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

Solomon v Talbot [1836] NSWSupC 16

trespass to land - assault, civil - land law, title - succession - conveyancing, informal - self-defence, trespass to land

Supreme Court of New South Wales

Forbes C.J., 8 March 1836

Source: Sydney Herald, 14 March 1836[ 1]

Tuesday. - Solomon v. Talbot and others. - This was an action of trespass for breaking and entering the plaintiff's close, and also for assaulting the plaintiff's person.  The declaration contained three counts; to the first two the defendant pleaded liberum tenementun, and to the third, moliter manus imposuit.[ 2]

It appeared in evidence for the plaintiff, that in the year 1827, a man named Donnelly, now deceased, was the possessor of a farm of thirty acres of land, at Banks-town, on the Liverpool road; and that he made over the same, by deed, to one Thomas Colls, a publican, in consideration of his note for thirty pounds - conditioned that he (Donelly) should be allowed to continue on the premises ``during his life, or so long as it suited his convenience."  Colls died before Donnelly, and bequeathed, by will, the reversion of this farm, among other property, to his widow, as executrix jointly with other persons, to receive the rent until his eldest son had attained his majority.  After Donnelly's death, the defendant, claiming under a will of the deceased, purporting to have been executed at a date prior to the deed conveying the property to Colls, took possession of the land by cutting down a tree, placing a man to reside upon it, and erecting some fences; but how long this actual occupancy continued did not appear.  In the mean time, the widow and executrix of Colls intermarried with the plaintiff, and he instituted proceeding, by action of ejectment, under the deed, to recover possession from the defendant Talbot.  By the recommendation of his legal advisers, however, these proceedings were not gone on with, and he took unopposed possession of the land, which was then vacant, built a hut upon it, and erected new fences; but it appeared that on the day stated in the declaration - he having been up to that time in quiet occupation of the premises for upwards of six months - the defendant came to the farm, pulled down the fence, drove a dray through it, and committed the assault on the plaintiff by inflicting a severe wound on his head with a large stick - he, at the time, doing no more than attempting to keep off the alleged trespassers.

On the part of the defendant, it was urged, and attempted to be proved by witnesses, that the plaintiff was himself the trespasser - that the deed under which he claimed was void, inasmuch as the deceased man, Donnelly, had signed it when in a state of intoxication, and that, in fact, he had received no consideration whatever for the property.  It appeared that Donnelly continued to reside on the farm for some time after the death of Colls, until his habitation was accidently burnt down; he then came to Sydney, and lived for a short time with the defendant, Talbot, who kept a public-house, and there made the will by which he devised the land in question to Talbot, and under which the latter claimed.  The will was produced in evidence, but thought it purported to have been executed in 1826, the water-mark of the paper upon which it was written bore date in 1829 - and, in fact, the will was not really executed until the year 1832.  This circumstance, however, was attempted to be explained by one of the witnesses - the person who drew the will - who stated that the deceased put into his hand a rough draft, or memorandum of a will, purporting to have been made in 1826; and told him to draw a will in proper form and ante-date it according to the rough copy.  In reply to the plaintiff's case, witnesses were also brought forward to show, that, in fact, the note given by Colls as a consideration for the farm to Donnelly, was never taken up; but it also appeared on the other side, that the reason alleged for non-payment, was that Donnelly was, at the time, indebted to Colls in a large amount for goods supplied to him - and the fact of Donnelly having presented the note for payment several times, was relied upon as evidence to show that, although he might have been drinking when he sold the farm, he was not in a state which incapacitated him from knowing what he was doing.

The Chief Justice summed up the evidence with great minuteness; but the substance of His Honor's charge was to this effect. - This, he said was a possessory action, and the title of a person in the actual possession of property was good against all others until a better title was proved.  The present case involved two distinct causes of action - namely, the trespass, or breaking the plaintiff's close, as it was technically called, and the assault upon his person.  With respect to the first, he thought there was sufficient evidence to show that the plaintiff was in actual possession of the property in question, at the time when the alleged trespass took place.  The Assessors had heard the evidence in support of the title, under the will, which the defendant set up; and supposing that will to have been executed as stated by the witnesses, the fact of its having been ante-dated would not at all invalidate the instrument, inasmuch as, a will, no matter when it was dated, could only take effect from the time of the death of the testator.  But then, on the other hand, the Assessors were to look at the evidence in support of the plaintiff's claim under the deed which had been proved before them.  If they were of opinion, that that deed was made by Donnelly, with the full knowledge of what he was doing, and not at all under the influence of Colls, aiding in making him intoxicated for the purpose - the deceased could not, of course, devise property by his will, which he had already parted with.  This, however, was entirely a question of evidence for the Assessors.  With respect to the other count in the declaration, charging an assault, to which the plea, moliter manus imposuit had been put in, His Honor was of opinion that that plea did not meet the proof on the other side; and that, however, the Assessor might deal with the other part of the case, they would feel it their duty to find a verdict for the plaintiff on that count.  Even if the plaintiff were a trespasser, it was the right of the defendant merely to warn him off, and, in the event of a refusal to (in the words of the plea), gently lay his hand upon him and remove him.  The law did not warrant the use of any greater violence than was absolutely necessary for the purpose.  Here were four or five persons who, it must be presumed, might have easily removed the plaintiff without committing an assault which was described to be of a very serious nature.  The law allowed no more force than was absolutely necessary to effect the purpose intended; and if any act of the plaintiff - any violence used by him - rendered a corresponding violence on the other side necessary, the plea ought to have gone on to state so.  But, certainly, in this case, the plea of moliter manus imposuit by no means met the evidence on the other side.  There appeared to have been that degree of unnecessary force and violence resorted to, which the law would by no means uphold; and, therefore whatever opinion that Assessors might form upon the other parts of the case, he thought the plaintiff was entitled to their verdict on the third count.

The Assessors found a general verdict on the whole of the counts for the plaintiff, damages £10.

Mr. Foster requested His Honor to put it to the Assessors to say what proportion of damages they gave on each particular ground of action.  He made the application to prevent the necessity of the parties coming again into Court.

The Solicitor-General objected.  The Assessors had found a general verdict.

Mr. Foster submitted that he had a right to have the application granted.

The Chief Justice agreed with Mr. Foster, and again put the case to the Assessors, who returned a verdict for the plaintiff, damages £5 on the first two counts of the declaration, and £5 on the third.

All the defendants, save Talbot, allowed judgment to go by default.

Counsel for the plaintiff, Mr. Foster and Mr. Windeyer; for the defendant, the Solicitor-General and Mr. Therry.



[1 ] See also Sydney Gazette, 15 March 1836; Australian, 11 March 1836.

[2 ] He laid his hands on mildly.

Published by the Division of Law, Macquarie University