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

Dunahay v Ritchie (1830) NSW Sel Cas (Dowling) 21; [1830] NSWSupC 57

replevin, civil procedure, counties

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, September 1830[1 ]

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466

[p. 26]

[In replevin the declaration described the locus in quo the cattle was taken "In a certain close of Plaintiff situate at the Nepean in the Colony aforesaid  Held on demurrer sufficiently certain in New South Wales.]

Peter Dunahay v Robert Ritchie

Replevin for taking a Mare of Plaintiff in a certain close of Plaintiff situate at the Nepean in the Colony aforesaid New South Wales 2nd Count for taking another Mare of Plaintiff "In the district of the Nepean in the Colony aforesaid".

Demurrer for not alleging or shewing in what particular place or places the mare was taken

Joinder in demurrer.

Dr Wardell in Support of the demurrer contended that the description of the place in which the mare was taken was too uncertain for the defendant to answer over and that having resorted to the English mode of pleading the Plaintiff was bound to set out specially the [p.27] very place with the utmost particularity in which the mare was alleged to have been taken these being traversable matters.

Forbes CJ. thought the place of taking was described with sufficient certainty.

Stephen J. concurred.

Dowling J.  We are not bound by the reason of the rule which obtains in England in this class of case.  That rule has reference to[2 ] and jurisdiction.  There the County [sic][3 ] is divided into Counties, parishes &c the boundaries of which are well known.  Divisions of Land are clearly ascertained.  Here man living in a wilderness and in many places, farms and districts have not even acquired a name or reputation.  As yet we have no counties, parishes &c and places must be described by such names as they are commonly known by.  I think that in this country that the [p.28] description of the locus in quo as "A certain close situate at the Nepean " or in the district of the Nepean is sufficiently certain.

Judgment for the Plaintiff

 

Notes

[1 ] From its position in the notebook, it is likely that this case was decided in September1830.

[2 ] Gap is in manuscript.

[3 ] This should refer to "country".

Published by the Division of Law, Macquarie University