Skip to Content

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

Tomkins v Smith (No 2) [1833] NSWSupC 58

trespass to land - damages, exemplary - schools

Supreme Court of New South Wales

Burton J., 13 June 1833

Source: Sydney Gazette, 15 June 1833[1 ]


Before Mr. Justice Burton, Thomas Icely and John Lamb, Esquires, Assessors.

Thompkins v. Smith - This was an action of trespass against the defendant, for forcibly entering the bed-room of the plaintiff, having broken the door with an axe. The declaration contained several counts.  The defendant pleaded, 1st, the general issue; and 2d, a justification on the ground of having effected the said forcible entry in virtue of his capacity as executor for the late Mrs. Garratt.

Mr. Keith opened the case.

The first witness called was Samuel Nolbro - I know the plaintiff and the defendant in this action; I know a house in Prince-street, occupied in March last by Mrs. Rogers, the sister of Mrs. Thompkins, and the daughter of the late Mrs. Garratt; on the 1st of April, Dr. Smith came to the house with the intention of breaking open the door; I begged him to be calm as Mrs. Thompkins was in the room, and captain Thompkins not at home; he knocked at the bed-room door, which not being opened he went to the school-room door and gave it several strokes with an axe; Captain Thompkins arrived shortly after, when Mrs. Thompkins rushed out, and a scuffle ensued between her and Dr. Smith; Captain Thompkins took Mrs. Thompkins away, and then Dr. smith broke the bed-room door open with an axe, and we went in; he desired me to take an inventory of the goods in both rooms; I was put in possession of the rooms from Saturday until Tuesday; I slept in Mrs. Thompkins' room and in her bed as I supposed; I had known Mrs. Thompkins to be in possession of those rooms sixteen of seventeen months, ever since I have known her; Mrs. Garratt has been dead about twelve months, and previous to her death and since, up to that time, she has enjoyed the possession of them; I have seen Dr. Smith at the house previously to this occurrence two or three times a-day; I have seen him go into Mrs. Thompkins' room when she has been ill to attend her; there were two other persons put in possession of the room besides myself; their names were Maken and Kenny; on the following day, as assigned servant of Dr. Smith's, named Walsh, was put in, and afterwards a man named Peter Hughes, and another named M'Cann were put in; I did not understand the motive of Mr. Westgate's application to me; he came to me when I was in bed; I took an inventory of the things, but there was nothing taken out of the room to my knowledge; there was a sofa in the room, but Kenny slept upon it; Walsh and M'Cann were I the school-room; I do not know of there being any other person in the house.

Cross-examined by Mr. Foster - I know Mrs. Garratt; I know Dr. Smith to be an executor, but do not know of my own knowledge that the creditors were urgent on Dr. Smith to sell off the things, there was no property of Mrs. Garratt's in Mrs. Thompkins' rooms, except a mattress that had been a matter of dispute between Mrs. Garratt's and her daughter; I speak as to my own knowledge of the property in Mrs. Thompkins' rooms.

Francis Green - I know Captain Thompkins; in April last I went with him to a house in Prince-street; when I went in there were two persons in his bed-room; they were sitting down, one on a chair, and the other on a sofa; Captain Thompkins ordered them out of the room three times; they refused to go.

Cross examined by Mr. Foster - I do not know who the men were.

Ellen Lyons - I am a free woman; I have been about 9 months in the colony; I now live in the service of Mrs. Rogers, in Prince-street, with whom I lived in April last; I know Dr. Smith, and have frequently seen him visit Mr. Rogers; I saw him at the house on the 1st of April; he went to the school room door and struck it with an ace; after which he went to the bed-room door and broke it open with the axe; he had four or five men with him; I don't know how long they remained in the room after the door was broken open; there was a great noise in the passage, and a medical gentleman, Mr. Wallace, was sent for to attend Mrs. Thompkins who was taken ill.

John Westgate - I know the plaintiff and defendant; I have been an inmate in the family of the plaintiff for 3 or 4 years; I know the two rooms in question, in the house of Mrs. Garratt, they were occupied by the plaintiff in April last; they have been in the possession of Mrs. Thompkins, since 1829; Dr. Smith frequently visited at the house, both before and since the death of Mrs. Garratt.

Cross-examined by Mr. Foster - I am well acquainted with the family of Mrs. Garratt; I used to manage her affairs for a long time before her death; I have heard from Mrs. Thompkins, that the house was rented from Mr. J. T. Hughes; I have also heard from Mrs. T., that Dr. Smith say that the creditors were urgent that the effects of Mrs. G. should be turned into money for the satisfaction of their claims.

By Mr. Keith - I went into Mrs. Thompkins' bed-room, on the night the door was broken open; Capt. Nolbro was in the bed and the room was in great confusion.

Mr. Justice Burton. - really, Mr. Foster, you cannot justify such conduct as has been detailed in evidence on the ground of the defendant being an executor.

Mr. Foster for the defendant, contended that he was entitled to a nonsuit on the ground, that the declaration set forth, that the house was in the occupation of Mrs. Rogers, and it had not been proved by the other side that an exclusive possession had been vested in the plaintiff, who consequently could not sustain an action for trespass.

His Honor observed, that the plaintiff had not adduced evidence of exclusive possession, yet he was of opinion sufficient had been offered on the testimony of the witness Mr. Westgate, to warrant the assumption, that the plaintiff enjoyed exclusive possession of the rooms, which he would hold good.  However, he would reserve the point, which might be the subject of a motion on a future day.

Mr. Foster, in addressing the Assessors, remarked on the character of the trespass complained of, which must have been of a nature simple indeed, under the circumstance of which a man could stand tamely by without offering the least resistance.  If he had kicked the defendant out of the house, it would have excited no surprise in the mind of any one; whereas the line of conduct pursued by the plaintiff could not but excite surprise.  It most unquestionably established the improbability of the case.

His Honor, in submitting the case for the consideration of the Assessors, observed, that as the case was undefended, the only matter for their consideration was the amount of damages which should be awarded.  If they were of opinion that the defendant had acted from a desire to oppress and insult the plaintiff, it would be their duty to give heavy damages; if, on the contrary, they were of opinion that the defendant had so acted from mere error, which error he had desired to correct, of course light damages indeed would satisfy the justice of the case.  The plaintiff had, in law, established a possession, and was well qualified to sustain the present action; the act of the defendant was a most unjustifiable one, in which the plaintiff had sustained both injury and insult, and it was for them to return a verdict uninfluenced by any consideration but the evidence before them.  The Assessors returned a verdict for the plaintiff damages £50.[2 ]


Forbes C.J., Dowling and Burton JJ, 25 June 1833

Source: Sydney Gazette, 27 June 1833


Thompkins v. Smith. - This was an action of trespass, quare clausam fregit, tried during the present term, brought against the defendant for forcibly entering the doors of two rooms occupied by him, in a certain house in Prince-street, when a verdict was returned for the plaintiff, damages £50.

Mr. Foster, on behalf of the defendant, moved that the verdict be set aside and a nonsuit entered, on the ground that an exclusive possession of the two rooms, as vested in the plaintiff was not proved, and he therefore was disqualified from maintaining an action for trespass, the house being at the time in the occupation of Mrs. Rogers.

The Court read over the evidence of a Mr. Westgate, a witness on the trial, and expressed its opinion that an exclusive possession on the part of the plaintiff was fully established, and the verdict must stand.


Forbes C.J., Dowling and Burton JJ, 25 June 1833

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


[p. 112]Trespass quare clausum fregit.  Plea N.G. & justification that plf had not exclusive possession of the locus in quo.  At the trial before Burton J. it appeared in evidence that the Plf & his wife exclusively occupied two rooms in the house of  Mrs. Rogers rented of one Hughes.  The deft broke & entered these rooms & committed the trespass complained of.  It was contended that this was not such an exclusive possession as can enabled the plf. to maintain trespass.  The Plf. however, had a verdict for 5£ under the directions of the Judge.

Foster now moved for a new trial; but

The Court had no doubt upon the point.

Rule refused.[ 3]



[1 ] See also Sydney Herald, 17 June 1833; Australian, 14 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 98.  On the provision of a special jury in this case, see Sydney Herald, 3 June 1833; Sydney Gazette, 4 and 17 June 1833; Australian, 7 June 1833; and see Sydney Herald, 17 June 1833; Australian, 21 June 1833.  On the dispute between these parties, see also R. v. Tomkins, 1833; Tomkins v. Smith (No. 1), 1833.

On 22 June 1833, Mr Keith moved for a new trial in this case, on the ground that the verdict was contrary to the evidence: Sydney Gazette, 25 June 1833.  Smith also attempted to sue Tomkins, but failed because his case was not prepared in time: Sydney Herald, 24 June 1833; and see Sydney Herald, 24 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 44.

[2 ] The Sydney Herald, 17 June 1833 reported the following: "Judge Burton, in summing up, told the Assessors that there was no defence to the action, neither could there be, the act was totally unjustifiable; if they considered it a wanton act of oppression committed by defendant under the guise of an Executor, they would give larger damages than if they considered it an error, which defendant was anxious to get rid of as fast as he could."

[3 ] Marginal note in manuscript: "See 16 Earl 33.  Pilcher v Corey Ante vol. 67. p. 110."

Published by the Division of Law, Macquarie University