Skip to Content

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

Mahony v Harris (1831) NSW Sel Cas (Dowling) 683; [1831] NSWSupC 49


Supreme Court of New South Wales

In banco, 16 July 1831

Source: Sydney Gazette, 21 July 1831[1 ]

This was an action of assumpsit, for the use and occupation of a certain piece of land, situated at Pitt Town, in the district of the Hawkesbury.  The action brought to recover a year's rent, claimed to be due on the 1st of January 1831; the defence set up being that the rent did not fall due till the month of April following.

At the trial, before Mr. Justice Dowling and two Assessors, a verdict was given for the defendant, the learned Judge saving the point raised by Mr. Foster; namely, that the declaration in the cause not having been filed till the 2d of May, the plaintiff was entitled to a verdict for any rent due up to that time.

Upon this ground, Mr. Foster now moved that a new trial be granted.  The learned gentleman contended, as before, that the plaintiff was entitled to recover any rent due up to the commencement of the action, the defendant not having tendered the rent when it became due in April.  With respect to the demand made, by a solicitor's letter, of rent due up to the 1st of January, he submitted that that letter formed no part whatever of the case.  It need not have been written at all, nor could the mere circumstance of such a letter having been written, preclude the plaintiff from recovering the amount of rent really due up to the filing of the declaration.

Mr. Rowe, for the defendant, contended that the plaintiff having, by a letter from his solicitor, claimed a year's rent, to the 1st of January 1831, and also furnished a bill of particulars, was precluded from going into farther evidence to show that rent had accrued up to the time of bringing the action.  The object of furnishing a defendant with particulars was, in order to apprise him of what he had to try, and a plaintiff must be bound by them, or they were of no use [Impey, 226].

Mr. Foster - The particulars were not given in evidence on the trial, as, if intended to be relied on, they ought to have been.  They form no part of the record: the declaration is in the mere common form for use and occupation.

The Chief Justice - This case turned upon the question whether the tenantcy commenced in January or at a later period.  The verdict of the Assessors decided that the rent did not fall due till April, and this was the simple point of contest.  At the close of the case, the Assessors finding that the rent was payable from April to April, and the declaration not having been filed till May, the point was saved, whether the plaintiff was entitled to recover for any rent accruing up to that time.  I am of opinion that the case should go to a new trial; because if there were any rent due, at the time of filing the declaration, it would be sufficient to sustain the action.  At the same time, as the sum in dispute is small, we would suggest that the parties settle, out of Court, what rent really is due, to save unnecessary litigation, and incurring needles expence [sic].

Mr. Justice Stephen was also of opinion that the case ought to go to a new trial.  The Assessors found nothing; but the plaintiff certainly was entitled to recover the amount of rent due up to the commencement of the action.

New trial granted.



[1 ] For accounts of the initial trial before Dowling J. on 15 June 1831, see Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 63; and Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 55, p. 79 (2/3238).  The former version of the judge's notes summarised the result as follows: "The Plaintiff sued in use and occupation for rent claimed to be done of the 1st January but it turning out to be done in April since action brought but before declaration, Held that he might still recover for the rent up to April."

Published by the Division of Law, Macquarie University