[trespass to land – landlord and tenant]

Rainbaird v. Able

Supreme Court of Van Diemen’s Land

Montagu J., 11 December 1840

Source: Hobart Town Advertiser, 18 December 1840[1]

            This case, which occupied several hours, was one of trespass, and may be best gathered from the following short statement of the facts, which appeared in evidence.

One George Able (since transported) was possessed of a certain farm called Kitty’s Corners, which before his transportation he leased to one Manning, who surrendered possession to one Weavers, who, by the consent of Mary, the wife of George Able, transferred his possession to the plaintiff in July last, he having received a lease in May from Mrs. Able who deposed that about six weeks after she had given the lease to Rainbaird, defendant Thomas Able (her brother-in-law), came to her, and requested a lease, which she refused, alleging that she had granted a lease to Rainbaird, and could not let to two people. Upon  this he flew in a passion, and told her he would take possession in defiance of her; and that if she went to law or put him to any trouble, he would get his brother William to swear her husband had sold him the land before he went to Port Arthur. In this position of affairs, William Able, as overseer for the defendant, on the 25th of July, with servants, &c., entered upon the land, where plaintiff’s servants were at plough, and took away the team of bullocks and a cow and calf, which were sent to the pound.

His Honor, in charging the jury, explained that there were two counts in the declaration, one for damage done to the land of the plaintiff, the other for taking away his cattle. To these four pleas were put in; firstly and secondly, the general issue in both counts; thirdly, the justification to the first count, that the land was not the land of the plaintiff, and fourthly, a justification to the second, that the plaintiff’s cattle were trespassing. His Honor said that if the jury found that the defendant had not a legal title to the land, and that the plaintiff was in possession, whether legally or not was of no consequence, they must find for the plaintiff on the second count; but on the first a verdict must go for the defendant, the plaintiff having failed to establish the locus in quo.

The jury retired, and returned with the following verdict. For the plaintiff, damages done to the land £10; for taking the cattle, £2; and for the defendant on the first plea.

His Honor sent them back to consider the verdict, as having found against the plaintiff on the first plea, they could not give damages for the land.

The jury said they wished to do justice; and found twelve pounds damage had been done by cutting up the plaintiff’s land, but taking away his cattle, but did not know how to return a legal verdict on such complicated pleadings

His Honor explained, that the plaintiff not having proved the land, could not recover damages in that respect.

On this the jury returned a verdict for the defendant on the first plea, and for the plaintiff on all the rest of the pleadings. Damages, Forty Shilling.