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

Shipman v Allen [1832] NSWSupC 66

assumpsit - trover - civil procedure - waiver of tort

Supreme Court of New South Wales

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

Source: Dowling, Proceedings of the Supreme Court, Vol. 75, Archives Office of New South Wales, 2/3258

[29] Assumpsit for the breach of an agreement for the sale of a quantity of cattle.  On the 6th April Plf bot.[1 ] 20 head of cattle of Deft at 2£ a head, & paid £ in cash & gave his promissory note for the remainder at 3 mos.  At the time of the sale a servant of Deft counted the Cattle out to a servant of the Plf. who asked permission of Smith to allow them to remain in the paddock till next morning which he consented to.  Next ming[2 ] the Deft refused to let the Plf take the Cattle away, & now the Plf brt his action on the contract.  The Judge ruled that the property was bound by the delivery & payment of part of the money in earnest & therefore directed a non suit.  Upon a motion to set aside [30] this nonsuit

The Court was of opinion that the remedy was trover & not assumpsit on the contract.-

Rule refused.


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

Source: Sydney Herald, 24 September 1832[3 ]


Shipman v. Allen. - This was an action of special assumpsit, tried last term before Dowling, Justice, and two assessors, on an agreement between the parties for the sale and delivery of a quantity of cattle at £2 per head.  On the trial, it appearing that the cattle had been counted out and delivered to plaintiff, the learned Judge had ordered a non-suit, as the form of action should have been trover.  Mr. McDowell now moved to set aside the non-suit, and that a new trial be granted, on the ground that the form of action was correct.  The learned Counsel contended, that to have brought the action in trover, the plaintiff must have had not only a right of property in the cattle, but also the right of possession, as cited in 7 Dowling and Ryland.[4 ]  In this case there was no proof of the delivery; and, if they had been delivered to plaintiff's servant, it was without his privity.  Again, plaintiff had not paid for the cattle, and it was laid down in the book from which he had before cited, 407, Bloxam v. Morely, that goods on credit cannot maintain trover.  On these grounds he contended that the action had been properly brought.

Mr. F. Stephen, in opposing the motion, contended that on the trial the evidence was clear as to the delivery, and he held an affidavit of plaintiff's put in by the other side, in which he swore to having paid for the cattle.  An action of trover was therefore the only course that plaintiff could have resorted to.  The Chief Justice delivered the opinion of the Court.  They were not prepared to say that this was a case in which plaintiff might not have waved the taut, and proceeded on the contract, but as the parties insisted on strict pleading, and non delivery having been pleaded, when there had been a constructive delivery, they saw no reason to disturb the verdict.



[1 ] bought

[2 ] morning

[3 ] See also Sydney Gazette, 5 September 1832; Australian, 28 September 1832.

[4 ] The Sydney Gazette, 5 September 1832, reported that the case at this citation was Blaxland v. Saunders.

Published by the Division of Law, Macquarie University