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

Willis v. Dutton

Willis J., clash, with, legal, profession

Supreme Court of New South Wales, Port Phillip

Willis J., in Chambers, 13 July 1841

Source: Port Phillip Patriot, 15 July 1841

Willis and another v. Dutton, Simson and Darlot. ---A summons had been obtained in this case by the defendants, calling upon the plaintiffs to shew cause why the proceedings should not be set aside for irregularity. On the matter being called on, a clerk in the employ of Messrs. Carrington and Clay stated he would, with the permission of His Honor, state the circumstances under which the summons had been issued.

Judge Willis.---What is your name?

Clerk.---My name, your Honor, is Smith, I am managing clerk to Messrs. Carrington and Clay.

Judge Willis.---I have no objection to hear you, Mr. Smith.---Although it is not a usual practice, it would have been much more respectful; on the part of either Mr. Carrington or Mr. Clay to have attended here than to have sent their clerk.

Mr. Smith.---Your honor is aware that it is the practice in England for attorneys to send even inexperienced clerks to attend Judges in Chambers.

Judge Willis.---Yes, Mr. Smith, but no respectable attorney does it; he thinks too much of his professional reputation. Supposing you had a case of importance in the hands of an attorney, would you like to have your interests entrusted to an inexperienced clerk? I do not say you are an inexperienced clerk.

Mr. Smith said the summons had been taken out to make plaintiffs shew cause why the proceedings should not be set aside for irregularity. The action was brought on a bill of exchange for £500, a summons was issued against the parties on the 15 th , returnable on the 19 th April, and final judgment was signed on the 7 th of June; the application was made on the plea that the proceedings were irregular in the service of the summonses.

In support of the case Mr. Smith read the affidavit of the defendant Darlot, who swore he resided at Dutton's station, on the Loddon River, and that he had never been served personally with a copy of the original summons in the present action; and also that a copy of the said summons had never been left at his residence on the Loddon River. Mr. D.C. Simson's affidavit was also to the same effect, that he had never been personally served with a copy of the summons under which the action was brought. Upon these circumstances he (Mr. Smith) trusted His Honor would set aside the proceedings.

Judge Willis: You must first show the judgment itself is bad, or that some irregularity exists in signing the judgment.

Mr. Smith: Your Honor, I conceive the irregularity is shown by the affidavits which I have read; we are anxious the case should be tried on its merits, having a good defence to the action as at the time of the present transaction, we should be able to prove that the defendants were not in partnership.

Judge Willis: This transaction took place in October last, I believe, and it comes within my judicial knowledge, from papers filed in this Court, that the defendants were in partnership as late as January last.

Mr. Montgomery, as attorney for the plaintiffs, opposed the application; the learned gentleman proceeded at some length in commenting on the affidavits of Messrs. Darlot and Simpson; he observed, that Darlot swore on the 10 th instant, that he resided at Dutton's station, on the Loddon, but he did not attempt to swear, that at the time of bringing this action, he had no other residence, and he (Darlot) also swore he had never been personally served with a summons in the present action, or that a copy had been left at his residence on the Loddon. The defendant Simson did not go so far; he swore, that he had never been served with a copy of the summons in the present cause. Mr. Montgomery described the affidavits as disgraceful, and brought before the Court that day to deceive His Honor, he would read affidavits in reply that would clearly rebut the allegations in the defendants' affidavits. The affidavit of Mr. Robert Cadden, clerk to Messrs. Montgomery & M'Crae, was read, he swore that on the 16 th day of April last, he served a copy of the summons in the present case personally on D.C. Simson, at his dwelling known as Cumberland Cottage, and at the same time gave the said D.C. Simson a copy of the aforesaid summons for the defendant Darlot, it being his usual place of abode, this was partially corroborated on the affidavit of Mr. L'Estrange, who swore he believed that at the time the present action was commenced, Cumberland Cottage, the residence of the defendant Simson, was also the usual place of abode of the defendant Darlot; an affidavit from Mr. Smith one of the plaintiffs, stated that the defendant Simson, called upon him and requested that the proceedings in the present case would be stayed as he intended to settle the affair.

Mr. Montgomery---Will not your Honor under these circumstances scout them out of Court.

Judge Willis.---It is a far more serious matter than scouting them out of Court.

Mr. Montgomery hoped His Honor would set aside the summons with costs.

Judge Willis.---I will not only set aside the summons with costs, but I will direct the affidavits to be laid before the Crown prosecutor, who will know best what to do with them; there is such a thing as conspiracy, when two or more persons lay their heads together to pervert the ends of justice; it is laid down in the books that one witness will be enough to warrant a conviction for perjury; as it does not appear to have been laid down in "Phillips on Evidence," that two witnesses are necessary. However, this matter ought to be brought before another Court, when these very conflicting affidavits can be thoroughly investigated; in this case it is not, as in ordinary cases, affidavit for affidavit, where one is as good as another, and therefore I think a Criminal Court ought to decide it. I shall direct Mr. Montgomery to lay the affidavits at once before the Crown prosecutor, to ascertain whether he will take any proceedings at the Criminal Sessions, which commence on Thursday next, and from all the very suspicious circumstances of the case, I feel bound to request the Crown Prosecutor to give the matter his most serious consideration, and I think it is a duty I owe to Mr. Cadden, Mr. Simson, and Mr. Darlot to bring this matter forward, in order that it may be fully investigated by a jury of twelve men.

Mr. Smith submitted that the allegations contained in Mr. Darlot's affidavit had not been answered by the opposite parties.

Judge Willis.---I think Mr. Darlot's affidavit a shuffling affair altogether.

In conclusion, His Honor remarked that the case could not have been more ably conducted on the part of the defendants had either Mr. Carrington or Mr. Clay been present, at the same time he thought that out of respect to the Court one of the firm should have been in attendance, particularly in a case of such importance as the present one.

Willis J., Equity Side, 24 September 1841

Source: Port Phillip Patriot, 27 September 1841

Re H.N. Carrington, one &c., Mr. Barry said Mr. Carrington was present and very anxious to explain the misunderstanding which had arisen out of the affidavit of Captain Cole.

Judge Willis---Let him explain by affidavit; he is now in the jurisdiction of the court; I had no power to compel him to come, but now he is here, let him answer the affidavit filed by Captain Cole.

Mr. Carrington said he had come expressly from Sydney long before he intended to do so to answer the serious charge which had been brought against him, and at a considerable loss, and he begged to state that he had filed an affidavit in reply to the affidavit filed by Captain Cole.

Judge Willis---If I find there are conflicting affidavits, I shall lay them before the Crown Prosecutor, to take such proceedings in the matter as he may think necessary; at the same time I shall reserve to myself the power of punishing an officer of this court for misconduct.

Mr. Carrington---May it please your Honor?

Judge Willis---I don't wish to hear you, Mr. Carrington.

Mr. Carrington---May it please your Honor.

Judge Willis---I don't wish to hear you, I have decided how you are to explain; you had better be silent, or I shall direct you to be put out of court. I will however state, I have read your affidavit, which is not at all satisfactory, and not sufficiently explicit, you must know you are liable for the acts of your clerk; qui facit per alium, facit per se.

Mr. Carrington---Not, your Honor, in a criminal point; I cannot answer the affidavit more fully at present, as I am fearful of injuring the merits of my clients' case.

Judge Willis---You are liable for the acts of your clerk in your office, the course I shall adopt is, first to have the case tried, then if necessary, hand the papers in the case to the Crown Prosecutor. I shall adopt this course for the purity of the court; you may amend your affidavit by Tuesday next.

I do not charge you with committing the offence, but here is the affidavit of a respectable colonist, which states that the plea filed in the case, is a sham plea, and only put in for the purpose of delay.

His Honor then read the affidavit, remarking, that there was no merit in coming back to answer a charge of so serious a nature, as he considered any person would have flown back to have answered it, and not have considered returning to do so as a matter of duty. In justice to Mr. Carrington, his Honor said he would read his affidavit. (From this document it appeared the plea was filed by John W. Smith, Mr. Carrington's clerk).

His Honor remarked, that Mr. Carrington had trusted his business to his clerk, instead of attending to it himself; in fact, Mr. Smith was made godfather to the plea. If, said his Honor, I find in the charge brought against Mr. Carrington by Captain Cole, (for I know no distinction of persons in the administration of justice,) that the latter has sworn falsely, I will take care that the same proceedings shall be taken against him, that would be taken against Mr. Carrington, if it be proved that he has falsely sworn, and I shall deal with him as I would with any other party, and visit him with all the pains and penalties of the law, for daring to bring a false charge against an officer of the court.

Mr. Carrington must amend his affidavit by Tuesday next.

The court then adjourned until to-morrow, 12 o'clock.

Willis J., Equity Side, 24 September 1841

Source: Port Phillip Patriot, 30 September 1841

Re Carrington.---One, &c.

Mr. Cunninghame said, perhaps his Honor would now hear the case of Mr. Carrington who was in the court.

Judge Willis---I can hear nothing except what xxxxxxxxxxxxon affidavit. I gave Mr. Carrington xxxxxxxxxxxxxxxxxxxxxx [text unreadable]

unsatisfactory. I pointed out to Mr. Carrington the necessity of his swearing that at present he could make no further disclosure in the case without injuring his client's case, has he done so?

Mr. Cunninghame said he would explain as to that.

Judge Willis---I want no explanations, I cannot hear anything except on affidavit.

Mr. Cunninghame said Mr. Carrington could not file any additional affidavit.

Judge Willis---Very well, now I shall pursue my own course, and that course is this; Mr. Crown Prosecutor after the trial of the cause, I shall direct the papers to be placed before you, at the same time I will draw your attention to the clause which you well know, and which I have so frequently had occasion to refer to, in Hawkins, respecting sham pleas, which he says are put in to defeat the administration of justice; then it will be for you to say upon what appears before you, whether Mr. Carrington shall be put upon his trial for the offence; then I shall take into consideration what proceedings I shall cause to be instituted against him as an officer of the court, and whether he should remain any longer an officer of the court.

The first thing will be the trial of the cause, and if it should then turn out that Mr. Carrington has acted correctly and atraightforwardly, then will come the question of whether the party bringing the charge has also acted in the same way. I gave this party, this attorney of the court, an opportunity of offering any excuse to the charge he thought proper. I repeat what I before said, that the affidavit put in by the party, is not all satisfactory. I gave him also an opportunity to swear if he chose, that he could not make any further disclosure without injury to his client, but not having done do, the matter must now take its course in the way I have pointed out.

I shall also take further into consideration whether, as I have given him an opportunity to answer this charge, and he has not done so, he can in the mean time be allowed to practice as an attorney in this court. This will be a matter of serious consideration.

The court then adjourned until 12 o'clock to-morrow morning.

Published by the Division of Law, Macquarie University