station, the one in question, and which was not then disputed by the defendant as being the plaintiff's. It was further contended, that, considering the importance of the action---considering that the verdict as it now stood, though that of three persons only, was against evidence, and that it would guide the proper authorities under the last Crown Lands Act, in giving a lease for 14 years (when the proper arrangements under it shall have been perfected), ought to influence the Court in granting a new trial. If the Court should be of opinion that the justice of the case demanded a new trial, then the Court was asked to embody in its rule that the case should be heard by a special jury of twelve.
Mr. MICHIE, contra, argued, that so far from the verdict being against evidence, he would submit that the weight and preponderance of the evidence was in favour of the defendant; indeed it had been of such a nature, it was plain to all who were present at the trial that it had made early in the trial a very decided impression on the minds of the Jury, with the exception of the dissentient juryman, and he (Mr. M.) could well remember at what particular part of the trial his mind was made up in favour of the plaintiff---and it was the evidence given that Major Lockyer, after having removed the bulk of his sheep, never made a return of cattle to be assessed. The evidence, indeed, all went to make out that the plaintiff was an intruder upon the possession of the defendant; it had been proved that the defendant and those through whom he claims, were in the continuous possession of the run, and that the cattle on it were constantly trailed by a man who was left in charge. The plaintiff had failed to make out that Major Lockyer had abandoned possession, or indeed ever had an intention of doing so. Supposing the evidence was not strong on the defendant's behalf, yet as the only point taken for a new trial was, that the verdict was against evidence, it would be quite sufficient to prove defendant ought to retain his verdict, if he could show that there had been some evidence given in his favour. Anonymous case, 1 Wilson, 22, and Belcher v. Prittie, 10 Bingham. It had been urged, considering the importance of the case, a new trial ought to be granted,---but this he would submit, ought not to affect the motion; for after all it only determined who was the proper party entitled to get an annual license, which the Government might at any time withhold.
The ATTORNEY-GENERAL then replied.
His Honor the CHIEF JUSTICE said, that the Court was agreed that the plaintiff was not entitled to a new trial, as a matter of right; but upon a review of the whole circumstances, was entitled to it as a matter of indulgence, upon payment of costs. The plaintiff, said his Honor, was entitled in any event to a verdict on the first issue; and upon it, by the consent of the Counsel for the defendant, it should be so entered; as to the issue on the second plea, a new trial would therefore only be had upon the payment of the costs within one calendar month of taxation, and such trial to take place before a special jury of twelve as asked for. His Honor said, he would protest from letting it be supposed that because there was a dissentient juryman, that it was in itself a ground for a new trial; though it might, in this particular case, be a circumstance amongst others that induced him to think that a new trial ought to be had on the terms mentioned. For he could not help thinking, that when a Jury have deliberated, that the verdict of three-fourths was equivalent, if not superior, to the forced, but unanimous, decision of a full Jury. Besides this circumstance, His Honor said, he was of opinion, that the weight of the evidence was in favour of the plaintiff: though his mind was not as clear upon this point as to induce him to think that the plaintiff was entitled to what he has asked for, as a matter of right. The question involved in the action was important to all parties; it related to property, and not merely to a claim of damages; it was therefore a fit question to be tried again,---the more especially as it did appear that certain explanations and disclosures had not been made, that might and ought to have been made, on the trial.
His Honor Mr. Justice DICKINSON said, he was of the same opinion as the Chief Justice, and added, that if he had been called upon, when the case was concluded, to have given his opinion, he certainly could not have done so satisfactorily to himself; since hearing the arguments of to-day, he was of opinion that the weight of evidence was in favour of the plaintiff,---the subsequent perusal of the evidence and the hearing the arguments, had also convinced him that many parts of the case had been left in an unfinished state to the Jury, and at the very best, the Jury could only have decided upon a plausible conjecture. The fact that there had been a dissentient Jury might have made an impression upon him; but as he had his own views as to the unanimity of a Jury, in which but few shared with him, that did not influence him.
His Honor Mr. Justice MANNING said, he quite agreed with his learned colleagues as to what had fallen from them respecting the state of confusion in which the case had been left to the Jury, and for this and other reasons already mentioned, he was of opinion that a new trial ought to be had; and though he agreed with the other Judges that a new trial ought to take place, yet he, upon the perusal of the evidence, was of opinion that it preponderated with the defendant rather than with the plaintiff; but still, under all the circumstances of the case, he was also of opinion that a new trial ought to take place, subject to the terms proposed.
The result is, if the taxed costs be not paid within one calendar month of taxation, the verdict in favour of the defendant will stand; if paid within that time, then the plaintiff can go to trial again.
Attorney for the plaintiff, Mr. Cooper Turner; for the defendant, Messrs. Dunsmure and Longmore.
Supreme Court of New South Wales
Stephen C.J., Dickinson and Manning JJ, 7 April 1848
Source: Sydney Morning Herald, 8 April 1848, in Supreme Court Collection, Vol. 2, p. 61
BECKHAM v. POTTER.
In the report of the judgment of His Honor Mr. Justice Dickinson, in this case, by a slight inaccuracy of expression, it would seem that the case was left in a confused state to the Jury, whereas his Honor said, that the evidence was of a confused and contradictory character.
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