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

Aspinall v. Aspinall and Others [1842] NSWSupC 4

appeals, application for new trial - partnership property - deed

Supreme Court of New South Wales

Dowling CJ, Burton and Stephens JJ, 23 April 1842

Source: The Sydney Herald, 25 April 1842

            In this case the Solicitor-general, with whom were Mr. Michie and Mr. Darvall, appeared to support the application; and Mr. Foster, Mr. Windeyer, and Mr. Broadhurst, to oppose it. The action was tried last term, and was brought to recover a large sum of money alleged by the plaintiff to been received to his use by the defendant.

            The defence at the trial was, that the subject matter of the action was partnership property, which could not be made subject to an action at law. The evidence had shewn that the property sued for had been made, by deed, partnership property, and the only evidence adduced by the plaintiff, to shew that it had ceased to be so, was, that after the dissolution of the firm, by whom the property had been jointly held, one of the partners of the extinct firm, also a partner of the present firm, Mr. Edward Aspinall, had agreed to hold the property in question as the distinct property of Mr. Richard Aspinall, paying interest for the money.   A verdict at the time passed for the plaintiff, subject to the defendants afterwards moving the Court for a new trial.

            The Court was now moved accordingly. It was urged on the part of the defendants, that as no final balance had ever been struck, the money attempted to be recovered was still exposed to liquidate the liabilities of the old firm, which expired in 1837. Objection was also made to the evidence of money lent, which at the trial had been admitted for the plaintiff, when there was no notice in the plaintiff's particulars of demand that he should advance any claim for money lent.

            This, it was contended, was a further ground, entitling the defendants to a new trial, as they had been taken by surprise, in being called upon at the trial to meet a demand of an essentially different character from any referred to in the particulars of demand.

            For the plaintiff it was contended, that the particulars of demand had fulfilled the object for which they were intended, viz., the giving satisfactory information to the defendant of the nature of the plaintiff's claim, and that it was impossible the defendants could have been mislead by the alleged deficiency. With respect to the arguments which had been urged for a new trial, grounded on the allegation that the subject matter of the action had once been partnership property, it was contended that, after an admission by one of the defendant partners that he had borrowed the money of Mr. Richard Aspinall, and would pay 10 per cent for it, it did not lie in the defendants mouth to contend that the money was not Mr. Richard Aspinall's, but the money of the firm.                  

            Their HONORS, after a few minutes' consultation, said, that inasmuch as it appeared the case involved matters of account, and the defendants offered to shew that they had made such payments on account of Mr. Richard Aspinall, as would materially alter the state of the balance for which he had sued, their Honors thought their should be a new trial. It was clear that the defendants, thinking it quite sufficient to prove one defence, the partnership, had not come prepared to prove those items of payment, which but for such supposition of the sufficiency of the partnership defence, would have been proved. There might therefore be a new trial on payment of costs.

            It was afterwards arranged, that there should be a reference to the Master to take an account of what was due to each of the members of the old and new partnerships respectively.

Published by the Division of Law, Macquarie University