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

Clayton v Rowe [1825] NSWSupC 25

quasi-contract - money had and received - legal practitioners - solicitors - agency - promissory note - misdirection to jury - appeal

Supreme Court of New South Wales

Forbes C.J., 14 June 1825

Source: Sydney Gazette, 16 June 1825


Mr. W.C. Wentworth stated, that this was an action for money had, and received, and for which the defendant pleaded the general issue.  In January, 1822, Mr. Samuel Clayton, a respectable inhabitant of this town, finding the defendant, Mr. Thomas Deane Rowe,[ 1] about to proceed to Van Diemen's Land on the Circuit, entrusted to him a promissory note, of a man named Richard Heney, for £29, to recover the amount.  The defendant undertook the business, and upon the plaintiff's depositing the note, he obtained a receipt for it from Mr. William Freeman, the defendant's managing clerk, in the following words: ``Received, from Mr. Samuel Clayton, Richard Heney's promissory note for £22, to proceed upon; for Thomas Deane Rowe, (signed) William Freeman."

On the return of the defendant, some two or three months after, the plaintiff applied for the amount, and the defendant stated, that not being able to recover it, he had deposited the note in the hands of his agent, Mr. Ross.  I shall be able (continued the learned Gentleman) to prove from Mr. Rowe's clerk, that Ross has received the money from Heney, and that it has never been paid over to the plaintiff; the authorities are clear, that payment to the agent of an attorney, is not payment to the principal, on the authority of Tid p. iii.  ``payment to the attorney, is payment to an agent employed by an attorney;" Ross being the agent of Mr. Rowe, and having received the money, Mr. Rowe is accountable to the plaintiff for it.

Mr. William Freeman examined; remembers the plaintiff having put the note into his hands; gave a receipt for it; Mr. Rowe took it to Van Diemen's Land; he did not recover the money, and left it in the hands of Mr. Ross; Mr. Ross was not Mr. Rowe's agent, it was a Mr. Cartwright.

An extract of a letter to the defendant, from Ross, was here read, in which he says, amongst other matters; ``I have received of Capt. Heney, the amount of his account, which I will remit by the next ship."

Cross-examined by Mr. Norton; Mr. Rowe was not an attorney of the Court at Van Diemen's Land; he could not have proceeded without being so; he applied frequently for the payment before he put it into the hands of an attorney; he received the power of an attorney, to enable him to proceed; Mr. Ross was not his agent, it was Mr. George Cartwright; Mr. Rowe has not received any compensation, as he did not recover the money.

Mr. Solicitor Norton, for the defendant, regretted that an action should have been brought against any person under such circumstances; it was an unhandsome return for the trouble Mr. Rowe had taken.  Mr. Rowe was not an attorney of the Court of Van Diemen's Land, he was merely the agent of the plaintiff; he had obtained a power of attorney, to enable him to recover the money, and not succeeding, he placed the note in the hands of an attorney to sue.  Mr. Rowe had not received the money, and it was monstrous to suppose that he should be accountable for the actions of his attorney, or for occurrences arising out of his general conduct as an agent; he has used no excess of authority, and has only acted on the spirit of his instructions.

His Honor charged the Jury, who returned a verdict for the defendant.



Forbes C.J., 11 July 1825

Source: Sydney Gazette, 14 July 1825


Mr. W.C. Wentworth moved for a rule Nisi to shew cause why a new trial should not be had in this case, upon the ground of a misdirection to the Jury on the part of His Honor the Chief Justice.  A paper had been put in, in evidence for the plaintiff on the trial, which went to shew that the defendant had received the promissory note which was the subject of the action, as an attorney, not as a general agent.  In his charge to the assessors, His Honor ruled that the defendant was to be considered as a general agent; and this he, Mr. Wentworth, contended, was the very point for the consideration of the jury, the very question they had to try.  Rule granted.



Forbes C.J., 1 August 1825

Source: Sydney Gazette, 4 August 1825


Mr. W.C. Wentworth moved that the Rule Nisi, for a new trial in this case, on the ground of a misdirection of the Judge, be made absolute.

Mr. Norton appeared for the defendant, and observed, that it would be necessary, in shewing cause why this application should not be granted, to remind the Court of the facts of the case.  It appeared in evidence, that Mr. Rowe, being about to proceed to Van Diemen's Land on business of his own, the plaintiff put into his hands a promissory note of a person named Heney, to receive the sum; that, after frequent applications to Heney, he put the note into the hands of a Mr. Ross, to recover the amount by due process of law, Mr. Rowe not being himself an attorney of the Court in Van Diemen's Land; he also advised the plaintiff of the proceedings he had taken, and thereby rendered himself no further responsible.  It appeared that the money had been received by Ross, but had never been paid over to the plaintiff, and it was to recover the amount from Mr. Rowe, that the action was brought.  Now he (Mr. Norton) on the trial contended, that Mr. Rowe had only in this case acted as a general agent, and the Court, in charging the Jury, took the same view of the case, and explained the difference between agent and attorney, and also the difference between an instrument merely empowering an agent, to proceed, and a warrant of attorney.  This, Mr. Wentworth contended, should have been left to the Jury to decide, but surely if it was necessary to direct the Jury at all, it was necessary to explain what constituted an agent, for payment to an Attorney is in law payment to the principal, but not so in payment to an agent employed by the attorney, and Mr. Rowe not being himself an attorney of the Court of Van Diemen's Land, nor never having held himself out as such, could only have been considered in the light of an agent, and Ross as the attorney.

Mr. Wentworth replied.

The Court.  ``I can only state my general anxiety, and I am sure the Bar will give me credit for it, that all judicial proceedings coming before me, should meet the most candid and fair investigation; and could I have conscientiously come to the conclusion, that, in consequence of any error of mine an injustice had been done, I would most readily give the party the benefit of another trial.  This was an action for money had and received, but there was no proof that the money was received by the defendant; there was a sort of legal inference sought to be drawn, that Mr. Rowe, being an attorney at law; undertook as such to recover the money, that he did not do so, but put the note into the hands of another; but, I must not allow general circumstances to have any weight on my mind, in opposition to positive proof; there was no proof that Mr. Rowe was, or held himself out, as an Attorney of Van Diemen's Land, but, express proof to the contrary.  Under these circumstances, I did not put the case to the Jury on the evidence for the plaintiff, as I thought it wanted that connexion necessary to establish it.  I am, therefore, of an opinion, that this Rule must be discharged.  Rule discharged.



[1 ] A solicitor, he was a practitioner of the Supreme Court of New South Wales.  For the background to this and related cases, see Rowe v. Wilson, December 1825.

Published by the Division of Law, Macquarie University