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

Sherwin v. McCarthy [1803] NSWKR 1; [1803] NSWSupC 1

contract, work and labour - negligence - wheat, quality

Court of Civil Jurisdiction

Atkins J.A., 28 March 1803

Source: Sydney Gazette, 2 April 1803, 3 [1]

This was an action brought by the plaintiff to recover the value of 14 bushels of wheat due to him under the following circumstances.

The defendant had agreed to reap and thresh a certain portion of land belonging to the plaintiff, one consideration that he should receive half the profit of the standing crop. A short time after the wheat had been got in, the plaintiff slept several nights in the defendant's house, and was then informed that the producer had amounted to from 42 to 45 bushels, good and bad, a great part of which was then in the defendant's loss. As McCarthy seemed at ...time to urge that the grain contained a quantity of grain-feed and other rubbish, the plaintiff offered to take the whole and to allow the full store house price as a good grain, and 42 per bushel for who remained, which, however was not acceded to by the defendant who contended in reply that the net produce had not amounted to the number of bushels claimed by the plaintiff as his dividend; whereas it appeared entire other [hand], that out of the said produce 12 bushels and been expended by him in the purchase of [selves], and 16 bushels and a half had been applied to other purposes.

Here the plaintiff declared, that the defendant some short time after had sent to inform him that the rats had made great havoc in his moiety, of which he was fearful not more than about seven bushels remained. The plaintiff, unwilling that another man's rats should be any longer supported at his expense, sent for the wheat accordingly, and, to his no small surprise, found that these voracious animals had only left him three pack of chaff.

The court was clearly of opinion, that the prodigious decrease in the plaintiff's share of the crop was not wholly attributable to the cause assigned, the rats, and therefore thought proper to grant a verdict for the plaintiff.


[1] Given the scarcity of sterling money in the early colony, it is not surprising that agreements often provided for payment of debts in a variety of other valuables. These arrangements had risks, as this case shows.

See Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 2/8148, p. 430. On money in early New South Wales, see Butlin, Foundations of the Australian Monetary System 1788-1851.

Published by the Division of Law, Macquarie University