Australian Access Federation

You are here: Home Corpora Corpus of Oz Early English 1-247 (Original)

1-247 (Original)

Item metadata
addressee author,male,Australian, The,un
Word Count :
Plaint Text :
Speech Based
Decisions of NSW Supreme Court
Document metadata

1-247.txt — 24 KB

File contents

A Rule was granted by the Court, on the 15th ult. calling on Mr. Rowe to shew cause why he should not pay certain monies into Court, and answer the matters contained in the following affidavit:-
Caleb Wilson, of Sydney, maketh oath, and saith, that one J. Price, mariner, being indebted to this deponent, M. Landers, and M. Leburn; and the said Price having put into the hands of T.D. Rowe, gent. one of the attornies of this Hon. Court, a certain claim which the said Price had for a share, as a mariner on board a certain ship or vessel called the Emerald, of which one N. Thornton, of Hobart Town, merchant, was captain and owner, to be recovered against the said N. Thornton; the said Price, in order to liquidate the debts so due by him, as aforesaid, gave deponent and the said Landers, certain orders on the said T.D. Rowe, for the amount of their respective debts, directing the same to be paid out of the amount of the said claim, when the said T, [sic] D. Rowe should recover the same, from the said Thornton; that the said T.D. Rowe indorsed on the order, to pay Landers, a promise to pay the amount when he received it from Hobart Town; that the said Price also gave the said Leburn a power of attorney to receive the monies due to him; that the said power of attorney was drawn by one W. Freeman, clerk to the said T.D. Bowe, [sic] in his office; that it was afterwards transferred by an indorsement thereon, in the hand writing of the said Freeman, in the office of the said T.D. Rowe, by the said Leburn to this deponent; that the said Freeman declared that the said power of attorney and the said indorsement were sufficient to enable this deponent to receive the amount of the claim of the said Price, so soon as the same should be recovered from the said Thornton; that after the arrival of the amount of the said claim, from Hobart Town, the said T.D. Rowe made various appointments with this deponent and Flood, (whose husband, John Flood, has a similar claim) to meet them at his office, under a promise of a settlement; that this deponent and the said Flood attended there several times, under a hope that a settlement would be effected, but to no purpose; the said T.D. Rowe constantly putting this deponent and the said Flood off with one shuffling excuse or other; that after various tricks and devices of this kind; the said T.D. Rowe said, on or about the first of October now last past, that if this deponent and the said Flood would call at the close of the court, on that day, he would settle with them; 
that they accordingly both waited on the outside of the court house, till the court was over, intending to follow the said T.D. Rowe to his office; but, that the said T.D. Rowe, instead of proceeding to his office, went in another direction; and upon this deponent accosting him, to ask when he would be at his office, he replied in a sharp and petulant manner, "I am not going there at all to-day, I shall be there some time to-morrow; I cannot be bothered;" or words to that effect; that this deponent has heard, and verily believes, that the said T.D. Rowe in about a week or ten days after this made an application to this hon. court, for leave to pay the proceeds of the said Price and Edridge's action, against the said Thornton, into court, alleging that he did not feel himself secure in paying over this money to the persons (meaning this deponent and the said Flood) authorized to receive the same; that on this occasion Mr. Wentworth (deponent's and the said Flood's counsel) got up and consented that the money should be so paid into the hands of the officer of this hon. court; but that deponent has heard, and verily believes, that the said money has not yet been so paid; and that the said T.D. Rowe means, if possible, to cheat and defraud this deponent and the said Flood, out of their money; that a bill of costs, of which a copy is hereunto annexed, was handed to this deponent by the said Freeman, the said T.D. Rowe's clerk; but that this deponent considering the charges therein contained irregular and excessive, refused to allow the said charges, without the authority of this hon. court; that this deponent has heard, that the said T.D. Rowe, on making the above application to this hon. court, alleged among other things in reply to an observation from Mr. Wentworth, that the said Price countermanded, by letter, the payment which he had so directed as aforesaid to be made to this deponent and others; but although it is true, that the said payments were countermanded in the first instance by the said Price, yet that the said Price afterwards, in the said T.D. Rowe,s [sic] office, before the said Leburn and Freeman, revoked the said letter, acknowledging the impropriety thereof, and that the said monies were justly due to this deponent; that this deponent, moreover swears, to the best of his recollection and belief, that this letter was written to the said T.D. Rowe before the power of attorney so given by the said Price to the said Leburn, and by her transferred to this deponent; this deponent further says, that he believes the said T.D. Rowe will not pay the said monies, unless he be thereto compelled by some summary process, from this hon. court, which he therefore prays may issue against him.
On Wednesday the 22d ult. cause was shewn, and Mr. Rowe observed;- that he conceived there had been a total absence of decorum and gentlemanly feeling in the framing of the affidavit by the plaintiff's Counsel. Unjustifiable language had been made use of, and unfounded imputations cast upon him. He believed, as a legal practitioner, his zeal and attention to the interests of his clients was unimpeached. He would read to the court the affidavits of himself and his clerk, Mr. Freeman, as to what actually was the case.
T.D. Rowe, of Sydney, Gent. one of the attornies of this Hon. Court, maketh oath and saith, that he was requested on or about the month of September 1822, to commence actions against N. Thornton, of Hobart Town, by J. Price, T. Edridge, and J. Morgan, for the recovery of certain sums of money alledged to be due by the said N. Thornton to the said J. Price, T. Edridge, and J. Morgan, for and on account of certain shares of oil said to be due to them by the said N. Thornton. And this deponent saith, that in pursuance of such retainers, he this deponent did commence such actions in the Honorable the then Supreme Court of this colony, and did recover verdicts against the said N. Thornton, for and on account of the said J. Price, of £62 12s. 2d.; and for and on account of the said T. Edridge, of £100; and for and on account of the said J. Morgan, of £98 9s. 6d. as appears by the records in the said court. And this deponent saith, that he was put to vast trouble and inconvenience in endeavouring to obtain the amounts of such judgments both by himself and through his agents at Hobart Town aforesaid, that by a letter from G.C. Clarke, Esq. his own agent at Hobart Town, of date the 29th June, 1824, it would appear, that the amounts of the said different verdicts with the costs, had been received by the said G.C. Clarke. That this deponent expecting Mrs. Rowe, the wife of him this deponent, would shortly thereafter arrive at Hobart Town, wrote to his said agent, and requested he would pay the amounts over to her, which, in the month of August or thereabouts, was accordingly done, and which sums were handed over to this deponent on or about the month of September last past; on Mrs. Rowe's arrival at Sydney, and not till then were the amounts of the said verdicts or any part thereof, ever previously thereto received by this deponent, or carried into account with the said G.C. Clarke, or with any other person authorized by him and this deponent. That the said Price by an authority of date the 26th May, 1823, requested in writing that he this deponent would not pay over to any other person or persons whomsover, any amount but the sum of £18 to Mrs. Leburn; that the said J. Price was put into gaol at Sydney on a criminal charge, and did retain the said T.D. Rowe in writing to appear for him, and defend him, and one Smith, as appears by his retainer; that the said Price is also indebted to this deponent in the sum of £16 2s. 6d. or thereabouts, for extra costs, as between attorney and client, as by bill of costs adjoined hereto will appear. That the said Wilson, who claims the amount of said judgment so obtained by said Price against said Thornton, is likewise indebted to this deponent in the sum of £13 9s. 4d. as appears by also his said Wilson's costs hereto attached. That the said Landers never applied personally to this deponent since the recovery of the said money for the said Price, but he has on various occasions previously, and has offered to make a considerable reduction therefrom, provided this deponent would pay him the money, which he declined doing; and this deponent has heard and believes that the said Wilson has since received the same from the said Landers at a much less sum than it expresses[.] That had the said Landers presented the said order to this deponent at the proper place and time, he, this deponent, would have settled the same immediately, as it seems that the said order is dated subsequently to the directions of the said Price not to pay any person but the £18 to Mrs. Leburn, and as this deponent verily believes that he was specially directed to pay the said Landers by the said Price, or otherwise deponent would not have accepted the same. 
That this deponent could not have promised payment to the said Wilson and Margaret otherwise Mary Flood, as he has on very many occasions told W. Freeman, his clerk, and this deponent verily believes also the said Wilson and Mary or Margaret Flood that he would not as this deponent conceived be safe in paying the said Price's and Edridge's monies in the claimants thereof, except as regards said Mary Leburn's order of £18, and Landers' of £10; but he, this deponent, verily believes that he hath frequently told the said Wilson and Leburn that he was ready and willing to settle with them according to said Price's directions the said two several amounts of £18 and £10, but which they refused, except they procured the whole sum recovered. That this deponent hath frequently desired the said Freeman to enquire what sums were claimed by the said Wilson, and ordered that the amount thereof might be paid into this hon. court, after deducting the costs that were individually due to this deponent, from said Price and Wilson; and this deponent hath heard, and verily believes, that the said Freeman did call on the attorney, for the said parties, as late as the day before the motion made by Mr. Wentworth; viz. the 14th ult. when the said Mr. Wentworth, as the said Freeman informed this deponent in answer to the said Freeman's request to know what sum was alleged to be due to the said Wilson, that the same might be paid into court, said he believed the whole amounts received were claimed; and this deponent denies that he ever meant to cheat and defraud the said Wilson or Flood out of their money; and he verily believes, that the said Wilson is actuated in this proceeding solely with a desire to harass this deponent; and this deponent saith, that he does not feel himself authorized to pay over the amount of the verdict recovered by the said Edridge, to said Flood, as he hath frequently informed said Flood; but hath desired said Flood to procure a regular power of attorney, from said Edridge, which said Flood directed to be prepared, and which was accordingly prepared; and that then and as soon as the same was presented to this deponent, he would instantly hand over the amount to the said Flood; and this deponent lastly saith that in this matter, as also in the matter of Price, before referred to, he has in view solely the security of his client's property; the honor of the profession, and the honor of his character; and that the said Price has neither verbally nor in any other manner personally, to this deponent, countermanded the said authority of the 26th May, 1823, herein before referred to.
Upon these grounds Mr. Rowe resisted payment of the several claims; and farther, because it was not in his power to ascertain, that the documents produced on the other side were not obtained by artifice or fraud; and he was therefore bound to be diligent in securing the safety of his client's property; and it did not appear to him, that at the time of Edridge leaving the colony, he was indebted to Margaret Flood in any such sum as she now claimed.
Mr. Wentworth proceeded to remark, that with regard to the particular allusions Mr. Rowe had thought proper to apply to him, they were only consistent with the usual tone and tenor of his observations. In the construction he had put on them, they tended colourably to complain of a want of courtesy towards him, as a practitioner of the law; whilst in point of fact they implied that Mr. Rowe, by reason of his office, was not to be called to account for any impropriety of conduct of which he might be guilty. The personal scurrility Mr. Rowe had indulged in, he should not reply to; it was beneath his notice. In justice to himself, however, he would state a few facts which would shew that no want of courtesy was justly imputable to him. When this business was first put into his hands, about four months since, he had made a civil application to Mr. Rowe, by letter, requesting to be informed upon what grounds he resisted the claim of the plaintiff's; to which Mr. Rowe had not thought proper to return answer. When Mr. Rowe, however, heard that the case had been entrusted to him, (Mr. Wentworth) Mr. Rowe apprehensive, without doubt, of the exposure that would be consequent on the motion which he anticipated would be made against him, applied (in a manner which clearly indicated sheer trickery and device) to the court for leave to pay the monies in question into the hands of the proper officer; and to this application he (Mr. Wentworth) had assented. Now, it might naturally be expected, that when an order to this effect had been made by the consent of both parties, it would have been complied with at once, and that the matter would have here ended; but strange to say, however, up to the present time not a fraction had ever been forthcoming. He repeated then that this application could not have been for any other purpose than to delay proceedings for the moment, and it certainly had been attended with that effect. If Mr. Rowe thought, that because he was a practitioner of the court, he was to be allowed to detain the money belonging to suitors of the court, until it suited his pleasure or convenience to hand it over to the owners; and that no other member of the profession was, in the meanwhile, to wrest it from him on the score of courtesy; that would indeed be establishing a system of legal depredation; to which he, for one, would not be a party.
The learned Counsel then proceeded to observe, that it behoved a court of justice narrowly to watch over its officers; and on no occasion to countenance their malpractices; otherwise, a court of justice would soon degenerate into a kind of legal whirlpool, in which all debts of the community would soon be engulphed, and not one disgorged again. It would indeed be a lamentable case for the client, if he had to go to the trouble and expense of a suit at law, and then to have his trouble and expense iterated, in order to compel his law agent to be honest.
On contrasting the affidavits on both sides, it would be seen that many of the most material allegations had been unanswered; and the others replied to in a most shuffling and evasive manner. To establish this fact, it would only be necessary to observe the way in which Mr. Rowe had answered a fact charged in all the affidavits - that he had from time to time evaded the payment of these monies, notwithstanding repeated promises made to the applicants, jointly and severally, that he would settle with them. Mr. Rowe had said, he could not have made any such promises. Why he had not sworn that he did not make them. He, Mr. W. would tell him, that if he had so sworn, he should have been treated with an assignment of perjury. Mr. Rowe had thought fit to complain of the term "trickery and evasion," which had been applied to him in the affidavits; but if this was not trickery and evasion, he did not know the English of these terms. Mr. R.'s affidavit might not, perhaps, amount to a direct denial, that he was probably afraid to hazard; but it was an avowance as equivocal as ever came before a court of justice: an avowance which was of itself a serious malpractice. He would advert to the article of costs, amounting to £40. If taxed by the master, he was confident there would be a reduction of at least one half. This bill, it would be recollected, was independent of the costs awarded by the court. These had already been paid. These were the costs between attorney and client. Here was an attempt to swallow up the poor man's all, with enormous costs.
He had no wish to deprive Mr. Rowe of a just recompence for his labour; but with regard to those allegations, which formed so prominent a feature of his affidavit, and which dwelt at such length on the immensity of trouble and inconvenience which he (Mr. Rowe) had had in recovering his money, he (Mr. R.) thought that those allegations might have been omitted. Every person connected with the court was perfectly aware of the nature of the pains and inconveniences consequent on (Mr. R.'s) professional avocations. One thing was evident, now that the money was recovered, it would be as safe for the claimants, whoever they might eventually prove to be, in the hands of the officer of the court as in those of Mr. Rowe.
He (Mr. W.) would admit that the powers of attorney which the present claimants held, were not altogether a very safe authority for the payment of the money; but, it must be remembered, that there was no precise form of words necessary to constitute an instrument of this sort. Such a document, prepared with the utmost regularity and precision, was revocable by an ordinary letter. He would however admit what he had admitted on a former occasion, that if Mr. Rowe had any doubts as to the sufficiency of these instruments, he acted right in not paying the money, except under the court's direction. What he now complained of was that the court's directions had been obtained for the payment of this money into the hands of its officer more than two months since, and that this direction was yet to be complied with. This was a serious malpractice of itself. It was, in fact, to treat the authority of that court with contempt: and to make it, in the public estimation, a mere solemn mockery. The learned Counsel contended that a case of gross malpractice had been satisfactorily made out, and in conformity to the custom of the English courts on such occasions, he considered it due to his own character and to that of the other practitioners of the court, to move that the name of Mr. Thos. Deane Rowe be erased from the rolls of the court.
The Chief Justice said he was at a loss to conjecture why the order of the court had not been complied with relative to the payment of the money. He again directed the money to be paid into the hands of the registrar of the court; and he would then make such orders for its disposal as the nature of the case should require. He would take the earliest opportunity of perusing these affidavits, and would then give his decision according to the facts contained in them.
On Wednesday the 29th ult. the defendant applied for leave to amend the affidavits filed by him, relative to the article of costs into which some inaccuracy had inadvertently crept.
The Counsel for the plaintiff objected to such a mode of proceeding as altogether irregular at this stage of the business; he conceived that such an amendment would have come with better grace, at the time the affidavits were filed, and not after, public comments had been made on the subject. The learned gentleman intimated his intention of making certain of Mr. Rowe's allegations the subject of ulterior proceedings. The Chief Justice did not object to a supplemental affidavit being filed, to be considered as strictly explanatory of the alleged errors.
On this day the Chief Justice proceeded to decision. In giving his decision on this matter the Chief Justi[c] e remarked that in the view he had taken of it, two points appeared to be embraced; there was an application to the court calling on Mr. T.D. Rowe to pay into the hands of the officer certain sums of money, the balance of damages awarded in two actions, brought by Price and Edridge, against Thornton, after deducting his bill of costs therefrom; and secondly, to answer certain allegations made against him; he would proceed to review the affidavits, and the manner in which they were made. Those on behalf of the plaintiff attributed to him shuffling and irregular conduct, in first promising to pay the money to Mrs. Flood, and afterwards refusing to comply with his promise. It did not appear that he promised to pay Flood himself, though he might subsequently to his wife. He certainly thought that an Attorney had a discretional power, even if he had made a promise, as to the fulfilment of it, if upon a cool deliberation of the subject it should appear to him to compromise the interest of his client. The affidavits of the defendant assigned as a reason for the non performance of his promise, that he did not feel himself authorized to do so; he had told Mrs. Flood very many times he did not consider it safe. Mr. Wentworth had objected to a particular expression as equivocal; namely, "that he (Mr. Rowe) could not have promised to pay," and expressed his opinion that for "could," should have been substituted, "did" not. He (the Chief Justice) did not consider that as a strong objection, inasmuch as he had mentioned the circumstance to his clerk, Mr. Freeman, and confidentially communicated his doubts on the subject. As regarded the validity of the promise, that was not for his decision at the present time. The practice of making loose promises was highly improper, and could not be too highly reprobated; they tended to instil a belief into the minds of persons that there is no recovering money lodged in that court.
In the case of Price he would look at Wilson's affidavit, as it comprehended all the leading facts of the case. Price had given a power of attorney to Mary Leburn, executed in Rowe's own office, by his own clerk, who said that was sufficient to enable him to secure the payment of the money. But this was not the act of Rowe, as it did not appear that he was present at the time; he was left to conjecture the particular degree of relationship subsisting between them. There was a subsequent letter from Price, desiring him not to pay any other person than Mary Leburn, dated May 26 - the orders having been given in February and March; this rendered those writings invalid. The money to Mary Leburn Mr. Rowe had expressed his readiness to pay at any time that he might be called on. It did not appear that he was aware that this instrument was in the possession of Wilson. It was clear that he had promised to pay on the 1st of October. Whatever might be the real merits of the case, there should not have been a promise made without some intention of meeting the parties, and giving an explanation of his reasons for witholding [sic] the money. Accuracy should be invariably attended to - exact and scrupulous should be every thing connected with time and place, and all other requisites. If the observance of a promise was necessary in common places, how much more so was it when connected with the proceedings of a court of law, contrary practice tended to weaken the force of justice. Powers of attorney and orders, he admitted were disputable things. The court were in a dilemma as the parties were not present. Hawkins, in his pleas of the crown, observes, that unnecessary extension of proceedings, in order to cause additional expense, and swell the bill of costs, is a gross and palpable fraud. The graver charges had been met by the affidavits on the adverse side; on other and less material charges he had sufficiently animadverted; and he trusted that would have the effect of preventing a recurrence of a like practice, and that this would be the last case of the kind he should ever hear of. The money he should order to be paid forthwith into the hands of the registrar; and the costs to be referred to the master, not considering himself competent to pronounce so heavy a penalty as that which was sought; namely, incapacitating him from practising in that court, after having so long been permitted to do so; he should therefore, with the rule he had given, dismiss the matter.
On the motion of Mr. Wentworth, costs were ordered to be paid by Mr. Rowe.