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Decisions of the Superior Courts of New South Wales, 1788-1899

Guise v. Klensendorlffe [1827] NSWSupC 37

gambling, contract law, unfairness and hardship, trover, statute of limitations

Supreme Court of New South Wales

Stephen J., 8 June 1827

Source: Sydney Gazette, 11 June 1827

This was an action of trover brought by the plaintiff to recover possession of a mare lost by him to the defendant at cards, on or about the 10th of January, 1826.[1 ]  On the part of the plaintiff it was endeavoured to be shewn, that he was in a state of intoxication when the wager was made, that the defendant had taken an unfair advantage of him, and that a written document, bearing his signature, by which he admitted the defendant's right to the mare, was obtained from him whilst he was so intoxicated.  The mare was depasturing, at the time the gambling took place, on the defendant's run, together with some other horses belonging to the plaintiff, and was taken possession of by the defendant, and sold to another person subsequently.

Counsel for defendant contended, that he was entitled to a non suit on various grounds, and also on the authority of the case of Vaughan v. Whitcombe, (2 Bos. and Pul. 413) which was a case exactly similar to the one before the Court, and wherein the plaintiff was non-suited on the ground of his not having brought his action within three months, as provided by the Act of Parliament.

The plaintiff's Counsel contended, that there was a marked distinction between the two cases, inasmuch as, in that quoted by the defendant's Counsel, there had been an actual delivery of the horse by the plaintiff to the defendant; that the parties appeared to have been mutually satisfied, and as in pari delicto, portior est conditio possidentis[2 ] the law would not interfere between the parties where the action was not brought within the time prescribed by the Act.  But, in the case before the Court, he contended that the paper, which was relied on as a delivery, was a mere colourable instument.

The learned Judge, Stephen, having stated that he should put the case to the jury, witnesses were called, who stated that they were present when the plaintiff signed the paper delivering the mare over to the defendant; that both parties were perfectly sober, and quite satisfied with the transaction, and that the plaintiff said to the defendant at the time, the mare is on your own run, you can take her when you like.  This occurred early in January, 1826, and no proceedings were commenced till the October following.

The Jury found a Verdict for the d[e]fendant.  Mr. W.C. Wentworth was counsel for the plaintiff, and Mr. Rowe for the defendant.


[1] In its report of this case on 12 June 1827, the Monitor noted that the parties were related by marriage.

[2] Where the parties are equally at fault, the court will favour the possessor.  This may be a blend of two maxims: in pari causa potior est conditio possedentis (in the case of equal claims, the position of the possessor is stronger) and in pari delicto potior est conditio defendentis (where the parties are equally at fault the court will favour the defendant).

Published by the Division of Law, Macquarie University