1851 – McEvoy v Tysons re trespassing – new trial ordered


On Tuesday 29th April 1851 in the Supreme Court the Solicitor General moved for a new trial in the case of McEvoy versus the Tysons. He argued that the verdict was against evidence and the result was perverse. Two other sitting judges agreed, and so a new trial was granted.

Here’s a transcription of the article:


Before the Full Court.


This was a squatting case, tried during the last sittings of the Court, before his Honor Mr. Justice Therry, when the Jury found a verdict for the defendants. The SOLICITOR-GENERAL, with whom were Mr. Foster and Mr. Broadhurst, now moved for a new trial, on the ground that the verdict was against evidence, and was perverse. It was urged at the trial that there should have been a verdict for the plaintiff because the defendant’s cattle were trespassing within the disputed boundary; and inasmuch as the defendant’s hut was near this boundary, they should have taken greater care of them. Though a verdict of trespass on the undisputed part would not give the plaintiff the whole of the land which he claimed, it would have given him sufficient to have entitled him to a verdict. Several miles down the Lachlan, on the land which he claims, Tyson’s cattle tres-passed. The act of the cattle trespassing there is an act for which the owner is responsible. By the agreement the Tysons meant to give up something that was in dispute between the two. The line of bearing was mentioned on the ground, and turns out to be a mistaken boundary ; this, however, was evidence to be taken into consideration, because the Tysons professed to give up something, instead of which they get something in addition to what they already possessed. The agreement between the parties was to give up all the ground in dispute. The direction of the boundary line was not marked by any landmark, but was a scientific error in mistaking the bearings of the compass. The verdict is not a satisfactory verdict, as the Jury did not understand the question that was submitted to them. It is difficult with regard to these runs to determine the boundaries except by the bearing of the compass, and nothing is more natural than to fall into an error of this kind if the bearings are not determined by scientific men. The case ought to go down for trial again, as the verdict is not a satisfactory adjustment of the differences between the parties.

Mr. DARVALL, (with whom was Mr. MEYMOTT) showed cause. The plaintiff at the trial had it all his own way, all the witnesses were his, and yet he failed to obtain a verdict. He claimed at one time a portion of the run which the defendants gave up, and then he shifted his boundary line nearer the defendants’ run. They have given up all the plaintiff claimed in a former action, and now he claims more, The plaintiff’s evidence was most unsatisfactory. It was to this effect, he claimed towards a line near the Box Point. Towards what line and how near to the Box Point ? If it be possible for the plaintiff to define a line, it is by declaring a line due north and south. The whole of the mischief had arisen from evidence which ought never to have been received – viz., the reception of parol evidence to explain the written agreement between the parties, and no evidence should have been received of this kind except admissions of the defendants. The plaintiff relied upon the contract and upon giving it a different effect to what appears on the face of it, and that it was entered into under a misapprehension, but such explanation was properly disregarded by the Jury. The parties must be taken to have known what they were about when they entered into it, and they cannot withdraw from it. It is true that the agreement is very loosely drawn, but still it does point out the boundary as being a ” line running due south.” A Jury of gentlemen have found a verdict for the defendant, and the Court will not disturb it; and if a new trial should be granted, the plaintiff never could expect to get more than nominal damages, if he got any damages at all. The learned counsel in opposing the motion, cited Hitchen v. Groom, 5 Com. B. 515, 17 Law Journ. T. C. Wheeler v. Montefiore and another, 2 Q. B. Rep. 133.


The CHIEF JUSTICE: We must first of all decide, if the parol evidence to explain the agreement was rightly received at the trial. If such evidence could not properly be given, a new trial would be useless. The parties had had a dispute about a run. In future the line was to be north and south, formerly the land in question was called the “land in dispute.” One of the parties said it was to be a south- east line, but by the agreement, it is a line ” due north and south.” As there is an agreement between the parties, they must be bound by it. Though the evidence was wrongly received, I cannot say that the verdict is wholly wrong. There ought to have been a verdict for the plaintiff on the plea of not guilty. We must grant a new trial if the parties do not consent to a verdict for the plaintiff on that issue. There is a small piece of the run upon which there is evidence that the defendants’ cattle depastured, and that is not contradicted, and both the issues as to that little piece of the run ought to be entered for the plaintiff, although the defendants may beat the plaintiff upon the substantial points of contest. The plaintiff then would be entitled to damages inrespect of the small pieces of land trespassed upon. In granting a new trial in respect of this little bit of land, the defendants shall have liberty to plead de novo, and tender amends. The result is, that the evidence has been wrongly received or wrongly acted upon. In respect of the general issue the verdict ought to be, as to this piece of land, for the plaintiff. There must be a new trial.

Mr. Justice DICKINSON : I am of the same opinion. The trespass is on a close called Cooma Cooma ; and then, as regards some of the land of Cooma Comma, there had been a dispute and an action, in which the present plaintiff had been successful. The parol evidence was proffered and admitted, to explain not only what was in the writing, but to cut a bit out of the writing. The Jury, therefore, ought to have been told not to pay any attention to it. Taylor on Evidence, p. 790, shows that where you cannot add to a written document by extrinsic evidence, you cannot subtract as to the other points. I am with the Chief Justice.

Mr. Justice THEURY : I have very little to add. At the trial I thought the parol evidence was admissible to explain the agreement, but as the term “due south” is in the agreement, I think now that the safest course is not to depart from a line so correctly expressed. I am not without doubt, but I think it better to concur in the opinion of the Court, that a new trial should be granted.

The CHIEF JUSTICE : The order of the Court is, a new trial granted. Costs to abide the event. Leave to the defendants to plead de novo within a month. The particular plea to be pleaded by leave of a Judge. If the defendants plead de novo, it is to be on the terms of paying the costs of the former pleading, and submitting to pay their own costs of the former trial.


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APA citation
LAW INTELLIGENCE. (1851, April 30). The Sydney Morning Herald (NSW : 1842 – 1954), p. 2. Retrieved January 12, 2016, from http://nla.gov.au/nla.news-article12926693



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