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Decisions of the Superior Courts of New South Wales, 1788-1899

Wentworth v. Crossley [1801] NSWKR 2; [1801] NSWSupC 2

imprisonment for debt - bill of exchange - convict attorney - fraud - appeals, Court of Appeal - reception of English law - convict pardon - partnership

Court of Civil Jurisdiction

Atkins J.A., 16-21 December 1801

Source: P.G. King, Letter Book, Vol. 4, Legal, Mitchell Library, A2019 [1]

[227] ... D'Arcy Wentworth esq. maketh oath that George Crossley is justly and truly indebted to him as agent to William Balmain esq., who has been appointed agent and attorney to John and James Mangles of Wapping merchants and also to John Fulham Turner in the sum of £1886 sterling and upwards being the amount of three certain bills of exchange drawn by the said George Crossley (conjunctively with A.M. Crossley) on Anthony Schell esq. Dean's Court Saint Martin's le Grand London, and which said bills of exchange are returned protested for non payment to the said William Balmain esq. as agent and attorney as aforesaid and by reason of the said William Balmain esq. being absent from this territory are now in the hands of the said D'Arcy Wentworth as agent and attorney to the said William Balmain esq. by duly authorized and appointed.

Sworn before the Court of Civil Jurisdiction 16th December 1801.

(signed) Richard Atkins, D. Wentworth, Thomas Laycock.

Sworn on the same day in court before us.

(signed) Richard Atkins, Thomas Laycock

[228] ... 16th December 1801. The court sat.

Present The Judge Advocate, Thomas Laycock esq.

Writ granted on a special Affidavit.

D'Arcy Wentworth esq. agent to Balmain esq. v. George Crossley, £1886.0.0 and upwards. Return ( eodum die )...

The defendant being arrested on this suit brought into court three bills of exchange to the amount of £1886 being produced by the plaintiff, and the defendant being asked if the said bills were drawn by him, the defendant acknowledged them to be subscribed by him, but says the said bills were never presented to him by the plaintiff for payment according to the law in such cases; defendant further says that a reasonable time should have been allowed him for payment of the said bills after they had been presented as aforesaid.

            The court being of opinion that the bills should have been presented to the defendant for payment by the plaintiff after he became possessed of them and before he applied to the court for a writ against the defendant, do therefore quash this writ, but agreable to the established practice of the Courts of Civil Jurisdiction, under certain circumstances in this colony do allow the plaintiff to issue a fresh writ against the defendant returnable at the opening of the court tomorrow morning.

17th December 1801, the court sat. Present, the Judge Advocate, Thomas Laycock esq., James Thompson esq. ...

The bills being produced (scheduled as hereunder) subscribed by the defendant, the hand-writing being proved by Michael Robinson, late clerk to the late Judge Advocate deceased [229] before whom they were subscribed.

Verdict for plaintiff £1886.0.0 debt with costs.

Defendant gave notice of appeal to his Excellency the Governor.

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Schedule of bills in question

One bill of exchange (being the third) dated April 15th 1800 for £1000 sterling, drawn by George Crossley and A M. Crossley at forty one days after sight thereof on Anthony Schell esq., merchant, Dean's Court, St Martin's le Grand, London, payable to the order of Captain Hugh Reed, by the said Hugh Reed directed to be paid to John and James Mangles esquires or their order.

One bill of exchange (being the third) dated April 15th 1800 for £500 Sterling drawn by George Crossley and A.M. Crossley at forty one days after sight thereof on Anthony Schell esq., Dean's Court, St Martin's le Grand, London, payable to the order of Captain Hugh Reed and by the said Hugh Reed directed to be paid to John and James Mangles esquires or their order.

One bill of exchange (being the first) dated April 18th [1804] for £386 sterling, drawn by George Crossley and A. M. Crossley at forty one days after sight thereof on Anthony Schell esq., Dean's Court, St Martin's le Grand, London, payable to the order of Mr John Muirhead and by the said Mr John Muirhead directed to be paid to Mr John Fulham Turner or order. ...

The court having taken into consideration the appeal of the defendant in this cause to the Governor are of opinion that the defendant must give bail to double the amount of the debt awarded to prosecute his said appeal, within the time limited by the Charter and agreeable to the practice of the Courts of Civil Jurisdiction in this colony and that until such bail is given the verdict remains in force.

The plaintiff being asked by the court if he would have execution against the body or effects of the defendant desired to have execution against the effects pursuant to the verdict.

(signed) Richard Atkins, Thomas Laycock, James Thompson.

[230] December 21st 1801. Present, the Judge Advocate, Thomas Laycock esq., and James Thompson esq. ...

The defendant submitting to the court that as his effects are all attached in this colony and in the possession of the Provost Marshall, he can offer no better security under his present circumstances for prosecuting the appeal to the Governor than that such effects, so attached, shall remain charged to abide the event of this suit, and therefore prays the court to accept such security, and suffer his appeal to proceed.

The court taking the circumstances into consideration accept the effects so charged in execution, as security for prosecuting the appeal to the Governor and so abide the event of this suit and admit the appeal accordingly.

(signed) Richard Atkins, Thomas Laycock, James Thompson.

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(Copy)

May it please your Excellency  

            To let me have some few things out of the store to enable me to pay the reapers of my grain for which I will put in grain this season if your Excellency please.

            The Provost Marshall retains my books to my great loss and says it is by order of your Excellency. When I get them I will endeavor to make out a true state of the loss I have received by the late proceedings and with your Excellency's leave after harvest lay it before your Excellency.

            I look upon it that after payment of the £1886 that Mr Wentworth had a claim upon me for he will be in my debt about £8000.

            The effects sold or taken away by him or those acting under him if left to my disposal would have sold for £10,000.

            Every step taken on his part after the deed of trust was executed was illegal, and I shall be able when your Excellency sees my case and the law is pointed out to you upon it, your Excellency will view it in that light.

            If on making out my case your Excellency will be so good as point out any mode of redress I may look to, I shall be ready at some loss to have peace. If that cannot be done I hope your Excellency will after my crop is reaped give me leave to return to England, that [231] I may there take such advice as my case may require.

            I put this to paper that your Excellency may see I have no wish but to apply to your Excellency with order, but the law is the same to all his Majesty's subjects and by the Charter of this colony the law of England only is to be excersised in it.

            I have been from the age of 15 years in the law offices, and an attendant daily on the British courts of justice as an officer of those courts therefore when any illegal proceedings is done to me, I feel it because I know it.

            Your Excellency did me the favor to give me an emancipation. Thanks and gratitude for that act tell me I ought to look up to you for the protection which the law of the country gives every man and to rely on your justice for redress.

Sydney 31st October 1802                                          I am etc.

                                                                                    (signed) George Crossley. ...

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[233] ... 26th May 1801

Sir,

We have received by the Buffalo your favor of the 10th October 1800 covering an attested account of expences on the ship Bethlehem and a statement of debt and credit for the same and have observed that you have remitted to Messrs Robarts and Co. for the [captors] £1050, and that there still remains coming to them £111.19.6 which you will take the earliest opportunity of forwarding in the same manner. All which proceedings appear to us to be correct and proper and we are much obliged to you for your punctuality. We have now to trouble you with another matter of business which has arisen from Captain Hugh Reid of our ship Friendship lately from your place having taken in payment from George Crossley and A.M. Crossley two bills one of ¿1000, and another ¿500, amounting together to £1500 upon Anthony Schell esq. merchant (as they stile him) Dean's Court, St Martin's le Grand, London, which Schell upon enquiry we find to be a miserable pauper, and we are informed is in a workhouse and not worth a farthing. Having experienced your punctuality in the affairs of the Bethlehem, we have with the concurrence of Captain Hugh Reid and of Mr John Fulham Turner our clerk, who has had remitted him by Mr John Muirhead, mate of the Friendship, a similar bill of £386 [234] constituted you our attorney to recover by every means in your power these several sums together £1886 of the said George and A.M. Crossley and we herewith send you the proper authorities for so doing under the seal of the Lord Mayor of London to which is attached the original bills properly protested by a Notary Public. As we are informed that Crossley has property sufficient in your country to pay these bills we have no doubt but you will use your utmost endeavors to establish our claims and get us our money, and for your charges in so doing you will please to debit our accounts. Indeed Crossley must be liable to the whole, and these documents will cost some money, though we cannot just now say how much, trusting to your kind exertions in this business we remain, sir etc.

[To] William Balmain esq.                                            (signed) John and James Mangles

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London, 4th June 1801

Sir,

            My friend Mr John Muirhead mate of the Friendship having received a bill of exchange (in payment for goods sold Mr George Crossley drawn by him and A.M. Crossley on Anthony Schell esq. who is not worth a farthing) for the sum of £386, I am under the necessity of returning it protested to Port Jackson and my worthy employers having done me the favor of mentioning my name to you, I have sent the proper documents with theirs constituting you my attorney in order that you may recover the amount together with interest and expences if possible; and beg you will take the same steps with my bill as you do with theirs, which they also request, and should you be [successful] I beg you will have the goodness to send the remittences addressed for me under the same cover with Messrs Mangles'. Duplicates will be sent by another conveyance. Your kind attention in this business will exceedingly oblige

                                                                                    Sir etc.

                                                            (signed) John Fulham Turner.

[To] William Balmain esq.                                           at John and James Mangles' ...

 

Court of Appeals

Governor King, December 1801 to July 1802

Source: P.G. King, Letter Book, vol. 4, Legal, Mitchell Library, A2019, pp 239-315

 

[240b] Appeal

George Crossley                       appellant

D'Arcy Wentworth esq.          defendant

            Appellant humbly begs leave to state his reason for bringing his appeal from the decision of the civil court and will endeavour to do it in terms as plain and concise as possible.

            First, because on the 29th day of May last and the subsequent deed of the 13th July last, the appellant made and executed a fair and equitable deed of assignment in special trust of all his effects; fair, because it was done with the privity of his principal creditor in this colony, and equitable because it was not exclusively confined to the benefit of that creditor only, but generally embraced and had a view to secure the contingent interest of every other creditor.

            Second, that standing upon the firm basis of equity and justice appellant humbly submits the validity of such deed cannot be controverted nor its operation defeated.

            Third, because that according to the known and established custom of merchants when bills are returned for non-acceptance it is necessary that the whole set should be returned, otherwise it is within the reach of probability that some one of the outstanding bills may from unforeseen circumstance be accepted. This case differs materially from where the bill is accepted and returned for want of payment as it is not likely that two bills of the same tenor and date should be accepted.

Fourth, because, if the property now charged in execution (vast and immense as it is) was to be sold by auction in the present state of the colony when money [240c] is so scarce and the market so overstocked, it would not fetch one twentieth part of its prime cost. Nor indeed would any person be found to purchase it except the plaintiff or his agent. And as no deposit would be required from them no possible difficulty could attend such purchase on their parts and perhaps in a few months they would realize by such purchase one thousand per cent.

Fifth, because such an advantage unreservedly lodged in the power of any individual so repugnant to the interest of a body of creditors who are by equity entitled to an equal distribution of effects of this description would militate against that system of justice and equity with which the English law has so wisely framed and is so liberally qualified and constructed to supply.

Sixth, because the plaintiff now comes forward to recover the whole of his claim to the exclusion of every other creditor whom appellant had previously secured, when in fact this claim of which he is now the agent in enforcement was provided for and secured by the deed in question in common with the other creditors, the equity of the case was therefore as much in favor of the claim now before your Excellency as any other. And it was expressly on that trust that every creditor should be let in for a participation of the effects without any partial preference.

Seventh, because law and equity uniformly favour and sanction an equal distribution of effects, hence the salutary tendency of the bankrupt laws in England which even in this remote colony may be adverted to, where the circumstances of the case apply to them and where it is furthering the ends of justice to keep in view some of their salutary qualifications.

Eighth, because the property if sold at prime cost would be more than sufficient to answer the full claims of every creditor besides leaving a surplus for the benefit of the appellant.

At which the appellant most humbly submits etc.

(signed) George Crossley

            Sydney, December 26th, 1801

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[239] To his Excellency Philip Gidley King esq., etc. etc. etc.

The memorial of George Crossley, humbly sheweth that,

            Your memorialist having had the misfortune to have some bills of exchange returned unpaid in the month of May last, your memorialist [240] entered into an agreement with Mr Nicholas Devine to become a co-partner in trade. That Mr Robert Campbell being the only person resident here, to whom bills of exchange drawn by your memorialist were payable and then outstanding, your memorialist applied to the said Robert Campbell to know if it met his approbation that your memorialist should enter into co-partnership with Mr Nicholas Devine when Mr Campbell said he thought it might be for the benefit and protection of your memorialist and a better protection security for himself and other bill holders that such co-partnership could be formed. That with his approbation your memorialist and the said Nicholas Devine became partners and one deed of partnership dated 29th May last and another dated 13th July last altering the first deed was duly executed, and witnessed by Michael Robinson the Judge Advocate's clerk, containing an assignment of your memorialist's leasehold premises, stock in trade and effects as to one moiety thereof to the said Nicholas Devine, and a consideration of ¿4050 were secured by the said Nicholas Devine to your memorialist or bearer at a time therein mentioned, that being the estimated value of one half of your memorialist's effects, thereby secured. That upon a bill of exchange being returned of which your memorialist had notice, but which bill was in part specifically provided or secured payment of by articles of co-partnership your memorialist was alarmed to other outstanding bills and thereupon applied to the said Mr Campbell and having previously advised with the said Mr Devine, with his approbation proposed that they would both join in any further assignment to secure the payment of all the bills that might eventually be returned, in any way that he approved, at which time your memorialist had received no notice that bills to Captain Reed and Mr John Muirhead were unpaid.

            That on the 16th day of this instant December as your memorialist was returning from the said Mr Campbell's he was arrested at the suit of Mr D'Arcy Wentworth for ¿1886 and immediately taken into court when three bills of exchange amounting to that sum was produced and which was the first intimation to your memorialist that such bills or any of them were unpaid or returned. That your memorialist took an objection as to the want of notice, and a nonsuit was obtained, but immediately after on your memorialist going out of court, Mr Wentworth shewed your memorialist one part of the bills there being three parts of each bill, but the protest was not as your memorialist then shewed and a few moments after and as your memorialist was returning home, your memorialist was again arrested and Mr Nicholas Devine thereupon became bail for your memorialist. That on the 17th December when the case came on your memorialist [241] first inspected the protest and to the best of his recollection, the bills appear to be protested for non-acceptance, and only two parts out of three of each set of bills are as the plaintiff admitted in court returned, and as the said bills do not appear to have been presented for payment after due your memorialist humbly conceives the plaintiff cannot recover and that he is aggrieved by the decision of the court. That your memorialist is indebted to government in grain and to divers persons in this colony, who are injured by the said decision.

            That your memorialist humbly hopes your Excellency will grant him relief, your memorialist protesting against the decision of the court for the reasons aforesaid and others. That if your memorialist's effects were now sold, the same would fetch but a small part of their value and your petitioner would be thereby utterly ruined. That it appears to your memorialist that in suing out the execution, that there is great oppression, as to the execution of it; because the shop of your memorialist is a public shop, and though your memorialist offered to deposit any money paid for goods sold, the trade was ordered to be stopt and no goods sold.

            Your memorialist humbly hopes that your Excellency will take such steps for his relief as in your wisdom shall seem just, and that further proceedings on the said execution may be stayed and your memorialist restored to the possession of his property.

The Civil Court of Jurisdiction appear to have acted perfectly consistent with the established practice always followed in deciding on cases of this kind, consequently the appeal cannot be heard until the security required is given.

            December 19th 1801.

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Mr Wentworth in reply

To the memorial presented to your Excellency by Mr Crossley, the respondent has little to answer. He will not pretend to say what reason Mr Crossley might have for entering into a partnership with Mr Devine, a man whom it is well known could add nothing to the stock in trade, nor will he presume to even guess at what your Excellency's opinion on that subject may be, but wishes to submit to your Excellency a plain statement of facts. That Mr Reed Master of the ship Friendship sold to the appellant a certain quantity of goods to the [242] amount of ¿1500 for payment of which sum he gave bills on a person in London, who on the bills being presented refused payment, not having any effects in hand, the said bills were regularly protested and sent back to the respondent by Messrs Mangles and Company to recover value for them from Mr Crossley.

            The bill of Mr Muirhead's for ¿386 underwent the same fate and awaits your Excellency's decision thereon. That it appears by Messrs Mangles and Reed's letters as well as from other concurrent circumstances that Anthony Schell the person on whom those bills are drawn, is a man apparently not possessed of any property whatever, living in an obscure court in St Martin le Grande, and from every appearance not likely at any future period, to answer the amount of the several bills, so that the only prospect the injured parties have to recover their money, is from the appellant George Crossley, who has at this time (as he is informed) sufficient property to recover the demands on him by my principals. That the said property is now in the hands of the Provost Marshall, and the respondent humbly prays that your Excellency will order the same to be sold to pay the amount of the said bills and expences incurred thereon in such manner as to your Excellency may seem just and equitable.

            That Mr Crossley having stated to your Excellency the probability that the respondent will purchase the goods directed to be sold, for the payment of the said protested bills, he hereby pledges himself to your Excellency, that he will neither directly or indirectly, bargain for or purchase either by himself or any other person any part of the aforesaid property, and that he is ready and willing to enter into a bond or any other security that your Excellency may think proper for the due performance of the said promise.

(signed) D. Wentworth

Agent to Messrs Mangles and Company

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[Court of Appeal minutes]

26th December 1801                Before the Governor

George Crossley, appellant and D'Arcy Wentworth esq., attorney to Balmain esq., respondent.

The appellant being called upon to produce such original papers in support of the appeal as he may be in possession of, exhibits

No. 1. Proceedings of the civil court.

No. 2. Memorial of the appellant.

No. 3. Documents purporting to be articles between appellant and Nicholas Devine.

[243] No. 4. The same.

No. 5. Further memorial of appellant.

No. 6. Rough inventory of appellant's effects.

            The respondent being asked what papers he has to produce delivers in

no. 1, protest and letters of attorney, with the two sets of bills for ¿1886.0.0 and two correspondent letters.

            Articles of co-partnership being produced to Nicholas Devine and Devine being interrogated upon oath as to what property he was possessed of prior to his entering into such articles, says had had no property, except his salary and farm and what little stock he was possessed of, nor has he become possessed of any property since, except the implied property that might arise from the effects after payment of all the debts and incumbrances thereon.

            Devine being asked if such articles were executed before any official person or entered in the Register Books, pursuant to General Orders on that head, Devine says they were drawn out by Crossley himself and executed at his house. That they were witnessed by Michael Robinson, who being asked if he attested them officially as clerk to the Judge Advocate, says he did not, but witnessed them as an individual.

            Devine, being asked if he had given any collateral security to Crossley not to make himself responsible for, or liable to him for any sum above ¿6000 in case the effects should when sold exceed that sum says he has not but has given notes payable two years after date for ¿3000 or ¿4000 being the consideration for his moiety of the concern.

            Devine being further asked if in the event of the premises being destroyed by fire and the effects consumed, he considers himself liable to participate in and suffer by such loss, he says such a circumstance never occurred to him.

            Crossley being asked if he considered Devine liable, says he should certainly look to him for payment of his note.

            Devine being asked as to what provision he could make in such an event of loss by fire or accident, to pay such notes, says he has no private property or expected possessions, equal to answer them, having only what he has stated before.

January 2nd 1802.

            The court being opened and the memorials of the appellant, dated the 18th December and the 26th of the same month being publickly read, the respondent was directed to make any reply to them he might think necessary on the case, and be ready with the same on Wednesday next the 6th instant at 10 o'clock in the forenoon, when the further hearing of this appeal would come on.

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January 6th 1802.

[244] The Court of Appeal sat.

            The respondent delivered in a paper numbered 2 replicatory to the statement of the appellant, which contained his reasons for the appeal. The same was read.

            Question to the respondent. Have the owners given any security for the forthcoming of the remaining two setts of bills?

            Answer. I have received no advice on that head, but am ready to give security on the part of my principals that they shall never come against the appellant.

            Question. What security can you give equal to the sum for which these bills are given, on your own property and a joint security with you?

            Answer. I presume I can give enough security on that head.

            To be settled at the Judge Advocate's Office. Stands over till next Saturday.

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January 9th 1802.

            The court being open, the bond required from the respondent being produced properly executed with two sureties, respondent in ¿1000 and his two sureties in ¿500 each, respondent and appellant being asked if either of them had any thing further to advance, and each declaring they had not.

Duplicate. New South Wales Cumberland to wit.                  By etc. etc. etc.

            Whereas the Patent for establishing the Court of Civil Jurisdiction in this colony expresses, "That if either of the parties engaged in a suit at law, do find themselves aggrieved at the decision of such court, that they are authorized to appeal to the Governor (whose award shall be final) in any sum not exceeding ¿300". An appeal having this day been brought before me by George Crossley, emancipated convict appellant, against Mr D'Arcy Wentworth, Assistant Surgeon, respondent.

            When after truly and impartially hearing and weighing the evidence and testimony of such witnesses or documents, as were brought forward by the parties in this cause, it appeared that the appellant had given four sets of bills of exchange to the amount of ¿1886 and upwards in payment for sundry articles of merchandize, two sets of which bills are returned, properly protested to respondent, as [245] agent to the merchants in whose favor the said bills were drawn by appellant. That the person on whom those bills were drawn appears totally incapable of ever having it in his power to discharge the remaining two sets of bills. That prior to those bills being received it appears that the appellant had admitted into co-partnership with him a Superintendant of Convicts, possessed of no property besides his salary, and a poor farm with very little stock on it, which partnership was evidently formed for the purpose of collusion, and of which no further notice can be taken as it appears a most iniquitous transaction for purposes which I am ignorant of. It also appearing from the inventory of appellant's effects, and now in custody of the Provost Marshall by verdict of the civil court, that were they to be sold for a very small advance above prime cost they might produce the sum in question, I am of opinion that situated as this colony is with respect to the great abundance of all kinds of goods, two facts are evident. First that there is not money in the colony to purchase them, and next from the low price of the articles with which this settlement is stocked, it is certain that most of the effects belonging to the appellant would not bring half their first cost if sold by auction, and consequently the merchant in whose favor the bills are drawn would become the eventual sufferer.

            I do therefore award that the appellant and respondent do jointly and severally appoint each one good and sufficient person as trustees to appellant's said estate, and another person to be appointed by me, on the joint recommendation of the appellant and respondent, which trustees assisted by appellant and respondent are to cause an exact inventory of all the appellant's effects to be taken, and after entering said inventory in two books, one to be delivered to appellant and the other to respondent. The said appellant is then to continue the sale of his effects, to deliver weekly accounts of his sales and to pay the money bills or other considerations, approved of by respondent, arising therefrom, after the appellant's debts due to the King are discharged into the hands of the respondent at least once a month, in liquidation of the debt until the whole be paid, and should any collusion be proved on the part of the appellant, then and in that case the whole of the effects are to be immediately sold by public auction. The term limited for the trustees acting to be 12 months from this date, after which the effects are to be sold by auction unless the parties mutually pray for the term being further extended. The appellant to be allowed the weekly sum of three pounds sterling, for the maintenance of his family from the amount of the sales.

[246] Given etc. this 9th day of January 1802

(signed) Philip Gidley King...

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Parramatta July 30th 1802.

            Sir,

            Mr Wentworth having represented to me that George Crossley is making away with the property entrusted to him, contrary to the tenor of my award in the case of Wentworth v. Crossley, you will request the Lieutenant Governor to convene a full Bench of Magistrates tomorrow (causing the trustees to be present) calling on all persons and requiring such books as may be necessary to enable you to give me your joint opinion whether Crossley has or has not complied with he tenor of my award.

I am sir etc

(signed) Philip Gidley King

N.B. Mr Chapman will give the original award, which is to be returned him, when the magistrates have done with it.

[To] Richard Atkins esq., Judge Advocate.                                        (signed) P.G.K.

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Sydney 31st July 1802

            Dear Governor,

            Inclosed are the proceedings of the magistrates respecting Mr Crossley. It does not appear to me that he ever intended to act otherwise than what he has done, vizt. not to account for any thing unless compelled to it. Mrs Paterson joins me in compliments to Mrs King.

Yours truly

(signed) William Paterson

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[Minutes of Bench of Magistrates]

Bench of Magistrates convened by order of his Excellency 31st July 1802.

Present. The Lieutenant Governor, [247] the Judge Advocate, John Harris esq., the Rev. Mr Marsden, James Thompson esq., Charles Grimes esq.

            This Bench being convened for the purpose of investigating a complaint of Mr D'Arcy Wentworth as agent to certain merchants against George Crossley for not complying with the tenor of the Governor's award of the 9th January last.

            Mr Thomas Smith, Provost Marshall being sworn deposeth that he attached the goods, effects and Credits of George Crossley and also the farm and a crop thereon at the Hawkesbury pursuant to a warrant of execution from the civil court, and which remained in execution until the Governor's award was confirmed and the trustees entered upon their trust.

            Henry Kable being sworn, deposeth that he seized upon the books of the said George Crossley in common with his other effects when the warrant of execution was levied.

            Mr Wentworth complained that he had received no account weekly or otherwise from Crossley, nor any monies from the sale of the effects.

            We are unanimously of opinion after deliberating on the circumstances which have come before us in the course of this investigation, that the tenor of the Governor's award has not been complied with by George Crossley in any instance whatever.

Signed. William Paterson, Richard Atkins, Samuel Marsden, J. Harris, C. Grimes, James Thompson

Registered between noon and 1 o'clock, July 31st. (signed) P.G.K.

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[313] ... New South Wales, Cumberland to wit

By his Excellency Philip Gidley King esq. etc. etc. etc.

            Whereas at a Court of Appeal held before me on the 26th December 1801 and the 9th July 1802 on the appeal of George Crossley against D'Arcy Wentworth, it was decreed by my award on the 9th January that the appellant and respondent do jointly and severally appoint each one good and sufficient person as trustees to appellant's estate and another person to be appointed by me on the joint recommendation of the appellant and respondent, which trustees assisted by appellant and respondent are to cause an exact inventory of all the appellant's effects to be taken, and after entering said inventory in two books, one to be delivered to appellant and the other to respondent, the said appellant is then to continue the sale of his effects, to deliver a weekly account of his sales, and to pay the monies, bills (or other consideration approved of by respondent) arising therefrom after the appellant's debts to the King are discharged into the hands of respondent at least once a month, in liquidation of the debt until the whole be paid. And should any collusion be proved on the part of the appellant then and in that case the whole of the effects are to be immediately sold by public auction. The term limited for the trustees acting to be 12 months from this date, after which the effects are to be sold by auction unless the parties mutually pray for the term being further extended. The appellant to be allowed the weekly sum of ¿3 sterling for the maintenance of his family from the amount of the sales. And it having been this day determined by a full Bench of Magistrates on the complaint of the respondent (D'Arcy Wentworth) in the presence of the trustees that the tenor of my award has not been complied with by the said George Crossley in any instance whatever, you are therefore hereby required and directed to attach the goods, effects and credits of the [314] said George Crossley, and also of a farm and crops thereon at the Hawksbury keeping the same in execution and proceeding to the sale thereof by public auction, agreeable to the tenor of my award of the 9th January last. For which this shall be your warrant. Given under my hand and seal at Government House Parramatta this 31st day of July 1802.

(signed) Philip Gidley King

[To] Mr Thomas Smyth, Provost Marshall, New South Wales.

Note

[1] George Crossley was the best known of the attorneys who was transported as a convict to New South Wales. His busy practice saw him frequently before the colony's courts. This case shows much of the basis for his well deserved reputation for dishonesty. By the time of this litigation, Crossley had already obtained a pardon from Governor King. The Governor wrongly thought that a pardon was necessary to allow Crossley to be sued by others. That was wrong as a matter of law. Attaint prevented a convict from suing, not from being sued.

Acting as agent for English merchants, Wentworth sued Crossley for the vast sum of £1886. On his convict voyage to Sydney, Crossley had purchased goods at the Cape of Good Hope, in the expectation of being able to sell them in Sydney for a profit. He issued three bills of exchange in payment for the goods at the Cape, on which Wentworth later sued him. This case is one of many to show how the debt recovery system operated.

Eventually this case went to the colonial Court of Appeal, consisting of the Governor sitting alone. The Court of Civil Jurisdiction had followed the common law and the first Charter of Justice, by ordering the seizure and sale of Crossley's property. Governor King went far beyond that, first by making an order which had some of the characteristics of bankruptcy and insolvency. He ordered that Crossley's property should be held by trustees, and that Crossley should retain possession and sell his goods, passing on most of the proceeds of sale. Crossley did not pass on the money, so the Governor finally ordered the sale by auction of all of Crossley's property, including his farm.

The Governor had no legal right to make either of these orders, unless they were made with the agreement of all parties. In fact they were not voluntary on both sides, because the plaintiff wanted what should have been his as a matter of right, an order against Crossley's property. Wentworth had a right to enforce payment, regardless of the claims of other creditors. Neither bankruptcy nor insolvency was part of the colony's law, and there was no right to order the seizure and sale of Crossley's freehold land. The Governor's first order was aimed at avoiding preference to one creditor. It also had the effect of allowing Crossley to avoid debtors' prison, and to retain control of his property. When Crossley breached the condition of the first order, King's second order exceeded the law once again, when he included Crossley's farm to be seized and sold.

            The record begins with D'Arcy Wentworth's sworn Court of Civil Jurisdiction claim against Crossley. That is followed by a writ of capias ad respondendum, authorising Crossley's arrest on the mesne process. Imprisonment for debt was of two kinds, mesne process near the commencement of litigation (in which bail was available) and final process to enforce the payment of the judgment debt. Crossley obtained bail and so avoided debtors' prison. The reference to the late Judge Advocate is to Richard Dore, who died in December 1800, after which Richard Atkins returned to the position of acting Judge Advocate.

On Crossley, see Kercher, "Convict Conservative"; Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 53-54, 60-62, 205-209.

Published by the Division of Law, Macquarie University