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1-258 (Text)

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author,male,Sydney Gazette,un addressee
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Decisions of NSW Supreme Court
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Rowe, Esq. v. Wilson
Mr. Allen opened the pleadings. This was an action brought by the plaintiff, Thomas Deane Rowe, Esq., an Attorney and Proctor in the Supreme Court of New South Wales, against the defendant, Mr. Caleb Wilson, a dealer in Sydney, for a malicious prosecution. The declaration contained 3 counts, setting forth, that the defendant did, on the 7th of February, the 2d of March, and the 29th of August last, prefer bills of indictment containing 3 several assignments of perjury against the plaintiff, and which were on each occasion ignored by the Grand Jury. The damages were laid at £1000.
Mr. Norton stated the case. This was an action for a malicious prosecution. The plaintiff was an attorney of the Supreme Court, and the defendant an opulent dealer in the town of Sydney. The action was founded on three different attempts made to prefer a charge of perjury against the plaintiff, and originated in an affidavit made by him in the Supreme Court, which was met, and afterwards explained by another, and the first of which gave rise to the indictment that was three several times prefered against the plaintiff, for wilful and corrupt perjury. In order to put the Court in possesion of the case, it would be necessary to give a brief history of the affidavits and also of the circumstances which gave rise to them. In the year 1822, the plaintiff was employed by three sailors, named Price, Etheridge, and Morgan, to sue a Mr. Nathaniel Thornton, by whom a sum of money was owing to them, and who resided in Van Diemen's Land, on which occasion he obtained a verdict for the claimants. From various circumstances he was not able to recover the proceeds, till September, 1824, more than a year after he had obtained the judgment, in consequence of which, and they being seamen, and obliged to leave the port, they made certain arrangements for the application of the money when it should be received by Mr. Rowe. Price when leaving the Colony, gave two orders on the plaintiff, one in favour of Mrs. Leburne, for £18, and another in favour of a person named Landers, for £10, and Etheridge also gave an order in favour of one Flood for £8, together with a power for him to receive the balance afterwards coming to him from the proceeds of his judgments. These orders the defendant afterwards received in the ordinary course of his business from Mrs. Leburne, and Landers, and thereby became the sole claimant, on the part of Price. Price had also given Mrs. Leburne a power of attorney to receive his balance, but afterwards on the 16th of May, 1823, being again his own free agent, he wrote to the plaintiff, desiring him to pay no orders except that for £18, drawn in favour of Mrs. Leburne. About this time Price was committed to gaol on a criminal charge, on which occasion the plaintiff defended him, and a man named Smith, whose expences as well as Price's, were to be deducted also from the monies in the plaintiff's hands, and in this complicated state, was the account between the plaintiff and Price, when the orders in the possession of the defendant, were offered for payment. Under all the circumstances of the case the plaintiff did not think that he could safely pay the demand made by the defendant, who refusing to take any thing short, they thus became at issue. Flood also at this time applied for Etheridge's money, but the instrument on which he grounded his claim was not a regular power of attorney, and the plaintiff having already some suspicion of irregularity connected with the transaction, refused to pay over the amount without a legal authority on which he would be safe in so doing, and in consequence of which the plaintiff received directions to prepare a proper instrument to be transmitted to Etheridge, who was then at some one of the neighbouring islands. 
Various interviews at this time took place between the parties, in which the insufficiency of the documents were discussed, and in the course of which the plaintiff, anxious to make every thing clear, set forth his claim against Price, and also a claim which he had against the defendant himself, for costs on various matters, but in none of these interviews had he ever made any promise to pay `till satisfied of the legality of the demand. After some time an application was made by Mr. Wentworth to the Supreme Court, grounded on the affidavit of the defendant, which set forth that the plaintiff had frequently promised to pay over the sum claimed, for an order to the plaintiff to hand over the amount of the judgments obtained in the case of Price and Etheridge. This application was met by an affidavit from the plaintiff, in which he set forth the amount of the sums due to him from the defendant, and also stated argumentatively that he could not have made the promise sworn to by the defendant, as he had frequent conversations with his managing clerk on the state of the matter, and on the uncertainty of Landers' claim, and that under these circumstances he could not have made any such promise, and upon this statement was one of the assignments of perjury grounded. Another assignment was, that the plaintiff had sworn to an amount due to him from the defendant, which in fact was not owing, but the plaintiff had been engaged in various long and tedious suits for the defendant, his managing clerk made out the bill of costs; which, when the plaintiff saw, he observed that the defendant had already paid some monies, but was assured that the account was drawn out for money then actually due ; upon this statement the plaintiff swore to the sum which he believed to be due, but did a merchant in swearing to a debt, always swear from his own actual knowledge? A man might be arrested for a debt which would afterwards turn out not to be owing, but would any person contend that such a circumstance necessarily involved wilful and corrupt perjury. It appeared that credit had not been given for a sum paid to a man named Cooper, who was at that time clerk to the plaintiff, but the statement had been furnished to him by his managing clerk, and he had only sworn that such a sum was due as appeared by that statement, and if the account was not correct, then the sum was not due. But would it be believed that an amended account was presented to the defendant before the first bill of indictment was preferred! 
As the law existed, an indictment for perjury could not be preferred without probable cause, and the soundness of this principle was most apparent, for it was possible that a party might not be able to defend himself on a false charge, from the absence of witness or various other causes, and therefore, though perjury may be imputed, still an indictment could not be prefered without shewing probable canse