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

Campbell v Milson (1831) NSW Sel Cas (Dowling) 685; [1831] NSWSupC 80

tenancy - deeds, execution of - remedies, choice of - implied contract

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 16 November 1831

Source: Sydney Herald, 21 November 1831[1 ]

In Re Campbell v. Milson. - This was an action of assumpsit, tried during the present term before Judge Dowling.  It appeared on the trial, that some years since plaintiff demised a piece of land to defendant for the term of seven years, subsequently it was agreed to extend the term to ten years, and on the deed the plaintiff himself inserted the word ten, erasing the seven, and opposite to which, he put his initials, as his act and deed, and handed it over to the defendant.  The Counsel for the defendant applied at the time of trial for a non-suit, on the ground that plaintiff could not have his remedy on the implied contract.  The learned Judge however overruled the point, and putting the case to the Assessors, a verdict was found for the plaintiff.  The defendant now moved that the verdict be set aside, and a non-suit entered, on the ground of misdirection of the learned Judge who tried the case.  The Chief Justice was of opinion, that the plaintiff's own witness had put him out of Court.  An action for use and occupation would not lie at common law, or under the statute when a deed was in existence.  The deed in question was, in his opinion, a good and valid deed at the time of action, as laid down in Touchstone, 68, that were an alteration or erasure was made it was fatal, except it was made by him that was bound by it, but if by him, it was not hurt.  He (the C. J.) conceived the alteration to have been a new demise, and for all necessary purposes, was a new deed, signed, sealed, and delivered.  The delivery gave effect to all deeds, if under seal, and precluded a party from afterwards saying it was not his deed.  Judge Dowling was of the same opinion. - Verdict set aside, and a non-suit entered.



[1 ] For the judge's notebook accounts of the trial, held before Dowling J. on 30 September 1831, see Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 85; Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 59, p. 88, 2/3242.  In the former, Dowling summarised the outcome as follows: "Where Landlord executed a lease for 7 years and some time afterwards consented to extend the term to 10 years, and putting his Initials to the alteration in the Margin of the lease without resealing it but delivered it again to the Tenant.  Held that this was not a new lease and that the alteration of the term did not require resealing."  The plaintiff won a verdict of £25.17.4.

Published by the Division of Law, Macquarie University