[ejectment – civil procedure, motion for nonsuit by plaintiff – civil procedure, amendment, no effect on “substantial justice of the case”]

Doe dem. Wm Bryan v. D. McLean

Supreme Court of Van Diemen’s Land

Pedder C.J., 5 January 1841

Source: The Cornwall Chronicle and Commercial and Agricultural Register,

6 January 1841[1]

Before the Chief Justice and the following special jury: - R. Petty Stewart, P. Oakden, J. Perkins, J. Down, J. R. Kenworthy, J. Sherwin, John Raven, M. Connolly, J. Cox, W. Niley, James Raven, and R. Pringle Stewart, Esquires.

            This was an action of ejectment. The Solicitor General stated the case to the jury. This action was brought to recover possession of a mill and premises at Carrick, in the county of Westmorland. Mr. W. Bryan, at present in England, possessed estates in the colony, for which Mr. S. Bryan was agent. Prior to Mr. W. Bryant going to England, he entered into an engagement with defendant to let him a water mill and two acres of ground at Carrick for the term of seven years, McLean rendering to him one-third of the profits of the mill. Plaintiff’s agent, having been unsuccessful in obtaining his share of the profits under this arrangement up to 1837, entered into a fresh arrangement in the month of August that year with the defendant, which was to last two years, and defendant was to pay £100 a year in lieu of profits; the first year’s rent was paid, and the rent of the second year was paid on the lst October, 1839; the agreement having therefore expired, the present action was brought to recover possession of the mill, which Mr. McLean showed no disposition to deliver up.

            The lease between Bryan and McLean was then put in and read, and the following witnesses called:-

Mr. Henry Campbell. - In 1837 I was overseer to Mr. W. Bryan; he was then in England; Mr. S. Bryan acted for his brother in the management of his estates in the colony; I ceased to act as overseer in 1840; prior to August 1837, defendant was in possession of the plaintiff’s water mill at Carrick; can’t say in what county Carrick is; can’t say how much land McLean occupies with the mill, which is on one side the road, and his house on the other; there is a small garden attached to the house; I don’t think it is two, but I dare say it is one acre; prior to August 1837 I had a difficulty in getting in some mill accounts, Mr. Bryan’s share of the mill, and I returned them either to McLean or Bryan, but from which I received them I cannot say; I afterwards arranged that Mr. McLean should pay £100 per annum as Mr. Bryan’s share of the mill; I can’t say how it was to be paid, but I think half yearly; the term agreed upon was two years from August 1837, to August 1839.

            By the Court. – The £100 a year was to include all profits accruing to Mr. Bryan.

            Examination continued. - The agreement was made at McLean’s house; I did not see the old agreement upon that occasion; at the expiration of the year he paid the £100; can’t say when the first or second payments took place; he paid both years to me; on the settlement we came too upon the second occasion, I gave him an account in writing; (account put in) this is the account in my hand writing; I have settled my accounts with Mr. Bryan on account of Mr. McLean; at the expiration of the two years, I gave McLean notice to quit the mill; this is a duplicate of the notice I gave; he refused to give up possession; the old agreement was not produced at the time I made the agreement in August, 1837, but it was arranged and expressly stated that the new agreement should terminate some months before the old one would have done.

Cross-examined by Mr. Stephen. - I don’t remember visiting the land in 1826; can’t say in whose possession it was then, I was not in the country; the £100 I agreed to receive as Mr. Bryan’s share of the profits without running any risk; I left Mr. Bryan the early part of last year; Mr. S. Bryan has been occasionally out of the colony these last two or three years; Mr. S. Bryan acted as agent for his brother; I have no power of attorney from Mr. W. Bryan, but acted as his overseer; I cannot speak positively as to all that took place when we entered into the agreement, except that it was to be for £100, and that it would terminate a few months before the old agreement.

Mr. S. Bryan, I am brother of Mr. Wm. Bryan, the lessor or the plaintiff in this case, and his agent; in 1837 he was out of the colony; I have had the management of his estate during his absence; I know the mill occupied by defendant, it is in the parish Carrick, County Westmorland, and colony Van Diemen’s Land; it consists of a mill, house, and small garden; it is a water mill, and there is a race attached; defendant occupied them before 1837; I have applied to him for rent since 1837 on behalf of my brother; I am aware of an agreement entered into between McLean and Campbell, the overseer, by my authority; I have applied to McLean frequently for rent; he never questioned his right to pay, but always said that he would pay; Campbell has left; he has settled with me for the first year’s rent, but I cannot say if McLean has settled with him for the second; the mill, house, and garden occupy an area of about 2 acres.

Cross-examined. - When I went to defendant, I said why don’t you pay me the rent; I do not know that he had no rent to pay; I have called upon him for Mr. Wm. Bryan’s share of the profits before the new arrangement; I made no agreement with him; I passed through the place a considerable time before my brother occupied it; defendant told me he had an order from Colonel Arthur for a site; I never heard it from any other quarter; or from any person attached to the estate; my brother possesses there three distinct allotments, one of ten, another of three, and the other about 1½ acres; the mill is on the ten acre allotment; they are held by three distinct titles; defendant occupies the house and garden on the 1½ acres allotment; I never heard of my brother taking possession of ten acres of land belonging to Mr. Ashburner, this is the first time I have heard of it; the defendant has claimed the 10 acres before the Caveat Board; I do not know that previous to my brother taking possession defendant was making arrangements to put up a mill.

Re-examined. -McLean served me with a notice of his claim about a fortnight ago, long after the commencement of this action; six or seven years ago he told me Colonel Arthur gave him the site to build a mill but as he did not build the mill, Colonel Arthur gave it away to Mr. W. Bryan, who built the mill; this plan represents the premises; the ten acre allotment is on the other side the road; the ten-acre allotment includes the mill and race; from the conversation I had with McLean several years ago until the other day, I never heard that McLean had any claim to the premises.

This closed the plaintiff’s case.

Mr. S. Stephen moved for a non-suit, upon the following grounds. - 1st That according to the statement of the lessor of the plaintiff his title did not accrue until August, 1839, while the demise laid in the declaration was 26th July 1839. 2nd. - That the original document put in as a lease from plaintiff to defendant is dated November, 1832, consequently did not expire until 1839, and if that was a subsisting agreement and had the effect of a lease, his first point was thereby strengthened. 3rd. - The substituted agreement spoken of by Campbell did not do away with the agreement for two years at £100 a year, to be received in lieu of profits; it was not substituted for the lease, but was only a new mode of payment. He (Mr. S.) contended that the original document put in was not a lease, nor an agreement, but a partnership between the parties, and therefore took it out of the rule of law, which prevents a tenant disputing his landlord's title. 4th. - According to the agreement produced there was a joint possession between the lessor of the plaintiff and the defendant. The plaintiff still received his profits, not as in the first instance, but by the payment of £100 per annum. Still the possession of the land was not altered, and there being a joint tenancy, one party could not turn out the other.

The Solicitor-General thought there was but one point to which he need direct his attention; he admitted that the day of the demise laid in the declaration ought to have been after the landlord’s title to enter had accrued, and without his Honor allowed an amendment, he considered the point fatal. Judge Patterson, in a case of forfeiture, had allowed an amendment in the name of a parish, which was of far more consequence than the fiction of the demise laid in the declaration; besides, it would not effect the substantial justice of the case.

The Chief Justice would direct the jury to amend the declaration, they could alter the date of the demise laid in the declaration, substituting November for July. He doubted whether he had the power to amend the declaration, as he did not think it was a case provided for by the statute. If they found there was a tenancy on the part of the defendant, plaintiff was entitled to recover without putting in his title to the land; and if the document put in created a tenancy of the lessor of the plaintiff after the 12th November 1839, plaintiff had a right to the property, and a verdict must follow.

The jury returned a verdict for the plaintiff, damages one shilling, and that the date of the lease in the demise was 22nd Nov. 1839.