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

Loane v. Dickson [1834] NSWSupC 19

concurrent liability, contract and tort - customs and usages - assumpsit

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 8 March 1834

Source: Australian, 10 March 1834[1 ]

Loane v. Dickson - Mr. Kerr appeared to support a demurrer filed to the plaintiff's declaration on the ground of a misjoinder, the first count being in trover and the second in assumpsit.  It was clearly settled that a count in tort could not be joined with a count in contract, because the pleas and the judgment must be different.

(His Honor Mr. Burton desired Mr. Kerr to direct his attention to the second count, and shew that it was in assumpsit, as from reading the demurrer book, he considered it to be in case.)

Mr. Kerr believed that it would be so contended on the other side, but according to the authority of the case Corbett v. Packington, in 6 Barnewall and Cresswell, 268, he would submit that the count being founded on a contract was in assumpsit.  The declaration in the case cited, if for the word pigs be read cattle, was precisely similar to the one before the Court.  Mr. Kerr then read the count which set forth that the plaintiff had delivered certain cattle to the defendant upon the terms following, to be kept according to the custom of the Colony, - the terms alleged were, that it was the duty of the defendant to re-deliver to the said plaintiff the said cattle, and two thirds of the increase when demanded, which duty he had neglected to perform.  The words in the case quoted were, that the plaintiff had delivered certain pigs to defendant for reward, in consideration whereof he agreed to take care of them, and to deliver them when requested - yet not regarding his duty in that behalf, did not re deliver them, but in consequence of his carelessness the same were lost. -  This count was decided to be in assumpsit, and Mr. Kerr contended that the words ``upon the terms following," disclosed an agreement, and of necessity a promise was implied, and the count was therefore essentially in contract.

Mr. Solicitor General in reply was stopped by the Court.

The Judges seriatim delivered their opinion that the cases were distinguishable, and that the count alleged to be in a assumpsit was in tort.  The case cited contained the words consideration, and agreement, which were the essence of the action of assumpsit, no such words appeared in the count before the Court.  It merely set forth a duty to be performed which might arise out of a contract, or from a general obligation of law, and a breach of that duty, and it was like the case of an action against a carrier, who is liable either in case or assumpsit for not delivering goods committed to his care.  Judgment for the plaintiff, with liberty after some discussion to amend, on swearing to merits and the other usual terms.


Forbes C.J., Dowling and Burton JJ, 8 March 1834

Source: Dowling, Proceedings of the Supreme Court, vol. 93, State Records of New South Wales, 2/3276[2 ]


[p. 49] Trover for cattle.  Second count for value of same cattle which had been delivered by Plf. To Deft on thirds according to the custom of the Colony & refusal to deliver on demand.  Dumurrer for misjoinder of counts - tort with assumpsit.  Issue thereon.

The case cited was Corbitt v. Packington 6 B & A. 268.

Kerr for Deft. - Plunkett for Plf.

Per curiam.  The second count is not in assumsit.  There is no averment of a promise in part of Deft.  It is bailor agt. Bailer for a breach of duty.  There is here no undertaking - a mutuality of promise.  It avers nothing but a breach of duty in not delivering up this cattle on the terms on which they were originally delivered to him.  In Corbett v. Packington there was an agreement set out: -- an undertaking & promise averred.  See Brown & Dickson 1 T.R. 274.

Judgment for Plf - with liberty to [p. 50] deft to plead issuably on payment of costs - take what notice of trial & give judgment of the term & an affidavit of merits.



[ 1] See also Sydney Herald, 10 March 1834.

[ 2] See also 2/3283, vol. 100, p. 16.  The case was back in court on 17 February 1835, but the record is in Dowling's shorthand: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3290, vol. 107, p. 112.

Published by the Division of Law, Macquarie University