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

Mossman v Warren (1831) NSW Sel Cas (Dowling) 27; [1831] NSWSupC 67

contract, consideration - maltreatment of animals - bailment - negligence - civil procedure, choice of remedies - implied contract - sheep farming

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 October 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 102] [An Agreement in writing was entered into between A & B for 5 years for the depasturing of a flock of Sheep of or upon the [p. 103] lands of B in consideration of the latter receiving one fourth of the increase with a stipulation that if Bs land was not sufficient A would find other land on his own account to supply the deficiency.  For alleged mismanagement of the Sheep during the continuance of the agreement A brought an action as upon a common bailment for the injury to and neglect of the Sheep.  Held 1st that [p. 104] he should have declared specially on the agreement 2nd if he had done so, there query whether this would not be a partnership and 3rd whether the action could be brought before the expiration of the 5 years.][1 ]

[p. 102]

Saturday 22nd October 1831
CoramStephen J
Dowling J
Mossman v Warren

This was an action of Assumpsit by Bailor against Bailee of a Flock of Sheep injured by the alleged carelessness and neglect of the Defendant, to whom the sheep had been delivered for agistment.  Plea non Assumsit.  At [p. 103] the trial before Stephen J, a Special agreement was produced in evidence bearing date Sydney 25th January 1829 by which it appeared that the Plaintiff was deliverer to Defendant a flock of 600 Sheep to be depastured on 4th in consideration of his care and diligence for 5 years, either upon Defendants land or land of the Plaintiff, which if insufficient for that purpose he was to procure more there were other special conditions.  The Sheep became scabby and there was great mortality amongst them after they were delivered to the Deft.  Upon the production of the special agreement; it was objected first. that the action should have been brought upon the special agreement, or that at all events the Plaintiff should have declared upon its legal effect, instead of treating this as a common bailment  2nd that the action was brought prematurely for the agreement was to insure for [p. 104] 5 years and 3d that by the term of the agreement the Plaintiff & the Defendant were partners, upon the terms of mutual profit and loss the learned Judge upon these objections directed a nonsuit.

Wentworth now moved for a new trial and contended that this was a common bailment and the cause of action being the negligence of the Sheep the defendant was liable as bailee, without any regard to the special agreement, which was wholly silent as to the common law liability for any neglect of the health of the sheep this was only an implied assumpsit arising collaterally out of the respective situations in which the parties stood to each other, without any regard to their special agreement.

Wardell to support this action [p. 105] there must be a consideration proved now the consideration depends upon the effect of a written special agreement between the parties.  Here the consideration was wholly omitted in the declaration and the Plaintiff in this dilemma that to prove consideration he must resort to this special agreement, which being special ought to be declared upon, and it would then shew first that the action was brought too soon, and secondly that the partied were partners.  A special agreement like this cannot be turned into a mere bailment at Common Law.

Forbes CJ.  I think the nonsuit was right.  I am no advocate for very nice special pleading, but there are certain rules of pleading which must be adhered to.  Here is a very special Agreement between these parties.  This cannot be arained [sic] and authorize [p. 106] the Plaintiff to sue upon a general assumpsit which may not at all have subsisted between the parties.  If the Plaintiff can maintain an action he must declare specially upon the true agreement between him and the Defendant.

Dowling J.  I am of the same opinion the foundation of the implied liability contended for, may depend upon the consideration.  Now the consideration is contained in the special agreement and is not stated in the present declaration.  There is nothing in the agreement about reasonable award, & I think you cannot sever the Deft liability upon the agreement for by that and nothing does he be bound.  The Plf cant blow hot and cold first by suing him in common assumpsit on general bailment and then seek a remedy in the special agreement if he should fail on the first.

Rule Refused.


[1 ] For an account of the initial trial, see Sydney Gazette, 15 October 1831; it includes details of the shearing and management of sheep and the problem of scabby sheep in wet weather.  See alsoAustralian, 14 October 1831; Sydney Herald, 17 October 1831.

In 1832, the New South Wales Legislative Council passed a colonial Act to deal with scab in sheep: see 3 Wm 4 No. 5, Sydney Gazette, 13 September 1832.

Published by the Division of Law, Macquarie University