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

Shipman v Plomer (1831) NSW Sel Cas (Dowling) 682; [1831] NSWSupC 17

tenancy, assignment of

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 5 February 1831[1 ]

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 52] [Assignee of a lease paid assignor rent in advance which would exceed the duration of the interest of the of the [sic] latter in the premises and no rent having been paid to the superior landlord he distrained upon the premises and took the assignees goods:  Held that payment of rent by the latter in advance would not relieve him after he had received notice from the superior [p. 53] landlord not to pay his assignees rent.]

[p. 52]

February 5th 1831

Shipman v Plomer

This was replevin for seizing certain goods of Plaintiff the defendant admitted the taking but avowed that it was for one half years rent of a house demised to him by one Kelly, No 8 Pitt Street.  The Plaintiff replied by half of the rent.  It appeared that Kelly had been tenant to the deft of the house in question under a lease for a term.  Kelly assigned his interest in the lease to the Plaintiff for valuable consideration, and gave Kelly a promissory for payment of rent in anticipation of rent which would not be come due until after Kelly's interest in the premises had ceased the Defendant had given notice to the Plaintiff not to pay rent to Kelly, but to himself as superior landlord.  After this notice the promissory [p. 53] note had been given, & when due was paid by the Plaintiff.  The question was whether this promissory note operated as payment of the rent protanto, claimed to be due by the Plaintiff, after Kelly's interest ceased and the Plaintiff came into possession of the premises.

Therry & Foster argued for the Plaintiff.

Wardell contra was stopped by the Court.

Per Curiam.  Up to the time the relation of landlord and tenant subscribed between Shipman & Kelly, the former might pay the latter rent in advance, but not afterwards.  The rent was bound from the time the Deft gave notice to the Plf and to pay the rent according to Kelly the payment of rent in advance after notice operated as a fraud when the superior landlord and we therefore think that the defendant is entitled to judgment.  The Court further ruled [p. 54] that in arguing a special case, only one counsel is to be heard of a side; & this according to the practice of the Courts at home.  As matter of Courtesy they heard Foster on the s.s, with Therry.

Judgment for Defendant.

In arguing a special case the Court will only hear one Counsel of a side.

Notes

[1 ] This is the likely composition of the court, given the other cases heard that day were heard by all three judges.

Published by the Division of Law, Macquarie University