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

Polack v. Wilson [1839] NSWSupC 88

warrant of attorney - fraud - debt recovery law

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 26 October 1839

Source: Sydney Herald, 28 October 1839[1] 

Polack v. Wilson. -- The Attorney-General moved for a rule nisi calling upon the plaintiff in this case, to shew cause why the warrant of attorney in this case should not be delivered up to be cancelled, and all the proceedings thereupon set aside for fraud and illegality, or the verdict reduced to what is bona fide due.  The facts upon which the learned gentleman grounded his application, were, that the defendant set up in business with little or no capital, and by the represent[a]tions of the plaintiff was enabled to obtain credit to a great amount, and that almost up to the hour of his departure from the Colony, Polack was by a system of misrepresentation, bolstering up Wilson's credit, and blinding his creditors; that at the very time that he was representing Wilson to be able to pay thirty shillings in the pound, he knew that he was worth nothing, or that what he had, he intended to take out of the Colony.  The affidavits upon which the learned gentleman grounded his application contained the following facts.  Mr. Want stated that the warrant of attorney was dated October 2, and that judgment was signed the same day, but the warrant was not enrolled; that on the 19th October, a fieri facias was issued for £16004 13s. 4d., although no account was filed, nor was there any affidavit of what was actually due to Polack from Wilson; that upon enquiry at the Custom House, he found that the steam-boat Tamar stood in Wilson's name, and was mortgaged to Polack for £4200, and that the Sophia Jane stood in Wilson's name without any incumbrance; [sic] the defeasance of the warrant of attorney stated that it was given as security for notes endorsed by Polack to enable Wilson to purchase the two steam-boats, and the Fairfield estate at Gunderoo, and for his accommodation in carrying on his trade and dealings.  Mr. Roberts stated, that on October 16th he met Polack who told him that he had been taking a glass of wine with his friend Wilson, who had been consulting him whether he should sell his business as an auctioneer or the steam boats, as he could not manage both, and he advised him to stick by the business as he was clearing £10,000 a year by it; upon this Mr. Roberts remarked that it was said that the steamers belonged to Burdekin, when Polack replied by G-- it's a d-- lie, there is nobody's name to them but Wilson's: guided by this on the 18th October, Roberts let Wilson have a table worth £14 which he has not been paid for.  Mr. Saul Lyons stated that he holds Wilson's Bills to the amount of £4700 and that the total amount of Wilson's liabilities is £60,000; that it is well known that about fourteen months since Polack sold part of his business to Wilson, and for six months guaranteed and endorsed his bills, and that it is through the representation of Polack that Wilson has been able to obtain such extensive credit.  Mr. Richard Kemp sailmaker was on board the Nereus brig, at six o'clock p. m. of October 19th, and shortly before eight o'clock, Mr. Wilson went on board and remained there; Mr. Kemp went on shore with the Pilot at Chowder Bay leaving Wilson on board.  Mr. Griffin, master of the Sophia Jane, took the Nereus in tow by Wilson's orders, who told him that he was going to Maitland with him, but upon the arrival of the vessel at the heads he hailed the Nereus for Wilson to come on board when the Captain of the Nereus told him that Wilson went on shore with the pilot.  Mr. T. W. Campbell stated that on the 21st August, he entered into an agreement with the defendant to sell him the Fairfield Estate for £5,500, £3000 of which was to remain on mortgage, and £2,500 to be paid in Wilson's notes bearing Holdsworth's endorsement; that about a week after he obtained these bills, he applied to Polack to endorse them, (his suspicions having been awakened,) and that Polack consented to do so for ten per cent, upon which he gave Polack a cheque for £250, and he endorsed the bills. Mr. Burdekin stated that on the 3rd November, 1836, Wilson mortgaged the Tamar steamer to him, and that afterwards he handed the steamer to him to be worked to pay off the interest; that on the 19th February, 1839, the sum of £5,500 was due for principal a[nd] interest, when Wilson applied to him to take four notes of £305 each, at three, six, nine, and twelve month date, and three notes for £1400, bearing Polack's endorsement in fulfilment of the mortgage which he consented to; that the two first £305, and the first £1400 bills were paid by Wilson himself, leaving two £1400, and two £305 bills unpaid.  Mr. Grose stated, that in July last, he sold the Sophia Jane steamer to Wilson for £6000, which was paid for by £500 cash, five bills of £1000 each, drawn by Wilson, and endorsed by Holdsworth and Polack, and sundry small notes making £500 drawn by different parties, and endorsed by Wilson and Polack; that all the small notes were duly paid, that the first £1000 bill was paid, and the others are not due.  George Tomlins clerk to Wilson stated, that on Saturday the 19th instant before ten o'clock in the morning, Polack called and asked if Wilson was in, to which Mr. Pettit another of the clerks replied, that he had gone to Newcastle; between one and two of the same day, Polack returned and said that he had taken out an execution for £16,000, and intended to levy upon the house in Castlereagh-street, in which a woman with whom Wilson cohabited, resided, and upon Tomlins asking whether he thought he would be justified in so doing, he said ``it was agreed upon," and that on the said 19th October, Polack said Wilson was desirous of going away in the ship Hope, which left Sydney in the beginning of October for Valparaiso, but that he (Polack) would not allow him.  Mr. W. Hunt said that on the 18th October, Polack offered to sell him sugar at £49 a ton, and take Wilson's bills in payment; that being about £15 a tone above the market price.  George Pettit corroborated Tomlins; affidavit.  Mr. Edye Manning stated that on October 18th, he asked Polack whether he thought Wilson was safe, and Polack said he was all right, and could pay twenty shillings in the pound, but he might perhaps want a little time.  Mr. Dunlop stated that about six months ago, Polack asked him why he did not employ Wilson as an Auctioneer, as he w[a]s all right? to which he (Dunlop) replied, that he thought Hebblewhite a reputable man, and he did not like Wilson's character; about two months; since Polack again asked him why he did not employ Wilson, saying what have you to do with his character, he is as good as Hebblewhite with my guarantee; in consequence of this Mr. Dunlop entrusted some property to Wilson, who went away £300 in his debt.  Mr. Joseph Wyatt stated that on the 19th October he asked Polack if the steamers were to be sold, when he replied yes, the advertisement is all cut and dried, and will appear on Monday, but Wilson is all right, and is able to pay thirty or forty shillings in the pound, and it is not in him to be a rogue; this was about eight o'clock in the evening.  William Gillman, a labourer, employed by Wilson, stated that on Thursday, the 17th instant, he saw Banburry, the Collecting Clerk, go into Wilson's private room with a handkerchief full of silver, and that the next day he saw a box, weighing about twenty-eight pounds, which he believed to be specie, taken away by a labourer in company with Bunburry: that about a fortnight previous Wilson sent a flock of four hundred and fifty wethers, and sixty-one pieces of cloth to Polack's.  Joseph Maypole carried a box, weighing about thirty pounds, to Girard's Wharf, where Bunburry took it on board the Nereus [?] that during the 18th instant he took two notes from Wilson to Polack, and that on both instances the answer was ``my compliments, and it's all right."  Mr. Smith, the butcher, stated that on the 17th instant Polack's servant applied to him for gold for two £5 notes, which he was unable to give him.  The Attorney-General was about argument on these facts, when the Court said he had shewn a prima facie case, and granted a rule nisi, returnable on Wednesday next.

 

Dowling C.J., Willis and Stephen JJ, 9 November 1839

Source: Sydney Herald, 11 November 1839[2] 

 

Polack v. Wilson -- In this case, a rule had been obtained calling upon the plaintiff to shew cause why the judgment entered upon a warrant of attorney should not be aside, on the ground of irregularity and fraud.

Mr. Manning having moved that the rule be made absolute.

Mr. a'Beckett rose for the purpose of shewing cause against it.  He said that the Court usually grants rules nisi, presuming that there is some ground for applying for them, but he was confident that if the judges had read the twenty-two affidavits upon which this motion was made, they never could have granted the rule.  After alluding to some technical objections, the learned gentleman said, that nothwithstanding the flourish of his learned friends when obtaining the rule about their representing creditors to the amount of £60,000, upon looking through the affidavits, it appeared that the application was made on the behalf of Mr. Saul Lyons, who had not sworn that he was authorised or appeared on behalf of the other creditors it was true that four other creditors, one of them a creditor to the amount of £14 made affidavits, but they did not in any way recognise Mr. Lyons as their leader.  The Court, he contended could not interfere, unless on the ground of fraud, and from the facts sworn to, to which he must draw the attention of the Court, he contended that there was not a tittle of evidence to shew that there was even a scintilla of fraud.  The affidavits upon which the motion was made, he would divide into five descriptions.  The first was those made by the creditors, and what did they shew?  Mr. Lyons did not state that Wilson was indebted to him, but that he held notes of Wilson's not yet due, to the amount of £4700 -- what was there to shew that when due they will not be paid?  There was nothing that he could ascertain to shew that the notes will not be paid -- that Wilson will not come back to pay the bills -- how dare he swear that Mr. Wilson had left the Colony intending to defraud his creditors -- how could he know the intent.  There actually was nothing in this affidavit, and he trusted their Honors would not be led away by the low agita[t]ion which had taken place outside, by means of t[h]e press and otherwise upon the subject.  After commenting upon the affidavits of Messrs, Roberts, Dunlop, Holdsworth, and Kemp, the learned gentleman asked wh[a]t the facts disclosed had in the[m] to shew fraud, or why had facts with which Mr. Polack had nothing, and could have nothing, to do been lugged in -- it was for nothing but to prejudice the Court.  The second class of the affidavits, was those which he presumed were intended to shew a concerted scheme upon the part of Mr. Polack, to assist Wilson out of the Colony.  The affidavit of Mr. Tomlins set forth, that Mr. Polack said that it had been agreed upon that he should levy upon the house occupied by Mrs. Peacock; this it was wished should be understood to mean, that Polack had m[a]de s[o]me agreement with Wilson upon the subject, but the fact was, that it alluded to his having taken the advice of Mr. Poole upon the subject, who had agreed with him that he should levy upon the house occupied by Mrs. Peacock, with whom Wilson c[o]habited; with respect to the other point that Polack said Wilson wanted to go by the Hope but he would not let him, was it to be inferred that as he would not let Wilson go by the Hope he assisted him to go by the Nereus.  Why poor Mr. Wyatt was dragged in he could hardly ascertain, except it was from the gout which some people have to be concerned in the gossip of the day.  Mr. McEachern's affidavit stated that on Thursday, 17th October, in the Theatre, Polack shewed him a copy of an advertisement of the sale of the steamers and requested him to say nothing of it until Monday, and what was to be inferred from that, but that it was becoming bandied about and that the sale of the steamers was becoming the gossip of the day -- it shewed that Mr. Polack talked about the matter, and every body who knows him, knows that he is given to talk.  The third class of affidavits was those which were vague and mysterious, -- Polack it was said always represented Wilson to be worth money, and he had acted consistently all through, for believing him to be worth money he suffered him to get into his debt.  The affida[vi]t  of Gillman, the la[b]ourer, was very mysterious, for it proved that Wilson sent his collecting clerk out for money and that the man returned with some sliver which he handed to his master; this man also swore that he took two messages to Polack from Wilson and returned with the very mysterious answer of my ``compliments and it's all right;" this was a fact upon which his learned friends had laid great stress -- how could the Court doubt that there was fraud when Mr. Polack sends a message ``my compliments and it's all right.'  Now, he would at once read to the Courts the letters to which the mysterious answer was [s]ent.  (The first letter stated that the advertisement would do very well but he thought that a list of the stores should be added, and that it would be better to defer the sale a week longer to give the Hunter's River people time.  The second letter stated that in consequence of Polack's kindness in endorsing the bills he felt it his duty to inform Polack, that the Gundaroo stock had not answered the description and he prot[e]sted against Polack paying any of the bills.)  The next affidavit was that of Mr. Smith that Polack's servant asked for gold for two £5 notes.  The next one to which he would allude was one of Mr. T. S. Hall, who swore that on Friday the 18th October he saw Polack and Wilson apparently in earnest conversation -- here was something very mysterious, a debtor and creditor were seen in an apparently earnest conversation.  He really was sorry to trouble their Honors at such length, but were the affidavits, anything more than a mass of miscellaneous gossip.  The next class of affidavits, were confined to an attempt at the conjecture of a supposition that Polack intended to get Wilson's bills into his hands, and appropriate to himself, the proceeds of Wilson's property.  The first of these was Mr. Hirst, who swore that Mr. Polack wanted to sell him sugar at £15 above the market price, and offered to take Wilson's bill for the amount without Hirst's endorsement.  The next affidavit was not of Mr Burt. who, in August last purchased from Wilson ten tons of flour which he paid for by two bills of £325 each in favour of Polack, and the affidavit of Mr. Gordon, proved that the s[a]m[e] flour was purchased from Dodds, and Co. at £5 a ton more, paying for it with his own bills, but how was this fact when explained by a second affidavit of Burt's -- that from an agreement entered into between Polack and Burt, Polack was bound to endorse Burt's bills, and the bills were traced to the Bank of New South Wales and the proceeds proved to have been received by Wilson.  As for the affidavits of Messrs. Campbell, Grose and Burdekin, he was sure Mr. Polack ought to be obliged to the other side for putting them before the Court for they clearly shewed that Polack's liabilities on Wilson's account were upwards of £12000.  None of the cr[e]ditors, if creditors there were, besides those who had made the affidavits, had any right to complain, for they shewed clearly that Polack was liable for upwards of £10,000 debts bona fide due.  There was nothing to show that Lyons gave credit to Wilson, in consequence of any representations of Mr. Polack.  What was there to shew that Wil[s]on is not at the present solvent, but whether solvent or not what fraud was there in Mr. Polack's taking security for the money that was due to him.  With these remarks upon the affidavits upon the other side he would proceed to crush them by reading the affidavit of Mr. Polack himself, whose reply to the mass of nonsense on the other side he considered triumphant.  The affidavit stated that sometime previous to the 15th August, 1838, in consequence of his ill health Polack was anxious to dispose of part of his business and entered into a negocia[t]ion with Wilson for that purpose; that Wilson shewed him an account made by George Tomlins, an experienced accountant, from which it appeared that the sum of £26,000 was due from Burdekin to Wilson and that for confirma[t]ion of that statement he referred Polack to Mr. Norton, who told hi[m] that he considered a large sum of money was due to Wilson; that in consequence he entered into an agreement with Wilson who was to have the sales of merchandise, for which he was to pay Wilson £500 a-year, and Polack entered into an agreement to recommend him all the sales that he could; when this agreement was made, Polack swore that he was making several thousand pounds a year by the business; that in payment for the business he received five bills for £500 each, one payable each year, the first of which was paid and the others remain unpaid, and that the four bills which remain unpaid, formed part of the consideration mentioned in the power of attorney; sometime afterwards Wilson told him that Burdekin was willing to let him have repossession of the steamer Tamar if Polack would endorse the bills for the amount of the mortgage, which he consented to do, and upon his security, Wilson giving Polack a mo[r]tage upon her, the steamer was tranferred [sic] from Burdekin to Wilson; about six months afterwards Wilson asked him to assist him in the purchase of the steamer Sophia Jane, and he endorsed Wilson's bills for the sum of £6000, £5000 of which are still unpaid; that as security for this Wilson promised to give him a mortgage upon the Sophia Jane, and went down with one of Mr. Norton's clerks to the Custom-house, for the purpose of making an affidavit to get a fre[s]h registry make out, but instead of that Wilson took the registry out in his own name, and never gave the mortgage; that Mr. Campbell applied to him to back Wilson's [?], offering him five per cent. to do so, but that he refused for a long time, but afterwards at Wilson's request agreed to endorse them for ten per cent., Wilson afterwards agreeing to execute a warrant of attorney for £16,000; he also swore that he never had any conversation with Saul Lyons at all upon the subject, not having spoken to him for two years; he denied that he said to Mr. Roberts that not a nail in the steamers did not belong to Wilson, but he admitted saying that Wilson was making the sum of £10,000 a year by his business which at the time he thought was true; that when he said, as stated by Tomlins and Pettit; that it was agreed upon that he should levy upon Mrs. Peacock's hou[s]e  he referred to an agreement between himself and Mr. Poole, his solicitor, and not to any agreement with Wilson; that when he said Wilson wanted to go away in the Hope, he alluded to Wilson's having jestingly offered to go on a speculative voyage in the Hope, if he (Po[l]ack) would give him £1000; with respect to Burt's affidavit he swore that by an agreement he was to endorse all Burt's bills, for which he was to receive five per cent; he positively swore that he was not privy to the departure of Wilson from the Colony, and in no way facilitated his escape; that so far from their being any confederacy or collusion between himself and Wilson, had he contemplated he was leaving the Colony he would have prevented him.  This the learned gentleman said was a full answer to every thing that had been said on the other side, and that part of it which related to the agreement that he should recommend Wilson in business was a full answer to the fraudulent zeal charged against Polack in the recommendation of Wilson.  The next affidavit upon which the learned gentleman relied was a joint one of George Moss, Jones, Polack's clerk, and Polack himself -- Moss stated that on the morning of the 19th of October he went into Polack's sale-room, and told him that Wilson had run away, and that he appeared surprised, and the other deponents stated that at the time Moss entered the house, Mr. Hirst was there, and was at the time writing out a bill of sale for sugar, which he was to pay for with Wilson's bills, and that Polack abused Hirst.  The affidavits of Messrs. Egan, J. Jones, Hart, and Haydon stated that they were aware the steamers Sophia Jane and Tamar were to be sold.  Several affidavits were put in to prove that Polack had been requested by Captain Warming, of the N[a]varino, to procure him fifty-six sovereigns, as he was leaving the Colony.  Mr. Poole's affidavit set forth that he advised Polack to levy upon Mrs. Peacock's furniture.  Mr. Grose's affidavit stated that Wilson told him Polack was to have a mortgage on the Sophia Jane.  Mr. Burdekin swore that he would not have given up the mortgage of the steamer if he had not had Polack's guarantee.  Mr. Burt's affidavit corroborated that part of Polack's which related to himself.  Mr. O'Brien, proprietor of the Monitor, set forth that he was employed by Polack to set up an advertisement of the sale of the steamers and did so.  The learned gentleman then argued at great length, and cited a number of cases to shew that the applicant was in no situation to call upon the Court to interfere; that there was not a shadow of fraud proved, and the application must be made by some person injured by the warrant of attorney, which Mr. Lyons was not, for non constat, before the bills which he holds become due, there may be funds to meet them.

Mr. Justice Stephen said that he could not see how it could be stated in the defeasance that the bills were endorsed by Polack to enable Wilson to purchase the Gundaroo estate, when it appeared that the bills were endorsed by Polack three weeks after the estate was purchased.

Mr. a'Beckett said that it was sworn that the notes formed part of the consideration contemplated when the Warrant of Attorney was signed.

Mr. Foster spoke for nearly three hours on the same side.  He said that it appeared to him that Mr. Polack was attempted to be made the victim of a conspiracy, and that a great clamour had been raised upon facts which when they were looked into really amounted to nothing; there had been in fact an attempt to hunt Mr. Polack because he was a rich man.  It was quite evident that Wilson had duped Polack as well as the rest of his creditors, by promising to give him a mortgage upon the steamers which he did not do.  The conduct of some of the parties, either the parties who swore, or the parties who drew the affidavits was scandalous, matter having been suppressed which [t]ended to deceive the Court, for instance Mr. Hirst swore that on the 18th Oct[o]ber, Polack offered him sugar at about one-third mo[r]e than the market price, to be paid for by Wilson's bil[l]s unendorsed, but Mr. Hirst did not go on to state that next morning, probably after he heard that Wilson had left the Colony, he went to Polack and offered to buy the sugar, and was in the act of drawing out a bill of sale when the news of Wilson's absconding having reached Polack he was very angry.  He contended that a stronger point in Mr. Polack's favour could not be found, for it was evident that up to the morning after Wilson had escaped from the Colony, he was willing to take his unendorsed notes for his goods.

Mr. Windeyer followed on the same side.  What was there to show that Polack was in league with Wilson; why should he give up the business, and make the sacrifices he did, merely to allow a swindler to run away with £10,000 or £15,000?  What had he gained by it but large liabilities, which he must pay?  Did the creditors mean to say that they had been duped by a fool or a rogue; if by a rogue why should not Mr. Pola[c]k be duped by him as well as the others; in fact the creditors appeared angry with Polack because he was not quite so great a fool as themselves.  The letters which were called for by the other side by the insertion of the answer ``My compliments and it's all right" in one of their affidavits, he contended made strongly for Mr. Polack, for they showed clearly that Wilson was deceiving Polack as well as every one else up to the last moment.  Although all the sums intended were not mentioned in the defeasance, he contended that it did not vitiate the Warrant of Attorney, for it had been decided that even the omission of the defeasance did not vitiate the warrant, although it formed matter of censure for the Atto[r]n[e]y, and if omission of the whole defeasance would not vitiate it, a fortiori, the omission of a part of it could not.  Therefore, although the sum of £2000 for the good-will of the business was not mentioned in the defeasance, yet as it was equita[b]ly due and was sworn to be intended to be covered by it, the Court would not strike it out.

The plaintiff's Counsel were upwards of eight hours addressing the Court.

Their Honors said they could not stop the criminal business of the Colony, for this case and adjourned it to Saturday next.

 

Dowling C.J., Willis and Stephen JJ, 16 November 1839

Source: Australian, 19 November 1839[3] 

 

SATURDAY -- Polack v. Wilson.  Exparte Saul Lyons. -- This was the day appointed to hear the reply of counsel on behalf of the creditors of John Thomas Wilson, to the arguments of counsel heard last Saturday on behalf of Abraham Polack, to shew cause against a rule Ni[s]i, granted in this case, to set aside a judgment on a warrant of attorney on the grounds of fraud and irregularity, being made absolute.

The Attorney General opened the pleadings.  He said, although his learned friends on the other side occupied the Court upwards of eight hours with their arguments, he did not think it necess[a]ry to take up much of the time of the Court in answering them as ingeniously as they were put forward.  He was, indeed, so unwell, that he would not be able to do that justice to his client's case, that its importance demanded.  He would first direct attention to the irregularities of the judgment on the record of the Court, and he contended that it was no judgment at all; a great portion of it being little short of rank nonsense.  There was not a word in it about recovering debt and damages agreeably to the usual wording of judgments.  He referred to Tidd's and Archibald's Practice on judgments upon warrants of attorney, by which it would be seen that the judgment must agree with the debt, but this judgment contained not a word that could give it the effect of a judgment.  His friend, Mr àBeckett's very long address, delivered with his usual ability and more than his usual ingenuity, was intend[e]d rather to amuse the Court and divert its mind from the merits of the case than to support that of his cli[e]nt, by referring to numerous affidavits which they had found it necessary to procure, to give them a foundation or locus standi in Court, as if they had been filed for the purpose of establishing their case upon; indeed, the three addresses were calculated to cr[e]a[t]e merriment, which they did, rather than to make out their case.  He would not insult the Court by asking them divest their minds of any prejudice they might have imbibed from newspaper reports, or the vulgar reports which had been circulated out of doors relative to the affairs of John Thomas Wilson, for their Honors did give impartial consideration to every case that came before them, without reference to who or what the parties were; therefore, the names of Abraham Polack, John Thomas Wilson, and Saul Lyons, were merely to be considered as distinguishing the parties in the case, and they would make it a case between A, B, and C, thus -- A for Abraham, B for bolter (Wilson), and C for creditor (Lyons).  (Laughter).  Mr Lyons's affidavit showed that he held bills of John Thos. Wi[l]son's, to the amount of £4,700, &c, (Affidavit read), and the creditors would be recognised by the Court on this affidavit.  A case in Barnwell and Creswell (Barber v. Barber), to which he refe[r]red their Honors, would shew that Lyons had a standing in Court, and that it was not necessary for every creditor, to whom the £60,000 was due, to file their individual affidavits.  Any of the creditors might come in on behalf of the rest, as well as Saul Lyons, if they choose, but he was adopted by all the other creditors as their representative, as would appear from the fact of all the affidavits filed being in support of his application.

Mr Justice Stephen asked the Attorney-General what would become of the steamers Sophia Jane and Tamar and the rest of Wilson's p[r]ope[r]ty, in the interval, if the Court set aside the judgment?

The Attorney-General answered, that there was no fear of not finding able hands to place them in as he [w]ould presently show.

Mr Justice Stephen -- But does it not appear a difficulty?

The Attorney-General -- Not at all your Honor.  The A[t]torney-General was proceeding, when Mr Justice Willis interrupted him by observing, that his impression of the Attorney General's argument was, that the only thing the Court had to consider was, whether it could entertain the application or not under the circumstances, without reference to the appropriation of the property.

The Attorney-General said that was precisely his meaning.  (Their Honors conferred together for some minutes after which the Attorney General proceeded).  In reference to the case in Barnwell and Crosswell, no stranger could come in to make the application, but a creditor, not an execution creditor, could come in -- and upon that ground Lyons had a right to apply.  Any creditor who had an interest was equally entitled to have the judgment set aside and had a locus standi in Court.  Suppose Polack got a warrant of attorney for the whole £60,000 instead of £16,000; it was impossible to ascertain the number of the creditors to whom this £60,000 was due, and they could not add to or amend the affidavits already filed if they found £100,000 due and double the number of creditors.  What would become of the steamers Tamar and Sophia Jane in the mean time?  These vessels more than covered Saul Lyons's debt; the secret and clandestine way in which judgment was entered up prevented Lyons from suing out a foreign attachment but he had done so since.

Mr àBeckett observed that that was not in the affidavits.

The Attorney-General continued. -- Several of the affidavits, those of Kemp, Dunlop, and the rest, swore that they were creditors.  It was, doubtless, part of the plan of Polack and Wilson to act with secrecy and expedition that execution creditors could not come in, and that the sheriff might sell before they could do any thing -- and had the Court not been, fortunately sitting at the time, the present application could not have been made and they would have succeeded admirably! but, concocters of secret plans, be they ever so clever, cannot be prepared, at all times, to cover all points, and this escaped them, although they managed very cleverly all along.  The mistake was, that the Court happened to be sitting at the time.  Another objection he would take, which he conceived to be fatal, was, that the defeasance was not in compliance with the rule of Court, which required a specific sum to be mentioned, or that an affidavit should be filed of the particular amount due, neither of which had been done in this case.  Polack's connexion with John Thomas Wilson depended on his own uncorroborated statement.  His affidavit stated, that he was induced to part with a share of his business to Wilson, on Wilson's representation that £26,000 was due to him from Burdekin, and that Mr Norton told him a consid[e]rable sum was due from Burdekin to Wilson.  It was a curious omission not to state the sum which Mr Norton considered a large sum.  But if Polack were then deceived by Wilson, by Mr Norton, or by Tomlins, who made up the account, he had enough to prove to him, subsequently, that nothing was due.  Did Polack never ask Wilson the question, during the subsequent six months for which he had endorsed his bills, what had become of the £26,000? and if at the end of six months he found he had been taken in why did he not, in justice to himself and the public, cut the connexion, which by his ag[r]eement he could have done?  Polack had no reason to believe that £26,000 was due to Wilson from Burdekin.  Another motive Polack swears to for connecting himself with Wilson was, that he believed in his ``skill and diligence" as an auctioneer.  What did Polack know, at that time, of Wilson's skill and di[l]igence as an auctioneer, he would ask?  The agreement between them was every thing but a legal partnership.  Polack says he retired from busin[e]ss in consequence of ill health, still he reserves to himself a few individuals, to sell for; Messrs Lord, Donaldson, and others.  On looking at that agreement one is at a loss to discover, but, at the same time convinced, that some secret partnership subsisted between them that cannot be got at.  When Polack told Roberts, the day before Wilson started, that he (Wilson) was making £10,000 a year by his business, why did he not then get a warrant of bills to any amount for which Wilson thought proper to draw on him in the course of his business, and this, he swears, merely because Mr Norton had told him a considerable sum was due to him from Burdekin!

Mr Justice Willis said, he should do justice to Mr Norton by disconnecting his name from the transaction.  The business between Wilson and Burdekin was before him in chancery, and Mr Norton stated, that what he said to Polack was, that a sum was due from Burdekin, but he did not know this of his own knowledge but from what Mr Tomlins, Wilson's clerk, had told him.

The Chief Justice observed, that it certainly did not appear that Polack had taken much trouble to procure Mr Norton's affidavit.

The Attorney General proceeded. -- Yet Polack goes on holding up Wilson as solvent, and in good circumstances by stating that he would pay 20s and 30s in the pound; he tells the same thing to Mr Wyatt, on the very evening, Wilson left the Colony, (while under sail,) and that ``it was not in his nature to be a rogue."  (laughter.)  Was there a single line in Polack's affidavit to account for all this?  He swears he made no representation to Mr Lyons, because he had not spoken to him for two years, and this he considered a sufficient answer.  Was it necessary to go to Lyons, and make him personal representations?  Every one knows that in a community like this, a public man like Polack, an auctioneer in extensive business, known to every body, a word whispered in secret would run like wildfire through the town, until every one was acquainted with the news.  It was through this secret and indirect channel Lyons heard, as every one else did, of Wilson's having bolted, although he did not hear it from Polack himself.  The attorneys for the creditors were ridiculed, by the counsel on their side, for hunting up evidence of these representations; it was, doubtless, very annoying to Polack and his counsel, have them hunted up, but that was no reason why they should be made the objects of ridicule; but if these affidavits had not been procured, the parties would have escaped the notice of the Court.  He next came to the account of the bills, which neither stated the amounts, dates, when they became due, or how they got into his bands.  By the account Polack put in, it appeared, that Holdsworth was liable to a large amount upon all of them, and that Polack will never have to pay a fraction.  The bill mentioned in the defeasance did not come within the spirit of it, being common business accommodation bills given in the way of trade.  So that there they saw two single men, John Thomas Wilson and Abraham Polack, aided by Mr David Poole, entering into an agreement; Polack selling sugar to Hirst, which showed his motive to be to get up the amount to square with the £16,000, for we can only judge of motives by acts.  Moss coming in and telling Polack, just at the moment, he concluding the sale of sugar with Hirst, that Wilson had bolted, (a fact sworn to by Jones, Polack's clerk.)  Polack flying up in a passion, and abusing Hirst for offering him Wilson's notes -- the acting was admirable, it was to the very life, and in perfect keepi[n]g with all Polack's transactions with Wilson.  From all that appeared on his affidavit or account, nothing is due from John Thomas Wilson; he has been doing all this for Wilson without getting a fraction from him.  Sixty one pieces of cloth, four hundred and fifty wethers, and something else, appeared to have been set to Polack; two hundred and eighty wethers were accounted for, and the balance filled up with some hay charged; but if they had not Mr Gillman's affidavit, pointing out these things, it would be a matter of speculation whether they would every appear upon the account or not.  He had shown that the £2,500, for the business was not -- neither could it be, included in any of the amounts.  Another item was the Gundaroo Estate; Mr Campbell swore that he sold the estate with a quantity of stock to John Thomas Wilson for £5,500, which was paid for by bills endorsed by Holdsworth.  The agreement was executed; the bills drawn and delivered to Campbell, and the transaction concluded with Wilson; but Campbell, for his own better satisfaction, goes to Polack and asks his endorsement; Polack endorses them at £10 per cent premium, and Campbell gave him a cheque for the amount of £250.  This Polack meets by attempting to show that it was done as a favour to Wilson; Campbell showed that Wilson had nothing whatever to do with it; and the fact of his allowing the Fairfield Estate in the account showed the recklessness with which it was made out.  The letter too, upon which so much rai[l]lery of his learned friend had been expended, especially on the remarkable message in reply, ``my compliments, and it's all right," was a very extraordinary one.  It commenced with ``It has just occurred to me -- (occu[r]red to him? -- why did it not occur before?) -- it has just occurred to me, that the bills you were good enough to endorse for me," and so on; making out that it was to favour him, (Wilson), Polack had endorsed the bills for Campbell.  This letter was evidently intended to work out their preconcerted plan, and support the affidavit, which, of itself, was quite sufficient proof of previous concert.  The affidavit of Mr McEachern and others showed that Polack had told them by way of secret, that the steamers were to be advertised; others swear that they knew they were to be sold, and that Polack had said the advertisement was all cut and dry, which was a secret way of noising it abroad, calculated t[o] throw people off their guard while Wilson was making preparations for his departure.  The adv[e]rtisement had the same effect, for it represented h[i]s great success in trade, and increasing business to be the motive for disposing of them.  Why did Polack do this, but in order to bring McEachern forward, like Hogan, to swear that he was aware that the steamers were to be sold ? he told Mr Eachern not to mention it, when he showed him the advertisement at the theatre, until it was published, and it was an extraordinary coincidence that the advertisement appeared on the following Monday.

Mr Justice Stephen said he wished to know what possible motive Polack could have in assisting a scoundrel to run away and swindle a parcel of people without any apparent benefit to himself? for it really did not appear to him how he reaped any advantage from Wilson's flight.

The Attorney-General replied, that he got £16,000 by it without consideration.

Mr Justice Stephen rejoined, that the Attorney-General had shown consideration on his own affidavits, the endorsing of the bills.  He wanted fraud to be shown -- he confessed it all appeared a mystery to him -- like a cloud of mist before him -- it might be a de[f]ect of vision, but he wanted a distinct point of fraud to be shown.

Mr Justice Willis said, he understood the Attorney General's argument to be, that there were so many grounds of suspicion of fraud, that the warrant ought to be set aside.

The Attorney-General said, His Honor had apprehended him right; the evidence, he might say, was of a circumstantial nature for when people acted in secret in similar transactions it was difficult to get at distinct facts.  Polack concealed everything, elucidated nothing; from his own showing, a debt was due from himself to Wilson and not from Wilson to him.  In fact, there was no debt upon which to issue execu[t]ion.  If Wilson did not return to the colony Holdsworth must pay the bills he holds, but Polack need not pay one of his; some of the bills did not come due until the year 1843, from the latter end of the present year, some being due in 1840, some in 1841, and some in 1842.  If then there are liabilities upon which Polack could issue execution what should Mr Holdsworth do?  If Polack himself went on a speculative trip, or died, what claim would be against him while the bills were com[i]ng due?  There never was such an absurdity as to think of giving him property to speculate on to the prejudice of the other creditors, while his own bills were afloat and for which he could not be sued.  The only way in which such a creditor could come in would be by the statute of bankruptcy, and even then the interest would be abated and he could only share alike with the other creditors.  Could there be a greater fraud on honest creditors than to exclude them from coming in when they had not been guilty of any laches -- for ignorance of fraud could be none?  If that were the case any two rogues could get in debt, one go away first transferring his property, by warrant of attorney, to the other, who when he pocketed the money could join his friend at Valparaiso, or elsewhere.

Mr Justice Stephen asked, if the Attorney-General would consider the taking a warrant of Attorney as security for liabilities for another party a fraud -- for he did not cons[i]der [s]o?

Mr Justice Willis said, he thought it would be.  No execution could issue on judgment without debt, and the [e]x[e]cu[t]ion could not make debt of it if it were not debt per se -- it was absurd to think it could.

The Attorney-General continued. -- There could be no debt un[t]il Polack had paid, which was shown in the case, Barber v. Barber, in Barnw[e]ll and Cresswell.  It could not be otherwise; if it were, such a state of things would strike at the foundation of all credit.  The fifty-second rule of Court required an account to be verified, upon oath, as to the amount due, and an affidavit as to whether the party was in the colony or not, and until such be compiled with judgment is ordered to be stay[e]d.  Now, Mr David Poole, in attesting the agreement, only acted as authorised, as an attorney of the Court, but he appeared also in another character, in giving advice to Polack, as his legal adviser, to sell Mrs Peacock's goods in Castlereagh street.  [Here Mr Justice Willis exhibited his watch and intimated, that although he did not wish to interrupt the Attorney-General in his speech he begged to remind him that it was past two o'clock, and their Honors had had nothing to eat since morning -- for himself, he must say, he was a lit[t]le hungry.  The Attorney-General bowed and promised not to detain their Honors much longer.]  Polack's affidavit stood alone -- the Court could not cross-examine him or inquire into his credit; and if their Honors had any doubt of there not being sufficient ground shown for s[e]tting aside judgment, he considered there were circumstances of suspicion of fraud sufficiently strong to entitle the case to consideration of a jury.

(The Attorney-General was upwards of four hours speaking.)

Mr Manning following at considerable length, recapitulating the arguments of the Attorney-General and directing attention to the incorrectness and falsity of the affidavits by comparison with the defeasance.

Mr Broadhu[r]st followed on the same side.

Their Honors deferred judgment to this (Tuesday) morning.

CONTINUED

Notes

[1]  See also Sydney Gazette, 26 and 29 October, 2 November 1839; Australian, 31 October, 2 November 1839.  For commentary on the case, see Sydney Herald, 30 October, 4 November 1839.

For further litigation concerning Wilson, see Ex parte Lyons, in re Wilson, 1839.

[2]  See also Sydney Gazette, 12 November 1839.

[3]  See also Sydney Gazette, 19 November 1839.  At the end of these proceedings, the Australian of 19 November 1839 reported the following: : ``On the rising of the Court the Attorney-General presented a petition from the creditors of John Thomas Wilson for a commission of bankruptcy to issue against him.

``Their Honours held, that as it was a question of grave importance, not yet determined, whether the bankrupt law extended to this colony, and one which would demand great consideration, they could not entertain the petition until it was settled."  This was the beginning of the important case of Ex parte Lyons, in re Wilson, 1839.

CONTINUED

Published by the Division of Law, Macquarie University