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

Dennis v Solomon [1833] NSWSupC 64

trespass to land - tenancy - distress for rent - Airds - set off

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 29 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 40] Trespass for seizing, taking & carrying away certain wheat, corn & farming utensils at Airds on 2 March last.  2 Court move general.  Plea N.G. -  At the trial before Forbes C.J. the plf had a verdict for £39.19.14 with leave to move the Court to enter a verdict for Deft.  The defts having availed themselves of the statute 11. G. 2. proposed to give evidence under the general issue, justifying the alleged trespass, as a distress for [p. 41] rent due to their testator by the plf.  Two questions were raised, first whether supposing a [?] of distress in the Deft, they were not trespassers by remaining in possession more than 5 days before selling the distress & 2d Whether having reference to the nature of the testator's interest in the premises, the defts as executors had a right of distress under the statute 32 Hen. 8. c. 37. s. 1.  The facts upon the first point were these: the distress was put in on the 20th Augt 1832. & the goods were not sold until the 27th August 1832.  The 5th day happened to be a Sunday.  On the 2d. point the facts were these: The testator Colls took a lease of the premises in question of one Higgins for a term of 5 years from the 1st April 1829, at the rent of 30£ - payable quarterly in July, October, Janry & April in each year & assigned the same to the plf.  Colls died in May 1832, & the defts being [p. 42] his Exers & having obtained probate of his will, distrained on the 20th Augt for rent in arrear due to the testator on the 4th July preceding, & the sale took place on 7th day after the distress - being a Monday morning.  The defts went for a nonsuit - on three points 1st. that at the 5 days allowed by the statute before sale of distress was in case of the tenant, the remaining in possession for a reasonable time over the 5 days before sale would not make the defts trespassers.  2.d That the statute 32 H. 8. c. must be construed liberally, so as to give Exers the right of distress for rent in arrear due to their testator as tenant for years, for it made no difference in principle, whether the testator was tenant from year to year or for a term of years.  And 3.d that the plf had misconceived his form of action, for this, if anything, being an irregular [p. 43] distress he ought to have brot. case & not trespass.  The learned judge saved the two first mentioned points; and as to the 3.d he thought, that as the gist of the action was the remaining in possession longer than 5 days before sale of the distress, that would make the Defts trespassers abinitis, the action was well conceived, - not however the rule of this court upon the subject co.d he construed to remove any objection to a form of action arising out of an express statute pointing out a precise remedy.

On motion now to enter a verdict for the Deft.  The case was argued by Keith for plf & Norton for Deft.

Per Curiam.  The material point for our consideration is as to the distraining power of the Defts as executors, under the circumstances of this case.  As to the [p. 44] objection that the staying in possession longer than five days before sale, we are with the Defts, for if the staying over that time be reasonable (which is a question for the jury) they would not be trespassers.  Pitt v Shew & others (4 B & A. 206. & 208. - See Walker v Sling 1 HB. 13 & Winterborne v Morgan. 11 East 395.)  As to the other point, which must govern our decision aft the Deft, the question is whether this case comes within the operation of the statute 32 H. 8. c. 37. S. 1. - It must be conceded that at common law, there being no privity between the parties to the record, the defts could not have distrained for the rent in question & that but for the statute they could have had no remedy by distress.  Then does the statute relied upon help them.  By that statute it is enacted that the personal representatives of tenants in fee, tail or for life, of rent services, rent charges, rent [p. 45] [?], & fee farms, may distrain for the arrears upon the land charged with the payment, solely as the lands continue in the seisin or possession of the tenant in demesne, who ought to have paid the rent or fee farms or of some person of claiming under him, by purchase gift or descent."  Now it is perfectly clear that the testator, being only a tenant for a term of years in this land, does not fall within any of the enumerated persons whose personal representatives may distrain for arrears.

Burton J. same opinion.

Dowling J.  This case may be within the intent & meaning of the statute, but we cannot import into it a description of tenant not enumerated.  We cannot legislate.

Judgement for Deft.

See Powell v Kileich. 1 Selwyn N.P. 619.  Bull N.P. 57.


Forbes C.J., Dowling and Burton JJ, 29 March 1833

Source: Sydney Herald, 4 April 1833


Dennis v. Solomon and others, Executors of Colls.  This was an action of trespass for defendants distraining on plaintiff's lands which he held under ``a lease for years," of one Colls, since dead, when the assessors found a verdict for plaintiff for £39 9s. 3d.  At the time of trial two points were reserved, first, whether defendants could distrain on defendants land, under the 32nd Henry 8, c. 37, sec. 7, he holding it on a lease for years - and, second, whether the sale within the five days was illegal.

Mr. Norton now moved to set aside the verdict, and Mr. Keith having replied, waiving the second point, the Chief Justice delivered his opinion. - There were two points saved at the time of trial, 1st, as to the distraining power of defendant or any of them, and the question was, whether they or any of them had any legal right to distrain; the point saved was, whether there was that privity between defendants and the deceased Colls, by the statute of Henry the Eighth, on the Common Law to empower them to distrain - it was necessary this should exist to give a distraining power.  If rent was due at the time of the death of the testator, the assets would be in the hands of the Executors, and they would have a right to sue, but the question was, whether they possessed any distraining power.  Before the statute passed, supposing the estate to be in fee simple descending to the heir by law, or the demisee, the heir at law would have succeeded to all rights of landlord the deceased had, but at common law when the privity of Estate or Law between the testator and his representatives did not exist, it being an estate in fee, no distraining power existed, - here there was no privity, it being an estate in fee between executor and deceased, and there being no privity, there was no distraining power.  The executors might sue for rent but that did not give the distraining power.  The statute of 32, Henry 8, c. 37, sec. 7, was passed to remedy this, and it was there laid down, that all Executors to Estates in fee, entail, or for life, or for rent service, fee farms, or resect, may distrain for rents due from the parties holding the lands, but for a lease for years, they could not distrain, and a lease for years fell under neither of these charges, therefore not being within the protection of the statute the remedy did not exist, which was an answer to plaintiffs action.  The second point had been very properly waived.  Under all the circumstances of the case, he was of opinion the verdict must stand.

The other Judges coincided in opinion with his Honor.[1 ]


Dowling and Burton JJ, 28 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266


[p. 129][2 ] The first of these cases was Trespass.  The Plf in that got a verdict with Damages but Hill was acquitted.  The second was replevin & the defts had a verdict.  Before the latter case was tried, Dennis was convicted of felony, & before Judgment he assigned [p. 130] the judgment to his attorney Keith.  A motion was now made to allow the Damages in one Action to be set off against the Damages in the other subject to Keiths lien for the costs of the action in which the Judgment was assigned to him.

Per Curiam.  This is an application to the Equity of the Court.  Mr Keith must take the judgment assigned to him with all its equities, & therefore we think the damages in one action may be set off the damages in the other,[3 ] subject to such costs as he w.d have been entitled to as an attorney if the judgmt had not been assigned to him.

Rule Absolute.



[1 ] Later in 1833, a claim was made for a set off against the damages: Sydney Herald, 3 June 1833.

[2 ] Marginal note in manuscript: "Dennis v Solomon & wife & Hill.  Dennis v Solomon & wife, without Hill."

[3 ] Marginal note in manuscript: "See Tidd 991."

Published by the Division of Law, Macquarie University