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

Holmes v. Howard [1842] NSWSupC 17

trover - lien - sale of goods - evidence, by part to action

Supreme Court of New South Wales

Burton J., 2 February 1842

Source: Sydney Herald, 3 February 1842 [1]

This was an action of trover, brought for the recovery of two whale boats, with their appendages; alleged to have been wrongfully detained by the defendant from the plaintiff. The Solicitor-general and Mr. Broadhurst, appeared for the plaintiff, and Mr. Windeyer, with whom was Mr. Fisher, for the defendant.

Thomas Edwards, examined by Mr. BROADHURST   - Was clerk to the plaintiff; knows a person of the name of Howard, a boat-builder, living on the North Shore . Knew plaintiff had two whale boats, which had been purchased by him from Captain Butcher. Had seen another boat, which the plaintiff had bought of Captain Butcher. Witness thought these boats were all now at Howard's. Did not know the boats before they were bought of Butcher.

Cross-examined by Mr. WINDEYER - Had never seen the boats in possession, nor in the possession of Captain Butcher before the sale. Had been present at the sale, but never saw the boats delivered by Butcher to the plaintiff. The sale took place about the 13th or 14th of August, of last year.

Re-examined by Mr. BROADHURST. - Had seen about thirteen pounds odd, paid by plaintiff to Captain Butcher, as part of the purchase money.

Charles Tringer, examined, by the SOLICITOR-GENERAL - Was a butcher: knows how and the defendant; accompanied the plaintiff to defendant's premises, in August last: on that occasion, the plaintiff said, he had come over to demand two boats belonging to him. Defendant replied, he should not give them up until Captain Butcher settled with him. Plaintiff then told defendant   not to sell the boats, for they were his. The plaintiff pointed out the boats to Howard when he said this, and the defendant said, he would not give them up, until Butcher settled with him.

Captain Butcher was called, and examined, on the voir dire, but rejected on the ground of interest.

The witness Edwards being recalled, proved the memorandum of sale, which was made by Butcher in favor of plaintiff when he bought the boats.

Henry Gibson examined by Mr. BROADHURST - Knew the defendant, and knew the two whale boats, which were formerly Captain Butcher's. Had seen them in Mr. Howard's boat-yard. The witness described the boats, and stated their value to be about    £70.

This was the plaintiff's case.

Mr. WINDEYER submitted that there was no case to go the assessors, as there was no evidence either of possession or property at any time in the plaintiff.

The SOLICITOR-GENERAL and Mr. BROADHURST contended that the evidence of the bargain and sale, accompanied by part payment, taken with the conversation that had been proved, was sufficient evidence to go to the Assessors.

His HONOR refused to nonsuit, and

Mr. WINDEYER addressed the Assessors for the defence, contending that as the defendant had detained the boats from Butcher as a lien for work done on the boats, Butcher could never sell the boats so as to vest any property in them in the plaintiff.

Daniel Murphy, examined by Mr. FISHER - Knew Butcher, a pilot. About a year back some boats came to his master's; recollected Butcher, in witness's presence, ordering a new boat of Mr. Howard: it was to be a fast six-oared whale boat; the boat was not begun at that time. Mr. Howard was to sell one of the boats for £20, and the other for £10, and out of the money to pay himself: the conversation containing these terms, before the new boat was taken away..

Cross-examined by the SOLICITOR-GENERAL - The new boat was taken away about six months before Mr. Holmes and Mr. Tringer, the plaintiff came to the defendant. The new boat was ordered eight or nine days before the old boats came.

This was the defendant's case.


His HONOR summed up, and the Assessors found a verdict for the defendant


[1] See also Australian, 3 February 1842.

Published by the Division of Law, Macquarie University