[estoppel – land law – landlord and tenancy]

Ross v. Finlayson

Supreme Court of Van Diemen’s Land

Pedder C.J. and Montagu J., 14 August 1840

Source: Tasmanian, 21 August 1840[1]

            In this case, which afforded a long and great display of legal learning, Mr. S. Stephen argued in support of a demurrer, on a plea of estoppel. The late Dr. Ross, it appeared, let on lease for ten years, to Mr. Finlayson, certain property. Against Finlayson, the heir-at-law of Dr. Ross had entered an action for breach of covenant, against the tenant, who had demurred to the plea, on the ground that it was not sufficient in law. The Learned Counsel proceeded, at considerable length to shew that, when Dr. Ross leased the property to Finlayson, he had no power to do so, being merely a tenant-at-will to our Sovereign Lady, Queen Victoria: in fact, “nil habuit in tenementis, quod potuit demittere, in consequence of no Grant having issued; several cases were cited in support of the Learned Gentleman’s argument, which occupied the attention of the Court for nearly an hour.

            Mr. Horne, against the demurrer, contended, that the plea was not that of nil habuit in tenementis, and asked whether it had yet been shown, that a lease for years could not be made by a tenant at will? It was at the option of the other party to enter or not, and treat the lessor as duly seized of the property; and having entered, he had no right to commit any breach of his covenant.

Their Honors, after looking at the cases cited, would consider their Judgment.

Pedder C.J. and Montagu J., in Banco, 25 August 1840

Source: Hobart Town Advertiser, 28 August 1840

            In this case, as in several others, their Honors observed that they were not ready with their judgment. Mr. Justice Montagu said he was quite prepared at any moment to consult upon the undecided cases with his Honor the Chief Justice, but he could not, knowing how much his Honor’s time was occupied both in the business of that Court and in the Legislative Council, asked him at present even to appoint a time for consultation so that a decision might be arrived at. His Honor the Chief Justice said that were the Legislative Council not sitting he did not think that he would have been able in some of the cases, to have arrived at a decision.

The Court then rose.