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

Somerville v. Hosking [1839] NSWSupC 53

work and labour - convict attaint - convict services, assignment of, between masters - legal profession, division of

Supreme Court of New South Wales

Dowling C.J., 24 June 1839

Source: Sydney Herald, 26 June 1839[1] 

Somerville v. Hosking. -- This was an action for work and labour done by a convict servant.  The circumstances as stated by the only witness called were as follow:-- About five years since two convicts were sent to the Albion Mills, one of whom was supposed to have been assigned to Mr. Hamilton, the Superintendent at the Mills, and the other to Messrs. Hughes and Hosking.  Mr. Hamilton, who resided on the premises, employed his man as a servant for the three years, but occasionally when he was refractory would send him to work in the yard among the other labouring men, and would take one of the labourers in his stead; during the three years the man did not work for the defendant above three months.  When Mr. Hamilton left the Albion Mills about two years since, he took this man to Parramatta with him.  One day the man became very refractory, and Mr. Hamilton threatened to have him punished, when he said he was not assigned to him.  The next time Mr. Hamilton came to Sydney he went to the Assignment Office, and there ascertained that this man was assigned to Mr. Somerville, of Hunter's River, who had appointed Mr. Hosking his agent.  Mr. Hosking had never been aware that Mr. Somerville had appointed him his agent, and wrote to Mr. Somerville, to state that they had discovered that they had a man of his by mistake, and wished to know whether he had a man belonging to them.  The man was then forwarded to Mr. Somerville, who shortly afterwards commenced his action, laying his damages at £300.  The defence was that it was a mistake, and that the man was not in fact employed by the defendant.

The Chief Justice said, that in point of law the action was prima facie maintainable.  The action was for the labour of an assigned convict servant, and there was no evidence to shew that it was contrary to law.  This was not disputed by the defendant, who left the case on the facts.  The question for the Assessors was, did the plaintiff's servant do any work for the defendant.  It had been satisfactorily proved that the defendant did not know that the man was assigned to Mr. Somerville, but as soon as he did, when Mr. Hamilton applied to the Assignment Office, he immediately informed Mr. Somerville.  Mr. Hamilton said that sometimes, by way of punishment when he was at the Mills, he would send this man into the yard and take another man, by which it would appear that he did not work for the benefit of the defendant, but merely by way of punishment.  In answer to one of the Assessors, Mr. Hamilton stated that five years ago there was no printed ticket sent with convicts to show to whom they were assigned, as there is at present, but they were merely left at the assignee's by a messenger, and therefore a mistake might easily occur.  The Assessors returned a verdict for the defendant.


Dowling C.J., Willis and Stephen JJ, 15 July 1839

Source: Sydney Herald, 17 July 1839[2] 


Somerville v. Hosking. -- Mr. Windeyer moved that the master be requested to retax the costs in this case.  The affidavit upon which the motion was granted, set forth that this was an action to recover £250 for the services of the plaintiff's assigned servant, who was detained by the defendant for three or four years; the brief for counsel was marked four guineas, and upon taxation, the master taxed off one guinea, and the sum left was not considered sufficient remuneration for the counsel's services.  The verdict went for the defendant, because the plaintiff was unable to prove that the defendant had this identical servant, but the Court would see that the case was one of immense difficulty.

The Chief Justice said that he would at once say that he thought four guineas was not a bit too high -- had he been solicitor in the cause, he would have marked the brief at six guineas, for it was a case with a great deal of labour.  The taxing officer, it must be recollected, has not always proper data to go upon, and can only judge of the case from the length of the brief and the number of witnesses.

Mr. Windeyer said that the motion was not made, as much on account of the particular case, as to correct a misapprehension on the part of the taxing officer.

Mr Justice Stephen said, that as a matter of fact he could state that in the sister Colony the fees are half as high again as they are here.

Mr. Justice Willis said that in Van Diemen's Land the bar is not divided, and the solicitors mark their own briefs which may perhaps account for it.

Mr. Justice Stephen said that is not always the case. -- Rule nisi granted.



[1]  See also Sydney Gazette, 27 June 1839; Australian, 29 June 1839, both noting that the trial was heard before Dowling C.J., and Messrs Campbell and Dawes, assessors.

[2]  See also Australian, 18 July 1839; Sydney Gazette, 18 July 1839.

Published by the Division of Law, Macquarie University