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

Fair v. Linley (1843) NSW Sel Cas (Dowling) 720; [1843] NSWSupC 7


Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 20 April 1843

Source: Dowling, Select Cases, Vol. 6, S.R.N.S.W. 2/3464, p. 351.

Where a tenant of a dwelling house holding over received a notice to quit from the landlord; held that the landlord may resume possession if he can obtain it peaceably, but not otherwise.*

Trespass. The first count of the declaration stated that on 16th May 1842 the defendant with force and arms broke and entered plaintiff's dwelling house, made a great noise therein and then forced and broke open and broke to pieces two doors belonging to the house, broke to pieces, damaged and spoiled divers locks, bolts and hinges belonging to the doors, and also broke to pieces divers articles of furniture (enumerated) and carried away and converted and disposed thereof to his own use and also ejected the plaintiff and his family from the possession and enjoyment of his house.

Second count for a like trespass on the 17th May, in breaking and entering plaintiff's dwelling house, removing the roof thereof and spoiling divers shingles and battens. Third count for a like trespass in breaking and entering the dwelling house on the 31st May and pulling down the walls thereof and damaging divers weather boards. Fourth count for an assault and battery and tearing plaintiff's wearing apparel in the way last mentioned.

Pleas not guilty to all the counts. Secondly, as to the breaking and entering the dwelling, breaking the doors, breaking locks and seizing and converting furniture in the count mentioned, and as to the second and third counts, that the said dwelling house in the first, second and third counts respectively mentioned, are one and the same and not different dwellings and that at the several times when &c the same was the soil and freehold of the defendant, wherefore in his own right, he committed the several alleged trespasses in the first, the second and third counts respectively mentioned and because the goods and chattels in the first count mentioned had been wrongfully placed and were remaining in the dwelling incumbering the same, he in his own right in order to remove the said incumbrance carried them out of the house to a convenient distance doing no unnecessary damage to plaintiff, as he lawfully might, for the causes aforesaid, concluding with a verification. And thirdly, as to the first count, except so far as the same relate to the carrying away and converting the goods and chattels, that the plaintiff was not at the time when &c possessed of the dwelling in which &c in manner and form as alleged.

The replication took issue in the first plea. And as to the second, replied that although true it is that the dwelling house in which &c the said plea is mentioned now is and was the freehold of the defendant, at the several times when as yet the defendant had before then to wit, on the 1st January 1842 for certain considerations then agreed upon between them, put the plaintiff into the lawful, quiet and sole possession of the same, and he continued in such lawful, quiet and sole possession of the same, until the said several times when &c and was in such lawful, quiet and sole possession, and was in the actual, personal occupation of the same by himself and family at the said several times when &c, concluding with a verification.

Rejoinder. That after plaintiff was so put into possession of the said dwelling house in which &c as stated in the replication and before any of the said several times when &c to wit, on the 1st May 1842, defendant gave and delivered to the plaintiff a legal and sufficient notice to quit the said dwelling house in which &c within a certain time. Next, after the giving such notice, and which time and notice had elapsed long before any of the said several times when he concluded with a verification. Demurrer to the rejoinder, assigning for cause that it confesses but does not avoid the matter of the replication and that the supposed matters of avoidance put forth in the rejoinder are no legal answer to the admitted facts set forth in the plaintiff's pleadings. And that the defendant's defence as shewn in the rejoinder is mere subject matter for an action of ejectment, but no justification for his taking the law forcibly into his own hands. Joinder in demurrer.

Dowling C.J. This demurrer was argued before us on the 20th January last. The substantial question raised on these pleadings was whether the tenant of a dwelling house, holding over after due notice to quit, may maintain trespass against his landlord for turning him out of possession without being guilty of a breach of the peace.

It was conceded on the part of the defendant that in order to regain possession the landlord had no right to break the outer door, nor do any act of violence whereby a breach of the peace might be involved. That the defendant had an indefeasible right of re-entry was admitted on the pleadings, and the sole question was whether the mode of exercising the right was unlawful, so as to render him liable in trespass. The strength of the plaintiff's case rested upon the allegation in his replication, that at the time of the supposed trespass he was in the actual peaceable occupation of the house by himself and family. In the replication there is no breach of the peace alleged nor any entry with such violence as would lead to a breach of the peace. After the time of the notice to quit had expired, the plaintiff must be regarded as a trespasser on his landlord's possession, which, it is clear, the latter might resume in a peaceable manner.

A great variety of cases have established first, that a party entered upon whose term has expired, cannot maintain trespass quare clausum fregit against his landlord. And secondly, that a landlord may resume possession if he can obtain it peaceably, but not otherwise. It may be true that no case has gone so far as to justify landlords in committing an assault or using a strong hand in retaking possession. In this case however, this feature is wanting and we are not called upon to determine what would be the result if the possession were taken by violence. The cases upon this subject were brought under careful review in Newton v. Harland (1840) [ Newton v. Harland (1840) 4 Man. & G. 644, 133 E.R. 490 ] and although the point now adverted to was not finally decided, the Court held that where a tenant remained in possession after the expiration of his term, the landlord was not justified in repelling him by force in order to regain possession. However it was taken for granted in that case, that without violence a landlord might resume possession peaceably. The moot point there was whether the assault committed in taking possession was not a criminal act, which would render the party liable merely to a criminal prosecution.

The circumstances disclosed in these pleadings present the simple case of a tenant holding over against his landlord after his tenancy has been determined by a regular notice to quit and the landlord resumed possession in a quiet and peaceable manner. The landlord has a right of possession and he appears to have peaceably asserted it, without transgressing the laws of his country, that is, has been guilty of no breach of the peace, or other act of violence inconsistent with the welfare of society. This is not in the language of the demurrer "taking the law forcibly into his own hands". It is nothing more than a peaceable assertion of a perfect right and although the defendant might have brought ejectment, yet it is settled law that there is no case in which a party may maintain ejectment in which he cannot enter provided it be in a peaceable and easy manner. Regarding this therefore as a peaceable entry upon an over holding tenant, we are bound to determine on all the authorities, that this action is not maintainable and judgment on demurrer must be given for the defendant.

Judgment for the defendant.

Published by the Division of Law, Macquarie University