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Decisions of the Nineteenth Century Tasmanian Superior Courts

Heaney v. Troy [1833]

Court of Requests - set off - work and labour - wages, payment in kind

Supreme Court of Van Diemen's Land

Montagu J., 17 December 1833

Source: Tasmanian, 20 December 1833 [1]

The Solicitor General for plaintiff, for the defendant - Mr. Gellibrand.

This was an action brought, to recover the sum of £40 2s. 11d., for work and labour done, as a Sawyer. The defendant pleaded the general issue, with notice of set off, which set off, consisted of articles supplied, and money lent to the defendant.

The Solicitor General said, the set-off had been laid before the Court, before, but one of the Judges had decided, that further particulars thereof must be given, before it could be allowed, and all the alteration in the Bill was, that instead of stating, that the plaintiff owes defendant £50, which is the amount of the set-off, the bill now says, it was for meat, flour, &c., supplied and money lent, and that could not be called a bill of particulars.

James Howard examined by Solicitor General - Was directed by Mr. Troy, in 1827, to fetch some timber, which Hely had been sawing; went seven or eight times, and fetched between seven and eight hundred feet each time; left some behind him; has heard defendant say, that as soon as the board were brought in, he would pay Heaney for the sawing.

Cross-examined by Mr. Gellibrand. - It is six years ago, since the last timber was drawn.

Henry Corker, examined by Solicitor General. - Was working with plaintiff about three years ago; was furnished with a bill by plaintiff, which he, witness, was to give given to Mr. Troy. The amount was £40 2s. 11d.; presented it to Mr. Troy, who read it. Mr. Troy, said he would see Hely in a little time at the Coal river, and pay him; this was three years ago; Heley made out the account himself; cannot say, whether the account produced is in Hely's hand-writing.

Mr. Gellibrand shortly addressed the Assessors for the defendant, remarking upon the length of time, the account had been allowed to stand over. You cannot believe, said the Learned Gentlemen, that nothing has been paid to the plaintiff; I should tell you, that Heley has taken this case into the Court of Requests, where he was defeated, and now he comes here and expects you to be credulous enough, to give him a verdict, and he grounds his expectation on the inability of Mr. Troy, to prove the set-off. It is well known to you Gentlemen, that seven years ago, it was a common practice to pay wages partly in kind, in the way this man's has been paid; and I shall prove to you, that Heley had a great quantity of provisions of Mr. Troy, which as a matter of course, will be deducted.

John McNeilley, examined by Mr. Gellibrand. - Remembers Heley, having an action in the Court of Requests against Mr. Troy; it was tried on the 5th of September last, a non-suite was the result; the plaintiff was present.

James Maughan, remembers Heley working for Mr. Troy, about 6 years ago; it was in October, 1827; Heley and his partner, were supplied with food &c, by Mr. Troy. They might have had some from another place, but a good deal from Mr. Troy.

The Solicitor General addressed the Jury, shortly in reply - after which, His Honor summed up to the Assessors, who returned a Verdict for the plaintiff; damages - £40 2s.


[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