[costs, recovery of – attorney, action to enforce costs]

McMinn v. Bennett

Supreme Court of Van Diemen's Land

Montagu J., 12 December 1843

Source: Hobart Town Advertiser, 19 December 1843

            Mr. Macdowell stated that he appeared for Mr. Washington McMinn, an attorney of the court, who sought, by this action, to recover the amount of his bill of costs, for work and labour done, in his professional capacity. The plaintiff, amongst other things, had been engaged in two actions, in which the defendant was concerned. He should prove the reasonableness of the bill by Mr. Midwood, who was engaged with Mr. Rowlands for the other parties in the suits. During a period of the time over which the bill of costs extended. Mr. McMinn kept no clerk, and he was not therefore in a position to prove some of the items in the account. But that the work had been done, and at the defendant’s request, there could be no doubt; as these items were as necessary for carrying on the suits as were those which he should prove by Mr. Midwood. Another witness would prove the delivery to the defendant of the account, and of his afterwards promising to settle it. If the defendant had intended to dispute any of the items, he should have sent the bill to the Master of the Court, that it might be taxed. This he had not done, and it would be no answer for him to come forward now and say that the bill should have been taxed. He (Mr. Macdowell) should not hesitate to the most searching investigation of the bill, item by item, but he apprehended that the assessors would not sit in that box to tax the bill.

            Mr. Midwood proved the items for 61l  19s. 10d, the amount claimed.

            Mr. Henderson (the plaintiff’s clerk) served a copy of the bill on the 22nd of July, on the defendant, at the “Stream Mill,” on the Old Wharf. He deposed that the items mentioned in the copy now produced, were those for which this action is brought.

            His Honor thought that the original, and not a copy, should have been produced.

            Mr. Macowell cited a case in which it had been decided by Lord Ellenborough, that where there were two contemporary sittings, counterparts of each other, if a counterpart was produced he was ready to receive it.

            Mr. Henderson’s examination continued - Witness called upon the defendant with a cognovit, after the sittings in last term, and about six weeks after the delivery of the bill. He told him, if he would sign it, the action would be withdrawn. He refused to sign the cognovit, but said he would pay Mr. McMinn as he could; that he should soon be able to pay a considerable part of the amount.

Mr. Sorell produced the original summons in an action brought by the plaintiff against James Bennett.

The Judge briefly summed up. The bill had been delivered to the defendant as it stood; and he had admitted it by promising to pay the money six weeks after the delivery of the bill. He thought they should assess damages for the plaintiff; all the work had been done. Damages for £62 19s. 10d, less £5 received on account.