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Decisions of the Nineteenth Century Tasmanian Superior Courts

Bell v. Folly [1833]

board and lodging

Supreme Court of Van Diemen's Land

Montagu J., 18 December 1833

Source: Tasmanian, 20 December 1833 [1]

Mr. Horne for the plaintiff, Mr. Gellibrand for the defendant.

This was an action brought by the plaintiff, a publican in Elizabeth street, against the defendant, a farmer at Brown's River, to recover the amount for board and lodging.

Jane McCraken, examined by Mr. Horne. - Both defendant and his wife had been in the habit of stopping, for two or three days at a time, at Bell's house, when they were supplied with board and lodging. The articles supplied are first entered upon a slate, and then into a book; made the entries herself from the 7th of July to the 18th of January; served all the articles to the defendants' between these dates herself.

His Honor here asked several questions, as to who occupied the beds, and eat the breakfasts, &c., on particular dates.

The witness admitted, that there were some errors in the account, and His Honor remarked, that such acknowledgment shook the whole of the witness's testimony. It further appears the account for board &c., was mixed up with one for goods, and therefore, as money on account has been paid, it was impossible to know for which articles the money had been paid. The Cross-examination principally consisted of a dissection, of the various articles charged in the bill of particulars. The witness, who is very illiterate, had her mental equilibrium so completely disturbed by the severity of it, that we are really surprised, she recollected any thing at all relative to the accounts. In the course of the examination, witness said, she did not recollect receiving any money on account, either from Folly, or from any one in his behalf: could not say, whether the signature presented, is her father's writing. This witness behaved in the most impertinent and contemptuous manner, so much so, that His Honor was more than once compelled to threaten to send her to gaol.

Henry O'Hara, examined by Mr. Horne - Has made entries at time, for the plaintiff; sometimes upon a slate and sometimes in a book; the entries on the 18th and 22nd of January, were made by him; sometimes made the entries in the presence of the parties, and sometimes not; does not see any more entries in his own hand-writing.

James Hoges examined by Mr. Horne - Remembers having sold Mr. Folly, a pair of trowsers, at the coach and horses; was paid for them by Mr. Bell.

Ramsay Williamson examined by Mr. Horne - Was paid an account to Mr. Bell, on account of Folly; the amount of the account was £3 10; it was not a spirit account.

Thomas Walton, examined by Mr. Horne - Was told by Folly that he owed Bell, a bill of £16, but he had a set off. The witness, McCracken was again called, to prove the occupation of four beds, which she did.

This was plaintiff's case.

Mr. Gellibrand addressed the Court for the defendant, and said, that the declaration set forth that the debt was for goods sold and delivered, and not, as it ought to have done, for board and lodging. This was one of those cases which ought never to have been brought into Court; and even if the plaintiff recovered in this case less than £10, his expenses should not be allowed him, as it could have been settled elsewhere. In the course of his speech, the Learned Gentleman remarked strongly upon the practice of publicans, thus allowing a score to be run up, which includes spirits.

His Honor said, that it was not in evidence that any grog score was sought to be recovered - nor any evidence of the defendant or any of his family being intoxicated, while in Bell's house.

His Honor then addressed the Assessors. - It was not, he remarked, because a settler residing some miles in the interior has his board, lodging and some spirits of a publican in Hobart Town, that the publican should be deprived of a just remuneration for the accommodation he affords - and, therefore, he should not think of saddling the plaifntiff with the costs, according to Mr. Gellibrand's desire. He did not see either why a publican, under such circumstances, should not covered for a moderate supply of spirits.

Verdict for the plaintiff - damages £6 13s. 8d.

Mr. Horne remarked, that, after what fallen from His Honor, he was sorry the spirit account had not been inserted in the bill of particulars.

Notes

[1] See also Colonist, 24 December 1833.

Published by the Division of Law, Macquarie University and the School of History and Classics, University of Tasmania