In re Stephen, 1847

Source: Printed Cases in Indian & Colonial Appeals, Heard in 1847, vol. 42 (kept in the office of the Judicial Committee of the Privy Council))

In the Matter of the Appeal of SIDNEY STEPHEN, Esq., Barrister-at-Law, from an Order of the Supreme Court of Van Diemen’s Land, made for Disbarring him.

Their Lordships agreed to report that the Order of the Judge of the Supreme Court of Van Diemen's Land should be rescinded.

[p. 1] Before the Judicial Committee of Her Majesty’s Most Honourable Privy Council.

In the Matter of the Appeal of SIDNEY STEPHEN, Esquire, Barrister-at-Law, from an Order of the Supreme Court of Van Diemen’s Land, made for disbarring him.

In obedience to the order made by your Majesty, by and with the advice of your Majesty’s Most Honourable Privy Council, bearing date the twenty-third day of May, in the year of our Lord One thousand eight hundred and forty four, whereby upon the report of the Judicial Committee of your Majesty’s said Council, to which Committee your Majesty had referred the petition and appeal of Sidney Stephen, of New South Wales, Esquire, of the Supreme Court of that Colony, Barrister-at-Law, your Majesty was pleased to order that the Judges of the Supreme Court of Van Diemen’s Land should transmit to your Majesty in Council, under the seal of the said court, a certain order of the said court, of the 17th December, 1842, in the said petition and report respectively mentioned, and all proceedings in anywise relating thereto or for the due hearing and determination of the matter of the said petition, we Sir John Lewes Pedder, Knight, and Algernon Montagu, Esquire, being the Judges of the said Supreme Court, do herewith, under the seal of the said court, humbly transmit to your Majesty in your Most Honourable Privy Council, true copies of all proceedings in anywise relating to the said order of the17th December, 1842, or for the due hearing and determination of the matters of the said petition, the same copies being contained in the several papers hereunto annexed, in number twenty-three, and numbered severally and successively, No. 1 to No. 23. And further, we the judges aforesaid do humbly certify to your Majesty, that the said order of the 17th December, 1842, was never drawn up or entered as a rule of the said Supreme Court, and that the only entry of or relating to the said order, is the minute made by the clerk of the court at the time, when the said order was pronounced, a copy of which minute is contained in the paper hereunto annexed, number 23, the said copy being written on the last side of the same paper.

Dated at Hobart Town, in Van Diemen’s Land, the seventh day of May, One thousand eight hundred and forty five.

Victoria, by the Grace of God of the United Kingdom of Great Britain and Ireland

To ROBERT THORNE of Pittwater in the County of Pembroke, getting: We command you that within ten days after the service of this writ upon you, inclusive of the day of such service, you do cause an appearance to be entered for you in our Supreme Court of Van Diemen’s Land in an action on promises at the suit of Richard James Fisher. And take notice that in default of your so doing the said Richard James Fisher may file particulars, or a statement of his demand, together with an affidavit of the amount due to him in respect thereof,[2] [p. 2] and may thereupon, and upon exhibiting to the Master of the said Supreme Court the bill of exchange and promissory note, in respect of which this action is brought, forthwith sign judgment, and issue execution for the amount so sworn to with costs.

Witness the Honourable Sir John Lewes Pedder, Knight our Chief Justice of our said Court at Hobart Town, the Fourteenth day of May, in the fifth year of our reign.

N.B. This writ is to be served personally, and within four calendar months from the date thereof, including the day of such date, and not afterwards.

The plaintiff claims £15, and interest thereon, at the rate of £10 per cent. Per annum, from the 20th January, 1842, and £12. 19s., and interest thereon at the same rate, from the 3rd March, 1842, for debt, and £4. 15s. 4d. for costs; and if the amount thereof be paid to the plaintiff within four days from the service hereof, further proceedings will be stayed.

Matthew Riely of Hobart Town in the Island of Van Diemen’s Land, Law Writer, maketh oath and said, that he did on Monday, the Sixteenth day of May instant, personally serve Robert Thorne, the above-named defendant, with a true copy of the writ of summons hereunto annexed.

THOMAS WOOD ROWLANDS, Attorney fort the defendant, appears for him. Entered 16th May, 1842.

THIS ACTION is brought to recover the amount of the bill of exchange mentioned in the first count of the declaration in this cause, together with interest thereon from the time the same became due until payment thereof. And the plaintiff will avail himself of all or any of the counts in the declaration in this action for the recovery of the said demand.

On the twenty third of May in the year of our Lord One thousand eight hundred and forty two.

VAN DIEMEN'S LAND (to wit) Richard James Fisher in plaintiff in this suit in person, complains of Robert Thorne, the defendant in this suit, who has been summoned to answer the said plaintiff in an action on promises. For that, whereas the defendant, on the thirtieth day of October, One thousand eight hundred and forty one, made his bill of exchange in writing and directed the same to Mr. Thomas Riely, Pittwater, and thereby required the said [p. 4] Thomas Riely to pay to his order twelve pounds nineteen shillings four months after the date thereof, which period has now elapsed, and the said Thomas Riely then accepted the said bill, payable at the Derwent Bank, Hobart Town, and the defendant then endorsed and delivered the said bill to one Sidney Stephen, and the said Sidney Stephen then endorsed the said bill to the plaintiff, but that neither the said Derwent Bank, nor the said Thomas Riely, nor any other person did or would pay the said bill, although the same was duly presented at the said Derwent Bank, to wit, on the day when it became due, of all which the defendant afterwards, to wit, on the day when it became due, to wit, on the third day of March in the year of our Lord One thousand eight hundred and forty two, had due notice. And whereas also afterwards, to wit, on the nineteenth of March, in the year of our Lord One thousand eight hundred and forty two, the defendant was indebted to the plaintiff in the sum of fifteen pounds for money found to be due from the defendant to the plaintiff on an account then and there stated between them. And whereas the defendant afterwards, to wit, on the day and year last aforesaid, in consideration of the premises respectively then and there promised to pay the said several moneys respectively to the plaintiff on request; yet he hath disregarded his promises and hath nor paid either of the said moneys, or any part thereof, to the plaintiff’s damage of fifty pounds, and thereupon he brings suit, &c.

AND the defendant by Thomas Wood Rowlands, his attorney, as to the first count of the declaration, saith that he, the defendant, did not have due notice of the non-payment of the said bill of exchange in the said firth count of the declaration mentioned in manner and form as the plaintiff hath in the said first count in that behalf alleged. And of this the defendant puts himself upon the country, &c.

And as to the subsequent count of the said declaration, the defendant says that he did not promise in manner and form as the plaintiff hath above thereof complained against him, and of this the defendant puts himself upon the country, &c.

On the twenty third of May, in the year of our Lord One thousand eight hundred and forty two.

VAN DIEMEN:S LAND to wit, Richard James Fisher, the plaintiff in this suit in person, complains of Robert Thorne, the defendant in this suit, who has been summoned to answer the said plaintiff in an action on promises. For that, whereas, the defendant, on the thirtieth day of October, One thousand eight hundred and forty one, made his bill of exchange in writing, and directed the same to Mr. Thomas Riely, Pittwater, and thereby required the said Thomas Riley to pay to his order, twelve pounds nineteen shillings, four months after the date thereof, which period has now elapsed, and the said Thomas Riely then accepted the said bill payable at the Derwent Bank, Hobart Town, and the defendant then endorsed and delivered the said bill to one Sidney Stephen, and the said Sidney Stephen then endorsed the said bill to the plaintiff, but that neither the said Derwent Bank, nor the said Thomas Riely, nor any other person, did nor would pay the said bill, although the same was duly presented at the said Derwent Bank, to wit on the day when it became due, of all which the defendant afterwards, to wit on the day when it became due, to wit on the third day of March, in the year of our Lord One thousand eight hundred and forty two, had due notice. And whereas also, afterwards, to wit on the nineteenth day of March in the year of our Lord One thousand eight hundred and forty two, the defendant was indebted to the plaintiff in the sum of fifteen pounds for money found to be due from the defendant to the plaintiff, on an account then and there stated between them. And whereas the defendant afterwards, to wit on the day and year last aforesaid, in consideration of the premises respectively then and there promised to pay the said several moneys respectively to the plaintiff on request, yet he hath disregarded his promises, and hath nor paid either of the said moneys or any part thereof, to the plaintiff’s damage of fifty pounds, and thereupon he brings suit, &c.

The twenty-sixth day of May, in the year One thousand eight hundred and forty-two.

AND the defendant, by Thomas Wood Rowlands, his attorney, as to the first count of the declaration, saith that the defendant did not have due notice of the non-payment of the said bill of exchange in the said first count of the said declaration, mentioned in manner and form as the plaintiff hath in the said first count in that behalf alleged, and of this the defendant puts himself upon the country, &c.

And as to the subsequent counts of the said declaration, the defendant says that he did not promise in manner and form as the plaintiff hath above thereof complained against him, and of this the defendant puts himself upon the country, &c.

AND the plaintiff as to the pleas of the defendant, by him above pleaded, and whereof he hath put himself upon the country, doth the like, &c.

Therefore let a jury thereupon come before the Supreme Court of Van Diemen’s Land, at Hobart Town, and on the day of June, in the year of our Lord One thousand eight hundred and forty-two. By whom, &c., and who neither, &c., to recognise, &c., because as well, &c., the same day is given to the parties aforesaid at the same place,

AFTERWARDS (that is to say) on the day and at the place within contained, before the Honourable Sir John Lewes Pedder, Knight, Chief Justice of the Supreme Court within-mentioned, according to the form of the statute in such case made and provided, come as well the within-named plaintiff, as the within-named defendant, by their respective attorneys within-named. And the jurors of the jury whereof mention is within made, being summoned, also come who to speak the truth of the matters within contained, being chosen, tried, and sworn after evidence being given to them thereupon, withdrew from the bar here to consider of their verdict to be given of and upon the premises; and after they had considered thereof and agreed among themselves, they returned to the said bar to give their verdict in this behalf, upon which the plaintiff being solemnly called, comes not, but makes default, nor does he further prosecute his suit against the said defendant; therefore it is considered, that the plaintiff take nothing by his said suit, but that he and his pledges to prosecute be in mercy, &c., and that the defendant do go thereof without day, &c. And it is further considered, by the Supreme Court of Van Diemen’s Land here, that the said defendant do recover against the plaintiff, eighteen pounds, six shillings, and eight-pence, for his costs and charges by him laid out and expended about his defence in this behalf, by our said Supreme Court now here adjudged to the said defendant, and with his assent according to the form of the sta6tute in such case made and provided, and that the said defendant have execution thereof, &c.

UPON hearing Mr. Sidney Stephen, of counsel for the plaintiff, and Mr. Macdowell, of counsel for the defendant, and by consent, it is ordered, that the judgment of nonsuit obtained in this cause be set aside, and that a new trial be granted.

WRIT of Ca. Sa. for defendant’s costs retble., 3rd December next. Issued 28th Nov. 1842. Take £18. 6s. 8d.

Victoria. By the Grace of God of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to the Sheriff of Van Diemen’s Land and its dependencies, greeting.

We command you that you take Richard James Fisher if he shall be found in your Bailwick, and him safely keep, so that you may have his body before the Supreme Court or Van Diemen’s Land, on the third day of December next, to satisfy Robert Thorne, eighteen pounds, six shi8llings, and eight-pence, which lately in our said court at Hobart Town were awarded to the said Robert Thorne according to the form of the statute in such case made and provided for his costs and charges by him laid out and expended about his defence in a certain action on promises lately brought in our Supreme Court by the said Richard James Fisher against the said Robert Thorne, for that the said Richard James Fisher did not prosecute the said action, whereof the said Richard James Fisher is convicted as appears to us of record, and have you then this writ. Witness the Honourable Sir John Lewes Pedder, Knight, our Chief Justice of our said Supreme Court at Hobart Town aforesaid, the twenty-eighth day of November, in the sixth year of our reign.

By virtue of this writ, to me directed, I took the body of the within-named Richard James Fisher, and him detained in my custody until he paid the costs and charges within mentioned, which said costs and charges I paid to the defendant’s attorney within named, and forthwith discharged the said Richard James Fisher out of my custody.

RICHARD JAMES FISHER, of Hobart Town, Gentleman, the above-named plaintiff, maketh oath and saith. That after the commencement of the said action, the said defendant called several times upon this deponent and proposed to settle the said action if the plaintiff would not charge him any costs; but to this deponent always objected. And deponent saith, that the last of such proposals was made by the defendant on the day after the last nonsuit was granted in the said action. And deponent saith, that he understood that Sidney James Stephen of Hobart Town, Gentleman, was desirous that the said action should be settled, to which this deponent consented. And deponent saith, that on Tuesday, the eight day of November instant, he instructed Sidney James Stephen, Esquire, Barrister-at-Law, to move to set aside the said nonsuit and instructed the Solicitor-general to move on Friday the eleventh. But deponent was informed on the said eleventh day of November instant, that the said action was settled. And deponent saith that he gave notice to Thomas Wood Rowlands, Esquire, the attorney for the above-named defendant, of the said settlement, on Monday the twenty-eighth day of November instant, upon which the said Thomas Wood Rowlands, on the said twenty-eighth day of November instant, issued a capias ad satisfaciendum against this deponent for his costs in the said action.

SIDNEY JAMES STEPHEN and FRANCIS JOHN SIDNEY STEPHEN, both of Hobart Town in Van Diemen’s Land, Gentlemen, severally make oath and say; and first, this deponent Sidney James Stephen for himself saith, that being desirous of returning to New South Wales, and knowing that he was the principal witness in the above cause, and would be required upon the said cause being tried again, which would cause his detention in Hobart Town, and having understood that the above-named defendant had after the commencement of the above action made several offers to settle the same by paying the amount of debt without costs, he, this deponent, received authority on the part of the [p. 7] plaintiff to settle the same; and these deponents say that they called upon the said defendant on the tenth day of November instant and proposed the settling of the said action by his, the said defendant’s, paying the debt and costs out of pocket, which the defendant refused to do, but stated that as it was a just debt he would not object to pay the debt but without the plaintiff’s costs. To which deponent, the said Sidney James Stephen, agreed . Defendant then said that he had not the amount at present, but as the said Sidney James Stephen had in his possession a promissory note of defendant’s, that he, the defendant, would give him a horse in payment of the two demands, upon the said Sidney James Stephen paying him the difference (that is to say)six pounds. That the said Sidney James Stephen then gave a promissory note for the said amount and a discharge from the said action, and the horse was thereupon delivered over by the said defendant. And these deponents further say, that after the settlement of the said action, the said defendant stated that he would be a loser to a great amount, for that he was afraid he would have to pay Mr. Thomas Wood Rowlands’ costs, (the attorney for the defendant in the above action,) but asked these deponents’ advice, whether the said Thomas Wood Rowlands could make him, the said defendant, pay the said costs, as he, the said defendant, had never authorised him, the said Thomas Wood Rowlands, to define the said action, but that he had done it voluntarily and had requested permission to do so. And this deponent, the said Francis John Sidney Stephen, for himself saith, he afterwards delivered up the bill of exchange on which the said action was brought, to the said defendant at the office of Sidney Stephen, Esquire, upon which occasion this deponent took a receipt from the said defendant, signed by him in these words. “Fisher v. Thorne, 165th Novr. 1842. Received from Mr. Sidney Stephen the bill of exchange upon which the above action was brought, I having “paid the same in settlement of the above action. Robert Thorne.”

SIDNEY STEPHEN, of Hobart Town, Esquire, being sworn, said that the bill of exchange for which this action was brought was the property of this deponent at the time of the commencement of the said action to the time of the settlement of the same, but that the action was brought in the said complainant’s name in consequence of some mistake of deponent’s instructions. And deponent saith, that having understood that the said defendant was serious of settling the same action, and he having twice promised deponent to do so before the action was brought, deponent thought it better to settle the same upon the terms which the said plaintiff had told deponent had been offered by the defendant, as he was anxious to send his son, Sidney James Stephen, to New South Wales immediately, and that deponent could not do so as his said son was a material witness in the said case, until after the same was settled. And deponent saith that about the first day of term deponent desired his said son to see the defendant and come to the terms proposed by him to the said plaintiff. And deponent saith that on Tuesday the eighth day of November instant, he was instructed to move to set aside the nonsuit, but as deponent could not state what had passed at the trial he withdrew his said motion, and on Friday the eleventh day of November instant, when the cause was mentioned by his Honor the Chief Justice this deponent said that the said cause was settled. And deponent saith that Thomas Wood Rowlands Esquire, the defendant’s attorney, was present in the said court and heard the said statement of this deponent. And this deponent saith that on or about the fourteenth or fifteenth day of November instant, the said defendant called on this deponent for payment of a promissory note for six pounds, given by the deponent’s son as the balance due for a horse given by defendant for the debt due in the said action, and for another debt due by defendant to deponent. And deponent then remonstrated with defendant on his having put the deponent to the payment of the said plaintiff’s costs out of pocket, which would swallow up the amount of the said note, upon which the said defendant said it was very unfortunate, that he also would have costs to pay to Mr. Rowlands he supposed, but that he ought not to charge any costs, because he had never em- [p. 8] ployed Mr. Rowlands to defend the action but he had done it out of his own head. And this deponent saith, that the defendant said he would call again for the said bill of exchange which was to be given up to him, but the said defendant did not call, as deponent believes, until a day or two afterwards, when the same was delivered up to him, as deponent believes, by one of his sons, deponent having in his possession a receipt for the same, dated November the sixteenth.

Upon reading the several affidavits of Sidney James Stephen and Francis John Sidney Stephen, Sidney Stephen and Richard James Fisher filed in this cause on the twenty-ninth day of November last, it is ordered, that the said Richard James Fisher, a barrister, solicitor, attorney, and proctor of this Honourable Court, do answer the matters of the said affidavits before this Honourable Court, to-morrow at 1 o’clock in the afternoon.

RICHARD JAMES FISHER, of Hobart Town, in Van Diemen’s Land, Gentleman, maketh oath and saith, that the first intimation that he this deponent had of a writ of summons being issued in the above action, was by finding the original writ of summons put under the door of his then office, in Lord’s Buildings, during this deponent’s temporary absence, and observed that the same was in the handwriting of a person of the name of Matthew Riely, and having some business to transact with Mr. Sidney Stephen, he this deponent mentioned the circumstance to him when he Mr. Sidney Stephen then said, that the writ had been issued in a mistake by his son, and that he was sorry such a liberty had been taken in using this deponent’s name, but that it had arisen through his son’s negligence, and that the said action was brought upon a bill of exchange and promissory [p. 9] note, which said bill of exchange and promissory note had been given to him, the said Sidney Stephen, for professional fees. And this deponent further saith, that afterwards meeting the said Matthew Riely, he this deponent spoke to him about the said summons, when he the said Matthew Riely observed, that he had issued it by the direction of Mr. Sidney James Stephen, and that he thought that Mr. Sidney Stephen had had this deponent’s authority for so doing. And this deponent further saith, that the said Matthew Riely never was a clerk in this deponent’s office further than copying deeds or other documents which this deponent might require, and that neither he the said Matthew Riely, nor any other person, ever had any authority from this deponent to issue such summons. And this deponent further saith, that the above-named defendant call4ed upon this deponent at his office, as far as this deponent recollects, the day after this deponent had received such writ of summons, when the said defendant offered to pay the said bill of exchange and promissory note if this deponent would renew them, which this deponent then refused, as he this deponent wished to confer with Mr. Sidney Stephen upon it, and he this deponent requested the said defendant to call upon him again in the course of the day, which the said defendant consented to do. And this deponent further saith, that he had a conference with the said Sidney Stephen, and stated to him what had taken place, when he the said Sidney Stephen observed, that he would not renew the said bill of exchange and promissory note unless the defendant paid the costs already incurred, and that he this deponent, either on that day or the day after, informed the said defendant that he could not accede to his proposal, but that he this deponent should go on with the said action unless he acceded to the above terms, when the said defendant observed, that he should defend the action, as he had not had any notice of the dishonour of the said bill of exchange, and that he had instructed Mr. Rowlands to defend the same. And this deponent further saith, that he drew up a motion paper to set aside the last nonsuit, and forwarded the same to Mr. Sidney Stephen, that he might move to set aside the same on Tuesday, the eighth day of November last, the said Sidney Stephen having been out of the colony when the last trial was heard; and that after Mr. Sidney Stephen had made such application, the said Sidney Stephen called upon this deponent and requested this deponent to instruct the Solicitor-general to move in the nonsuit on Friday, the eleventh day of November last, as the Solicitor-general had been counsel in the cause at the sittings after the third term, One thousand eight hundred and forty-two, which he this deponent accordingly did. And this deponent further saith, that Mr. Sidney James Stephen called upon him on or about the ninth day of November last, and stated that he was desirous that the said action should be settled, as he thought of going to Sidney very shortly, and requested to know the amounht of this deponent’s costs against his father, when this deponent informed him that the only charges which he had against the said Sidney Stephen was the amount of costs out of pocket, and that he this deponent gave the amount thereof to the said Sidney James Stephen. And this deponent further saith, that he was, on or about the said eleventh day of November last, informed by the said Sidney James Stephen, that he had been down to Pittwater, and had settled the said action with the defendant, and that he had purchased a horse from the said defendant, who had agreed to take the said bill of exchange and promissory note, and also six pounds in money in payment for the same. And this deponent further saith, that on or about the twenty-eighth day of November last, he this deponent, at the request of the said Sidney Stephen, wrote a letter to Thomas Wood Rowlands, Esquire, attorney for the said defendant, informing him that the said action was settled, and that on the said twenty-eighth day of November last, a capias ad satisfaciendum had been issued against this deponent for the amount of defendant’s costs of action, namely, eighteen pounds, six shillings, and eight-pence, and that he this deponent informed the said Sidney Stephen thereof, when the said Sidney Stephen requested this deponent to make an affidavit stating the circumstances of the action having been settled, and the notice to Mr. Thomas Wood Rowlands having been given, so that he the aid Sidney Stephen might move on the next day, the twenty-ninth day of November last, to set aside the judgment of nonsuit and execution thereon issued, when he this deponent accordingly made such affidavit. And this deponent further saith, that when the said Sidney Stephen informed this deponent that the said writ of summons had been issued in his this deponent’s name through the mistake of his son, that he this deponent made no objection to this the said Sidney Stephen continuing the said action on in his this deponent’s name, as this deponent considered that he was only doing a friendly act between professional men, and that the said defendant could not be injured thereby.

[1] For the records of the decision of the Van Diemen's Land Supreme Courts, see In re Stephen, 1842.

From here to the words “should be rescinded” are in handwriting. This is the decision of the Judicial Committee, handwritten onto the Printed Papers of the appellant’s case.

The Appeal Book 1837-1876 (kept in the office of the Judicial Committee of the Privy Council) includes the following:

Whence 1843 [VDL]

Parties In re Sydney Stephen v Judges of the Supreme Court

lodged 16/2/44

Reference 4/3/44

Report 29/3/47

Approval 24/4/47

Appl Solcr Sir George Stephen

Observations: On 17 May 1844 - Report to HM to direct the transmission of papers - appl to stand over in the meanwhile. This Report approved 23/5/44

[2] Marginal note in the original: “The Writ of Summons referred to in the annexed Affidavit. Dated the 31st of Mzy, 1845. W. Sorrell, Comr. Supreme Court at Hobart Town.”