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

Toby v. Rowley (1840) NSW Sel Cas (Dowling) 39; [1840] NSWSupC 56

trover, civil procedure, Monaro

Supreme Court of New South Wales

Stephen J., 10 June 1840

Source: Australian, 13 June 1840[1]

Before Mr. Justice Stephen and Messrs. J.E. Manning and W. Dawes, assessors

            Toby v Rowley. - This was an action of trover, brought to recover possession of a mare purchased by the plaintiff about a twelvemonth ago, from a man named Marrington, for the sum of sixty guineas. Subsequently to the purchase, the plaintiff entered into co-partnership in cattle and grazing concerns, with a person named Sherwin, on whose joint account a stock station was formed at Monaroo, a dray and agricultural implements were purchased in their joint names, and they were held out to the world as partners.

            A memorandum of agreement was signed by them, as to the number of cattle and horses each were to bring into the common stock, and a proviso was made, that one partner should not sell the private property of the other. After some weeks, Cherwin failing to bring forward his share of the stock, a verbal dissolution of partnership took place between the parties, but the same was not published in the Gazette or any newspaper, and there were not above four or five other stockmen within a circle of twenty miles, to whom the dissolution could have been verbally made known. Shortly afterwards, Sherwin borrowed the plaintiff's mare, ostensibly for the purpose of going to Goulburn, and returning direct to the station, instead of which he proceeded down the country as far as Parramatta, where he sold the mare to a person named Riley, who afterwards sold it to defendant. The plaintiff hearing of the transaction, wrote a letter to Sherwin, and another to Riley, demanding delivery of the mare, and threatening to take proceedings at the Police Office, if it were withheld by either of them twenty-four hours after receipt of the notice. At the same time the plaintiff acquainted them that being short of cash, when he was coming down the country, he had himself sold the mare to a person at Molonglo for £40 in cash, and an order for £20. The defence set up to the action was two-fold - first, that due notice of the dissolution of partnership had not been given to the public; and secondly, that the plaintiff having admitted that he had himself sold the mare prior to his bringing the action, the property was not vested in him, so that he could maintain an action of trover. His Honor told the Assessors that upon the first issue, if they were of opinion that the conversion of Sherwin were unlawful, it was equally unlawful in Riley, and the defendant - but upon the second issue, which involved the question of the plaintiff's title to the mare at the time of bringing the action, if they were of opinion that at the time of the conversion by the defendant, the plaintiff had not right of possession, his right of action was done. The Assessors found, upon the first issue, as to the unlawful conversion, for the plaintiff - upon the second issue, as to the right of property, and possession of the plaintiff, they found for the defendant. This verdict has the effect of making the plaintiff pay the general costs of the action, as well as losing his mare into the bargain, while the defendant is merely saddled with the costs arising from the first issue. Counsel for the plaintiff, Messrs. Windeyer and Broadhurst; for the defendant, Mr. Foster.

Dowling C.J., Willis and Stephen JJ,  26 June 1840

Source: Australian, 30 June 1840

            This was an action of trover for recovery of a mare, tried before Mr. Justice Stephen during the present term, and a verdict was given for the defendant. Mr. Windeyer moved for a new trial on the ground of misdirection of the learned Judge, and Mr. Foster opposed the motion. The arguments of the learned counsel lasted for nearly five hours, and the principal point in dispute appeared to be whether the plaintiff, at the time he sold the mare in dispute to one person, while a person who had shortly before been his partner in grazing and stock transactions, had previously sold it to another, from whom the defendant had purchased it, had right of property and right of possession at the time of the sale, so that he could maintain an action of trover. The Court took time to consider judgment.

Dowling C.J., Willis and Stephen JJ, July 1840

Source: Australian, 16 July 1840

            Toby v. Rowley. - This was a motion for a new trial in an action of trover for the recovery of a mare, tried during the present term before Mr. Justice Stephen, and Assessors, and a verdict was given for the defendant. The motion, which was fully argued before their Honors on a former day, was made upon two grounds - first, that the plaintiff had been taken by surprise by the production of two letters on the part of the defendant, in which the plaintiff had acknowledged having sold the mare to another party prior to bringing the action, he being able to prove that he was obliged to refund the money, as he was not in a condition to deliver up the animal he had sold and secondly, upon the ground of misdirection by the learned Judge, who tried the case. Their Honors now gave judgment. Mr. Justice Willis differed with Mr. Justice Stephen in his view of directing the Assessors, and upon the question at issue under the defendant's pleas, but the Chief Justice was of a contrary opinion. The Court was however unanimously of opinion that anew trial ought to be granted on the ground of surprise, upon the usual terms, namely, payment of costs. Rule accordingly.

Dowling C.J., Willis and Stephen JJ, July 1840

Source:  Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 49




                                                                     In Banco


                                                              Sir J. Dowling CJ.

                                                                    Willis J. &

                                                                    Stephen J.

                                                                Toby v Rowley

            Trover for a mare.  The declaration was in the usual form, alleging that the plaintiff was "lawfully possessed of the mare, as of his own property and that being so possessed he casually lost her, she came to the defts hands, by finding and that he afterwards wrongfully converted the same to his own use.-  the Defendant pleaded 1st Not Guilty, & 2d That the Plf was not lawfully possessed of the mare in the form and manner alleged in the declaration.  Issue hereon.  At the trial before Stephen J. and two assessors during the present term, the deft proposed to shew under the second plea that at the time of the alleged conversion he had no property in the mare & consequently that he was not lawfully possessed in the manner alleged in the declaration.  Two letters [p.120 (sic)] of the Plf dated respectively 22' February 1840 one addressed to a Mr Riley from whom the Deft bought the mare, & the other to a Mr Sherwin, of whom  Riley bought her, were given in evidence.  The lat mentioned after reproaching Sherwin with dishonest conduct in disposing of the mare contained the following passage.  "I have only to inform you now, that as I wanted cash and the mare of mine which you rode down was mentioned, I sold her at Molonglo almost immediately after you left for 60£receiving 40 cash & rewards order of Hughes & Hoskins for 20£ for which payment the purchaser holds my receipt with a guarantee to deliver the mare on your return from Goulburn.  The sale was made on the 13th January I think, and the receipt for the payment stands dated when I received it viz. the 16th of J.-  At the same time [p.121] as you had not returned and I wanted to see Mr Lambie I gave an order for the delivery from you on your return (if in any absence) The letter addressed to Mr Riley contained the following passages "In consequence of  report that has met me, in my way from the interior, that Mr Sherwin has sold to you a mare branded &c.-  I hasten to inform you that the said mare is or rather was my property, & taken without my permission from my run"--"I sold the mare in question to a gentleman at Molonglo as I was then pressed for cash, for 60£ for which amount he holds my receipt dated I think the 16th January he knowing the mare and I informing him at the time that Mr S. had taken her to Goulburn, and that I expected him back on the following day when I undertook to deliver her he giving me 40£ cash and an order on Messr Hughes & Hoskins for 20£.  This person will be in Sydney in 8 days from this date.  Under these circumstances you will [p.122] judge for yourself how you will act, but on my part, if not immediately restored the most conclusive steps will immediately be taken".-  The mare may be delivered to Mr James Pye in Parramatta in within 24 hours from the receipt of this who will place her in a paddockon behalf of the purchaser."  The action was brought in April and it was contended that these letters were decisive proof that at the time of action brought the plf had noproperty in the mare to entitle him to maintain trover.  On the part of the Plf it was insisted that assuming these letters could be given in evidence in support of the Defts second plea, yet a the mare had never been in fact delivered by the Plf to his vendee, though he might have sold & received payment for her, his title to maintain trover was not determined but secondly that these letters [p.123] not receivable in evidence as an answer to the action under the second plea, in as much as that was only a traverse of the possession & not of the property or title in the mare; property & possession being divisible propositions.  It was continued that under the plea, possession only & notproperty was put in issue.-  The learned Judge ruled that the letters were receivable under the second plea, holding that it amounted to a traverse of the allegation that the Plf was lawfully possessed of the mare as of his own property; & he left it to the assessors as a question of fact to determine whether the mare was the property of the plf, at the time of the sale by Riley to the Deft.  The assessors found for the Deft.

            On a former day a motion was made for a new trial, first on the ground of surprize [sic] in as much as the Plf did not expect that the letters [p.124] in question would be produced in evidence, after the plf had been obliged to repay the price of the mare to his vendee, in consequence of his inability to deliver her, of which fact, an affidavit was now filed; and secondly, for misdirection by the Judge in ruling that the Deft could under the circumstances of the case, or under his pleas set up the facts contained in the letters as a defence.

            The case was argued by Mr Windeyer for the Plf & by Mr Foster for the deft.

            on the ground of surprize, & under the circumstances stated in the affidavit, I think the Plf is entitled to a new trial, but whether upon the usual terms of paying costs, must depend upon the question whether there was any misdirection on the part of the learned Judge.

            Having reference the new facts stated in the affidavit filed in support [p.125] of the present application, it is unnecessary how to determine whether under the circumstances mentioned in the Plfs letters, he had such a right of property still remaining in him [not with standing the sale of the mare & the receipt of the price] by reason of his not being able to deliver the mare to the vendee as to enable him to maintain trover.  Those facts if duly proved on a new trial may so alter the case as to render any decision upon the letters alone, unnecessary.  Should the new facts fail to be proved, it will be then time enough to determine on the import of the present uncontradicted letters.

            The question therefore is, whether those letters were admissible in evidence under the Defts second plea, to determine the question of right of property and ofpossession as the time of action brought.

            This plea has been pleaded in the spirit of the new rules of pleading in the Courts at Westminster which have been adopted by the [p.126] 128th rule of this Court.  It is time there is no express rule applicable in terms to the action of trover, although that species of action is put as one to which the rues are applicable yet as that form of action is analogous in almost all its particulars to that of detinue the same rule of construction for the purpose of the present case will apply.  By the new rule "the plea of non-detinct shall operate as a denial of the detention of the goods by the deft; but not of the Plfs property therein; - and no other defence than such denial shall be admissible under that plea".

            Under the plea of the general issue not guilty in Trover, the deft could only prove that the conversion was lawful, the gist of the action being the wrongfulconversion.  That plea only admits the existence of some property, & if it stood alone the deft would be confined to the lawfulness of the conversion.  No argument, therefore, can arise upon the apparent inconsistency between the plea of not guilty & the special [p.127] plea denying the possion [sic].  Then does the special plea put in issue the material facts alleged in the declaration? - for that is the true point we have to determine.

            In order to maintain this action the Plf must not only have some right ofproperty, but a right of possession also, and unless both these rights concern at the same time the action will not lie.  Gordon v Harper T.T.R.9.  In his declaration the plf is obliged to aver that they do concur, & accordingly he alleges that he was lawfully possessed of the mare as of his proper goods & chattels, & that being so possessed, he casually lost &c.  This is one entire proposition, alleging the possession, and theform & manner of the possession - i.e. of his proper goods & chattels.  How is this allegation traversed?  Why by denying that he was lawfully possessed in the form & manner so alleged in the declaration.  It is a direct traverse of all the ingredients necessary to enable the Plf to maintain the action - namely the concur- [p.128]-rence of the right of possession & property in the mare.  The Plf could not be misled by this plea, & he induced to suppose that the Deft only meant to contest the mere right ofpossession.  He could not be lawfully possessed for the purpose of this action, unless he had either the special or absolute property.  This is  question of plain common sense & not of hair splitting special pleading.  The mere plea denying the fact of possession could not help the Deft unless he also traversed the right of property.  It is quite obvious that both in terms & substance he meant to traverse the whole of the right in respect of which the Plf sought to maintain the action.  It appears to me that without adverting to the decisions on the modern rules, that we should be violating common sense if we could give effect to the ingenious argument which has been [p.129] pressed upon us.  For some purposes the right of possession & of property may be divisible as where a man has the ultimate & absolute property in a chattel, & yet the right of possession is suspended until a certain contingency, such as discharging a lien, has happened, but here it is clear that the deft did not mean to take issue merely upon the possession as concurring with the right of property.  I am of opinion therefore that the facts contained in the letters given in evidence were admissible under the pleas pleaded.

            I have however examined most of the cases determined since the new rules in Westminster Hall & I find none militating against the construction of the second plea in this case.-  In Vermon v Shipton 2. Meeson & Welosby 9. which was trover for tin plates, the plea was that the Plf was not possessed of the goods as in the declarationmentioned & the decision, was in effect to put in issue the plfs property.  The traverseof possession, is a traverse of the right of possession depended on the transfer of theproperty by the Plf or by his order. - The case of Bolton v Sherman 2 Meeson & Welsby.395 [p.130] went upon the same principle - namely that the property was in issue, under the special plea that the Plf was not lawfully possessed of the goods as of the proper goods of him as such assignee in manner & form.  In Philips v Robinson 4 Bing. 106 (1827) there was no occasion for the special pleas at all, because the defence there set up was a good one under the general issue, before the new rules.  That was detinue for the title deeds of an estate given by the Plf to his son.  The Plf had employed the Deft to prepare the conveyance which he did, & it was executed, & it was held that the estate having passed to the son, the deeds which were themuniments [??] of his title, also became his property, & consequently the plf could not maintain the action, having by the conveyance of the estate, ceased to have any property in the deeds.

[p.131]            In Samuel v Morris 6 C & P. 621 (Vol 34) the plea was that the goods are not nor were the property of the Plf as he has in the declaration alleged.  It was  doubted by Parker B. - whether this plea wd not have been bad on demurrer as the declaration only alleged that the Plf was "possessed as of his property" - but he thought that although the plea was informal, yet it might be regarded as a sufficient traverse of the allegation that the Plf was possessed, as of his own property.  The principle of this case, & of Vermon v Shipton is, that possession means a propertyentitling to possession, in as much as both must concur to maintain trover.  In Dunn vMassey 6. Ad. & Ellis 479. the pleas only denied the possession as in the declaration alleged, namely as of the Bankrupt in one plea, & of the assignees in the other, & the right of property in the deeds [p.132] was tried under those pleas.  In Pickard v Sears6 Ad & Ellis 469 (1837) the special plea was that the Plf was not possessed &c.- & the question of the Plfs right of property in the machinery was determined.  InPearsons v Graham, 6 AD & El.899. the plea was that the Plf was not possessed inmanner & form &c. & the question was the right of property.- & the sole question there, as in this case, was whether the Plf had at the time of the conversion such aproperty in the goods as entitled him against the Deft to possession.  As the right of property either absolute or quantified must concern with the right of possession, the denial of the right of possession is a denial of those conditions on which alone Trovercan lie. 

[p.133]            In Heath v Wilward 2 Bong. N.C.98. which was trespass quare clausum freight, after not guilty the Deft pleaded secondly, that the close was not the close of the Plf, & yet the court held that such plea, put the possession only in issue, and in that plea the verdict was entered for the Plf, although the Jury found that the close was not the property of the plf.-  There the plf only alleged that he was lawfullypossessor of the close, & the Deft plea not having traversed the possession, there was nothing but the possession in issue.

            The case of Owen v Knight 4.Bing. N.C. 54 so strongly relied upon by Mr Windeyer seems to me to be very distinguishable from this.  There the deft had a right of lien on the deed which showed that until the lien was discharged, the Plf had no right to the possession, & therefore he could not truly allege that he was possessed as of his own property.  He was [p.134] originally entitled to the possession and had a legal property in the deed, but it was afterwards delivered to the Deft, with the Plfs assent to raise money for the discharge if a Bill on which he & another party were liable.  The parties therefore stood i the position, that the Plf was entitled to the possession, only when the money advanced by the Deft had been repaid.  The deft was entitled to holdpossession till he had been repaid.-  In that case there was a direct traverse of thepossession as of the Plf's own property, & the Deft pointedly put the unqualified right of possession in issue.  The Deft had a right to set up his lien, & shew that the Plf was not entitled to the possession.  In that case the right to possession was raised as distinct from the right of property.  A right of property for the purpose of maintaining an action of trover may subsist in several different persons, & yet the ultimate & absolute right of property be only in one .  A pawner or bailor may have the absolute property in a chattel, and yet the pawnee or bailee may have the right of possessionagainst the true owner.  So also a pawnee or bailee may have as against a wrongdoer a right of property & also of possession, although the ultimate property may be in another.  It was when this principle that Owen v Knight was decided.  True the Plf there had the ultimate right of property, yet the right to possession was in abeyance until he had discharged the lien, & therefor it could not be predicated of him, that he could maintain trover in his right of property & possession because both must concur,  It became necessary for the Deft to shew by pleading that he had no right ofpossession, & raise that as a distinct issue.-  Here the traverse is of the whole of the Plfs allegation - that [p.135] he was lawfully possessed as of his own property, namely by pleading that he was not lawfully possessed, in form & manner, which means no more than that he was not possessed in the way in which he had described his right of possession of his own property.  It appears to me that consistently with the new rules of pleading, this plea put in issue, not merely the right of possession but also ofproperty, as concurrent rights, necessarily admitted to entitle the Plf to maintain trover.  For these reasons I think there was no misdirection, but that the Plf is entitled a new trial on the ground of surprize, on the usual terms of paying costs.


            Willis J. differs.-

            Stephen J. concurred.

Stephen J., 29 September 1840

Source: Australian, 5 October 1840[2]

            Toby v Rowley. - This was an action of trover to recover a mare sold to the defendant by a person named Sherwin, who pretended to be the plaintiff's partner. The case was tried last Term, and a verdict obtained by the defendant; a new trial was then applied for, and granted on the ground that the plaintiff could prove the mare to be his property, at the time of its changing hands, which he now succeeded in doing. - Verdict for plaintiff, £70.


[1] See also Sydney Herald 12 June 1840

[2] See also Australian, 1 October 1840.

Published by the Division of Law, Macquarie University