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

Eales v. Chambers [1847] NSWSupC 23


Supreme Court of New South Wales

Full Court, 8 October 1847

Source: Sydney Morning Herald, 9 October 1847, in Supreme Court Collection, Vol. 2, p. 16

Before the full Court.


In this case the declaration was in replevin, to which the defendant pleaded not guilty, referring, in the margin of the plea, to the Court of Requests Act and the Small Debts Act, and intimating that he would rely upon both or one of them. To this plea there was a demurrer, assigning for reason that the plea of not guilty is an improper plea to an action of replevin; and if not improper, then the plea is demurrable for uncertainty, in not stating what particular statute would be relied on.

Mr. MICHIE, in support of the demurrer, contended, that no doubt the defendant would urge that the 37th and 38th sections of the Court of Requests Act, and the 39th section of the Small Debts Act, 10 Vic., 10, authorised him to plead the plea of not guilty to an action in replevin. But upon looking into those several sections it was clearly inferable that the action of replevin was not such an action as could have been present in the mind of the legislature at the time these several clauses were framed; for if it were to be decided that it was so, a party who had been wronged, and his goods seized, could not, for some slight cause perhaps, place himself in such a position as to prosecute an action of replevin within the time mentioned in the 38th section of the former Act; his action, therefore, would be gone. And to place this forced construction would be contrary to decisions. Fletcher v. Wilkinson, 6 East. 283. The plea of not guilty , it was then submitted, could not be pleaded to replevin. If replevin is an action within those clauses, then not guilty is not the general issue in the action. There may be some doubt as to what is the general issue in this action, but the authorities would seem to incline to recognise non cepit as being that general denial. At any rate, if this plea be good in form, then it is bad on special demurrer for not stating what particular statute is intended to be relied on. Stephen on Pleading, 374.

Mr. DARVALL appeared in support of the plea; and as to the uncertainty in the plea, as to which statute the defendant would rely upon, that could have been rectified before a Judge in Chambers, by way of summons. It was then urged, that although at common law, strictly there is no general issue to the action of replevin, yet this statute sanctions the pleading a general issue to that action, and not guilty is the more correct one, for non cepit only traverses one fact. To actions of debt not guilty has been held good plea.

The COURT did not call upon Mr. Michie to reply, but at once gave judgment in favour of the demurrer, on the ground that there were no cases which went the length to show that not guilty was pleadable to an action of replevin. Leave however was granted to amend in the usual terms.

Published by the Division of Law, Macquarie University