[goods sold and delivered - nurseryman - Court of Requests - costs]

Davidson v. Moore

Supreme Court of Van Diemen's Land

17 October 1835

Source: Tasmanian, 23 October 1835[1]

This was an action brought by plaintiff, a nurseryman, late Superintendant of the Government Domain, against Mr. J. H. Moore, Collector of Internal Revenue, for trees supplied and work performed. The latter, in carting a number of loads of scrapings from the New Market to defendant’s residence. The delivery of the articles charged, and the work performed, were proved, and the only question was, the value of the former.

The Attorney and Solicitor General were for the plaintiff.

The first witness called was one of plaintiff’s servants, who stated, that he was sent with a letter from his master to defendant, and desired to ask for the amount of the account due - £12 6s 10d; that defendant said, that was not the proper manner to treat a person of his "grade" and he did not acknowledge the account at all; that he afterwards went to plaintiff and offered to pay him, which plaintiff refused, referring him to Mr. Rowlands - but this was after process was served upon him.

Two other of the plaintiff’s servants stated, that defendant had himself selected the articles in question - had heard the prices, and had not objected to them, but had sent his own servant for them.

Mr. Rowlands proved that Mr. Ross has tendered to him, as attorney for, and on account of defendant, £9 19s. 10d., being the amount of the jurisdiction of the Court of Requests, and 12s. costs of that Court, which he had refused.

Mr. Gellibrand, for defendant, objected to the prices as enormous. The articles were purchased from Mr. Furtado, at 25 per cent upon the invoice, and the prices charged defendant were several hundreds per cent. The learned gentleman made a very ingenious defence, and called Mr. Bunce and Mr. Job Neill, who both considered the prices much too high - the latter believed the currant trees charged as white, were red, and that they had been bought from himself as red; but neither of them would swear that they were not white. Mr. Neill admitted that he had had a quarrel with plaintiff.

The Attorney General insisted upon his client’s right to a verdict - his case having been fully proved.

Verdict for plaintiff - £9 19s. 10d., subject to the decision of the Court, in respect to costs, as to whether such a claim comes within the meaning of the limiting words in the Court of Requests’ Act.

Pedder C.J., 20 November 1835

Source: Hobart Town Courier, 27 November 1835

The Attorney General moved in Davidson v. Moore, that the Master should tax the plaintiff's costs, the Master being desirous of the opinion of the Court. The sum recovered was £9 19. 10, which had been tendered, that sued for £12. 6. 10. The Solicitor General was also for the plaintiff and Mr. Gellibrand for the defendant.

The Chief Justice. Let it stand over till Tuesday.

Pedder C.J. and Montagu J., 28 November 1835

Source: Tasmanian, 4 December 1835[2]

The Chief Justice stated that the parties in this case, had wished to have the opinion of the Court, whether the verdict for the plaintiff of £9 19s. 10d. carried costs, or whether as that sum was within the jurisdiction of the Court of Requests, the costs should be disallowed. His Honor stated, that the Court considered this application ought not to have been made. It appeared, it arose in consequence of the Master (Mr. Hone) having refused to tax the plaintiff’s costs. It was not competent to the Master to so object, or indeed to entertain the question at all. His duty was to tax the costs for the party who, in whose favour the verdict having sent, possessed the record, leaving it to the defendant to enter a suggestion upon the roll, (which appears by the books of practice to be the usual course) or to move, that upon payment of the amount of the verdict, without costs, proceedings be stayed.

"Thus therefore," the Chief Justice continued, "it was not competent to the Master, to refuse to tax the plaintiff’s costs. We ought not to have entertained the present application, which we therefore dismiss."

Mr. Gellibrand stated that he had an affidavit which Mr. Ross had gone for to his chambers. Mr. Ross at this moment returned with the affidavit, which was to the effect that the action was to recover £13, and some shillings, - that the verdict was for £9. 8s. 10d. - that it was within the jurisdiction of the Court of Requests - that that sum had been tendered after action brought and refused, and that by the Court of Requests’ Act, the plaintiff was not entitled to Supreme Court costs. Upon this affidavit, Mr. Gellibrand moved for the suggestion upon the roll referred to. The Court enquired why this application had not been made sooner? Why it was left to the last day of term? And whether it was intended that the rule should be for the next term, whereby plaintiff would be kept out of his money for five months. Mr. Gellibrand explained that the reference to the Court by the master, as to taxing the costs, had caused the delay. Mr. Gellibrand added, that he had no objection to shew cause at chambers, on the day when the judgment should be given by the Court, in the case of Dunn and Shoobridge,[3] which the Court had previously announced would, be determined at chambers upon a day of which notice would be given. After much conversation, Mr. Justice Montagu expressed his opinion against the application. The Chief Justice was in favour of it, and thus Mr. Gellibrand taking nothing by his motion, the defendant will have to pay the costs.

Notes

[1] See also Hobart Town Courier, 23 October 1835; 20 November 1835, in the latter reporting simply: "The Chief Justice would not certify". William Davidson had been appointed the first Superintendent of the Botanical Gardens in 1828 and Moore was Collector of Internal Revenue from 1830 to 1837, RL Wettenhall, A Guide to Tasmanian Government Administration, Hobart: Platypus, 1968, pp. 56, 234.

[2] See also Hobart Town Courier, 4 December 1835.

[3] See Shoobridge v. Dunn, 1835.