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

Grose v. Polack [1840] NSWSupC 22

bill of exchange, foreign attachment, trusts, insolvency, steamship

Supreme Court of New South Wales

Willis J., 3-4 June 1840

Source: Sydney Herald, 5 June 1840

In the case of Grose v. Polack, the plaintiff proved that defendant had indorsed two bills, drawn by John Thomas Wilson, in favour of the plaintiff, and which had been given to plaintiff by Wilson as a part of the consideration or value of the steamerSophia Jane, which Wilson sometime previous to his leaving the Colony had purchased from the plaintiff.  On the judgment of the assessors being obtained in favour of the plaintiff's claim, which including interest amounts to £2080, they withdrew, and the plaintiff proceeded under the Foreign Attachment Act to get that judgment satisfied by examining Messrs. De Mestre, Dacre, Egan, Jones, Norton and Lyons, as Polack's garnishees.  The four first being the gentlemen whom Polack by a deed executed previously to his leaving the Colony, appointed to act as trustees to the estate for the benefit of his creditors, while Mr. Norton was examined as the Attorney for these trustees, and also as the attesting witness of the aforesaid deed, and the last witness, Mr. Samuel Lyons, was examined, as having acted as the agent of the said trustees, he having been employed by them to sell upwards of £20,000 of Polack's property, after the latter had left the Colony.

            The examination occupied the Court during the whole of the afternoon, and the principal points made out by the plaintiff were as follows: - That Polack previous to his leaving the colony, executed a deed conveying about fifty thousand pounds worth of his property to the aforesaid trustees, for the benefit of his creditors, and that by the powers vested in them by that document, the said trustees had disposed of upwards of twenty thousand pounds worth of Polack's property, but that farther than retiring the liens on the bank shares, and on some title deeds, with the exception of honouring some bills that became due during the first week after the deed had been executed, they had not settled with any of the creditors, although the deed specified that the proceeds of the property which it conveyed, was to be applied in the retiring Polack's bills and paying such other debts as became due.  The trustees; on their examination, swore, that among the other property conveyed to them, there was about £29,000 in bills, promissory notes, and other mercantile money considerations, of which the value had been so decreased that it would not probably realise above £15,000 or £16,000; that this depreciation had been caused by many of these bills being dishonoured while others which had not yet become due some of the title deeds had also been found of such a doubtful character, that it had not been in the power of the trustees as yet, to give such titles as the purchasers required, and of all the property sold by Lyons, only two conveyances had as yet been completed; the trustees also swore that their attempts to get the affairs of the trust wound up had been considerably impeded by the conduct of many of the other creditors, who had by foreign attachments and other forms, furnished Polack's debtors with excuses for not paying their debts into the hands of the trustees.  Amongst other property left in the power of the trustees was the ship Hope, of which they had obtained possession, and which was insured for £10,000, and which was daily expected with a cargo of wheat, and the trustees calculated on realizing £14,000 by selling her and the cargo on her arrival, for the general benefit of the whole creditors.  It also appeared that when Mr. Lyons sold the property, that Mr. De Mestre bought a quantity of the land at a far higher price than other person offered for it, and on being a trustee could not purchase at the sale, he immediately relinquished his purchase in favour of another person who offered to take it at the price it had been knocked down at to him.  Mr. D. Egan had also purchased and afterwards rellnquished in a similar manner; some of the trustees thought that if they were not annoyed by further legal proceedings, they would be able to satisfy all claims in full, while others thought that this could not be done in less than six months, - while the Counsel for the trustees, Messrs. Foster and A'Beckett, insisted that there were so many contingencies, that they could only regard these statements as evidence of the desire of their clients to have the matter settled, which it is probable might have been done by this time, had not the present plaintiff and some other creditors by their attachments and other legal proceedings, defeated the exertions of the trustees - and they maintained that the whole of the garnishees had a right, if they choose, to claim to have the whole affair investigated by a jury.  For the plaintiff, Messrs. Windeyer and Broadhurst denounced the present proceedings of the defendants, as a mere scheme to obtain delay, in order that they might have the benefits arising from the trust still longer secured to themselves; they also contended that the deed under which the trustees were acting, was bad, and not such as the court would sustain; they also urged on His Honor that it was entirely optional with him to further enquiry or not, which, if he should order in the way required by the defendants, was equivalent to putting the plaintiff out of court, as the Colonial Foreign Attachment Act was so badly constructed, that although several cases under it had been sent to juries, yet it had not been possible to bring one of them to trial; they also offered to accept their client's claim in any of the good long bills of which the defendants had not yet realised the proceeds - or they were willing that the matter should be referred to the attorneys as His Honor had suggested.  Mr. Foster in reply, said that from the way in which the trustees had been annoyed, he could not consent to any such mode of disposing of the case; one of his clients, Mr. Egan who was a creditor of Polack's for nearly £10,000, would accept his claim in Mr. Grose's bills at any date, and he would rest his case on the right, which all his clients in the cause had to have it investigated by a jury, or let the plaintiff preceed in equity suit that was so expensive and circuitous, that he could not recommend it unless absolutely necessary.  He would, however, give the case and deliver his decision next day.   The court then adjourned at half-past seven.

            THURSDAY, JUNE 4 - Before Mr. Justice Willis, with Messrs. Cooke and Myles, assessors.

            In the case of Grose v. Polack, His Honor delivered his decision, which was, that on the authority of the case Stampen v. Mullin, reported in the 3rd of Atkins, it had been ruled that the words shall or may, must be as regards Acts of Parliament imperatively construed - but in regard to deeds they might be otherwise interpreted.  As in the case before him the Colonial Act was in he same relation to him as an Act of Parliament, he had not other course to pursue than to send the case to a jury; at the same time, he could not but lament, that the defects of the Colonial Attachment Act, rendered it imperative on him to come to such a decision, for were the English Bankrupt Laws or some such measure put in force here, he felt confident that the Attachment Act would but seldom be resorted to; at the same time, he considered it but fair to state, that he had refrained from saying a single or word about thedeed[sic], as to whether it was good or bad, and he had done so for the purpose of avoiding any prejudgment of the case.  The court then adjourned till twelve o'clock.

            When the other attachment cases of Warne v. Polack for £323 5s. 10d.  Same v. same £30 10s. 4d. J. T. Hughes for £1427.  Flower v. same, by five bills for £2198 10s, with £73 3s. 5d. interest were disposed of in a similar manner, both parties consenting, after the assessors had found a verdict for the amount claimed, to waive the examination of the garnishees, after the first case (Warne v. Polack) had been disposed of, during which the witnesses proved that the trustees were anxious to prevent the property of the creditors, under the controul of the trustees, from being subject to further attachments.

Published by the Division of Law, Macquarie University