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

Pilcher v Cory (1832) NSW Sel Cas (Dowling) 689; [1832] NSWSupC 19

tenancy, trespass by landlord - arbitration

Supreme Court of New South Wales

Forbes C.J., 8 March 1832

Source: Sydney Herald, 12 March 1832[1 ]


Pilcher v. Cory. - This was an action of Trespass, quare clausam fregit, to recover damages for defendant breaking and entering plaintiff's dwelling, and destroying his furniture.  The damages were laid at £200.  Defendant pleaded Not Guilty, and alledged that he was joint tenant with plaintiff, and therefore could not commit the trespass.

It appeared in evidence, that plaintiff occupied two rooms in the defendants house, under an agreement between them.  Defendant wished plaintiff to quit, which not being complied with, a brick was taken out of the chimney, in plaintiff's bed room, and boards placed over the top of the chimney, in consequence, plaintiff and family were much annoyed by the smoke; finding that plaintiff could stand as much smoking as a Westphalian ham, defendant ordered the shingles over plaintiff's bed room to be taken off, in doing which the ceiling fell in on plaintiff's furniture, the evening being wet plaintiff sent his servant with some sheets of bark to put on on the roof, but the defendant refused to allow him so to do.  These were the trespasses complained of.  The defence set up was, that defendant did not commit the acts alledged from any ill-feeling he entertained towards the plaintiff, damages 40s.  Messrs. Foster, Therry and Sheehy, for plaintiff, and Mr. Norton, for defendant.



Forbes C.J. and Dowling J., 30 March 1832

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


[p. 167] Where a person was let into the exclusive possession of parcel of dwelling house, and the owner who occupied the remainder, [p. 168] took off the shingles of that part of the roof immediately over plaintiffs apartments, in order to get him out of the house:  Held that Trespass quare clausum fregit would lie against the owner.


Forbes C.J. and Dowling J., 30 March 1832

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 67, Archives Office of New South Wales, 2/3250


[p. 110] Trespass quare clausum fregit.  Plea Not Guilty.  At the Trial before Forbes CJ the case was this:-  The Deft, a Settler on the Patterson's River having been in treaty with the Plf, for letting a Farm to the latter on certain conditions, permitted him & his family to occupy part of his own dwelling house whilst a house was building for the Plf on the Farm in question which adjoined that cultivated by the Deft.  The Plf was let into the exclusive possession of a parlour & bedroom of the Defts house, together with a detached kitchen.  The [p. 111] act of trespass complained of was in pulling off some shingles from the roof of the house immediately over the bed room so occupied by the Plf, whereby the rain was admitted and the Plf was otherwise annoyed in his possession.  There was some evidence to shew that this was a wilful act in order to eject the Plf, between whom & the deft, some cause of dispute had arisen.  The ceiling of the bed room immediately communicated with the part of the roof where the shingles had been removed.  Between the other part of the house & the ceiling there was a loft in which the defendant kept lumber: but the part broken was a skillion roof.  The learned Judge told the Assessors that if the evidence was believed the Plf had such a possession of the locus in quo as would enable him to maintain trespass quare clausum fregit.  The Assessors found [p. 112] for the Plaintiff Damages 40s.

Norton now moved for a new trial & contended that as the rooms occupied by the Plf were parcel of the same house in which the deft himself lived, it could only be considered as a joint possession between them, & consequently the Plf could not maintain trespass which was founded on an exclusive possession.  If this action could be maintained, it must follow that if there were 50 lodgers in a house each might bring an action of trespass against the landlord or against each other.  The house in one entire tenement, & the exclusive possession is vested by law in the owner, & there cannot be such minute subdivided possessory lights as will support trespass.  He relied upon Gould v Bradstock 4 Taunt 562 where it was held that trespass will not lie against a landlord who occupied an [p. 113] apartment over a mill demised to his tenant, from which it was divided only by a boarded floor without any ceiling, or taking up the floor of his own apartment and entering through the aperture to distrain for rent.

Foster contra.

Dowling J.  The assessors having found as a fact, that the Plf had the exclusive possession of the apartments in question, though parcel of the Defts dwelling house, I am of opinion that trespass will lie for the act complained of.  We are not called upon to consider under what circumstances or by what title the Plf acquired a right of possession, whether as a weekly lodger, tenant at will, or sufferance or otherwise.  He was in fact in possession lawfully according to the evidence, for the Deft had let him into possession, and that possession ought to have been legally determined before [p. 114] he could be forcibly evicted.  The minuteness of the Plfs right of possession cannot I apprehend affect the question, so long as the possession was exclusive.  There is no doubt that as ag.t a mere wrong doer, the Plf might have maintained trespass, even though his own possession was wrongful, & the Deft having let him into possession, his tenancy whatever it might be w.d give him a right of action unless his possession had been legally determined.  The case of Gould vBradstock 4 Taunt 562 is wholly inapplicable to this, because that case went entirely upon the landlords right of distress for rent in arrears, which would justify him in taking up the floor to get at the goods: nay in breaking an inner door or lock, in order to find any goods which [p. 115] are distrainable. Brown Dawn Bull N.P. 81.  Here the deft had thought proper to carve out a portion of his dwelling house & let the Plf into exclusive possession , & I cannot distinguish such a possessory right, from that of a man who is let into the exclusive possession of a field parcel of an undivided landed estate, in which case there is no doubt trespass quare clausum fregit will lie against all mankind, even though the possession is for  a limited & temporary purpose.  Crosby v Wordsworth 6 Earl 602. I.P. G Price 287.  In this case we are not called upon to decide whether this could be considered as the Plfs mansion for the purposes of an indictment for burglary, House-breaking, or stealing in the dwelling house.  It is sufficient for this case that he has the exclusive possession of a parcel of the house, which according to all the authorities given him [p. 116] a right of action against a stranger or against his landlord unless his possession has been legally determined or the landlord has a paramount right of entry for a lawful purpose.  I therefore think the case was rightly decided at the trial.

Forbes C.J. concurred.

Stephen J. absent.

Rule refused.


Forbes C.J., Stephen and Dowling JJ, 6 October 1832

Source: Dowling, Proceedings of the Supreme Court, vol. 76, Archives Office of New South Wales, 2/3259


[p. 99] This was an application to set aside an award.

By a order, made by the Court at a sittings held in the Supreme Court before a Judge and two assessors, for the trial of issues of fact in pursuance of the New South Wales Act Geo 4. C. 80 this cause was on the 12th March 1832 referred to two arbitrators, who were to make and publish their award in the premises on or before the 10th April then ensuing, and in case of disagreement, they were to name an umpire.  Power was reserved to the arbitrators or the umpire to enlarge the time for making the award [p. 100] or the umpirage.  On the 9th April the arbitrators being unable to agree named an umpire, who on that day only enlarged the time for making & publishing his award or umpirage until the lst August then next ensuing.  On the - day of July the umpire made & published his award in favour of the plf.  On a former day in this term a motion was made to set aside the award on three grounds.  First, that the award was ill upon the merits.  Second that it was made out of time; and third that the order of reference was a nullity, from the terms in which it was drawn up.  With respect to the first ground, it is a settled rule that the Court in such cases will not look into merits, unless [p. 101] on the fact of the award there appears to be manifest gross injustice.  But, however, the objection of which the deft complains in this respect, appears to have been completely met by the affidavit on the part of the plf, which shows that the deft had full knowledge of the demand before he went into the reference which far exceeded the sum awarded.  The second objection is also answered by the indorsement or memorandum on the order of reference, by which it appears that the umpire enlarged the time for making his award until the lst August, the award having been in fact made and published in the month of July preceding.  The third objection is purely one of technical form.  The order of reference begins by reciting that ``At the sittings of Nisi Prius held in the Supreme Court of N.S.W. on &c in a cause wherein E. G. Cory [p. 102] is Plf and A. J. Pilcher is deft. it is ordered by the Court by and with the consent of P & D their Counsel ad attorneys that a verdict &c.  Now it is contended that because the sittings of the Supreme Court, at which this order is made, is called the Sittings at Nisi Prius, the whole proceeding is a nullity.  We think otherwise.  Although the Judges [p. 103] of this Court have nocommission of nisi prius inasmuch as they are not judges of Assize, yet they have by virtue of the New South Wales act, a jurisdiction similar to that of the Judges of Westminster Hall, namely that of trying issues of fact joined within and after the term, which in common parlance and to common intendment may be considered nisi prius trials.  It matters very little by what name such sittings are called, so long as they are sittings of the Supreme Court, and for want of a better name, and from analogy to like sittings in Westminster Hall we think they are not inappropriately called nisi prius sittings.  After award made and published, however, we think such a very nice objection ought not to prevail, against the decision of a former appointed with the consent of both parties.  It is unnecessary to decide whether perjury could be assigned upon evidence given under such an order of reference.  We think there is no reason for disturbing the award.

Rule Discharged.



[1 ] See also Australian, 16 March 1832.  On other litigation between the parties, see Sydney Herald, 11 October 1832.

Published by the Division of Law, Macquarie University