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

Ward v. Sawyer [1840] NSWSupC 27


Supreme Court of New South Wales

Dowling C.J., 17 June 1840

Source: Australian, 23 June 1840[1]

            Ward v. Sawyer. - This was an action of trover, brought to recover possession of a boat built by the plaintiff, a boat building, for the defendant, a proprietor of a small coasting vessel. As soon as the boat was finished, the plaintiff sent two messages to the defendant to fetch it away, which he did not attend to at the moment, but on a subsequent day went with his servant to the plaintiff's premises, and in his absence took away the boat contrary to the plaintiff's wife remonstrance. When the plaintiff's attorney, Mr. Hayward, went to demand restitution of the boat, the defendant refused to give it up, and added, without being asked for payment of it - "I'll be d____d if I shall-pay until I am compelled." The defence to the action was, that the plaintiff having sent to the defendant to fetch away the boat, was on account of "leave and license," a complete answer to an action of trover; but the plaintiff's counsel contended that the defendant did not fetch away the boat when he was requested to do so, and that even if he had done so, the implied contract between the parties was, that the boat should have been paid for upon delivery. His Honor left it to the assessors, as a question of evidence for them to decide, whether at the time the defendant took away the boat, he had a "leave and license." Verdict for the plaintiff - damages £20. Counsel for the plaintiff, Mr. Foster - for the defendant, Mr. Windeyer.


[1] See also Sydney Herald 19 June 1840

Published by the Division of Law, Macquarie University