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

Ellis v. Cuthbert [1829] NSWSupC 62

assumpsit - sale of goods, warranty - contract law, misrepresentation


Supreme Court of New South Wales

Dowling J., 26 September 1829

Source: Australian, 30 September 1829

Ellis v. Cuthbert -- being an action of assumpsit, to recover 48l, paid the defendant for a gig sold by him to the plaintiff, under warranty that the vehicle was of English, whereas it proved to be of Colonial manufacture.[1 ]  Dr. Wardell, Counsel for the plaintiff, stated the case, and called evidence to prove the sale of the gig, under the impression stated, and for which plaintiff gave his promissory note, at six months, for 50l., including with the 48l. - 2l. for a second-hand harness, but plaintiff had scarcely driven in his newly purchased vehicle from Sydney to Parramatta, and from Parramatta to Sydney, two or three times, when the crazy vehicle became knocked up; plaintiff discovered he had given too much for his whistle, and thereupon brought his action.  One witness for the defendant, on whose behalf appeared Mr. Rowe and Mr. Foster, stated that the latter did not represent the gig in question to be an English gig -- a verdict was finally returned for the plaintiff -- damages, 48l., the amount of the pig [sic].



[1 ] The Sydney Gazette reported this trial on 29 September 1829.  It said that the defendant was a coach proprietor.  A witness for the defendant stated that the defendant did not say that the gig in question was English, but that he "would as soon have it for his own use as any English gig".  Wardell acted for the plaintiff, and Foster and Rowe for the defendant.

According to the Sydney Gazette, 4 June 1829, the defendant was a ticket of leave holder.

Published by the Division of Law, Macquarie University