[Willis J., conflict with magistracy – magistrate, liability of – contempt]

Atkins v. Manton

Supreme Court of New South Wales, Port Phillip District

Willis J., June 1843

Source: Murray's Review (Van Diemen's Land), 23 June 1843

Judge Willis has committed Mr Were, a Magistrate, for prevarication and contempt, to prison for six months. The following is the report of the case:-

Supreme Court - Civil Side

(Before His Honor Mr. Justice Willis, James Smith, Esq., J. P., and Jones Agnew Smith, Esq., J. P., assessors)

ATKINS v. MANTON AND OTHERS. - This was an action of assumpsit, to recover the sum of £574 9s. 11d., upon a promissory note, dated 28th of July, 1842, made by W. F. A. Rucker, payable to the order of Manton & Co., and endorsed by the defendants to P. W. Welsh & Co., and by them to the plaintiff.  The defendant pleaded first the general issue, second that the bill had been endorsed in blank, no consideration, fraud, and no notice of dishonor.

Mr. Williams for the plaintiff, said that the case he had to lay before the court was very simple, namely the defendant's admission of the bill and his liability thereon, which at once did away with any defence that could be set up. The note itself was one of those given to Mr. Were to cover his liabilities for £10,000 for Rucker. Mr. Ross the plaintiff's attorney proved the hand writing of all the parties to the bill, as well as presentation of the bill when it became due, there being no specific place at which the bill was to be presented. Rucker said when the bill was presented that he had not the means of paying it. Notice of the dishonor was also sent through the Post Office to P.W. Welsh & Co. and Manton & Co. One of the defendants (J. A. Manton,) called upon Mr. Ross on the lst November, and wished to see the note, upon looking at it he admitted that the endorsement was that of Manton &Co. and added that by some means the bill had not been entered in the bill book, and said upon leaving Mr. Ross's office that he would send a cheque for the amount on the following day, but did not do so. This was the plaintiff's case.

Mr. Barry for the defendants then addressed the assessors at great length, contending that the defendants by the act of Mr. J. A. Manton had been surprised into an admission to hold themselves liable for the amount of a bill, for which they had not received any consideration impliedly or otherwise. He was instructed that he would be able to prove all that had been set forth in the pleadings.

Judge Willis. - I am glad to see the Crown Prosecutor present, for from the statement of the defendant's counsel, the present may be a case for inquiry in the criminal court - supposing there was proof of a conspiracy to defraud Mr. Barry's client. It is my duty, and I will insist upon having the matter investigated in the criminal court; these general dealings in bills require it.

W. F. A. Rucker was then called and sworn to the best of his belief that Manton & Co's name was upon the bill before he made it, and that the body of the bill was in the hand writing of his clerk.

Judge Willis. - Are such things as these heard of anywhere else; they do not surprise me after what has been stated in this court very recently, I must know who this clerk is, for I am determined this matter shall be fully investigated.

P. W. Welsh was called - who proved that he gave the bill to Jonathan Binns Were, without any consideration.

Jonathan Binns Were was then called - Mr. Were who was upon the bench, was ordered into the witness box by his Honor, who said that all the witnesses had been in the witness box, and he would allow no distinction.

Mr. Were swore that the defendants gave him the note in question for taking up two bills of theirs which he had been sued upon; they were liable upon those bills, which were still in existence, no agreement having been entered into to absolve them from it; those bills had been paid by him; the note was given him, to put him in possession of funds to pay those bills, which were overdue and lying at the Bank if Australasia; this note was refused by the bank, who declined taking any more renewals; he got the plaintiff's acceptance to a bill, which was passed to Welsh, as trustee for Rucker, without consideration to Welsh; Atkin's acceptance was for £475 9s. 11. and as dated the 28th of July 1842; which was paid; he (Were) did not put his name upon the bill, because he did not wish to incur responsibility; upon a subsequent occasion, in a conversation with the plaintiff about the bill overdue, the exchange of the plaintiff's acceptance was arranged should be taken for the note; but he could not swear whether the arrangement was made by him or Mr. Dunsford; upon looking at a memorandum, Mr. Were said he found the arrangement could not have taken place between Mr. Dunsford and the plaintiff, Mr. D. being at Geelong at the time.

Judge Willis. - Very well I will strike out Mr. Dunsford's name.

Mr. Barry. - Then the arrangement was made by you?

Mr. Were. - I cannot say, but suppose it must have been.

Judge Willis. - What conversation took place at the time of the arrangement?

Mr. Were. - I cannot say - at the time of the arrangement, I have no recollection of any conversation taking place.

Judge Willis. - What, sir, do you mean to swear that the exchange took place without any conversation did the bills pass between you in dumb show? Take care how you prevaricate, for I know no distinction between you in that box and the poorest man that ever gave evidence in this court.

Mr. Were. - Some conversation must have taken place, but I do not recollect it; if your Honor wishes me to swear what I do not remember, I must protect myself.

Judge Willis. - Take care, sir, or I must punish you for your contempt.

Mr. Barry. - Did you ask the plaintiff to take the bill or did he ask you?

Mr. Were. - I must have asked him to take the bill.

Judge Willis. - Take care, sir, you just now swore that no conversation took place between you, and you now say that you must have asked him to take the bill; if you prevaricate in this manner, I shall exercise my authority, and commit you; it is such prevarication that the court cannot submit to.

Mr. Were. - Your Honor will not charge me with prevarication; I answer to the best of my recollection.

Judge Willis. - You are put there, and on your oath to swear the truth, and the whole truth, and unless you do so, you will meet with what you will not like, whatever may be your station in society; I am determined to get at the truth.

Mr. Were. - I have sworn the truth.

Justice Willis. - I cannot stand this much longer.

Mr. Were. - Your Honor don't wish me to swear what I do not recollect.

Judge Willis. - Unless you conduct yourself with respect to the court I shall certainly commit you.

Mr. Barry. - When did this arrangement take place, and where, at your house at Brighton, your ofifce, or on board the steamer, or in the street?

Mr. Were. - I have no recollection when and where it took place.

Mr. Barry. - I should suppose that for such a large sum amounting to near five hundred pounds you would have been able to recollect some conversation.

Mr. Were. - Some conversation must have taken place, but I do not recollect it.

Mr. Barry. - Did the plaintiff make any objections to the bill?

Mr. Were. - I do not recollect.

Mr. Barry. - Did you make any objection?

Mr. Were. - I don't know.

Mr. Barry. - Will you swear the plaintiff did not make some objections to that bill, which had a death wound upon the face of it?

Mr. Were. - I do not recollect, I believe he took it, feeling satisfied with Manton & Co's endorsement.

Judge Willis. - Here is more prevarication, you first swear one thing and then another.

Mr. Were. - I swear your Honor, that the matter could not have been arranged by Mr. Dunsford, because he was a Geelong at the time; and I must have managed it because no other person interfered with Rucker's affairs; and I wish you to put that on your notes.

Justice Willis. - I will put you somewhere else, unless you reconcile your statement - that it was arranged by you, and was not arranged by you. I shall send you to gaol for two months, for gross prevarication. His Honor thus directed the Sheriff to take Mr. Were into custody for gross prevarication and contempt of court.

Mr. Barry wished to ask Mr. Were some more question.

Justice Willis. - Going on may get rid of the prevarication - he must be taken into custody first.

Mr. Barry. - By an Act of this colony I am entitled to have his evidence.

Judge Willis. - Oh! yes, for what it is worth (addressing the Sheriff), Mr. Sheriff the witness is in custody.

Mr. Barry declined proceeding further and closed his case.

His Honor did not think there was any necessity for Mr. Williams to reply; and in summing up the case, made some severe remarks upon the manner Mr. Were gave his evidence, which he said no person could rely upon, and would be a matter for farther investigation. In the exercise of the salutary jurisdiction I possess, I have committed this person, who has disgraced himself as a magistrate of the territory, as a magistrate of the town, and as an honest merchant. You will, gentlemen, put out of consideration every iota of evidence given by him; and the question for you to decide is whether the admission of Mr. Manton in his case is sufficient to find for the plaintiff. This case has discovered a system alike disreputable to all parties concerned - these renewable bills, for gentlemen, a man whose name appears upon a dishonored bill, is in my opinion a dishonored man. This is a sort of bubble system, that must sooner or later involve all, when it bursts wound some and ruin others. The plaintiff's conduct I must say, has been most honorable and honest, and there is every excuse for his being foolish. The assessors returned a verdict for the plaintiff for £475 9s.

Mr. Were asked his Honor to let him sign the evidence had had given.

Judge Willis refused; they were his own notes.

Mr. Were. - Then I protest against that evidence.

Judge Willis. - Let Mr. Were be committed for a month for his contempt, in addition to the two months, for prevarication.

Mr. Were. - I publicly declare that I protest against the registry of that evidence.

Judge Willis. - I shall not bandy words with you, sir.

Mr. Were. - I shall protest against it as long as I stand here.

Judge Willis. - Let Mr. Were be committed for another month for his contempt.

Mr. Were. - I am obliged to your Honor; every month adds to the pleasure it gives your Honor.

Judge Willis - directed Mr. Were to be committed for another month, for his additional contempt.

Mr. Were (leaving the court in custody), good morning your Honor.

Judge Willis sentenced Mr. Were to another month, making six for his last contempt.