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2-056 (Original)

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Decisions of NSW Supreme Court
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Wilkinson v. Lamb.
This was an action on the case. The declaration averred that the defendant, conspiring and intending to defraud the plaintiff, to whom the defendant's brother was indebted in a large sum of money, to wit, in the sum of £194 2s. 3d. by certain false and fraudulent assertions, caused the plaintiff to forego legal proceedings for the recovery of the same, and to refer the case to arbitration, thereby gaining time for the defendant's brother, and affording him an opportunity of making away with his property whereby the said plaintiff is likely to lose his debt, &c. The damages were laid at £700.
Mr. KEITH opened the pleadings.
Mr. WENTWORTH stated the case to the Jury:- They had heard from the learned gentleman who preceded him, that this was an action on the case, for damages sustained by the plaintiff in consequence of the false and fraudulent assertions of the defendant. The action was one of novelty, and before he proceeded to detail the facts, he would briefly advert to the law in reference to a case like this. The declaration charged the defendant with having made a false assertion with a fraudulent view, by means whereof the plaintiff had been prevented from prosecuting a legal claim against the brother of the defendant, and was induced to send the case to arbitration, receiving a note at six months for the amount of the award; before the expiration of which time, the maker had become insolvent, and the plaintiff's claim rendered of no avail. To support an action of this nature, it was necessary that there should be a false and fraudulent assertion by the defendant, and damage accruing to the plaintiff in consequence. The jury, however, would be told, that the fraud which was an ingredient in a case like the present, was not that kind of fraud which was vulgularly called so. It would be sufficient if it were made to appear that the defendant's assertion was false, and that he knew it. With these observations, he should proceed to detail the facts of the case, as they would appear in evidence. Some time in the year 1828, the plaintiff, being about to go to England, leased a farm at Hunter's River, to the brother of the defendant, at a rent of a £100 a-year. On his return to the colony, nearly two years after, finding that only £30 or £40 had been paid out of the rent during the period of his absence, and that the circumstances of his tenant were in a declining condition, he resolved to disstrain, and authorised a levy to be made on the goods on the farm. When these circumstances came to the knowledge of the defendant, he set a friend to work to write a half-menacing, half-conciliatory letter, which was succeeded by one from the defendant himself, containing among other matters, a denunciation of the rascally lawyers; stating that arbitration was the only proper way to settle the differences between the plaintiff and the defendant's brother; and concluding with an allusion to certain powers in the hands of the defendant and of Captain Bunn, to enforce some claims on the plaintiff made by a Captain Harvey, which he was threatened should be immediately put in force, if he proceeded against the defendant's brother, or refused to refer their differences to arbitration. Here, then, said the learned counsel, was a direct menace, if the plaintiff did not consent to arbitrate a claim for rent - not a complicated matter of account, but a specific agreement about which there could be no dispute, and which it was therefore ridiculous to arbitrate - that certain powers of attorney in the hands of the defendant and of Captain Bunn, should be immediately put in force against the plaintiff. These were the threats, and this the system of intimidation practised against the plaintiff to prevent him from prosecuting a just claim. Captain Bunn, however, would be put into the box, and would tell the jury, not only that he never authorised the defendant to make use of his name in the manner in which it had been made use of by him, but that, even had he been asked, he never would have lent himself to such a proceeding. This, therefore, was a false assertion by the defendant, and, consequently, in law, was fraudulent, he having known it to be false at the time. The damage sustained by the plaintiff was the result of these false representations. The arbitrators to whom the matters in dispute were referred, allowed the brother of the defendant six months to discharge the amount of the award, taking his promissory note, payable at the expiration of that period. In the interim, he became insolvent; and the sum of money which, had the plaintiff prosecuted those measures which he commenced for its recovery, would then have been in his pocket, became, in all probability, lost to him for ever. The learned counsel was really at a loss to know what possible defence could be set up against such an action. But even if it should be held - that the law of the case was against the plaintiff, still he felt satisfied that no one who heard the facts, as they would be detailed in evidence, but must be satisfied that, owing to the conduct of the defendant, the plaintiff had been defrauded of a sum of money which he could ill afford to lose. Under all the circumstances of the case, he contended that the plaintiff was entitled to heavy damages at the hands of the Jury.
The following witnesses were then called on the part of the plaintiff:-
Abraham Hunter examined by Mr. KEITH. - I reside at Maitland, and am a clerk; I know the plaintiff in this case; I know Mr. James Thomas Lamb; in Jan. 1830 he resided on a farm of the plaintiff's; about that time I was employed by the plaintiff to distrain Mr. J. T. Lamb's goods for the sum of £100 for rent due; there was a stack or two of wheat and some cattle on the farm, there were also some horses, more than one or two; I did not distrain, for the plaintiff seemed rather delicate about it, and expected that the debt would be paid; it was some time in the month of January 1830, when I was employed to distrain, but I cannot tell the date; I saw three or four hundred bushels of wheat on the farm; wheat, at that time, sold for five shillings a bushel at Hunter's River; the cattle were worth about £3 a piece; I do not know how many there were.
Cross-examined by Mr. NORTON. - I think the wheat, if sold, would have fetched £60 at Maitland; the cattle would have fetched £3 a-head at that time; they would not sell for so much now.
Re-examined. - The property I saw on the farm, and I did not go into the house, would have sold for £140; I am sure it would have more than satisfied the distress.
Edward Ryan examined by Mr. WENTWORTH. - In January 1830, I lived at Maitland, in the employ of Mr. James Lamb; there was a good deal of property on the farm then, consisting of grain, upwards of 100 head of cattle, and 14 or 15 horses, 10 or 11 of the cattle belonged to Mr. James Lamb, and 3 of the horses, the rest to the plaintiff; there was also some furniture; I am sure Mr. Lamb's property was worth more than £100; it remained there till Mr. Lamb went away, and the plaintiff came in; Mr. Lamb took his own property away with him.
By the Court - I can't say the month in which Mr. Lamb went away.
- Dunn examined by Mr. KEITH - I know the plaintiff, and am slightly acquainted with Mr. James Lamb; I was appointed an arbitrator between the plaintiff and Mr. James Lamb, the defendant's brother, in August 1820; Mr. McLeod was the other arbitrator; our award was upwards of £100.
Dr. WARDELL - The award will speak for itself.
Mr. WENTWORTH. - I contend that we are entitled to that naked fact, without encumbering the case with a volume of documentory evidence. I only want from the witness the naked fact that there was a deed, and upon that deed, that a something was done, namely, a note given.
The learned Judge ruled that the witness might be asked whether there was an award, and whether, upon such award, a note was given, but nothing farther. The award being a written instrument, should either be produced, or evidence given of its loss.
Examination continued. - In consequence of the award a promissory note was given; I can't say whether this is it, as it did not pass through my hands; there was a note given to that amount; I think, on recollection, that the note was sent to me by Mr. McLeod, but I won't be positive.
Cross-examined by Doctor WARDELL - This note is dated 1st September, 1830, and not payable on demand, but in six months; I gave Mr. Lamb six months' credit; I was appointed an arbitrator by the plaintiff, and after hearing the merits of the case on both sides, I agreed to take a note at six months, in consequence of Mr. Lamb's circumstances; the plaintiff was a bachelor, and Mr. Lamb had a large family; plaintiff's claim was not simply for rent, there were a variety of items, which amounted to about £400; Mr. James Lamb objected to several of them; I did not know that Mr. Lamb had made a tender to plaintiff, to nearly the amount of the award; I have never heard so from the plaintiff.
Re-examined - When I consented to give Mr. James Lamb credit, I had no reason to think that I put the debt in jeopardy; Mr. McLeod, the other arbitrator, assured me, on his honour, that the debt would be paid, if time were given; the chief part of the amount was for rent, and a small sum of interest from the time the rent became due till the award was made.
By Dr. WARDELL - My impression is, that the interest was from the time Mr. Lamb left the farm till the award was made, and not for the six months the note had to run; I made no memorandum of the transaction; I thought the matter was ended then.
George Bunn, Esquire, examined by Mr. KEITH - I know the defendant in this action, Mr. John Lamb; I know his handwriting; I believe these letters to be in his handwriting; one is dated 18th June, 1830; the other the 20th of the same month.
(Letters read.)
Cross-examined by Doctor WARDELL - I remember the plaintiff meeting me in the street one day, reading to me a passage in one of the letters, and asking me if I had said so; I told him I could not positively say I had not, but I did not think I would do as [...].
James Norton, Esquire, examined by Mr. KEITH - I know Mr. James Thomas Lamb, the brother of defendant; I was present in Court when the defendant's brother was declared insolvent; I hold in my hand the rule of Court by which he was declared insolvent; it is dated the 19th of July last; I was his attorney in cause.
William Mitchell examined by Mr. KEITH - I am clerk to my brother, Mr. Francis Mitchell, of Sydney; I presented this note at the Bank of Australia, for payment, on the 1st of March, 1831; it is dated 1st of September, 1830; I was informed at the Bank, when I presented it, that the maker, Mr. James Thomas Lamb, had no account there; the endorsement on the back of the note is in the plaintiff's handwriting.
It was here admitted, that, on the 2d of November, 1830, the sum of £195 2s. 5d, in the Bank of Australia, was transferred from the account of Mr. James Thomas Lamb, to that of Lamb, Buchanan, and Co, of which firm the defendant is one.
This was the plaintiff's case.
Dr. WARDELL, in addressing the Jury, on behalf of the defendant, said the case had terminated on the other side just as he had anticipated; and he was satisfied as the Jury, remembering one of the concluding sentences in the statement of the plaintiff's Counsel, must have anticipated also. That this action was not brought with the bona fide intention of recovering a sum of money due to the plaintiff, but with a feeling, if the plaintiff did not recover, that no one doubt the poor man had been defrauded of a sum of money which he was ill able to spare, but which he had no legal means of recovering, no one could question. The case was trumped up for that purpose, and to throw around the defendant a degree of suspicion, not one atom of which could attach to him on account of the part he took between the parties. That no such suspicion could attaeh [sic], appeared not only from the testimony of Mr. Bunn, but even from those portions of letters which had been read and which, by some strange obliquity of understanding, had been laid hold of by the other side as the foundation of the present action. No person could have heard those letters read without feeling that the part taken by the defendant was the only part which a kind and affectionate relative could have acted throughout the whole of this transaction, and not, as it had been endeavoured to be shown on the other side, the emanation of a mind contemplating some sinister design against the plaintiff, for the benefit of the defendant's brother. It had been insinuated, because a sum of money, part of the funds of the defendant's brother, had been placed to the credit of the firm of Lamb, Buchanan, & Co, three months after the award of the arbitrators, that the arbitration had been recommended with a sinister design: - that is, that the defendant could have foreseen that Mr. McLeod would have induced Mr. Dunn to give six months time; that he would thereby have been enabled to lay hold of that sum of money for the benefit of the firm - and, therefore those letters had been written. He, (Dr. W.) however, should be able to prove that the sum of money alluded to was appropriated to discharge the debts of the defendant's brother, and that no part whatever of it was appropriated to the benefit of the defendant. It would also be proved, that before the arbitration took place, a sum was tendered by the defendant's brother, to the plaintiff nearly equal to the subsequent award; and it would then be for the Jury to say, whether the advice given by the defendant in the letters alluded to, was not only the best advice that could be given under the circumstances of this case, but the best under any circumstances. He could not conceive how such a case could have been brought before a jury - before any twelve men of common sense. What! to seek to visit on the head of an unoffending man, who had only interfered for the sake of peace, that acts of arbitrators! Upon the law of the case, however, even independently of the facts, the Jury must decide in favour of the defendant; because, in order to sustain an action of this nature, it must be made to appear, that, at the time of writing those letters which had been so much relied upon, there was an intention to defraud. Even if the assertions of the defendant had been false, if they were not made with the design of injuring, cheating, or deceiving the plaintiff, but with the better design of settling family differences what became of the case? The tort complained of was a false affirmation made with intent to deceive. How had that intent been proved? In an action like this fraud and damage must be proved - fraud on the part of the defendant, and damage accruing to the plaintiff in consequence of that fraud. But what were the circumstances of this case? The plaintiff voluntarily placed himself in the hands of arbitrators, with both of whom the defendant must have been in collusion to bring about the accomplishment of his design, if any such design there was. He, (Dr. Wardell) would not enter into the facts of the cased, had not the defendant courted the fullest investigation into all the circumstances. Contrary, therefore as it was to his own judgment, and solely in compliance with the most positive instructions, he would proceed to call one or two witnesses, after hearing whose testimony he was satisfied that the Jury, not only upon the law of the case, as it would no doubt be laid down to them by the Court but also upon the facts, must return a verdict for the defendant.
Mr. Frederick Carberry examined by Mr. NORTON - I am clerk to Lamb, Buchanan and Co.; I know that a sum of £195 2s. 3d. was transferred from the account of James Lamb, in the Bank of Australia to the account of Lamb, Buchanan, and Co. in Nov. 1830; I know that that money was part of a sum of £200 borrowed by Mr. James Lamb from Dr. Bowman; the amount was placed in the books of the firm to the credit of Mr. James Lamb, who drew against it, at various times, to the full amount, for supplies, and to pay his creditors, principally to pay his creditors; Mr. James Lamb was at that time indebted to Mr. John Lamb in the sum of £200, no part of which was discharged out of that money, or has been in any way paid up to this time.
Cross-examined by Mr. WENTWORTH - I do not know the motive of drawing that sum from the bank, except for convenience; it is more convenient for a settler to draw on a merchant than on a bank; he may want supplies for his farm, with which a bank cannot furnish him.
E. J. Keith Esq. examined by Dr. WARDELL - I present in Court when Mr. James Lamb was examined touching his alleged insolvency, and put several questions to him; I have no recollection of any remarks being made on the case by the presiding Judge, as I had left the Court after my examination of the insolvent.
James Norton, Esq, examined by Dr. WARDELL - I was present when Mr. James Lamb was examined touching his alleged insolvency; Mr. Justice Dowling, who presided seemed perfectly satisfied with the answers; he said it was a bona fide case of insolvency, and one which originated in events over which the insolvent could have had no controul.
Mr. WENTWORTH replied.
The learned Judge in summing up the evidence, stated it as his opinion that none of the allegations in the declaration, imputing false and fraudulent assertions to the defendant, had been made out: neither was any damage alleged or proved; - the declaration merely averring that, in consequence of the acts imputed to the defendant, the plaintiff was "likely" to lose his debt, not that he had lost it.
The Jury retired for a short time, and found a verdict for the defendant.
Counsel for the plaintiff, Mr. WENTWORTH and Mr. KEITH; for the defendant, Dr. WARDELL.