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

Girard v Thorpe (1835) NSW Sel Cas (Dowling) 72; [1835] NSWSupC 22

architecture - assumpsit - goods sold and delivered - work and labour - set off - civil procedure - common money counts - replevin

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 26 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]



26th March]


[In an action for goods sold and delivered Deft pleaded a set off for work & labour as an architect & in support thereof produced nothing more than the record of a cross action between the same parties for work & labour as an architect with "the common money counts", from which it appeared he had remitted from the verdict the precise sum for which this action was brought:  Held that the proof was too general without evidence of the matter of the set off.]


Girard v Thorpe


Assumpsit for goods sold and delivered to recover the sum of 50£.15.6. with the common money counts.  Plea non assumpsit, with notice of set off for "work & labour as an architect".  At the trial before Forbes CJ. during the present term the Plf's demand was admitted, but in support of the set off the deft put in the record of a prior action between the same parties in which the present deft brought an action against the present plf for work and labour as an architect, the declaration containing the common money counts, and recovered a general verdictfor 150£, from which the present deft remitted the sum of £50.15.6, the amount for which the present action was brought.  No other evidence was offered of the Defts plea of set off for work & labour as an architect, but the record of the prior action, with the remittitur of the sum entered [p.53] of £50.15.6 from the amount of the general verdict.  It was objected at the trial that the record of the former action was not sufficient alone for non constat the present Deft might have recovered in that action on the common money counts and not for work & labour as an architect; he should have gone farther & have given some evidence to support this plea of set off for work & labour as an architect.  The learned Judge was inclined to think that the record of the previous action was sufficient proof of the set off, but allowed the plf to take a verdict for one shilling with liberty to move to enter a verdict for the Defendant.

Kerr now moved accordingly to enter a verdict for the Deft and contended that the proof of the remittitur of 50£.15.6. (the precise sum for which this action was brought) was quite sufficient without going farther.  The Plf must have known from the Defts notice of set off, what would be [p.54] the nature of the set off, & therefore he could not be taken by surprize.  The record of the former action & the remittitur of the exact sum of 50£.15.6. was sufficiently certain, though the declaration contained other counts.  The case of Baskerville v Brown (2 Burn 1229) is nearly in point; the only difference between that & the present case being that there, both actions were tried during the same term.

Wentworth contra.  The main point here is, that there was no evidence of the matter of the set off viz. "work & labour as an architect".  If the deft had given some evidence (which was clearly within his power) that he had done some work & labour for the Plf as an architect, then the record of the former action would have sufficiently pointed the remittitur to the sum of 50£.15.6. as being relevant to the cause of the present action; but by stopping short with the proof of [55] a record for work & labour as an architect and on the money counts he leaves it doubtful whether he may not have recovered on the money counts rule, which is not "hitting the bird in the eye".  In the case of Baskerville v Brown there was proof offered or ready to be produced to support the matter of the set off in addition to the record.

Dowling J. & Burton J. were of opinion that however nice the objection might be, the proof offered was not sufficiently certain to support the limited terms of the notice of set off.  The Court could intend nothing whether the matter of the set off was capable of being reduced to certainty by shewing that the Plf was indebted to the Deft for work & labour as an architect, & upon no other score.  They thought the verdict for nominal damages should [p.56] therefore stand.

Forbes CJ. was dissentient, & thought there was enough from which the Jury might presume that the remittitur had reference solely to work & labour as an architect, & not to any other matter of dispute between the parties.

Rule refused.



[1 ] On civil procedure, see also Delcambre v. Kettle, 1835, Dowling, Select Cases, Vol.4, Archives Office of N.S.W., 2/3463, p. 38, which Dowling J. noted as follows: ``After notice of trial, plf allowed in replevin to amend his declaration by altering the name of the locus in quibusupon payment of costs."  See, too, Fisher v. Poignand, 1835, Sydney Herald, 5 March 1835 (on the rejection of an application to postpone a trial for the purpose of obtaining a witness, where the applicant had failed to use due diligence to procure the witness); and Howson v. Stephens, 1835, Dowling, Select Cases, Vol. 7, Archives Office of N.S.W., 2/3465, p. 5 (on procedure in obtaining a jury).

Published by the Division of Law, Macquarie University