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

Anderson v. Lyons (1841) N.S.W. Sel. Cas. (Dowling) 450; [1841] NSWSupC 21

auctioneer, loss of title deeds - negligence

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, March 1841

Source: Dowling, Select Cases, Vol. 6, State Records of New South Wales, 2/3464, p. 192


[19th July 1841]

                                                                  March 1841

                                                               Cor. Dowling CJ      Willis J. at

                                                                          &                             Port Philip

                                                                    Stephen J

                                                               Burton J. present

                                                              Anderson Lyons


Case against an auctioneer for negligently losing title deeds of an estate which the Plf employed him to sell.  The declaration stated that "for the purpose of enabling the defendant to make sale of certain lands, the Plf handed to him certain deeds, being thetitle deeds of and relating to the said lands. and it became the duty of the Deft thereon to take care of the said deeds and keep them safely for Plaintiff and redeliver them on request so soon as their longer detention for the purpose aforesaid was unnecessary. Averment of a request after their detention became no longer required for the purpose aforesaid, but that deft did not take care of them, nor safely keep them nor at any time deliver them.  Pleas 1st. Not Guilty & 2d. That Plf did [p.193] hand over the deeds in the declaration mentioned, for the purpose therein mentioned.  Issues thereon.  At the trial before his Honor Mr Justice Stephen during the first term of the present year it appeared in evidence that the Plf employed the Deft to sell by auction some land at East Maitland & elsewhere & to enable him so to do, deposited with him certainpapers relating thereto.  There was evidence that a deed of conveyance of some land, had been in existence, but whether that deed got into the Defts possession did not appear.  There was an attempt to prove that such deed had been in his possession, but on failing to prove that fact, the Plf relied upon proof of a paper writing drawn up apparently between two parties by an illiterate person, without seal.  It related in some way but what did not appear to the land at East Maitland, & was delivered to the Deft for the purpose of framing an advertisement of the land & with a view to sell the property.  It was sworn not to be a title deed.  On the day of sale it was in the Defts hands and by him handed over to persons in the auction room, & it became lost, & in consequence of the loss the Plf as alleged was unable to complete a title to the purchaser of that land.  There was no proof of the loss by Deft of any deed technically so called.  It was proved that the Plf had complained to the Deft, that he could not complete his title to the purchaser "for want of the papers", & that the Deft more than once ordered his clerk to "look for them" and to the Plf's attorney who complained to the Deft that he could not complete his title "for want of the deeds, he replied that he "had searched & could not find them".  Under these circumstances it was contended that the Plf must be nonsuited as there was no evidence of the possession or of theloss of any deed.  [p.194]  The Plf's counsel, admitting that there was no evidence of any possession or loss of anything but  paper writing relating to the land, contended that the question whether the thing delivered was properly & technically a deed was not in issue upon the pleadings.  The learned Judge directed the Jury that that question was not in issue, but reserved the point.  The Plf had a verdict for 20£ on both issues.  A motion was afterwards made to enter a nonsuit on the point reserved, and in failure of success, to reduce the damages to a nominal amount there being no evidence of the value of the paper.


On the argument of the case in Banco, it was contended on the part of the Plf that by the pleas pleaded the Deft concluded himself from disputing the facts set forth in the declaration as inducement to the action.  By the New rules of pleading it was clear that under "Not Guilty" he could only deny the negligence alleged in the declaration and not the facts stated in the [p.195] inducement.  If he meant to insist that the thing lost was not a deed, technically so called but something else, he should have put that fact in issue.  Here, at all events, the thing lost related to the land, & without which the Plf could not make a good title.  The paper was ejusdem generis with a title deed.  it was one of the Plf's evidences of title, & in common parlance it was a title deed.  The case therefore came within the common sense meaning of the rule "that in actions on the case the plea of Not Guilty shall operate as a denial only of the breach of duty, or wrongful act alleged [p.196] to have been committed by the Deft, & not of the facts stated in the inducement: and no other defence than such denial shall be admissible under that plea.  All other pleas in denial, shall take issue on some particular matter of fact alleged in the declaration.  If the Deft could have been misled by the declaration,Then did the Defts special plea help him, so as to cast upon the Plf the burthen of proving that the thing handed over was a deed?  It would be said that this plea was a negative pregnant, & involved two propositions, first the handing over deedsfor the purpose in the declaration mentioned:  But the only thing put in issue by that plea, was the purpose for which the deeds were handed over.  The Deft could not avail himselfof that as a ground of defence, without admitting as a fact that the deeds were [p.197] handed over to him.  this plea was an admission that the deeds were handed over, & only disputed the purpose for which they were handed over.  As t the damages that was a question for the Jury, & at all events the sum recovered was so small that the Court would not distort the verdict on that ground.  On the part of the Deft, it was admitted that by the first plea, the receipt of deeds, i.e. of some deeds, or other was not in dispute, for by the new rules, the plea of Not Guilty puts in issue only the wrongful act complained of & consequently the loss was the only matter in question, but still, that loss was a loss of deeds, & not a loss of any writing merely, not being ordered.  It was maintained therefore that there being no proof of the loss of any deed in the sense [p.198] of the term, the plfs case had failed.  The Deft might really have received deeds, & not have lost any of them, but his loss of a writing or paper was a different matter, as to which in this action there was no complaint.  As well might it be contended that in ac action for the loss of a horse, proof that the deft had lost a cow, would conclude the Deft, under the general issue.  Then secondly it was contended that in the second plea, put in issue, the receipt of a deed as well as the purpose for which it was received, to the damages there was no proof of any value whatever, & the Jury had arbitrarily given 20£ without any evidence to warrant their verdict.

[p.199]                        This case has stood over for the consideration of the Judges before whom it was argued, and our decision has been postponed only from unavoidable delays.

The only difficulty that has occurred to the mind of the Judges, arose upon the argument whether under the plea of Not Guilty, the delivery of the deeds mentioned in the declaration was in issue.  Upon the affect of the second plea no difficulty whatever was entertained, inasmuch as already that plea only put in issue the purpose for which the deeds were handed over.  Upon that plea the Plf was obviously entitled to a verdict & could not have been nonsuited for the objection to taken or the first plea.  Assuming that there is a material distinction between "deed" & "writing" on the issue raised by the first plea, still there ought to have been no nonsuit, & the utmost the Deft could have moved for would have been a new trial.  Had the Deft withdrawn or offered to withdraw his second plea, then he might have moved for a nonsuit, if his objection on the first had been well founded; but upon the second plea the Plf was entitled to a verdict; & therefore the only question is whether, having reference to the amount [p.200] of damages recovered this is a case in which the Court will grant a new trial.  As to the damages, it is true that the value of the paper lost was wholly unascertained, and indeed from its prior purport & contents not having been disclosed, unascertainable & therefore there was nothing to guide the assessors in estimating their damages.  We are of opinion however, that whatever may have been the difficulty in estimating damages, under such circumstances, yet as the assessors have estimated them, & as the plf may in such a case by reason of the Defts negligence have sustained damage, independently of the mere value of such a document in itself considered, the amount recovered is not so unreasonable as to induce the Court to disturb the verdict on that ground.  The gist of the action is the Defts negligence in losing the document, & that was a question wholly for the assessors.  Assuming the objection made under the first plea to be tenable, the utmost we could do would be to award a new trial on payment of Costs, but in a case where the damages are [p.201] so trifling, we think it mercy to both parties not to disturb the verdict.


J's concurred                           R. Refused.


Published by the Division of Law, Macquarie University