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

Hughes v. Davis [1838] NSWSupC 19

goods sold and delivered - statute of limitations

Supreme Court of New South Wales

Willis J., 21 February 1838

Source: Sydney Gazette, 1 March 1838[ 1]

Hughes and another v. Davies. - The plaintiffs in this case were Messrs. Hughes and Hosking, and the defendant a dealer residing in North George-street.  The action was brought to recover the sum of £15 2s. for goods sold and delivered.  The defendant had pleaded, firstly, the general issue; and, secondly, the statute of limitation.  A clerk to the plaintiffs proved delivering the bill to the defendant in March 1832, when he said he would pay it, but that Dr. Smith owed him £50 which he could not get from him.  The defence attempted to be set up was, that the goods were supplied to Mr. Richard Smith of Port Macquarie, to whom Davies was at that time assigned, but this was disproved.  The plea of the statute of limitation.  His Honor considered, entirely failed, as some of the articles charged in the account had been supplied within six years, which His Honor ruled took the whole account out of the statute.  Verdict for the plaintiffs, damages £15 2s.

Counsel for the plaintiffs, Mr. Windeyer; for the defendant, Mr. Stephen.

 

In banco, Dowling C.J., Burton and Willis JJ, 3 March 1838

Source: Sydney Herald, 5 March, 1838[ 2]

 

Hughes v. Davis. - This was an action for goods sold and delivered, tried before Mr. Justice Willis and assessors, when a verdict was returned for the plaintiff - damages £15 0s. 2d.  Mr Stephen moved for a new trial, on the ground of misdirection in the learned judge, who ruled that three items of the account being within the period of 6 years the whole account was taken out of the statute of limitations.  The learned gentleman contended that in order to make the position assumed by the judge tenable, it was necessary there should be a mutuality of account.  Mr. Windeyer appeared to oppose the rule.  The Court discharged the rule, being of opinion that His Honor's ruling was right, and that there was a running or mutual account between the parties. - Rule discharged.

 

Notes

[ 1]See also Sydney Herald, 22 February, 1838.

[ 2]See also Sydney Gazette, 6 March 1838; Australian, 6 March 1838.

Published by the Division of Law, Macquarie University