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

Harris v Riley [1833] NSWSupC 113

tenancy - statute of limitations - Burwood - Court of Civil Jurisdiction, jurisdiction of - equitable jurisdiction, none in early colony - waiver of tort - mesne profits

Supreme Court of New South Wales

Burton J., 7 June 1833

Source: Sydney Herald, 10 June 1833[1 ]

Harris v. Riley. - This was an action brought to recover rent for the Burwood Estate since 1817. - The defendant pleaded first the general issue and the statute of limitation in bar to the action.  The assessors found a verdict for plaintiff for three years rent, at the rate of £150 per annum, subject to the opinion of the Court whether plaintiff had any legal title, and with permission for Mr. Wentworth to move the Court to increase the damages at the above rate.

Messrs. Wentworth and C. H. Chambers for plaintiff; Messrs. Carter and Norton for defendant.

 

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

Source: Sydney Herald, 1 July 1833[2 ]

 

Harris, Executor of Rowley v. Alexander Riley.  This was an action tried during the present term before Judge Burton and two Assessors, for the use and occupation of the Burwood Estate, for 13 years.  The damages were laid at £3,000.

The Assessors found a verdict for plaintiff for £375, being two years and-a-half's rent, at £150 per annum, with leave for Mr. Wentworth to move to increase the verdict at the above rate, subject to the opinion of the Court whether the statute of limitation began to run at the first cause of action accruing, or whether a new cause of action accruing, or whether a new cause of action commenced every year of the tenantcy.

Mr. Wentworth now moved to increase the damages to £1,950, being thirteen years' rent, from 1817 to 1830, contending that the statute of limitation did not apply from the nature of the case, this being an action for use and occupation resorted to by plaintiff, as the only means of getting the defendant, who is in London, before the Court.  The question to be considered here was, whether the cause of action had commenced before Riley left, could he have been sued in 1817 for rent that was to fall due in 18 or 19? certainly not, then the statute of limitation did not begin to run, as there was not then a complete cause of action.

Mr. Norton opposed the motion, arguing, that this was not such a special verdict as the plaintiff would be entitled to increase his damages under.

The Court would look into the case.

 

Forbes C.J., Dowling and Burton JJ, 6 July 1833

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

[p. 147] Use occupation of the Estate called Burwood during a period of 13 years at an unliquidated rent.  Pleas N.G.  2nd. That the cause of action did not accrue within six years.  3d. Set off.  Replication to the stat of Limitations that deft had since the statute began to run, been in parts beyond seas out of the jurisdiction of this Court.  At the trial before Burton J. it appeared that the legal title to the Estate in question was determined in favour of the plf in an action tried in this court 2d Nov. 1832 (vol 78. p 61).  The deft had left this colony in 1817 the adverse posson [sic] commenced in 1812 & returned on 1st. May 1827 being in the mean time in adverse posson.  The demise was laid on 4. Augt. 1830.  The annual value of the estate was estimated at 150£.  The question was whether the stat of limitations began to run in 1817. or only in 1st. May 1827.  The judge was of opinion that it began to run in 1817 & allowed the plf to recover for only 2 & 1/2 years rent, viz from 1st May 1827 to 4.h Augt 1830, & he had a verdict for - 375£ subject to the question whether the [p. 148] plf had the legal title; & with leave to plf to move to encrease [sic] the verdict to the amount of 13 yrs rent, viz from 1817 to 1830. 

Wentworth.  The question as to the plf's legal title has already been determined in his favour, & that question cannot now be raised, & if raised there can be no doubt upon it, as there was no court in this colony at that time possessing an Equitable Jurisdiction.  The only question is when did the statute of limitations begin to run.  The adverse possession began to run in 1812 when the deft was in the Colony, & he left it in 1817.  The rent then due certainly could not be now recovered, because at that time there was a complete cause of action.  The rent however which began to accrue from 1817, & accrued subsequently is now due & may be recovered up to the time of the demise in 1830.  The stat. begins to run only when there is a complete cause of action.  The rent was payable from [p. 149] year to year, & from yr to yr only. -  For the 5 yrs previous to 1817 the stat. wd. no doubt be a bar; but after that, the Deft being out of the Colony, the statute did not attach because till he returned he could not be sued.

Norton.  This being an action in substance in tort, though in form assumpsit, the damage to be recovered is in fact a penalty.  Here there was no contract to payment, & consequently it is for the jury to determine what damages the plf has sustained.  It is an action which sounds in damages, & therefore supposing the Court has any data to go upon, it cannot encrease [sic] the amount of the verdict, without the intervention of the jury.  Here the plf is entitled to recover for the mesne profits only since the legal title was determined in his favour.  Any damage to which he was entitled antecedently to [p. 150] that period, this court cannot now give him, because it may involve questions fit only for the determination of a Jury.  Previous to May 1827 the plf might have brot his action; & duly postponed it till 1830.

c.a.v.[3 ]

For decision see post p. 200.

 

Forbes C.J., Dowling and Burton JJ, 4 December 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[ 4]

 

[p. 200] The judgement of the Court in this case was delivered by

Forbes C.J.  The question in this case was whether the plf is entitled to recover the annual value or the rents & profits of the land in an action of use & occupation from the time the Deft quitted the Colony in 1817 or only for such portion of six years as had accrued due before action brought.  The jury found for the plf the sum of 375£ with liberty to the plf to encrease [sic] the amount of the verdict, at the rate of 150£ per annum if the Court should be of opinion that he was entitled to recover from 1817.  As to the propriety of the form of the action no doubt can be entertained, for the plf might waive the tort & bring assumpsit, which he has done in this case.  (Kerr. 105., T.R. 387 Coup. 419. Bull N.P. 88. 2 Phil. Ev. 211. 11 East. 485. 2 Salk. 420 2 Alk. 281. 3 Do. - 124.)  If the cause [p. 201] of action is divisible for any portion of the 6 years before action is brought, it must also be divisible for any portion of the time since 1817.  We are of opinion that it is competent to the plf to establish his claim to mesne profits from the time the Deft was out of the jurisdiction of the Colony namely in 1817 & therefore the damages in this case must be encreased according to the finding of the jury at the rate of 150£ per annum.

Judgement for the Plf.

 

Notes

[1 ] See also Doe dem. Harris v. Riley, 1832.

[2 ] See also Sydney Herald, 8 July 1833; Sydney Gazette, 9 July 1833.

[3 ] Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

[4 ] The Australian, 6 December 1833, reported this decision as follows: ``Harris v. Riley - In this case the question was, whether the Plaintiff was entitled to the back rents of the Burwood Estate for a longer period than six years, in an action for use and occupation, having established his right to the possession of the Estate, by a previous action of ejectment - The Court gave judgment for the Plaintiff, thereby awarding him £1,500."

Published by the Division of Law, Macquarie University