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

Flannigan v Hoskison [1835] NSWSupC 81

tenancy, termination of - conveyancing, informal

Supreme Court of New South Wales

Burton J., 12 October 1835

Source: Australian, 16 October 1835

Monday. - Before Mr. Justice Burton, and a Common Jury.

Flannigan v. Hoskison - This was an action of trespass alledged to have been committed upon a farm occupied by plaintiff in the neighbourhood of Richmond. - Damages laid at £200.  The defendant pleaded in the first instance the general issue; in the second that it was not the property of the plaintiff; in the third that it was the property of William Cox, Esq.; and fourth that he committed the trespass with the leave and license of the prosecutor.  To the first plea plaintiff had joined; to the second that it was not the property of the defendant; to the third that Mr. Cox had no interest in the property, except that which he derived from Jane Hallen, who let the property to plaintiff; and to the fourth that he had given no leave.  To these replications, the defendant had rejoined, to the first, second, and fourth; and on the third contended, that Mr. Cox had a right, beyond that which he derived from Jane Hallen.  From the evidence it appeared that plaintiff, in conjunction with a prisoner of the Crown, named Cullen, had taken the farm (on which the trespass was alleged to have been committed) for two years, from Jane Hallen, in the month of April, 1832, at the yearly rent of £15; two or three days afterwards, Mrs. Hallen assigned to W. Cox, Esq (to whom plaintiff paid his rent) the lease of the said farm.  About six months before the lease expired, Flannigan came to Sydney and joined the police force, leaving Cullen on the farm; in the month of March, 1824, Mr. Cox sent a servant to Cullen, to know when he (Cullen) would have any corn ready for the rent?  Cullen sent for answer, that as his partner had left him, he was willing to give up the farm, if Mr. Cox would take the corn then standing, for all arrears of rent.  To this Mr. Cox agreed; but no written acknowledgment was made as to cancelling the lease; in a few days after this, Mr. Cox let the farm to a Mr. Fitz, who took immediate possession, and gave the defendant leave to turn in a few cattle upon it, where some rough grass was growing; defendant availed himself of this privilege, and by so doing, committed the alleged trespass which gave rise to the present action.  The plaintiff endeavoured to show that his lease was unexpired at the time the cattle were turned in, and that the damage he sustained by the defendant's cattle, amounted to £50 or upwards.  The defendant's witnesses, however, in estimating the whole value of the grass varied from £5 to £18.  It was further shown on his part, that Mr. Cox not only held an assignment of lease from Jane Hallen, but a subsequent assignment from John Rowland Edwards, a son of Mrs. Hallen, by a former husband (from whom she had derived the property.)  This son was heir at law to her former husband, and she only held it during his minority.  It was held on the one part, and not disputed by the other - that it was a point of law, that no lease could be considered cancelled without a written acknowledgment being entered into by both parties.

Mr. Justice Burton in putting the case to the Jury, particularly called their attention to this point, and observed, although it was a question of law as to the full effect and condition of the lease not being cancelled without a mutual written agreement, yet, still it was a question of fact for them to determine whether the plaintiff had given up the farm to Mr. Cox; if they found he had, than any person to whom Mr. Cox might give leave to go upon the land, had, in all plain matter of fact construction of terms, the leave and license of the plaintiff for so doing.  That was the chief point he submitted for their consideration.  If they found that fact established, then they would find for the defendant.  If otherwise, then they would find what damages plaintiff was entitled to.

Mr. Wentworth (whilst the Jury were absent) who was Counsel for defendant, submitted, that if the Jury found for the plaintiff, he would only be entitled to half the damages, the co-plaintiff being a prisoner of the Crown.

Mr. Justice Burton observed, that when the Jury returned - and if they found for plaintiff, he would send them back to reconsider the amount.  The Jury, however, returned into Court with a verdict for the defendant.

Mr. Justice Burton certified that it was a proper case for a Common Jury. - Monitor.

Published by the Division of Law, Macquarie University