[land law, trespass – trespass to land, possession required for action]

Hand v. Forster

Supreme Court of New South Wales

Dowling C.J., 14 October 1840

Source: Australian, 17 October 1840[1]

            Hand v. Forster and another. - This was an action for a trespass on the plaintiff’s land in the district of Windsor, committed in November, last, by breaking into, and ploughing down, his standing crop of corn. Damages were laid at £50. The defendant Forster suffered judgment to go by default, and the other defendant, Dunn pleaded lst. That he had not committed the trespass; 2nd. That the plaintiff was not the legal owner of the land; and 3rd. That the defendants were in legal possession of it at the time of the alleged trespass. It appeared in evidence that the original owner of the land (a very aged man) had transferred it to the plaintiff by a will made in his favour, upon condition of his maintaining him during the remainder of his life. His Honor directed the Jury to enquiry only into the question as to whether the plaintiff was in actual possession of the land at the time of the alleged trespass, there being no necessity for him to prove a legal title; for it was an old established maxim of British law, that a wrong doer was amenable for doing a wrong upon another wrong doer; the fact of his being so being no justification, but each were accountable for their own acts.

The Jury retired, and returned in a few minutes with a verdict for the defendant Dunn, and for the plaintiff against Forster, damages one shilling.

Counsel for the plaintiff, Mr. Foster; for the defendant, Mr. Broadhurst.