Doe dem Enoch v Nedby, 1840

Mr. Young in the absence of the Solicitor General, who had been taken suddenly ill, moved the Court for a rule to stay all proceedings in this case until the lessor of the plaintiff (Enoch) and his attorney Mr. Daniel Sutton should answer certain matters contained in the affidavits of Messrs. Strachan and Robertson, upon which the present motion was made. Before reading those affidavits he would observe that the man Nedby upon whose notice of ejectment had been served in this case was not tenant in possession, and had nothing whatever to do with the case although a rule for judgment had been obtained by his default. The affidavits stated that Mr. Richard Strachan was seized and possessed as heir at law of his late father certain lands of which 50 acres of which, originally pointed out to one Baynes, but were purchased by the late Mr. Strachan of G.W. Evans Esq. late Survey General, and another portion granted to Mr. Strachan himself. That of these lands a portion not exceeding 12 acres had been occasionally occupied by three several persons as tenants under Strachan or trespassers, the last of whom being Nedby, the defendant, further stated that Enoch some time since applied for a certain grant, which would have included 42 acres of the land of Mr. Strachan, being that in dispute and some other but that the commissioners had decided that he had no claim, the chairman having examined the boundaries on the spot. That Mr. Sutton being the Attorney for Enoch must have known all these facts, and that Enoch was an ignorant man non-capable of giving instructions for such a proceeding as the present. Mr. Young assumed that Mr. Sutton knowing there might be a defect in Strachan’s title had resorted to this method of getting possession of the Land in order to compel Strachan to bring his action, when it was possible he might fail in his title.

Their Honors both coincided in their reprehensions of Mr. Young’s manner, in thus speaking of any Gentlemen of the profession in his absence, and declared their determination not to call upon Mr. Sutton for any explanation; but after the manner in which he had been attached they considered it due to him, to hear any thing he had to say upon the subject. A great deal of very unnecessary and improper matter, had been included in the affidavits, for the purpose of impugning the conduct of Mr. Sutton, which ought never to have been brought forward, and Mr. Justice Montagu observed, that he would never grant a rule upon any such proceeding, and put the parties to the expense and trouble of obtaining office copies of and answering such affidavits. Besides there would be no getting through the business if the Judges were to receive papers of that kind. Affidavits upon affidavits would be filed before them and to no purpose. On the whole he saw nothing improper in the conduct of Mr. Sutton as disclosed in the affidavits. He did not appear to have done any thing more than his duty to his Client, and the Court would not therefore grant the rule sought. The parties might consider themselves well off, if the Court enlarged the previous rule, till the next sitting of the Court, in order to give Mr. Young an opportunity of moving if he thought proper for Mr. Strachan to be left in as defendant on an amended affidavit.

A rule was granted in this case on the motion of the Solicitor-General, to show cause by Mr. Strachan the landlord, either by himself or in conjunction with the real tenants in possession, should not be allowed to come in and defend this action, on the ground that Nedby, on whom the notice was served was not tenant in possession. The judgment rule previously obtained, was further enlarged to allow the present question to be decided.

Mr. Browne showed cause against a rule obtained by the Solicitor General, calling upon Enoch, the Lessor of the Plaintiff to show why Mr Richard Strachan should not be made a Defendant with the Tenants in possession with the view as the learned counsel explained, to enable him to put the Lessor of the Plaintiff in a situation to be compelled to show his title to the lands in question, which his own immediate tenants, to whom he had demised could not dispute; whilst he (Strachan) possessed no inherent title in himself to put the Lessor of the Plaintiff on such proof.

The fact of the case as appeared by the affidavits of Enoch, Webster, and Slough, filed on part of the Plaintiff, were, that the lands in question, 40 acres originally located and measured to William Ross, a Norfolk Island settler in 1833, and by him devised to Enoch, were by the latter let to Nedby and wife at their own particular request in 1885. They had paid some rent, but a considerable sum being due, Enoch was obliged to put in a distress, on which occasion they, required a months’ indulgence, which Enoch agreed to give, on they signing an undertaking for that purpose (but this was subsequently refused) notice to quit was given and this section of Ejectment brought for the recovery of the Land. Two other persons named Hounslow and Jennings were put in by Mr. Strachan, who claims a right to this Land, and called these persons his tenants, and wished to be himself let in with them to defend the action. Mr. Browne denied that Jennings and Hounslow were the real tenants. Nedby and wife were the real tenants, and he denied that they could give up the possession to Strachan, or “by collusion” with him and Mr. Gilbert Robertson his “Fidus Achates allow him to take possession.” He cited the II George 2d ch 19, which was passed to prevent the very act committed by Nedby. By that Act it was provided that an attornment by a tenant to a Stranger claiming title to Lands was void, and that the possession of the Land should not thereby be affected. He further cited the case of Doe v. Lady Smith 4th Maule and Selwyn, in every particular similar to the present, in which a third person claiming title to Land was not allowed to come in and defend. Mr. Browne, then proceeded to shew the great danger of allowing a person to become a tenant to collude with others, and thus turn a landlord out of possession, and throw upon him the burthen of bringing an action to establish his title, (in the present unsettled state of the law as to titles of this Colony) and regain possession of his property. If Strachan had a title, the Court was open to him to establish it by an action. This was a conspiracy on the part of the triumvirate Strachan, Gilbert Robertson and Nedby to despoil Enoch of his property, and Mr. Strachan in the consciousness of the badness of his title had recourse to this Forlorn Hope! On groduns of public property, for the preservation of titles - Mr. Browne earnestly called upon the Court to discharge the rule with costs, that it might be a warning to perfidious tenants and other designing and mischievous persons how they conspired together to defraud a landlord of his property!

The Solicitor-General in support of the rule, said that the manoeuvring was on the part of the Plaintiff, that the property in question belonged to Mr. Strachan, that the possession of it, was vacant on the 22nd of April, when he entered into possession of it, and let the same as he had a right to do to the real tenants in possession Jennings and Hounslow. That it being Mr. Strachan’s property which he had inherited from his father, if Enoch had any claim to it, he ought to bring his Ejectment that he was authorized by Mr. Gilbert Robertson to state, as there was not time to make an affidavit to that effect, that the statement by Webster in his affidavit of £5 having been offered by Mr. Strachan to Mary Woodward to give up possession of the Land to Strachan was false. The Solicitor-General would not follow the Counsel for the Plaintiff through all the extraneous matter he had entered into, nor repeat the epithets he had so lavishly bestowed on the opponents of the Plaintiff.

His Honor the Chief Justice said he wished to take time to consider the application; it was after all a question of practice, but ejectments not being more frequently brought than they were in this Colony, was the reason of the Court not being more conversant with the practice.

Mr. Justice Montagu said that as the Chief Justice wished to take time to consider the matter, he would not then give his decision on the question, but he stated that the strong inclination of his opinion was, that the rule ought to be discharged. That it had been put very fairly by Mr. Browne that Mr. Nedby coming into possession under Mr Enoch, was bound to restore the position to him, and not to let another person take possession, and that he was also inclined to think, unless he should see reason to change his opinion, that the rule ought to be discharged with costs.

Last Saturday the Judges delivered their judgment in the above case. The Chief Justice said, from the affidavits before the Court, he saw no alternative but to discharge Mr. Strachan’s rule, for being made defendant, but without costs; because it appeared, that Mr. Strachan had reasonable grounds for making the application - and he could suffer no wrong, because the Court would at the same time discharge the rule for judgment against the casual ejector, also without costs. It was unnecessary to take into consideration Mr. Strachan’s affidavit; for by the affidavits of the plaintiff himself, it appeared that he had granted a lease to Nedby for a year, which expired last August; and subsequent to the expiry of that term, it appeared that the plaintiff had by his own act, in putting in a distraint for rent, created, or at least acknowledged, a tenancy from year to year in Nedby; and therefore, that the Court could not grant judgment of ejectment against Nedby, until the expiry of his term - nor then, unless the plaintiff could shew that he had given the notice which the law required, to put an end to the tenancy. It was true, that these facts came before the Court on affidavits, filed in answer to the claim of a third party; but being in the judicial knowledge of these facts, the Court could not avoid noticing them, and being guided by them in its judgment. The whole process of ejectment was founded on a fiction; yet it could not work injustice - because the Court must try the real title, not by fiction, but by facts. Even if, in the present case, judgment had been given for the lessor of the plaintiff, Mr. Strachan could be in no worse situation, because the plaintiff, if Nedby was really his tenant, had a right, as far as Mr. Strachan was concerned, to recover the possession which he had given, whether rightfully or not, before he was put to the trial of his title; and Mr. Strachan had his remedy by bringing his action of ejectment. If, on the other hand, the alleged tenancy of Nedby was founded on perjury and collusion, for the purpose of obtaining a fraudulent possession, Mr. Strachan had an immediate remedy, by prosecuting the parties; and by shewing this fraud, he could recover possession, even after judgment for the plaintiff, without being put upon trial of his title.

His Honor said - I think both rules must be discharged, each party paying his own costs.

Mr. Justice Montagu said - that he perfectly concurred in the opinion of the Chief Justice, that both rules must be discharged, without costs; but that his opinion was formed upon different grounds. He did not think it necessary to enquire into the nature of the tenancy, real or pretended, of Nedby; for whether Nedby ever had been the tenant of Enoch, or not, it was evident that he was not the tenant in possession at the time this action was brought - and that no declaration of ejectment had been served upon the tenants in possession.

Chief Justice. - It does not appear to the Court, who is the real tenant in possession.

Justice Montagu. - It does not; but from their own affidavit of service, it appears that Nedby was not. The law requires that the tenant in possession should be served, and that he should give notice to his landlord - had this course been pursued, Mr. Strachan (if he had any claim) might have come in to defend his possession in his tenants. As the case now stands, neither Mr. Strachan, nor the tenants in possession, have any opportunity of answering the affidavits of the plaintiffs, and the Court would be doing them great injustice by giving judgment for the lessor of the plaintiff, which would have the effect of depriving them of their possession, without their being parties to the action, and without the Court knowing anything of their rights, which may be the best in the world. Mr. Strachan cannot have his rule, because the Court cannot, at present, acknowledge any right in him to come in as defendant in an action, brought against a man whom the plaintiff alleges to be his tenant; but he can suffer no wrong - for the Court will not entertain any action of ejectment, unless it appears that the real tenant in possession has had proper notice to come in and defend his possession.

In the present case, both the rule for judgment, and Mr. Strachan’s rule to be allowed to come in as defendant, must be discharged, without costs; and the plaintiff can bring a fresh action, if he chooses; but, in that case, he must serve the notice on the tenants really in possession, and they on Mr. Strachan, if they are his tenants.

[This was all that Mr. Strachan wished for; and although the judgment of the Court is most righteous, yet it is very hard upon Mr. Strachan, that he should have been put to such expense and trouble to defeat an attempt to defraud him. Had we not been in Court, when Mr. Brown moved for judgment in the case, the Court (without knowing any of the facts on which it formed its decision) would have been led into an act of gross injustice, and Sutton would now have been in possession of Mr. Strachan’s land. As for Enoch, he is merely a cat’s-paw in the case; but he will find that this last affair has greatly reduced his balance in Mr. Duncan’s hands, for the proceeds of the land which he sold. Had the Court given judgment for Enoch, Mr. Strachan was prepared with affidavits to move that execution should be suspended until the second day of next term.

The following affidavit of Mrs. Nedby will throw considerable light upon Mr. Sutton’s conduct in this matter:-

Deponent saith, that in August 1838, she went with her husband Joseph Nedby, who is a sawyer, to reside at the House of William Enoch, for the purpose of sawing. At this time, there was a person named Olley living in the hut afterwards occupied by deponent and her husband, on the land adjoining William Cross’s farm, and which deponent understands to be the subject of the present action. That while deponent and Nedby were living at Enoch’s house, Olley left the hut which he had occupied, leaving the door open. Enoch’s house being very small, and deponent having two children. Enoch told deponent that she had better go over to live in the empty hut, adding, “they tell me that my land runs up the hill.” (Meaning in the direction of the land now granted to Enoch.) “But Sutton won’t have it so. He says that he will have it measured lengthways on the creek, which will take in the hut, and part of the cultivated land.” (Meaning the empty hut which Olley had left.) Adding, that if it was settled in his favour, he would let it to Nedby and the deponent. Soon after this, Richard Strachan, accompanied by Gilbert Robertson, called at the hut where deponent was then living; when the said Richard Strachan told deponent that she was on his land, but that she was welcome to occupy the hut until a dispute then pending before the Land Commissioners between the said Richard Strachan and William Enoch, was settled. And this deponent saith, that except on the occasion above-mentioned, she never saw the said Richard Strachan and Gilbert Robertson together on the said land, except when they were there with William Champ, Esquire, and several other persons. And this deponent saith, that on neither of those occasions, nor at any other time, did the said Richard Strachan nor the said Gilbert Robertson offer to this deponent the sum of five pounds, nor any other sum, to quit possession. Nor did they, nor either of them, require her to give up possession at that, or at any other time. And this deponent saith, that after the said William Champ and others had been upon the land, for the purpose, as this deponent was informed, and believes, of ascertaining the boundaries of the land granted to William Cross, and after the Commissioners had decided upon those boundaries, this deponent was informed by her husband, that William Enoch had then demanded from him, Nedby, two shillings a week in the name of rent, which the deponent’s said husband refused to pay. Deponent afterwards saw Daniel Sutton, who came to demand rent, which deponent and Nedby refused to pay, stating that they held the place by permission from the said Richard Strachan. That the said Daniel Sutton then said, that Enoch was starving, having nothing in the house to eat, and asked them to give him something in charity. Whereupon this deponent gave to the said William Enoch, part of a damper, and some flour, and a piece of bacon, and a tin dish full of wheat. That in consequence of the demand of rent on the part of Enoch, deponent when she afterwards saw the said Daniel Sutton in this office in Hobart Town, told him, that if he or Enoch had a right to the place, they had better give her writings to that effect. Whereupon the said Daniel Sutton ordered deponent out of the office. Deponent further saith in consequence of this, she deponent, went to William Champ, Esquire, and asked the said William Champ, whether Daniel Sutton or William Enoch had any right to the land. And the said William Champ informed deponent, that they had not; but that he, the said William Champ, believed that the said Richard Strachan held a grant for it; and this deponent further saith, that she never received any writings from Enoch nor Sutton, nor any other person, on behalf of them, or either of them, being or purporting to be, a lease, or other authority, to occupy the hut or land above spoken of, or any other hut or land. And this deponent further saith, that on the 13th day of April last, this deponent and Joseph Nedby did give up possession of the hut and land to Richard Honslow and John Jennings, the present tenants, who then came to live upon the place. And deponent further saith, that neither herself nor Joseph Nedby have at any time, on, or since, the 22nd April been living upon the said land, nor digging potatoes, nor doing any other sort of work upon the land.

[Nedby confirms all this, and adds, that he never was upon the land since, except when he went to look for a dog he had lost.]

The man Olley was a person who was put in by Mr. Strachan, and allowed to live in the hut to take care of it. Enoch swore that Nedby was his tenant. A man named Slough swore that he had drawn a lease, from Enoch to Mary Woodward (the wife of Nedby), but this curious document was something like poor Hearne’s will - it was only signed with Enoch’s mark - but was not signed by the alleged tenant - there was no counterpart, and the only original was given to the tenant, who swears that she never saw it. Webster swears that he was present when Mr. Strachan, in the presence of Mr. Robertson, offered Mrs. Nedby £5, to give up the possession. Mrs. Nedby swears that Mr. Strachan never offered her any money, nor asked her to give up possession. Webster swears that Nedby was in possession on the ninth of May, and he (Webster) saw Nedby, on that day, digging potatoes on the ground. Nedby, his wife, and the two tenants in possession, prove that Nedby was not on the land after the 22nd April - the day of Enoch’s alleged demise - except once looking for a dog, which was not on the ninth of May.

It is, no doubt, very hard upon Mr. Strachan, that he should have to incur the trouble and expense of obtaining the punishment of the fraud, perjury, and conspiracy, of which - but for our accidental presence in the Supreme Court, he would have been the victim - in addition to what he has already incurred in seeking to defend his rights; but it is a duty which he owes to himself, and to the public, not to let it pass unpunished. Had Sutton met with his deserts in the case of Griffiths, Mr. Strachan would not have been subjected to the trouble and expence which he has incurred in the present case.

The people of this Colony are perfectly able to judge, of the conduct of all the parties in this case, from the statements before them. Mr. Abbott, in the Advertiser, of last Tuesday, has, in the overflowing of malice against us, lent himself as the organ, in vindication of the parties in this atrocious attempt to rob a man of his property. Enoch, who can neither read nor write, is made to figure as the author of a most libellous letter, addressed to the Proprietor of this Journal, in his individual capacity; for which, we shall place Mr. Abbott before a jury in the Supreme Court. We recommend our friends to read the letter carefully, and to compare it with the facts on our part, which provoked such an attack; and then let them form their opinion of the principles of the man, who would lend himself to countenance such proceedings. Yet this Mr. Edward Abbott, is the high-toned moralist, who is to purify the Colonial press! Having determined to prosecute for this libel, we cannot of course reply to it in print. Why does not Enoch, or his friends who wrote the letter for him, attempt to shew that any part of our statement was incorrect, excepting the very immaterial error, as to the sum for which he sold his land - being £405, in place of £450 - as it was mis-printed in some part of our notice. Why does he not shew that he has some colour of claim to some land? Why does he not tell us something about Hearne’s will? Why does not Sutton get him to deny what he told us about the fate of the £100, which Sutton borrowed for him from Mr. Driscoll? We should like to know how much he will receive of the £405, for which his land sold. When Mr. Sutton has done with him, it is more than probable, that he will come to us, to tell his tale of woe. We strongly recommend to Mr. Sutton to keep the fear of this before his eyes.

[1] See also Hobart Town Advertiser, 8 May 1840; True Colonist, 15 May 1840, and 29 May 1840 (the latter being a very long editorial on the law of ejectment, and the Enoch litigation in particular.