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Decisions of the Nineteenth Century Tasmanian Superior Courts

Morgan v. Smith [1833]

ejectment

Supreme Court of Van Diemen's Land

Pedder C.J., 14 December 1833

Source: Tasmanian, 20 December 1833 [1]

Mr. Horne for plaintiff, Mr. Gellibrand for defendant.

This was an action of ejectment. The declaration contained 3 counts, all of them setting forth plaintiff's claim to the premises. It appeared the plaintiff purchased the premises in question, at a Sheriff's Sale in 1822, and the defendant occupied them at the time of sale.

Mr. Young, Under Sheriff, examined. - The Sheriff of Van Diemen's Land, when the deed was executed, was Mr. Fereday - this is Mr. Fereday's signature, and the other is mine; this is the bill of sale, transmitted by the Sheriff to Mr. Morgan, the purchaser.

D. McKay, examined by Mr. Horne. - Has applied to Smith for payment of rent, two or three times; he paid it.

William Clark, examined by Mr. Horne. - Is clerk to Mr. Horne; served a declaration of ejectment on declaration, on the lst of November; Smith was angry, and I said he would contest it to the last, as he could prove his right to the premises.

Henry Speaks, examined by Mr. Horne. - Remembers the defendant in this action, offering the lease of the premises referred to in this action, for five years at £50 per annum, and be bound to expend £100 in the course of the five years on it. This was on the 24th of June; Mr. Morgan, said he would not let it on lease, but the defendant might have it at a weekly rent, which Smith declined and flew in a passion, declaring he would not quit the place at all.

This was the case for the prosecution.

Mr. Gellibrand, submitted that the plaintiff must be non-suited, on the ground that no title had been shewn. "No evidence" said the Learned Gentleman, "was before the Court, to shew to whom the property in question belonged, at the time of sale, by the Sheriff." This was warmly opposed by Mr. Horne, who contended that he had shewn that the legal title to the premises, rested with his client.

His Honor decided, that sufficient evidence of legal possession, had not been shewn. - Verdict for the defendant.

Notes

[1] AOT SC26/6 records that the plaintiff was nonsuited.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania