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

Samuel v. Hoadley [1841] NSWSupC 33

wrongful distress - damages, assessment of

Supreme Court of New South Wales

Dowling C.J., 16 March 1841

Source: Sydney Herald, 17 March 1841[1]


            TUESDAY. - Before the Chief Justice and a common jury.

            This was an action brought to recover compensation for a wrongful distress.

            Counsel for the plaintiff, Mr. Windeyer; attorney, Mr. E. D. O'Rielly; counsel for the defendant, Mr. Broadhurst; attorney, Mr. Norton.

            Mr. Windeyer commenced the proceedings by informing the jury, that the plaintiff was William Samuel, and the defendant Mary Hoadley, that as the defendant had allowed judgement to go by default, it was evident no defence was to be offered to the action; the only thing which they jury would have to do, would be to assess the damages. The plaintiff was by trade a butcher, and rented some premises from the defendant, who put in a distress for £4 8s. 6d. for rent, before it could be legally claimed; the jury was therefore bound to give his claim, not only a verdict for £4 8s. 6d., but also to compensate him for the annoyance and inconvenience which he had been subject to by the bailiffs being put into his premises, and remaining there for two days.

            Mr. Yaunton, proved having made tender of all the rent legally due at the time when the distress was made.

            Mr. Broadhurst appeared in mitigation of damages, and submitted that the present mode of assessing damages was not that usually followed, as all that was necessary was to have them determined by assessors, and he trusted that the jury would only give such damages as the plaintiff proved he had sustained.

            In putting the case to the jury, his Honor said the jury were by the conduct of the defendant warranted in giving a verdict for the £4 8s. 6d. which had been, by the admission of the defendant, illegally distrained for, together with such damages as would compensate him for the injury, inconvenien[c]e, and annoyance, which he had sustained by the unlawful act of the defendant levying on his property without any cause for doing so. The law he said, gave the landlord a greater power and authority in recovering rent than to almost any other description of creditor, which had probably its origin in the fact that the landlord had it in his power, by furnishing not only a place of residence, but also so long as the landlord and tenant kept on good terms, it became a very difficult matter for any other creditor to come in by a summary proceeding and recover his debt, except by going through the regular process of the court.

            The jury retired for about five minutes and returned a verdict for the plaintiff, damages £10.

            Mr. Windeyer requested his Honor to certify for a common jury, as that mode of getting the case tried had been mutually agreed to by both parties. His Honor certified.


[1]              See also Australian, 18 March 1841.

Published by the Division of Law, Macquarie University