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

Crossley v. Kable and Underwood [1814] NSWKR 7; [1814] NSWSupC 7

appeals - nonsuit - convict attorney

Court of Civil Jurisdiction
Bent J.A., 25 July 1814
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W., 5/1112 (case no. 2)[1]

[2] George Crossley of Sydney, gentleman, plaintiff and Henry Kable and James Underwood of Sydney, merchants, defendants.

Writ for ¿711.0.8 sterling for fees and disbursements, writing and attendance in and about the business of the defendants as their [3] attorney and agents, for work and labour done and performed by plaintiff for the defendants at their request, and for materials found and provided in about the concerns of the defendants, and for divers journeys and attendance, and money paid, laid out and expended in and about the business of the defendants - the usual money counts - and an account stated etc., and also upon a special undertaking of the said Henry and James by which they agreed to allow to plaintiff the amount of his bill delivered - the sum of ¿711 - for business done on their joint account to the 26th May 1812.

           The plaintiff appears in person.

           The defendants appear in person and put in a special plea which is read on their behalf, the purport of which was that judgment had already been pronounced in this cause against the plaintiff, an office copy of the said judgment and proceedings being annexed, which is read.

           The plaintiff replies that he was then merely nonsuited.

           The court overrule this plea and direct the parties to plead over. The defendants accordingly plead the general issue.

           The plaintiff exhibits a written statement of his case which is read on his behalf.

           Thomas Watson sworn says I was clerk to Mr Crossley in the year 1810. In that year a great deal of business was done by Mr Crossley and his clerks for the defendants. I mean law business, writing and attending court. We have been up at it night and day at times. There were writings sent out to be copied for defendants. Mr Crossley paid for these copies. I was at Mr Crossley's at this period for 14 [4] months.

The plaintiff's first bill dated 24th November 1810 amounting to ¿266.16.8 is shewn to the witness, who says I was in Mr Crossley's employ during the whole period of this bill. I believe that the business charged in this bill was done by Mr Crossley. I can not swear to the attendances, but I know he has repeatedly attended for the parties at court and on themselves.

The second bill of plaintiff amounting to ¿441.1.0 dated from January 5, 1811 to 5 May 1812 is shewn the witness, who says I have reason to believe this bill is a correct bill and that the business charged in it was done by the plaintiff for the defendants. I was occasionally in Mr Crossley's employ during the period of this bill.

Cross-examined for the defendants says I have been bred a printer. I do not conceive myself a judge of professional business. I believe these bills were originally made out against Kable and Underwood jointly. I took them from a book kept by Mr Crossley.

Mr Thomas Broadhurst, sworn and examined for the plaintiff, says I know of my own knowledge that the plaintiff has frequently attended the defendants to advise with them on their law business. Mr Crossley was employed by them generally as their law agent. The defendants had complicated law suits with Mr Lord for several years which are not yet settled. Mr Crossley was employed by them in these suits. I was with Mr Crossley as clerk about two months. It was in the year 1812, I think, but I am not certain, it might be 1811. Mr Crossley was constantly employed by them.

[5] A paper writing purporting to be signed by the defendants, dated 1812 May 29, is shewn to the witness, who says I do not believe the signature to this paper "Henry Kable & Underwood" to be the handwriting of the defendant Kable. I have no doubt the words "Henry Kable" are his handwriting, but I believe the words "& Underwood" are not his handwriting. I say so because I never saw him write any thing but his own name. I was always of opinion that he could not write any thing but his own name. I always thought he could not read writing. I was in his employ for some considerable time. I often read his notes for him, sometimes me, sometimes Archer, whoever happened to be present.

I cannot recollect that this paper writing was shewn me when this writing was last tried.

A certain writing under seal, signed by defendants dated 11th July 1811, is produced by the plaintiff and read in evidence by the defendants' consent.

It is admitted that the bills produced by the plaintiff were duly delivered by him to the defendants.

Richard Hughes sworn says I have been a considerable time in Mr Crossley's service as a clerk, from June 1810 to this time occasionally. These two bills are wholly in my handwriting. I copied them from rough papers and a rough day book into the bill book, and extracted these bills from the bill book. I have since examined them with those papers and the day book and have found them correct in general. I cannot point out any mistakes. I believe that generally the whole of the business charged was done, but there may be some attendances which I know nothing of. I believe the fees charged as paid have been actually paid by Mr Crossley, for I have examined the accounts [6] at the Judge Advocate's and Provost Marshal's office.

The said paper writing already shewn to Broadhurst is shewn to this witness, who says I can swear that the words "Henry Kable" subscribed to this paper are of the defendant's handwriting. I am well acquainted with his writing and I believe those words are his writing. As to the words "& Underwood" I cannot speak. About the period of the date of this writing, Mr Crossley told Mr Kable that he would not go on with the business before the auditor unless this account was settled. Mr Crossley had several conversations with the defendant Kable to that effect. I recollect the plaintiff having an agreement drawn up, and telling Kable he would not go on with his business till that agreement was signed, and in the room of that agreement I understand this paper was signed. I heard Mr Kable say the terms of the agreement were too hard upon him. I understood from Mr Crossley that this paper was signed in the room of that agreement. This paper was written by me. I heard Mr Crossley tell Mr Kable that he would not go on with his accounts before the auditor until his bills were settled. In consequence of this, I was directed to draw up this paper. It remained in the office some days unsigned. It was never signed in my presence.

Cross-examined says this paper is the only one of the tenor I made for signature. I might have made several drafts of it. I am in the habit of being called by Mr Crossley to witness papers when I was at home. Mr Kable was not present when this was dictated to me. I do not remember a single instance of papers having been signed for the court by Mr Kable in a hurry without their having been read to him. I recollect one instance of Mr Kable's signing an [7] appeal to the Governor without its being read to him. Mr Kable has signed many papers in our office. He never read them himself. They were invariably read to him. I never saw him write any name but his own. I have seen him make figures.

Patrick McMahon sworn says I am clerk to the Provost Marshal. I have filled that situation upwards of four years since the 2nd July 1810. A number of fees were paid to the Provost Marshal in the several causes between Mr Lord and the defendants. All the fees due to the Provost Marshal on this account were paid by Mr Crossley. I looked to him and not to the parties for the fees.

Mr Simeon Lord sworn says I have seen Mr Kable write. I cannot say the words "& Underwood" signed to this paper is the handwriting of Mr Kable. The words "Henry Kable" are his handwriting I believe. I never saw him write any thing but his own name.

Mr Robert Jenkins sworn says I was appointed by the court auditor to audit the accounts between Mr Lord and the defendants. I received a great number of copies of accounts from Mr Crossley's office relative to the matter then before me.

Alexander McGuire sworn says I know Mr Henry Kable. I recollect being present at a conversation between the defendant Kable and Edward Quin. As near as I can recollect it was about the 31st May 1812, at Quin's house in Sydney. Kable came to Mr Quin's house for me to assist to copy papers for him to lay before this court the following July. Kable said I had better go with him to Mr Crossley. Quin then asked Kable if he meant to have another turn at Mr Lord. Kable said yes, but that the old man (meaning Mr Crossley) would not take it in hand until he had settled with him for his former accounts. He said he suspected [8] Mr Lord wanted to take every thing from them, but it was better to give part of it to the lawyers than let his Lordship have the whole. Quin was shaving himself in the bed room. Kable was going backwards and forwards and he said he had settled with Mr Crossley, that it was a very large bill, more than seven hundred pounds. That he had not had time to look over the bill. After that I had writings to do. Many clerks were employed. I have seen Mr Kable write thousands of times. I cannot say that the whole of this signature "Henry Kable & Underwood" is his handwriting for I never saw him write any thing but his name except figures. I believe the words "Henry Kable" are of his handwriting.

Cross-examined says I was paid by Mr Kable for the writings I did for him subsequent to the conversation. I did none before that time for him. I took the writing to Mr Crossley's. The reason I am so particular as to the time of this conversation was that I came from Hawksbury on Saturday 30th May and it took place on the following morning.

George Jubb sworn says I was some years in Mr Kable's employ. I recollect one George Guest bringing a bill to Mr Kable for acceptance. He wrote his name across the bill. Guest said that's no acceptance. Kable then attempted to write the word "accepted" and could not.

The plaintiff does not call other evidence.

The defendants in reply say that the said paper purporting to be signed "Henry Kable & Unerwood" was not signed by the defendant Kable, and as to plaintiff's bill say it is unreasonable and that business is charged which ought not to be charged, but do not call any evidence.

[9] The court having maturely considered the premises and the plaintiff's bills give judgment for the plaintiff, damages ¿407.16.6, costs ¿19.15.10.


Court of Appeals

Governor Macquarie, 12, 14, 16 September 1814

Source: Proceedings of the High Court of Appeals, State Records N.S.W., 4/1724


[138] Appeal    5th between Henry Kable and James Underwood - appellants

George Crossley - respondent

Appellant's memorial read, appealing from a decision of the Court of Civil Jurisdiction made and pronounced on the 25th day of July 1814 in a certain cause wherein respondent was plaintiff and appellants defendants brought to recover the sum of £711.0.8 sterling for fees, disbursements, writing and attendances about the business of the appellants and on various other counts stated, in which cause the court gave judgment for the respondent, as plaintiff, damages £407.16.6 and £19.15.19 costs, by which said judgment appellants declared themselves aggrieved and appealed therefrom in terms of the Patent.

           Appellants state that the respondent had theretofore to wit in November 1812 brought a suit against them to recover the like sum of £711.0.8 on the same grounds and cause of action, and then and there produced a paper writing of acknowledgement purporting to be the hand writing of Henry Kable addressed "Henry Kable & Underwood" admitting the said sum to be due to respondent, but which was denied to have been written in that form and was merely signed Henry Kable, the other part of the signature "& Underwood" having been added afterwards, and by reason that there was proof before the court that Henry Kable never had and never could wrote any other than his own name, the court dismissed the said suit and a nonsuit was entered of record.

Appellants now contend that such nonsuit having been entered of record they could not again be called upon or be liable in law to plead to the present suit other than a judgment theretofore recovered, and therefore that the said suit ought to have been dismissed, at the same time admitting that the respondent had done a great deal of business [139] for them which they were ready to remunerate him for according to right and justice but in the present case the demand was altogether extravagant, enormous and unjust, and therefore and for other causes and reasons stated appealed from the said judgment and prayed relief from the High Court of Appeal,

His Excellency directed that any reply the respondent might have to make to the memorial in appeal should be given in at the opening of the court on Wednesday next.

[142] Respondent's reply read stating that this was a debt due from the appellants to him and that Joseph Underwood who was a [143] party to the award made in the other case, had no concern in this transaction, and generally controverts the allegations made by appellants in the appeal.

[150] The decree of his Excellency the Governor as Supreme Judge confirming the verdict of the civil court made in this cause was read in the words following.

                                                                       By his Excellency etc., etc., etc.

Whereas the Patent for establishing etc., etc., etc., an appeal having been brought before me on the twelfth day of this [151] instant September from the Court of Civil Jurisdiction holden at Sydney in the month of July, one thousand eight hundred and fourteen

between Henry Kable and James Underwood - appellants

George Crossley - respondent

and having duly and impartially considered the documents exhibited before me as well on the part of the appellants as of the respondent, I do confirm the verdict of the Court of Civil Jurisdiction made and pronounced in this cause on the twenty fifth day of July last, and the same is confirmed accordingly.

Given etc., etc., etc., the sixteenth day of September in the year of our Lord one thousand eight hundred and fourteen.

                                   signed L. Macquarie.


[1] As shown in Crossley v. Wentworth, 1801, George Crossley was the most important convict lawyer in early New South Wales. In this case he sued two other former convicts for fees charged as an attorney or law agent. The defence included allegations of overcharging and hard bargaining, yet the Court of Civil Jurisdiction still awarded him most of what he claimed. The case then went to the Court of Appeal. See also Kable v. Lord, 1812-1814; and see B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at  169.

Published by the Division of Law, Macquarie University