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

Bell v. Leary [1829] NSWSupC 81

replevin, judicial attitudes to - tenancy

Supreme Court of New South Wales

Forbes C.J., 18 December 1829

Source: Australian, 23 December 1829[1 ]

Bell v. Leary.  This was an action of replevin.  Mr. Norton opened the case.

Mr. Keith, in support of an avowry by the defendant, contended that the premises in question had been demised to the plaintiff, at the weekly rent of 15s. to prove which, the following witnesses were called.

Samuel Clean stated, that he lived in Kent street, and was acquainted with plaintiff and defendant; that he knew the house occupied by plaintiff, which he rented from defendant; that he heard either plaintiff or his wife say they paid three dollars per week rent for the house; that he did not remember when plaintiff first took possession of the house; plaintiff or his wife told him they paid rent to defendant.

Cross-examined by Mr. Norton.  Witness never knew from plaintiff that he took the house of defendant; but that he once heard either plaintiff, or his wife say, they paid 15s. per week for it.

William Farrel stated, that he was acquainted with plaintiff and defendant, and was put in plaintiff's house by defendant to levy for rent; that he went in on a Saturday, and plaintiff replevied on the Monday following; that it was for two weeks rent, amounting to 30s.; the plaintiff told him he had notice from a Mr. Butler to pay defendant no rent; that the plaintiff said he would pay the rent to any one that would indemnify him, and that plaintiff said he had receipts from defendant for rent.

Mr. John Connel, of Pitt-street, stated, that he was executor jointly with a Mr. Davis, under the will of one Law.  Butler deceased, that the house in question belonged to the deceased's estate; and that it was demised to defendant, on condition of his effecting certain repairs, in consideration of which, he was to receive the rent, but that he had never sent in his bill.

On the part of the plaintiff it was contended, that defendant being a mere agent in the transaction, could not oppose his (the plaintiff's claim).

In summing up, the Learned Judge[2 ] commented sharply upon the obnoxious character of the case, observing, that it arose out of the practice of the feudal times, when the landlord was considered paramount to every other human being, but this state of the law he hoped would shortly be amended, and the landlord have no superior advantage above other creditors, by finding it impracticable to sue out an execution until he had substantiated some claim.  At present, however, the proceeding was in due course of law, and it must go on the plaintiff's shewing, to the Assessors, who returned a verdict for the defendant. -- Damages 30l.



[1 ] See also Sydney Gazette, 19 December 1829.

[2 ] The Sydney Gazette, 19 December 1829, put this as follows: "The Chief Justice, in summing up, expressed his regret that such a form of proceeding as the present should be sanctioned by the British law.  It grew out of the customs of the Feudal times, when the landlord was considered paramount to every other human being.  He hoped, however, that the law would shortly be amended in this respect, by placing landlords in the same situation as other people, and not permitting them to levy execution before they had established their claims.  At present, however, it was a legal course of proceeding, and he did not see any thing in the evidence in the present case which interfered with the defendant's claim."  The Gazette reported that the damages awarded were 30s. rather than £30.

Published by the Division of Law, Macquarie University