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Decisions of the Superior Courts of New South Wales, 1788-1899

Eagar v. Clarkson [1813] NSWKR 11; [1813] NSWSupC 11

trespass - ejectment - fieri facias - land law

Court of Civil Jurisdiction
Bent J.A.., 12 and 18 October 1813
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1109 (case no.s 351 and 370)[1]

[12 October 1813]

[329] Edward Eagar of Sydney, dealer, plaintiff; Thomas Clarkson of Sydney, dealer, and Richard Palmer of Sydney, miller, defendant

Action of trespass vi et armis for ejecting and moving plaintiff from a certain dwelling house etc. etc. Damages £200.

The defendants appear by George Crossley, their agent, and plead the general issue, not guilty.

Patrick Mc Mahon sworn and examined for the plaintiff, says I am subscribing witness to the deed now produced and to the receipt annexed. It is a deed of conveyance of a house sold by the Provost Marshal by virtue of a writ of fieri facias issued at the suit of S. Terry and L. May by publick auction to Mr Edward Eagar. The Provost Marshal himself gave him possession of it. There were tenants in the house at the time it was sold. The house was George Guest's. A man of the name of Ryan, since deceased, one Acton and some soldiers were the tenants. They remained there after the house was sold. At the time of sale Mr Gore was acquainted with Clarkson's claim to the house. The door was open and the Provost Marshal turned every body out and gave the deed of conveyance to Mr Eagar. The Provost Marshal desired them to go out and they went out.

Cross examined for defendant and says Clarkson gave notice by letter from Mr Crossley of his claim to the house but we could never get a copy of his title. Before this time the Provost Marshal had seized this house under a fieri facias issue and at the suit of a G. Lawrence against George Guest the owner. At that time the Provost Marshal had no notice of any mortgage upon it. It was sold to Clarkson for £90, in trust for Guest. The debt and costs amounted only to £19 and that sum we received from Clarkson and paid over to Lawrence. I took a memorandum from Clarkson that on payment of the [330] sum of £19 it should revert to Guest. Clarkson said he bought it in that it might not be sold at too low a price. No conveyance was made whatsoever. I believe that tenants paid rent to Clarkson. Mary Ryan was living in the house at the time of the sale. The sale was on the 29th of May and the plaintiff was put in possession about the 7th September. There were persons in a house when Mr Eagar was put in possession by the Provost Marshal. There were some of the 73rd Regiment. I did not see any men there. I saw some women. I cannot tell whether the tenants paid rent afterwards to Mr Eagar. One of the soldiers paid rent from the day of sale to the Provost Marshal. One Ryan was another tenant who refused to pay rent to me.

The deed is produced and filed and read, dated 7th Sept 1813.

Francis Piper sworn and examined for the plaintiff, says I recollect the plaintiff putting me in charge of a house in question on the 16th of September and giving me the paper now shewn me. At the time the people asked leave of me to remain a day or two until they could get lodgings. One Joseph West, one Mary Ryan, and James Crouch were in the house. They all asked leave to remain there. They remained in the house two or three days and then went away of their own accord. I continued in the house after them by myself. I did not continue in the possession of the house by myself before Clarkson came. The people in the house left it about 1 o'clock. Clarkson came about 3 o'clock. One Richard Palmer and another man came with him. I was in the house. Mr Eagar was not there. Mr Clarkson came in at the back door, and took off the lock of the front door and nailed it up. He also nailed up the front window shutters. He said the two men he had with him was two constables. He asked me what I had to protect me there. I said I would read it to him. He said that would not do unless I would give it to him. I would not do that. He told me I must go out of the house. I told him I would not go out unless I was forcibly put out. He catched hold of me and forced me out of the house and locked the door up. I do not believe Palmer assisted him. They were both present. He took away the key. The witness withdraws.

[331] Edward Quin sworn and examined for the plaintiff, says I am one of the Provost Marshal officers. About December 1812, I seized the house in question by virtue of a writ of fieri facias at the suit of one Lawrence against George Guest for ¿11.18.10. His wife and two children were living in part of the house. Acton his wife had the other part and Ryan and his wife another part. The house was sold under this execution for £90 to Clarkson on trust for Guest. Clarkson paid the money due on the execution to me in Guest's presence in Clarkson's house, on where I relinquished possession of the house. I considered it was Guest's and put an undertaking from Clarkson saying that he had no claim on the house but for the money he had paid. In May 1813 two other writs of fieri facias were issued at the suit of Samuel Terry, Lawrence May, against Guest. I again took possession of this same house. A few days after I met Clarkson who asked me how I came to levy up on his house. I told him I did not know it was his, for Guest he said it was his property. He said it was his, and he would wait upon the Judge Advocate and mention the circumstance. After that I advertised the house for sale, and sold the house on the 29th of May by a publick auction for £106 to Mr Eagar, subject to the payment of a mortgage out of that sum to Mr Terry amounting to £100. They understand Mr Clarkson also gave notice not to sell. He was at that time on the premises and desired me not to sell, and I told him I would not if he would produce his title. He produced no title and I therefore proceeded to sell. Guest was present at the sale. After the sale I went into the house and told the tenants to pay no rent but to Mr Eagar and consider themselves his tenants. They all said they would pay the rent to Mr Eagar. I do not think £90 a fair price for this house. The witness withdraws.

The plaintiff closes his case here. ...

[332] [13 October 1813] The court met pursuant to adjournment.

Present the Judge Advocate, Charles Hook esq., Richard James esq.

... The parties severally appeared.

Defendant's case is read to the court.

           Mary Ryan sworn and examined for that defendant, says my husband and I formerly lived in the house in question. It is in Pitt Street. My husband took a part of it of George Guest for [a] 12 month. We took it by assessment in writing and entered on or about 22nd August 1810. We continued in it until the St Stephen's Day last, under Guest. On that day it was sold by virtue of an execution to Mr Clarkson. From that time I paid the rent to Clarkson up to the 20th September last. Guest knew that we paid the rent to Clarkson; he told us to pay it. Joseph West and James Crutch were also tenants in the house. West and Crutch came after Acton had left the house. A soldier of the name of Slosh also lived in the house. I was not at the house when the Provost Marshal put the plaintiff in possession.

Cross examined for the plaintiff says Guest never objected to my paying rents to Clarkson since the 9th of January last. I never heard that Guest brought Clarkson before the Bench of Magistrates for receiving this rent, nor that he brought it before the civil court. Neither my husband and myself were ever brought before [333] the Bench of Magistrates or the civil court on this affair. To my knowledge there never was any dispute about the rent being paid by Clarkson. I recollect the day after sale of their house to Mr Eagar. I recollect the Provost Marshal giving me notice at that time to pay the rent in to his office. I paid no attention to that notice but continued to pay the rent to Mr Clarkson. My husband then said he did not care to whom he paid the rent. Clarkson addressed him to pay it to him. I think it was a fortnight after this time we paid Clarkson rent for the first time after the sale. Clarkson demanded the rent. We then paid it of our own accord. We then knew the house was sold to Mr Eagar.

Catherine Clarkson sworn, examined for the defendant says I am one of the subscribing witnesses to this receipt. It is written by my father. I saw George Guest put his mark to it. It was first read over to him by Mr Sharman the other witness. Guest was not drunk, he was sober. He did not appear to be any ways in liquor at all. My father keeps the publick house. I did not see any money paid down at the time. About £10 was paid to the Provost Marshal, the rest was a book account. It was so assessed between them.

The receipt is read no. __.

The witness on cross examination says the nature of the book account was maintenance and money lent by my father to Guest. Guest lived, it might be, three or four months at my father's house. Guest was sometimes drunk and sometimes sober. I consider Guest to be a very drunken man. Guest sold my father some cattle. It was some time in the middle of the day that the receipt was signed. As far as I know I do not believe that Guest made any objection to the sale of this house. I do not recollect hearing that my father was summoned before the magistrates relative to Guests account. The witness withdraws.

[334] Joseph West, sworn and examined for the defendant, I lodged in the house in question. I took my lodgings from Mr Clarkson. I paid him the rent. Guest never forbade me to pay the rent. I paid Clarkson rent in June and July 1813 as appears by my receipts. I left my lodgings on the 21st day of last month. Mr Clarkson came down at the time and I gave him the key. This was the time that Piper was in. I gave Clarkson the key of my own apartments. I saw Clarkson fasten the front door. I saw Clarkson lay hold of Piper's arm. I can't say whether he pushed him out or not. Clarkson asked him by what authority he was there. He would not shew any. Clarkson told him they were his premises. I occupied a part of this house for six months and during the whole time paid rent to Clarkson.

On his cross examination the witness says I was on the premises the day they were sold by the Provost Marshal to Mr Eagar. I recollect the Provost Marshal then telling me to pay the rent into his office. I told him I did not care to whom I paid it. I paid the rent to Clarkson afterwards of my own accord.

James Crutch sworn and examined for the defendant saith, I lodged in the house in question along with West. I was partner with him. I know the rent was paid to Clarkson. I went with the lodging on the 24th of May. I staid about two months there and then left West and went to another house.

Patrick McMahon again sworn and examined by the court at plaintiff's desire. I am subscribing witness to the written paper now shewn me I saw Thomas Clarkson sign it. It was all written at one time.

Mr Edward Quinn again sworn and examined says the memorandum produced and proved by the last witness was signed by Clarkson in my presence, and all written at one time. There was some value put in the ink. I do not consider that £90 was a fair price for [335] the premises and on this account only I asked Clarkson whether he had not bought then in trust and took this memorandum, that he should not afterwards say he bought it for himself.

James Crutch further questioned by the court, says after I left this house I again took lodgings there about three weeks before Piper was turned out and I was there at that time. Piper had been in the house there three or four days. He was put in by Mr Eagar and I allowed him to stay there. When the Provost Marshal came to put Mr Eagar in possession, Mr Eagar gave us leave to stay there for two or three days to look out for another house and on the day Piper was turned out Edgar came and told us to quit in two or three hours and then Clarkson came and put Piper out. After Piper was put out I did not continue in the house. I gave the room to Clarkson and we all came out together. We were all in the act of leaving the house at the time Clarkson came.

The defendants here closed their case.

The court takes time to consider their udgement until Monday, at which day the parties are directed to attend the court to hear the same.

[18 October 1813]

[355] Edward Eagar plaintiff and Thomas Clarkson and Richard Palmer of Sydney Defendant See antea no. 351.

All parties attending, the court pronouncing judgment that this action be dismissed with costs.

Note

[1] Fieri facias ( fi. fa. ) was one of the standard remedies to enforce judgment debts in English law. Under it, the court ordered the Sheriff (or Provost Marshal in New South Wales ) to seize and sell the property of the debtor, paying the proceeds to the creditor. At the time this decision was made, fi. fa. was not available to enforce a judgment debt against freehold title to land in either England or New South Wales.

Seizure of freehold title to land in New South Wales under this writ was finally allowed by imperial statute on 25 June 1814 (Debtors (Liability) Act 1813, 54 Geo. 3, c. 15). There was no similar remedy in England until 1838. Before the 1813 Act took effect in the colony, cases such as this were being decided. Was this freehold land? If so, in allowing fi. fa. over land, was Ellis Bent jumping the gun? He had recommended such a statute.

See B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., Federation Press, Annandale, 1996, 198-201; and see Kable v. Lord, 1812-1814; Jones v. Knopwood, 1821.

Published by the Division of Law, Macquarie University