2-139 (Original)

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Before Mr. Justice Burton, with A. B. Spark and Thomas Barker, Esquires, Assessors.
Doe Cheers v. Kaines. - Mr. Windeyer opened the pleadings. It was an action of ejectment, the declaration contained four devised, defendant pleaded the general issue. The Attorney General in stating the case, said it was an action of ejectment, brought to recover possession of certain premises situated in Clarence-street. They had for some time been in possession of the defendant. The lessors of the plaintiff claimed through a person named Richard Cheers, who died about the 20th July, 1827. The parties interested in the prosecution of this suit were all relatives of his. He had made a will on the 20th February, 1824, wherein he left these with other premises vested in trust. The trustees were a person named Ward and John Cheers, the latter obtained probate. A suit was subsequently instituted, and by a decree of the Court, W. H. Chapman was appointed trustee instead of John Cheers who was then sole surviving executor, about a month before his death he had gone to live with defendant, who was prevailed upon to make over this property by deed of gift. Having gone fully into the details of the case, he called,
John Gurner - I am chief clerk of the Supreme Court; I produce the will of the late Richard Cheers, dated the 21st February, 1825; it was proved on the 21st March, 1827, and probate granted to John Cheers, Hunter's River, as the surviving executor; the decree now shown me is the original decree appointing W. H. Chapman executor in lieu of John Cheers.
William Wilkins - I am a laborer, and live in Phillip street; I knew Richard Cheers perfectly well; I recollect signing something for him; that is my hand writing; that is also Shuttleworth and Johnston's handwriting; Mr. George Allen sent this instrument to be executed; Johnston was a lodger of mine and also Cheers; Shuttleworth was a clerk to Mr. Allen; Richard Cheers had two families, two children by the first wife, and four by the latter; the property in George-street was left to the four latter; I knew Elizabeth, Mary Ann, James, and William Cheers; I knew Hezekiah Ward, he is now dead; during the time that Richard Cheers lived with me, he had a house in Clarence-street; I used to draw the rent for him, 10s. weekly; Kaines paid me the rent; Cheers was about 63 or 64 years of age when he died; I cannot be positive as to his age; he was old but hearty, and liked his glass; I think I saw him about a month or six weeks before he died; when he left me, he went down the Coal River to see his son who kept a public house there; when he returned, my wife refused to take him back (that was four months after) because 10s. per week would not pay for his grog; he then went to Kaines, and I never heard any more of him, except meeting him promiscuously; when drunk he was a quiet man, but would not comply with any thing when in that condition; his son Richard wished to make him drunk to get things from him, but the old man would not comply whilst in that state; the last time I saw Cheers, he was weak, feeble, and pale; he was in general a hearty man; Kaines lived a quarter of a mile from me; I knew Joseph Bradley, he was hanged for forgery; when Richard Cheers could get drink he would take it; in the feeble state he was towards the latter part of his time, four or five glasses would affect him.
Cross-examined - Kaines paid 10s. per week for the house at the time Cheers came to me; that was all he had to live upon; he had £220 in the Bank, but which he lent to his son at the Coal River; when he returned he complained of his family, that he had given them all he had, and now they would not come to see him; he was then at Kaines's it was through my recommendation that he went to Kaine's; he had not other place to go to; I was a loser by keeping him; I sent in a bill to the Executors, but never received any payment; I once offered to buy the house in Clarence-street; he said he would consider of it; this was long after the will was made; the other parts of his property he had made over by deed of gift to different parts of his family; Bradley was a good clerk, and employed at different offices.
Re-examined - His daughter, Harriet, who was married to Welsh, refused to take him in; some of the young children were staying with here, but their maintenance was paid for by the Trustees; he was always fond of his young children; when I offered to buy the property it was after a fit of drinking; the reason why I wished the children present, was, that I wished to do it honestly, and had no desire that they should suppose any unfair advantage had been taken of him.
Edward McRoberts. I am clerk of St. Phillip's church, but not in the year 1827; I produce an extract from the burials, April 22d. 1827. Richard Cheers, butcher, Sydney, aged 77 years.
Wilkins recalled. I endorsed a note for £5 in favor of Mr. Kain, I think on Tuesday; the money was for the purpose of supporting this trial; I live a A. B. Levy's, but I sleep at Kain's; I pay 4s. per week; have not paid them regular, I owe them money now.
Harriett Wyatt. I am a daughter of Richard Cheers, by the first marriage; when he died I considered him to be about 60 years; he did not know himself; before he died he lived at Kain's 4 or 5 weeks before that; when he left off business he lived with me except for about two months with Wilkins; before he returned from Newcastle, not having room in my own house, I got lodgings for him at Williams' in Phillip Street; when he came to Sydney I told him what I had done, and he went out for the purpose of going there, but instead of that he went to Kain's; next day when I saw him I enquired why he had done so, he replied he would go where he liked, that was 4 or 5 weeks before his death; I saw him three times during that period, twice in the street, and the last time in Kain's house on the Sunday previous to the Tuesday when he died; he then appeared quite childish, and I wished to take him home, but Mrs. Kain refused to let him be removed without a certificate from Dr. Bland; I searched until 9 o'clock that night for the Dr, when I found him he said my father was in no immediate danger then but removing him might make him so; he was almost childish for two years before his death; some time after the burial, Kain came and claimed the writings belonging to the house he lived in, as he only had a right to them; I told him to look at these children - as you have children of your own and say whether he could come for such papers; he said he had children of his own and must look after them; I did not have much more conversation with him felling indignant at his conduct.
Cross-examined. I took a room for my father in Phillip-street, and the people were to find him board and lodging, did not look at the room; I had only £130 per annum for the four children; John and Wm. Cheers had a deed of gift for the property they possessed; I think it was in Jan. he went to Kains.
Mr. W. Dowling, Solicitor. I knew Mary Anne Cheers who I believe is now Mrs. Cahuac; I know W. H. Chapman, he is trustee to the estate.
Mr. Foster said he would admit the assignment.
George Kerridge. I know the premises occupied by Kain; on the 8th of February I went and saw Mrs. Kain, told her I claimed the property on behalf of the children; she said they held it by deed of gift, and they meant to stick to it.
The will was then put in and read by the clerk, it devised the house in question with other property to his children, as was also the decree appointing W. H. Chapman, trustee.
Mr. Foster in addressing the assessors for the defence said, it certainly (he would admit) appeared a little ungracious in a party setting up a claim against the children of the party, who makes a deed of gift, but this was not an ordinary case. The children had already got the whole of his property except this, and if the old man had imbibed habits of intemperance, it was so much the more their duty (as it ought to have been their pride) to have taken care of him. He then commented upon the testimony adduced upon the part of the plaintiff, and called the following witnesses.
John Snowden. - I am a small settler; I knew the late Richard Cheers, and recollect his returning from the Coal River, he had been there he said, to get some money from his son John, but was disappointed, as he neither obtained principal nor interest; he was then lodging with Kaines; he complained that Mrs. Welsh or Wyatt, and also Wilkins, had refused to take him in; he sent for me, and desired that I would go for Bradley, who lived at the Royal Oak; he said from the kindness he had received from the Kaines's, he wished to make the house over to them; Bradley came when I went for him; Cheers then told him, he wished to have a deed of gift drawn up, in order to pass the property to Kaines; Bradley drew it up and I signed it; he was quite sober for some weeks before he died, and perfectly sensible when the deed was executed; Bradley, myself and another, all signed it at the time; Bradley read it over first, when he desired me to read it over again; I did, and he signed it; he had spoken three or four times to me before, as to his having determined to sign over the property to Kaines.
Cross-examined. - When Kaines sent for me, it was in the afternoon, perhaps three or four o'clock; will swear I was not drunk that day; Bradley was at dinner when I went for him; he came as soon as he finished dinner; he might be half an hour in drawing up the deed; how Cassidy came to there to sign it I cannot say; I saw Cheers once or twice afterwards before he died.
Michael Cassidy. - I knew Richard Cheers living at Kaines's; a friend of mine lodged at Kaines's, and going back and forward I used to see Cheers; remember having been asked to witness a deed; I made my mark to it; cold [sic] not tell the paper again; it was read over by the clerk, (Bradley) and then by Snowden, when Cheers said it was all right; he then signed it; he was then sitting during the time upon the side of the bed; the clerk wrote my name; cannot recollect upon what part I made my mark.
Cross-examined. - When I went into the room, they told me they wanted my name to some deeds.
Betsey Murray. - I knew the late Richard Cheers when he lodged with Kaines; I was servant there at that time; Cheers was always well treated whilst there; I remember when he came there from the Coal River, and have frequently heard him say, he would make the house over to Mrs. Kaines.
Cross-examined. - I used to take him tea, gruel, &c; I never saw him get any run, but that was not my business; Mr. And Mrs. Kaines used also to attend upon him; he was there between three and four months to the best of my belief; I was there when he died, but don't recollect any will being made; they were sitting up with him for some nights, perhaps a week.
----- Bradley. - I am clerk in the Registrar's Office; the deed of gift was registered on the 15th, the day after it is dated.
John Norris was called, but owing to his not having left the court pursuant to the proclamation, his evidence was objected to. A short argument took place upon the point, when Mr. Justice Burton said, he would not receive his evidence, and ordered him to be find [sic] 40s. for contempt of court. This closed the case for the defence. In reply, on the part of plaintiff, Dr. Bland was called, who stated, that he attended Richard Cheers in the year 1827, to the best of his recollection in Clarence street; had repeatedly attended him before; his illness was generally occasioned through age and the effects of tippling; he was previous to his death in a state of confusion or stupor, from the effects of drinking; he could not tell what he was doing; his daughter came to me, and wished to have him removed as they wee dosing him with spirits, in which opinion I concurred, but being so weak, I was afraid to move him; he died a day or two afterwards, chiefly from having been kept in constant excitement through the use of spirits.
Cross-examined. - He drank hard after the death of his wife, and seemed conscious he was not fit to manage property; he had no confidence in himself, and vested his property in Trustees; he was quite in childish state.
Re-examined. - The treatment of Mrs. Walsh or Wyatt, to her father was always kind and affectionate.
By the Court. - I do not think he was in a fit state of mind for some time before his death, to make a will.
Thomas Shaughnessy. - I am an undertaker; knew Richard Cheers for twenty-five years, and buried him at last; recollect his going to Kaines's house; used frequently call into see him, partly on my own account, and partly through the solicitation of his daughter, Mrs. Walsh; he was at Kaines's five or six weeks; he used to drink hard, beginning about 5 o'clock in the morning; he continued drinking when at Kaines's; saw him there two or three times a week; he appeared in a state of stupidity; I told his son a few days before his death, that if he did not remove the old man, he would not last long.
Cross-examined. - I never saw him outside the door after he went to Kains's. I called out of friendship to see him, not for the sake of a job.
Re examined. - His son paid me the funeral expenses.
The Attorney General then replied upon the whole of the case, and commented with considerable severity upon the nature of the evidence adduced for the defence.
Mr. Justice Burton then commenced putting the case to the assessors, but they without troubling His Honor to go through the evidence, intimated they were satisfied, and returned a verdict for the plaintiff.
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