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

Sullivan v Rochester [1833] NSWSupC 53

evidence, by party to action

Supreme Court of New South Wales

Trial, 18 June 1833

Source: Sydney Gazette, 22 June 1833

This was an action to recover £33 12s. 10d., being for monies deposited in the hands of defendant for safety, and for work and labour done on his farm by the plaintiff in the year 1827.

It appeared in evidence, that the plaintiff had applied to Mr. Keith some years ago to prosecute a claim for £29, which was declined, plaintiff's circumstances not enabling him to advance the necessary funds.  The defendant's counsel produced a receipt for the payment of money to the plaintiff, which was stated by him (the plaintiff), to be a fraudulent one, inasmuch as he never gave the receipt in question; the witness who was stated to be present could neither read nor write, but had seen the plaintiff give the paper produced, to the defendant; plaintiff had sold cedar to defendant recently, and had received the payment, giving a receipt in full of all demands.

The defendant produced evidence to prove that he had paid several sums on account of the plaintiff; one shop bill amounting to upwards of £11, also a butcher's bill for 330lbs. of salted beef.

His Honor in submitting the case to the jury, observed, that he could not but regret, that the rules of that Court did not allow the exercise of a measure which would make a direct appeal to the consciences of contending parties, and settle the matter at once; alluding to the practice of some courts, where oaths were administered to the parties respecting their various statements.  Several discrepancies appeared in the evidence for both parties, which were not supported by probability.  He recapitulated the evidence, and submitted the case to their consideration when they returned a verdict for the plaintiff £2 10s. 8d.

Mr. Norton suggested that he verdict, under the recent Act of Council for regulating Courts of Requests subjected the Plaintiff to the payment of costs.  His Honor referred to the Act, and expressed his opinion that the plaintiff was entitled to costs.

Published by the Division of Law, Macquarie University