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

Dillon v Browne [1826] NSWSupC 11

legal practitioners - discipline of attorneys - agency - debt recovery

Supreme Court of New South Wales

Stephen J., 20 February 1826[1 ]

Source: Sydney Gazette, 22 February 1826

 

This was an action to recover the sum of £252 7s 9½d. due from the defendant to plaintiff.  Mr. Solicitor Allen, as counsel for the plaintiff, having called one witness who proved the debt, and also the defendant's admission, the defendant in person, stated to the Court, that he acknowleged the claim, but had withheld payment until he ascertained the plaintiff's right to receive it, he having, as he (defendant) understood, made an assignment of his effects, including this demand, over to another person.  The defendant also protested against any decision being made at that time, as he was not regularly before the Court; and stated that he had received no notice that such an action was about to brought, and that Mr. Rowe, who was engaged for him in another cause, had entered an appearance without his knowledge.[2 ]  Mr. Allen stated, that the defendant had received the regular process, and had admitted the debt in his office, after frequent warning that he should feel himself bound to use any admission so made against him; and Mr. Rowe being called on by His Honor, for an explanation of the defendant's statement, proved by the evidence of his principal clerk, that he had general instructions from the defendant to appear for him in any action which might be brought, and that some necessary documents, in the case before the Court, had been forwarded to him from Mr. Rowe's office.  The Court observed, that such a charge as that made by the defendant, should not be preferred against any professional gentleman, but upon the most certain grounds, as the Court would at all times visit with its heaviest censure, any person under its controul, who should be found to practise merely with a view to his own interest, regardless of his client.  But, in the present case, the explanation given by Mr. Rowe was quite satisfactory, as it evidently did appear that he had general instructions to act for the defendant, and had only performed his duty in entering an appearance in the present case.  The Court, therefore, seeing nothing, in what had fallen from the defendant, to call for its interference, would put the case to the Jury as fully made out for the plaintiff.  Verdict for the plaintiff, £252 7s. 9d.

 

Notes

[1 ] The Sydney Gazette frequently mistook dates.  It recorded this as "Monday, February 2".  The second of February was a Thursday, and since the Monday before the publication of this report was 20 February, that is the likely date of the trial.

[2 ] See also Rowe v. Wilson, November 1825; Wilson and others v. Rowe, December 1824.

Published by the Division of Law, Macquarie University