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

Rodd v. Kentish [1837] NSWSupC 46

promissory note - legal profession, honesty of - Court of Requests - legal profession, discipline of

Supreme Court of New South Wales

Burton J., 23 June 1837

Source: Sydney Herald, 26 June 1837

Rodd v. Kentish. - This was an action brought to recover the amount of a promissory note for £9 2s. 4d., with interest thereon, for two years and eighty-eight days, amounting to £1 12s. 4d.  Mr. Windeyer, who appeared for the plaintiff, said that his client had received the note in the way of business, and as he understood, the defendant thought that because the sum actually due was not £10, according to his shewing that it ought to have been sued for in the Court of Requests; but his Honor was of course aware, that where the original debt was more than £10, a balance could not be used for in the Court.

Mr. Kentish having admitted the note, appeared in person to defend himself.  He said, that his reason for appearing in Court, after he had made a vow not to do so, was, that from the esprit de corps which prevailed among lawyers, as well as among every other class of society, it could not be expected that with a limited bar of half a dozen practising barristers, he could find one who, in the habit as he must be, of receiving briefs from Mr. Rodd, would hold up Mr. Rodd's conduct to the reprobation merited.  Mr. Kentish then entered into a history of the affair, by which it appeared that in January 1835, Mr. Kentish being indebted to Messrs. Melville and Andrews, handed them a promissory note, which afterwards came to Rodd's hands.  About twelve months ago, Rodd applied for the money, when Kentish undertook to pay it thirty shillings per month, and paid the first instalment; he heard no more of it until May last, when he received a supreme Court summons, upon which he wrote to Mr. Rodd stating that it should have been a Court of Requests case, as he had paid thirty shillings, and there were eight shillings due for a musical stick.  Mr. Kentish concluded by calling on the Court to discourage such actions, and designated the conduct of Mr. Rodd as highly dishonorable.

Several witnesses were called by Mr. Kentish who proved the delivery to Mr. Rodd, of copies of the letters Mr. K. had read, and one of them spoke to having heard Mr. Rodd admit he had received thirty shillings on account of the note.

Mr. Windeyer in reply said, that notwithstanding what Mr. Kentish had said, the conduct of his friend Mr. Rodd, had been perfectly justifiable and business-like, and in public opinion he would stand as high as he had done in Mr. Kentish's before this affair.  That Mr. Kentish had entertained a very high opinion of Mr. Rodd he could prove by his own writings.  He would not inflict the whole forty columns of the poem on the Court, one stanza would be sufficient.

``An honest man's the noblest work of God;

``An honest Lawyer, such as Kerr or Rodd"

Mr. Justice Burton suggested that Mr. Rodd was indebted for the honor, to the circumstance of his name rhyming with God.

Whatever was the reason, Mr. Windeyer continued, it was evident that Mr. Rodd's name was immortalised, and would be handed down to posterity, as an honest lawyer.

Mr. Justice Burton directed the Assessors to find for the plaintiff, deducting the £1 10s. that had been paid. - Verdict for the plaintiff, £9 7s. 6d.

Mr. Kentish enquired if the verdict, being under £10, carried costs.

His Honor said, that must take the usual course.

 

Dowling A.C.J. and Burton J., 17 July 1837

Source: Sydney Herald, 20 July 1837[ 1]

 

Rodd v. Kentish. - In this case a rule nisi had been obtained calling on the plaintiff to shew cause why he should not be debarred from obtaining costs from the defendant, the verdict having been under £10.  The action was brought to recover £9 7s. 6d. for a promissory note, and interest for two years, making £10 17s. 6d.  At the trial, a Mr. Burne swore that Mr. Rodd had admitted that he had received thirty shillings on account.  Mr. Windeyer now appeared to shew cause:- Mr. Rodd's affidavit stated that the note having come into his possession, he applied to the defendant for payment, and after £3 or £4 costs had been incurred in the case he offered to stop the proceedings, on the payment of £1 costs, and that subsequently he told Mr. Burne that sooner than come into Court he would allow thirty shillings to be struck off, and that, even allowing the thirty shillings had been paid, it would still be a disputed account above £10, and consequently could not have been sued for the in the Court of Requests.

Their Honors made some very severe remarks on the practice of attorneys buying up overdue notes for the purpose of bringing actions on them, and said, that as it was in evidence that the plaintiff had admitted he had received thirty shillings, it was not then a disputed account above £10, and the plaintiff was not entitled to costs. - Rule made absolute without costs.

 

Notes

[ 1] On this day's proceedings, see also Australian, 18 July 1837.  See also Sydney Herald, 13 July 1837; Australian, 14 July 1837, on the granting of the rule nisi.

Published by the Division of Law, Macquarie University