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

Kettle v. Stubbs [1838] NSWSupC 61

felony attaint - married women's legal disabilities, wife of convict - land law, forcible possession - tenancy, waste

Supreme Court of New South Wales

Dowling C.J., 22 June 1838

Source: Australian, 26 June 1838[ 1]

FRIDAY. - Before His Honor the Chief Justice, and Messrs. Kinnear and Ryder, Assessors.

Kettle v. Stubbs - This was an action of trespass: the damages were laid at £500.

The circumstances of the case were these; the defendant, who is a Land and General Agent, leased a piece of ground at Tarban Creek, to one Samuel Kettle, and a written document setting forth the terms of the lease, was executed by either party in August, 1837.  Samuel Kettle took possession, and continued as the defendant's lessee until October following, when the defendant discovered that Samuel Kettle was a prisoner of the Crown, who could not be bound by the lease, and he consequently applied to him, and it was agreed a second lease should be prepared for Mary Kettle, the wife of the former lessee, who was a free woman, and in the condition of becoming bound for the fulfilment of the terms.  A lease was prepared in the rough by the defendant, who gave a copy of it to the plaintiff, (Mary Kettle) in order for her to have a copy made, and the plaintiff agreed to the terms of the lease verbally, but by some neglect it was never signed by either the plaintiff or defendant; and the plaintiff kept in possession.

The premises in question consisted of ten acres of garden and orchard ground, which had been improved by the lessee with valuable imported fruit trees, and one of the terms of the agreement was; that these trees should be carefully preserved, and re-placed, if damaged by the plaintiff, who, however, lived in Sydney, leaving the management of the garden to men who were damaging the trees, and neglecting the garden.  The defendant hearing this, went up to the property, and finding that the reports were true, he saw the plaintiff on the subject, and she consented to give up the place upon payment of the sum of £50 by the defendant, for the crop and improvement made on the premises.  The defendant, however, thought that the sum was extravagant, as, instead of improvement, there had been an actual damage done, but he consented to leave the matter to arbitration, and appointed a person named Mills on his side, whilst the plaintiff called in a person named Pollard, the latter of whom, being perfectly acquainted with the crop, refused to attend to value a crop that was not worth five shiliings [sic], as he stated.  Mills did attend, and valued the crop at about five shillings.  The defendant took possession, and the plaintiff removed all her things and servants from the place, but as the defendant relied upon the mutual agreement for deciding the plaintiff's claim by reference, he refused to comply with her unreasonable demands.

His Honor the Chief Justice in summing up, said that if the assessors considered the voluntary surrender of the place by the plaintiff, and her removing her goods, as an abandonment, they would find for the defendant; but if they considered that forcible possession had been taken, they would then have to consider the amount of damages, if any, sustained by the plaintiff.  The jury without hesitation found a verdict for the defendant, and His Honor remarked that it was a most scandalous action, and ought not to have been brought before the court.



[ 1]See also Sydney Herald, 25 June 1838; Dowling, Proceedings of the Supreme Court, Vol. 151, State Records of New South Wales, 2/3336, p. 161; continued in Vol. 152, 2/3337, p. 1.

Published by the Division of Law, Macquarie University