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

Stephen v. Hayes [1834] NSWSupC 67

legal practitioners, action for fees

Supreme Court of New South Wales

Dowling J., 5 June 1834

Source: Sydney Herald, 9 June 1834[1 ]

Thursday. - Before Mr. Justice Dowling, J. E. Manning, and A. Kinghorne, Esqrs.

Stephen v. Hayes, - This was an action of assumpsit brought to recover the sum of £32 12s. 4d. for professional services in behalf of defendant, as an attorney.

Mr. Parry Long, clerk to plaintiff, proved the services having been performed, and the bill of costs duly delivered, agreeably to act 2, Geo. II. sec. 23, cap. 23.  He remembered the case of Ellsston v. Hayes, a nonsuit had been entered in consequence of an error in the stated amount of a promissory note.

The defence to this action was that at the time the said costs for which plaintiff sued were incurred, that a partnership existed between plaintiff and another party, and the action therefore could not be sustained.  The fact of the partnership was elicited from plaintiff's witness in his cross-examination by defendant's counsel.

His Honor directed the Assessors to take into consideration from the evidence adduced, whether the services sued for had been performed, the bill of costs delivered, and whether a partnership had existed at the time of rendering such professional services.  If they were satisfied as to the latter fact, it was their duty to find for the defendant; if on the contrary, there had been an insufficiency of proof to establish it to their satisfaction, they would find a verdict for plaintiff.

The Assessors after a short consultation, found a verdict for defendant.

 

Notes

[ 1] See also Sydney Gazette, 7 June 1834; Australian, 6 June 1834.  For the trial notes, see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98, p. 35.

Published by the Division of Law, Macquarie University