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

Tomkins v Smith (No 1) [1833] NSWSupC 69

injunction - warrant of attorney - married women's legal disabilities - debts, specialty - waiver of tort - election between remedies

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 23 March 1833

Source: Sydney Herald, 25 March 1833[1 ]

Tomkins v. Smith. - This case was tried during the term, when a verdict was returned, on a technical point, for defendant.  Mr. Foster now prayed for an injunction to restrain Emma Tomkins, or her husband, from entering up judgment on a warrant of attorney on which the action was brought.  He made this motion on an affidavit of defendant, who swore that the warrant of attorney had been obtained from him by fraudulent representation, which had been never fulfilled, and that he had never received one farthing of value for it, although it was executed on the understanding that the money should be placed in his hands, a bill was at present on the files of the Court; he therefore prayed for an injunction until Tomkins and wife had filed their bill in answer. - Granted.


Forbes C.J., Dowling and Burton JJ, 29 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266


[p. 38] Assumpsit for money lent by Emma the wife of plf to Deft, with a count for interest.  N.B.  At the trial before Forbes C.J in this term, it appears that plf. had been absent from the Colony 4 years, during which time his wife remarried in Sydney.  In his absence, it was alleged that his wife had deposited in the hands of the Deft. 500£.  He gave her a warrant of Attorney for the amount, with a defeasance, that he was to pay interest quarterly, at & after the rate of 15 per cent.  The first quarter's interest would not become due until the 1st of the present month of March & 21 days were to be given before any action was brot. for default.  The plf having returned to colony last December & finding this warrant of attorney in his wife's possession, treated it as a [p. 39] nullity, & commenced an action of assumpsit for the 500£.  In his particular demand, he claimed interest, "according to the terms of the warrant of attorney", & he put the warrant of attorney in, as evidence of the debt.  This action was commenced on the 31st. January last, & the cause was tried 3 days before the first quarter's interest was due.  The learned judge was of opinion, that as the plf had adopted his wife's contract, he took it cum ondre, & as he had produced the warrant of attorney as evidence of the debt, the action was brought too soon & directed a nonsuit.  Had he rescinded his wife's contract, & not trover, that might make a difference.  Without the warrant of attorney he wd. not have proved the debt - & as that was evidence of the debt, the deft was entitled [p. 40] to have the time allowed therein stipulated for the payment of it.

A motion to set aside the nonsuit,

Per Curium, we think the nonsuit right.  The action if assumpsit can be brought, is commenced too soon.

Keith for plf & R. R. Wentworth for Deft.


Forbes C.J., Dowling and Burton JJ, 29 March 1833

Source: Sydney Herald, 4 April 1833


Tompkins v. Smith. - This was action of debitatis assumptsit in the common form, brought to recover £500 for money lent and advanced, and paid to defendant by Emma, the wife of the plaintiff, during his absence beyond seas.  There was also a count for interest.  The defendant pleaded the general issue.

It appeared in evidence that plaintiff was the husband of Mrs. Tomkins, who, during his absence from Sydney, lent to defendant £500, at 15 per cent. under certain conditions set forth in the defeasance of a warrant of attorney put in evidence.  Plaintiff's case having closed, Mr. Wentworth, for defendant, admitted there was a body of evidence to prove the payment of the money by plaintiff's wife to defendant, and it would be difficult if it was, on a mere point of evidence, to rebut it, but that question would have to be settled elsewhere; he, however moved for a non-suit on the ground that, assuming the money to be lent, it was on a speciality, a sealed instrument, and he had no right to make a common debt of it while holding this instrument.

Mr. Keith admitted, if the instrument had been regularly executed, this action could not have been regularly executed, this action could not have been sustained; but having been given for value, it was not such a document as could be set up in answer to this action.

The Chief Justice would reserve the point, and called on Mr. Wentworth to proceed with his defence.

Mr. Wentworth then took another objection.-  This was an action on a contract; the plaintiff had, by making his wife his agent, adopted the whole contract, and being of a special character, namely, that the interest was to be paid quarterly, and if not at the expiration of three months, then twenty-one days grace was to be allowed, and having reference to the warrant of attorney, the first payment had not become due.  The bill of particulars furnished by the plaintiff showed that he sued according to the amount set forth in the warrant of attorney; it was also admitted that the action was commenced on the 31st January last.  On this ground he moved that a nonsuit should be entered, the action having been brought too soon.

Mr. Keith in reply, observed, that with respect to the interest, that was a mere mistake or might be treated as such.

The Chief Justice put the case to the Assessors on the point of law.  It had been conceded in argument that plaintiff's wife had lent the money to defendant; the proofs were too strong to be resisted if it turned on that point, but where a plaintiff waved his taut and proceeded on contract, he affirmed that contract and must take it with all its faults.  Here the husband having recognised the contract so as to sue upon it, and he having put the warrant of Attorney before the Court he could not wave the stipulation set forth in it, and the action having been brought before the expiration of the twenty-one days grace, he was of opinion a verdict should go for defendant, with liberty to move for a nonsuit.  The verdict was entered accordingly.

Mr. Keith now moved for a new trial on these grounds: - 1st, of misdirection on the part of the learned Judge, who tried the case; 2nd, that plaintiff had rescinded the contract, by his letters before action brought, and, 3rd, that defendant had a right to pay the warrant of Attorney, when called upon as he had only left himself the option in the defeasance of redeeming it on giving three months notice.  Mr. Wentworth replied.

Judge Dowling was of opinion a nonsuit must be entered, as the action was brought too soon. - They had not been called upon to decide whether the plaintiff could sustain an action in Debt, or any other form upon the warrant of Attorney.  Here the wife was the agent of the plaintiff, and if he adopted any part of her acts he adopted the whole, he might have repudiated her acts on his return to this Colony, but has he or has he not done so. - This was an action of assumpsit, and does or does not the plaintiff adopt this special instrument; he uses it in evidence as proof of the debt, and the interest not being payable until the expiration of three months and twenty-one days grace if required by the defendant, and that term not having expired before action brought, he was of opinion a nonsuit should be entered for the defendant.

Judge Burton considered that a nonsuit was the proper course they should adopt, the action having been brought too soon.  They were not called upon to decide any other point, although he thought there were others on which a nonsuit should be entered.  Plaintiff nonsuited.


Forbes C.J., Dowling and Burton JJ, 8 June 1833

Source: Sydney Herald, 10 June 1833


In Equity. - Tomkins v. Smith. - In this case a bill was put on the files of the Court last term by defendant, for an injunction to restrain plaintiff from entering up judgment on a warrant of attorney.  Mr. Keith now moved that the injunction be dissolved, the bill having been fully answered.  Mr. Foster opposed the motion; on the ground that the bill in answer was neither full nor consistent.  Mr. Keith replied, observing that had their Honors fully understood the affidavit on which the injunction was obtained, it never would have been granted.  Smith had sworn in such a way as to prevent any assignment of perjury; he first commenced with knowledge and belief, and finished with most positively swearing.  The learned gentleman then compared the answers to the questions in the bill, to prove that they were satisfactory.  The Court were of opinion that this case should be tried at law; they would allow them to go to trial, but restrain them from entering up judgement on the warrant of Attorney.  The case to be tried this term.


Forbes C.J., 1 July 1833

Source: Sydney Herald, 4 July 1833[ 2]


Monday. - Before the Chief Justice, and the following Common Jury: - Mr. Thomas Chapman, Foreman; and Messrs. Clarke, Clayton, Collins, Challenger, Castles, Comer, Chippindale, J. Chapman, Cunninghame, Coulson, and Chambers.

Tomkins v. Smith. - This was an action of debt brought to recover £500, on a warrant of attorney, and interest due upon it, given by defendant to plaintiff's wife.  The defendant pleaded the general issue.

Mr. Wentworth having opened the pleadings, Dr. Wardell addressed the Jury, and the following witnesses were called to substantiate plaintiff's case.

Mr. George Allen - I am attesting witness to this warrant of attorney; I saw Dr. Smith sign his name, and deliver this as his act and deed, and I attested; he turned it down, so that I could see none of the contents; he then took it away; I think it was the time it bears date in December; If I did not see my handwriting I should know nothing about it; it is dated 1st December, 1832; I know Dr. Smith's handwriting; I allowed Dr. Smith to sign, without seeing the contents, as I considered him to be an intelligent man; the body and defeasance are in Dr. Smith's handwriting; I believe these notes and this receipt to be in Dr. Smith's handwriting; the signature to this letter is his.

Cross-examined - I think the whole of the warrant of attorney is in Dr. Smith's handwriting; if Mrs. Tomkins was afraid of Dr. Smith playing a trick, she would have had it prepared by her legal advisers; my opinion is, that if Dr. Smith handed over a warrant of attorney, he would have had value for it; I was employed by neither Mrs. Tomkins nor Dr. Smith.

Mr. Poignand - I remember Dr. Smith executing a warrant of attorney in my presence; I did not know in whose favor then; Dr. Smith has told me since; I understand in favor of Mrs. Tomkins; the amount, £500; I believe it got into Mrs. Tomkins's hands; after that can't say what became of it; I am not aware that Mrs. Tomkins had any available funds; when Dr. Smith came to execute the warrant of attorney, he said it was of a private nature, or I might see the contents; it was a sealed instrument.

The defeasance of the warrant of attorney read, and a letter signed Charles Smith, to W. Rogers, Esq. Dated 12th Dec., 1832, stating the warrant of attorney held by Mrs. Tomkins, was a valid instrument.  The other letter, and a receipt, were also put in and read.

John Wesgate - I am clerk of the records at the Police Office; I have known plaintiff and defendant for some time; I lodged in the same house with Mrs. Tomkins for four years; her mother kept a boarding house; Mrs. Tomkins herself was only a lodger; Dr. Smith was on particular habits of intimacy with that family; about August last year Dr. Smith called for Mrs. Tomkins; I heard him say in the parlour he had £400 of Mrs. Tomkins's in his hands, and would I stand in Mrs. Garratt's shoes, he meant I should be as friendly as I could to her; he wished to sink the £400 in an annuity on some buildings he had on the rocks; he said nothing more at that time; the next day, at Mrs. Tomkins's request, I went to see the houses, but finding they stood at the rear of the military hospital, from which bad smells emanated, I advised her to have nothing to do with them; Mr. Tomkins had been out of the Colony about four years and a half; he returned in January last; I took a note to Dr. Smith from Mrs. Tomkins; her husband had arrived at that time; he said the interest of the £500 was not then due, and he would not pay it; I told him I had read the note, and knew the purport of it; he said he heard Capt. Tomkins had arrived; is it so? I said yes; I then asked if he had secured the £500 from her husband? he said yes, I have, and I'll take devilish good care that neither Captain Tomkins or his creditors shall ever have a rap of the money I owe Mrs. Tomkins; nothing further took place on that occasion; I called again a few days after; I carried another note, of which I knew the contents; it was that she would consent to give it up to her husband's creditors, rather than he should have it; he said he would pay neither principal nor interest, and rather than do so, he would throw it into Chancery; I said it was very hard; he replied he did not care, as it was £500, he could and would do it, and then snapped his fingers; I knew Mrs. Tomkins's circumstances; she supported herself by keeping a respectable school; there were thirty-two scholars the first year, and she received, I think, £470, as she taught a variety of accomplishments; she paid £60 a year for her board and lodging, and the two rooms she occupied; in July, 1831, it was reduced to £50; I should think her contingent expenses were not £10 a year besides; I can take upon myself to say that she made large sums by her school; I have put out some hundreds for her at interest; the second year she did not make so much, but there was always a surplus; Dr. Smith said he had money of hers; the first conversation I had with him was about an annuity, in the parlour; I do not know this receipt; I saw a warrant of attorney for £1000 in Mrs. Tomkins's hands; it was the last one; I understood there had been one before.

Cross-examined - I hope I was very useful to Mrs. Tomkins; in Mrs. Tomkins's absence I managed her affairs, relative to money matters; the scholars paid five, eight, and ten guineas, according to what they learned; I think Mrs. Tomkins's establishment was equal to Mrs. Dixon, when she commenced, but not so much as to give twice the sum; her terms varied according to what they were taught; she had no master; her sisters assisted her; Mr. Hyland had children there; I have received money from Mr. H. (bill put in;) that is only two guineas for the quarter; it is very low; I think the last account of Mr. Thompson, the butcher, was fifteen pounds; five pounds was taken off, and I called for ten; I do not swear that any of the scholars paid £15 a year; I do not know what is received every year from the scholars; some she received herself, and the other was bought by the children; £470 was the amount of the receipts of her school for the first year; he contingent expenses were not £10 a year; she came to this Colony well provided; I was not keeper of the wardrobe; Mrs. Garratt and family did not live on the Government rations at Hobart Town, through an appeal to the charity of Colonel Arthur; Dr. Smith was particularly intimate at Mrs. Garratt's; he used to attend for the last two years as the medical attendant; other gentlemen also attended; I understood that the money was lent to Dr. Smith during my absence from the family, which was about seven months; Mrs. Tomkins kept no books; I swear she never shewed me any; I have put out hundreds for her; I don't know of any being out except what is in the hands of Dr. Smith; I know of no money being put out in trust; I have given notes of hand to Mr. Thompson for Mrs. Farrett; it had nothing to do with Mrs. Tomkins's transaction; I had nothing to do with Mrs. Tompkins in that transaction; the money made over to Mr. Thompson and Mr. Thorpe was about £800; I can't say that Mrs. Tomkins intended to make Dr. Smith and Mr. Jones trustees for £500; Messrs. Prout, Rogers, and Thorpe, were brothers in-law of Mrs. Tompkins; I heard a rumour that Mrs. Tomkins had given her brother, Mr. Rogers, £100 on his marriage.

Mr. W. Morgan - I have a slight acquaintance with Mrs. Tomkins; Dr. Smith called about Jan. to take my cottage from me for Mrs. Tomkins; these letters were written by him to me on the subject; this is my reply to one of the notes dated 18th Jan. 1832; I understood that Dr. Smith had property of hers in his hands, or that he had money to pay her; Mrs. Edwards, the proprietor of the house, felt some difficulty in taking Mrs. Tomkins as a tenant without security, and Dr. Smith and Mr. Prout agreed to answer for two or three years rent, at sixty or seventy pounds a year.

Letters put in, read by the Clerk of the Court, as to the taking of the cottage.

Cross-examined - He told me he was executor of Mrs. Garratt, but did not say the property had been left by Mrs. Garratt.

Re-examined - I am quite sure he said he had money to pay her every year.

This closed the plaintiff's case.  Mr. Foster then moved for a nonsuit, on the ground that there was no proof that Mark Riddle Tomkins was the husband of the party to whom the warrant of attorney was given.  The Court overruled the objection.  Mr. S. Stephen then addressed the Jury at some length, but declined calling any witnesses.

The Chief Justice then summed up, observing that this was a case purely of evidence, and the principal question for their consideration was, whether this money had or had not been lent.  The Jury returned a verdict for plaintiff, damages £500, and the learned Judge consented to certify that it was a proper cause to be tried by a Common Jury.

Dr. Wardell and Messrs. Wentworth and Keith for plaintiff, Messrs. Foster, Stephen, and Poignand, for defendant.[ 3]



[1 ] On the dispute between these parties, see also R. v. Tomkins, 1833; Tomkins v. Smith (No. 1), 1833.  Smith also attempted to sue Tomkins, but failed because his case was not prepared in time: Sydney Herald, 24 June 1833; and see Sydney Herald, 24 June 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 44.

[2 ] See also Australian, 5 July 1833.

[3 ] Tomkins and his wife then sued Smith for civil libel.  Smith had written a letter to Mr Prout, charging Mrs Tomkins with "falsehood, injustice and perfidy."  Smith denied in the letter and in court that she had given him one farthing for the warrant of attorney she now held.  The jury returned a verdict for the plaintiffs of £200.  See Australian, 5 July 1833; Sydney Herald, 4 July 1833.  See also Australian, 4 October 1833 on motions for new trials.

Published by the Division of Law, Macquarie University