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

Johnstone v Wright [1833] NSWSupC 16

master and servant - assumpsit - contract, implied

Supreme Court of New South Wales

Dowling J., 11 March 1833

Source: Sydney Herald, 14 March 1833

Sittings at Nisi Prius.

MONDAY. - Before Judge Dowling, and James Busby and J. E. Manning, Esquires, Assessors.

Johnstone v. Wright, Attorney - This was an action of assumpsit to recover the sum of £53 6s. due plaintiff by defendant for services as a clerk for the period of 13 months, at the rate of £50 per annum.  The defendant pleaded the general issue, and had filed a set off more than covering the amount claimed.

The witnesses called on the part of the plaintiff proved that they had seen him employed in defendant's office as a clerk, and that he had brought business to his office; they considered his services worth £1 per week, independent of board and lodging, and previous to his living with Mr. W. he had means of obtaining a good support.

The answer to the action was the following set off:- 62 weeks board and lodging, at £1 10s. per week, washing £10, and among the list of necessaries a sword £5, and breakage of crockery and glass, while pleni Bacchus.

Several witnesses were called, who deposed that they always considered plaintiff residing with defendant as a distant relation out of a situation, and not as a clerk.

His Honor then summed up.  This was an action of assumpsit, on an implied promise, no special agreement being proved.  In this case there were three points for their consideration.  1st, whether the plaintiff was employed as a clerk, and did he act as such; 2d, how long was he so employed; and 3d, how much ought he to receive as a fair and reasonable compensation for his services.  The Assessors found a verdict for the defendant.

Messrs. Sheehy and W. Foster for plaintiff, and Mr. Therry and N. Allen for defendant.[1 ]

 

Notes

[1 ] On costs in this case, see Sydney Herald, 6 June 1833.

Published by the Division of Law, Macquarie University