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

Doe dem. Taylor v. Roe [1840] NSWSupC 31

ejectment

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, in Banco, 12 June 1840[1]

Source: Australian, 16 June 1840

Doe dem. Taylor v. Roe.  In this case of ejectment, the lessor of the plaintiff had obtained in the early part of the term a judgement against the casual ejector, but neglected to take out execution before a plea was filed in defence of the action by the landlady of the premise in dispute, Mrs. Sarah Aiken.  The execution, when applied for, was refused by the officer of the court, where upon, on motion, a rule nisi was granted to shew cause why execution should not issue.  Mr. Darvall shewed cause.  The attorney for the landlady of the premises, Mr Want, put in an affidavit, setting forth that he had been in due time instructed by Mrs Aiken to defend the action, but that having mislaid the papers, he was prevented from filing a plea in due time.  He further deposed that his client had a meritorious defence to the action.  Counsel for Mrs Aiken further objected against certain irregularities in the wording and service of the notices upon the tenants in possession.  Mr Cheeke supported that motion, but their honors were of the opinion, that as an affidavit of merits was filed, the rule should be discharged with costs of the application, the declaration to be amended, the defendant to be let in to plead, and to take a short notice of trial.

            Doe dem Taylor v. Roe. - This was a motion by Mr Darvall, on behalf of Mrs Aikin, arising out of the same circumstances as the last case. The lessor of the plaintiff in this case, had obtained a judgement against the causal ejector, and sued out a writ of habere facias possessionem, and had been let into possession of the premises in dispute.  An affidavit was put in, in support of the application, setting forth that the landlady, Mrs Aiken, had never received the notice of ejectment said to have been served on the tenant in possession, Bernard Farrell, otherwise she would have defended the action, against which she was advised she had a meritorious defence.  Another affidavit alleged that since the demise laid in the declaration, and before the writ of possession was taken out, a conveyance of the property in dispute (sworn to be worth £600), was executed by the lessor of the plaintiff, to his attorney, in the action, Mr. Charles Wild for a consideration of £20.  Mr Darvall moved for a conditional rule calling upon the Sheriff to restore possession of the premises, on the ground of collusion and fraud between the lessor of the plaintiff and the tenant in possession, and he submitted that the enquiry which the granting this motion involved, was necessary, even on the part of Mr Wild, so that he might have an opportunity of explaining what was alleged against him.  The Court granted the rule nisi, returnable on Saturday next.

Dowling C.J., Willis and Stephen JJ,  26 June 1840

Source: Australian, 30 June 1840[2]

            Doe dem Taylor v. Roe. - This was an enlarged rule granted to shew cause why the judgment obtained against the casual ejector, and the writ of habere facias possessionem sued out thereon, should not be reversed, and the landlady of the premises in dispute, be let in to defend the action; on the ground of irregularity. It appeared that no less than seven actions against various tenants in possession of the premises in dispute, had been brought, in six of which judgments against the casual ejector had been obtained, but the writ of possession was taken out against the one tenant (Bernard Farrell), against whom judgment was not obtained at all, but whose name it appeared had been substituted, from some clerical error in the notices of service, for another tenant named Walker. The only question of difficulty appearing to their Honors was, whether Mrs. Sarah Elizabeth Aitken, the landlady of the premises, had made out a sufficient case upon affidavit, to shew that she had a locus standi in Court. After hearing Mr. Darvall in support of the motion, and Mr. Windeyer against it, the Court granted the motion upon payment of costs, observing that there was much disputable matter as to the title to the premises in dispute which it was fit for a Jury to decide. 

Notes

[1] See also Sydney Herald 10 June 1840 

[2] See also Sydney Herald 29 June 1840\

 

Published by the Division of Law, Macquarie University