Long v. Boucher. - Mr. Wentworth and Mr. F. Stephen for the plaintiff.  Dr. Wardell and Messrs Moore for the defendant.  Mr. F. Stephen stated this to be an action for a libel, on the character of the defendant, published for the first time, on the 7th of last December, under the form of an advertisement, and continued in all the newspapers of the Colony for several weeks; being as follows:-

``The inhabitants of the district of Hunter's River, and the public generally, are requested to take notice, that Parry Long, lately in my employment as shop boy, at Wallis Plains, has been dismissed from my service for Gross Embezzlement."

``FREDERICK BOUCHER."

``Maitland, Dec. 7, 1829."

Damages were laid at 30 l.; defendant pleaded general issue and justification.  It appeared that plaintiff was engaged as clerk, by the defendant, and in charge of a public house, at Maitland, where the defendant supplied him with certain quantities of spirits; in the course of three weeks, by the defendant's shewing, there appeared a deficiency of 30 gallons, for which the plaintiff not satisfactorily accounting, defendant preferred the matter to the district magistrate, who refused to interfere, as it was rather matter for a Civil Court; the defendant dismissed the plaintiff from his service, and carried the above advertisement to be published.  Several respectable witnesses deposed to the fact of the excellent character generally borne by the plaintiff.  Verdict for the plaintiff - damages 10s. and costs.

Forbes C.J. and Dowling J., 27 June 1830

Source: Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462

[p. 341]

[These were cross actions one in assumsit for goods sold and the other by Long and Boucher for a libel, and each party recovered a verdict entitling him to costs.  Held that the damages might be settoff [sic] in the actions, but not the costs so as to deprive the Attornies of their lien.]

Saturday 27th June 1830

Present Forbes CJ

Dowling J

Boucher v Long &

Long v Boucher

Boucher had brought an action against Long for goods sold and recovered a verdict for £43.7.  Long had brought an action against Boucher for a libel and recovered 40£/ Damages.  In another action brought by Long v Boucher for wages the Plaintiff consented to be nonsuited he having had credit in account for his wages in the action against Boucher  An application having been made now to set off the debt and costs of one action against the debt and costs in the other the question was whether this could be done to the prejudice of the Attorney lien for his costs.

[p. 342]  F Stephen the Attorney for Long contended that it could not be done and C Moore was heard contra.

Per Curiam.  The King's Bench and the Common Pleas at Westminster have differed in their practice upon this question.  We must act upon the decisions of the King's Bench according to the rules of practice established for the Government of our proceedings, by virtue of the order in Council 19th October 1824 which writs the practice of the Common Pleas at Westminster.  The decisions in the King's Bench according to the rules of practice established for the Government of our proceedings do not allow of the sett off to the prejudice of the Attorney lien for his costs; and therefore in this case we can only allow the debts to be sett off, but the Attorney is not to be prejudiced.

See Mitchell v Oldfield 4 T.R.123.