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

Flood v Moore [1832] NSWSupC 61

trespass - asportavit - jury, appeal against verdict

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 15 September 1832

Source: Sydney Gazette, 18 September 1832[1 ]


This was an action of trespass quare clausum fregit, and for driving away certain cattle, in which the damages were paid at £300.  At the last term, before Mr. Justice Dowling and two Assessors, a verdict was returned for plaintiff, damages one farthing.  Mr. Foster now moved that the verdict be entered upon the first part of the declaration which referred to the breaking and entering only.

Mr. Williams said the motion was one of the most extraordinary nature inasmuch as there was, in point of fact, only one count in the declaration.  With respect to the merits of the case, they were evidently with the plaintiff, for an asportavit was clearly proved, upon which the jury found a nominal verdict, and that carried costs.  The case was not, he admitted, owing to misinstruction, brought before the jury in a proper way.  The plaintiff was to live on a farm of the defendant and break in certain cattle, for which he was to have the profits of fifty heard of cattle.  Now driving off those cows into the bush, as it was proved the defendant had done, was elarly [sic] an asportavit,quoad the milk.  The jury gave a general verdict; and, he would ask who could tell that the jury had not found the asportavit?  The application, he contended, was to have the effect of upsetting the verdict of the jury altogether, and of holding that every disappointed man might come before the Court, and ask the Judges to dissect the evidence, and direct a verdict to be entered upon such parts of it as might suit his purpose.

Mr. Foster, in reply, admitted that the Court had no right to interfere with the province of a jury.  But the question was, what was interfering?  The Court had always exercised the power of setting the verdict of a jury right, in cases wherein the evidence did not support such verdict.  This was not interfering with the province of a jury, for it was the province of a Court to determine whether there was evidence to go to the jury, or to direct the verdict to be entered, according to the Judge's notes, on such parts of the declaration to which the evidence might apply.  Here, then, was not the slightest evidence except as to the breaking and entering the dwelling-house.  The declaration, however, charged an asportavit; and he would ask, was there a shadow of evidence to support that part of it?  There was only one act of trespass charged in the declaration; and, therefore, the Court must say that it was impossible, upon the evidence, that the jury could have given a verdict for any thing but the breaking and entering; for, in point of fact, there were no cattle, even in sight, on this occasion.  He therefore contended, that the plaintiff ought to be compelled to enter up his verdict according to the Judge's notes, and the evidence given upon the trial.

The Chief Justice, after consulting for some time with Mr. Justice Dowling, directed the case to stand over.


Forbes C.J., Stephen and Dowling JJ, 22 September 1832

Source: Sydney Herald, 24 September 1832[2 ]


Flood v. Moore. - This was an action of trespass, and an asportavit was also laid in the declaration; a verdict was returned for plaintiff.  On Saturday last a motion had been made to enter the verdict for the trespass only, and the case argued, when a point was reserved for the future consideration of the Court, to see if, on the evidence, there was any proof of an asportavit.  The Chief Justice now delivered the opinion of the Court.  It was, on all occasions, a delicate duty for the Judges to alter the general tenor of the verdict of a jury; but on looking through the notes of his Honor who tried the case, the Court were of opinion there was no asportavit of the milking cows; they did not appear to have been in the possession of the plaintiff at all; there was merely a turning out of the cattle, which did not amount to an asportavit.  The Judges considered this to be a case in which they were called upon to enter the verdict for the trespass without the asportavit.  Motion granted.



[1 ] See also Sydney Herald, 17 September 1832; Australian, 21 September 1832.

[2 ] See also Sydney Gazette, 25 September 1832; Australian, 28 September 1832; and see Dowling, Proceedings of the Supreme Court, Vol. 75, Archives Office of New South Wales, 2/3258, pp 25, 27-28.

Published by the Division of Law, Macquarie University