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

Lamb v Nettleton [1826] NSWSupC 45

detinue - lien - contract, implied - board and lodging - quasi-contract

Supreme Court of New South Wales

Forbes C.J.,[1 ] 25 July 1826

Source: Sydney Gazette, 29 July 1826

 

Lamb v. Nettleton. - This was an action brought to recover certain articles of property mentioned in the declaration, and valued at £39 12s. which were detained by the defendant, under the following circumstances, as detailed by Mr. Norton.  The plaintiff, Mr. Edward Lamb, is a resident in Sydney, and the defendant, Mr. Nettleton, was some time since the proprietor of the Wellington Inn, in George-street, and at present carries on the business of a publican, at the Half-way-house, on the Parramatta-road.  A relationship and intimacy subsisted between the parties, and during the defendant's residence in Sydney, he requested the plaintiff to allow his eldest daughter to spend some time at his house, to which, after some little hesitation, he consented.  Miss Lamb accordingly went to live at the house of the defendant, where, during her stay, she employed herself in assisting his wife in all her house-hold affairs, as one of the family.  After a few months, the defendant removed to the Parramatta-road, and Miss Lamb returned to her father; but the defendant's wife dying shortly after, he again requested the plaintiff to allow her to reside at his house, which he did, and during which residence, she acted in conjunction with the defendant's daughter, in managing the concerns of the inn.  The defendant, however, shortly after married again, and some little dispute having arisen, or at least there being no necessity for her remaining any longer, Miss Lamb left the house, and on going away, she said she would send for some things belonging to her, consisting of a bedstead, and a number of other articles of property which she had brought with her on coming to reside at the defendant's.  The defendant said "very well," and a claim of £9, which he had against the plaintiff being paid by a mutual friend, he gave a receipt, stating that he had no further demand, and the plaintiff, as a matter of course, expected the property would be delivered up.  However, on sending for that purpose, a farther demand was made of 16 guineas for board, washing, and lodging, for Miss Lamb, during her residence at defendant's house at Sydney, where she had been by the invitation of defendant and his wife, who was also her aunt, and of which no mention whatever was made when the first claim of £9 was demanded and paid.  Mr. Norton further stated, that on application by him for the delivery of the property, he had been furnished with another bill by Mr. Rowe, the defendant's solicitor, to which an additional £3 had been added, for coach hire paid for Miss Lamb, when proceeding to and from Sydney, on the defendant's business.  In conclusion, he contended that none of the charges set forth in the defendant's bill, gave him any lien on the property, as it was a general claim upon a book account; and further, that no contract had been entered into by the plaintiff with the defendant, Miss Lamb having been there by desire of the defendant, and during her stay having giving her services in assisting his wife in the management of the house.

Miss Lucy Lamb deposed, that she resided at the house of the defendant in Sydney, for some months, and also at his house on the Parramatta-road; the defendant's late wife was her aunt; she went to reside at the defendant's house in Sydney, at the request of her aunt and of the defendant; she went for the purpose of assisting her aunt in any thing she could do; she employed herself in needle-work, and all the household affairs, as one of the family; went to reside on the Parramatta-road, after her aunt's death, at the request of defendant, and of her cousin, Miss Nettleton; defendant shortly after married again, and witness returned home; when going away, she told defendant she would send for her things, and he said "very well, she could have them at any time."

Cross-examined. - Never knew of any contract between her father and defendant; never knew that he was to pay 12s. a-week for her board.

Mr. James Watson deposed that he was present when Miss Lamb paid a bill of £9 to the defendant; she asked if he had any other charge against her father, and he replied that he had not.

Cross-examined. - Witness believes the £9 was for the expences of a dance given on Miss Lamb's birth-day.

Re-examined. - Miss Lamb said she would send for her things; the defendant replied, "O yes, you may have them at any time."

Mr. Rowe, for the defendant, contended that he had a right to detain the goods, being the property of the plaintiff, until the lien on them was satisfied.  The plaintiff's daughter lived in the house of the defendant for seven months; she had a separate room the same as any guest residing at an inn, and did nothing whatever in managing the household affairs.  Even if no contract had been entered into, the question would be, to what the defendant was entitled for seven months' board and lodging; but witnesses would be brought forward to prove, that an agreement had been made to pay twelve shillings weekly.  He would call evidence to prove the style of living at the defendant's, and also to prove that the plaintiff's daughter was there as a guest, and did not do any thing towards the management of the house.

Mr. William Henry Meach resided at the Wellington Inn kept by the defendant in George-street; Miss Lamb lived in the house at the time; she was there as one of the family; there was a woman servant in the house.

Cross-examined. - Miss Lamb always appeared to be very industrious; she generally got witness's breakfast in the morning as an attendant.

Mrs Stewart. - Has heard Miss Lamb say that her father was to pay 12s. a-week for her board and lodging; it was on the occasion of a dispute she had with some of the defendant's family; she said she was under no compliment to defendant, as her father was to pay 12s. a-week for her.

Cross-examined. - Never told plaintiff that his daughter was a slave in the Wellington Inn.

Esther Nettleton, daughter of the defendant, has heard Miss Lamb say that her father was to pay 12s. a week for her, as he might as well pay defendant as any one else.

Cross-examined. - Miss Lamb employed herself, when she resided on the Parramatta-road, as witness did; does not know how she was employed when living in Sydney, as witness did not then reside at home.

Mrs. Hutchinson, aunt to Miss Lamb, has heard her say to Miss Nettleton that she was under no compliment to defendant, as her father was to pay 12s. a-week for her; plaintiff himself has told witness that he did not know how he encountered all his family, for he had to pay 12s. a-week for Miss Lamb alone; this was while she was living at the Wellington Inn.

Cross-examined. - Witness is related equally to Miss Nettleton as to Miss Lamb; has been at the Factory; never quarrelled with Mr. Lamb; her husband has; Mr. Lamb has a large young family; can't say whether it is probable that he could afford to pay 12s. a-week for one child.

Mr. Norton spoke to evidence, and particularly dwelt on the circumstance of a claim being made on an alleged agreement, without reference to books or any document whatever.  But even if an agreement had been proved, of which he contended there was not a title of evidence, still it would have been no defence whatever to the action, as it was a mere indefinite claim, and gave no lieu.

Mr. Rowe cited authorities in support of his argument.

His Honorthought the question would not turn upon a point of law.  An action was brought to recover certain goods, valued at £39 12s.  The defendant did not deny possession, but detained them for an account he had against the plaintiff, which he alleged gave him a right to do so; such was the formal part of the case.  The substantial part was, whether Miss Lamb did reside in the defendant's house as a guest, or to pay 12s. a-week for her board, and this was the only question for the Jury, whether or not, from the circumstances in evidence, she did go as a guest, or with the understanding that her board was to be paid for.  His Honor then proceeded minutely to remark on the evidence adduced on both sides, and concluded by again observing, that the question for the Jury to consider, was the original agreement.  But, taking all the circumstances of the case into consideration, he was of opinion the understanding was, that there would be no charge, and this was rather strengthened by the fact, that no specific account was kept.  The case, however, was entirely one of evidence, for the consideration of the Jury, as it turned entirely upon what they should consider the intention, at the time the plaintiff's daughter went to live with the defendant.  The Jury, without retiring, returned a verdict for the plaintiff.

 

Notes

[1 ]Stephen J. resigned as temporary Justice of the Supreme Court on 27 May 1826, and was not sworn in as puisne Justice until early November 1826.  See C.H. Currey, Sir Francis Forbes: the First Chief Justice of the Supreme Court of New South Wales, Angus and Robertson, Sydney, 1968, pp 97-98; Australian, 3 June 1826.  In the meantime, Forbes C.J. sat alone.

 

Published by the Division of Law, Macquarie University