Rowlands v. Speke

Supreme Court of Van Diemen's Land
Pedder C.J., 13 January 1830
Source: Tasmanian and Austral-Asiatic Review, 15 January 1830[1]

Mr. Hone and Mr. Beamont Assessors.

This was an action upon a Bill of Exchange for 50l. drawn by a man named Farris, witnessed by a man named Child, and accepted by Defendant by her mark.
Henry Child. - I know Mrs. Speke the Defendant. I have known her 12 months. Farris kept a shop next door to Baynton's in Elizabeth-street. She has told me that she has accepted bills for Farris previous to the one in question. I know the present Bill. It is drawn by George Farris, and, except the signature, the whole is in my hand writing. The mark of Ellen Speke was made by her in my presence. On the 8th July, Farris applied to me to draw the bill, which he said Mrs. Speke had promised to accept; I did so; next morning I went to Farris's; I began to read it to her; she said, there are some people behind the screen, do not read it too loud; I read it to her; she affixed her mark, and I signed my name as witness; she said she did not wish her son to know what she did; I said to her in a joke, do you acknowledge this to be your act and deed; she said yes; I saw her next day, and said to her, Farris is a lucky man to have such a friend; she said, she had accommodated him before; the bill was dated 8th July; Farris was present when she signed it.
Cross-examined. - Mr. Gellibrand. - The words Ellen Speke her mark were written when the bill was written; I knew she could not write; you will observe it is written with a different pen to the other; I was Mr. Baynton's clerk; some days after, the bill came into Mr. Baynton's hands; this bill (another bill produced by Mr. Gellibrand,) is not in my hand writing; I do not know whose it is; Mr. Capon the chief constable came to me and asked me whether I ever witnessed such a bill; I told him I had; we went to Mrs. Speke with Mr. Capon, and she first denied that she dad[sic] ever given any note; then she admitted that she had signed the one which I drew.
George Farris. - I am the drawer of the bill; I know Ellen Speke; she put her mark to it as accepted in the presence of Henry Child; I was there present; she understood the nature of her acceptance; the consideration to me was £50; she has often lent her name to me as acceptor; six times.
Cross-examined. - I think the bill was drawn in Sept., Henry Child was present; Ellen Speke, myself, and Child, when the body of the bill was written; I think she was present when it was written; I will not be positive; Mrs. Speke has a shilling in the pound for accepting bills for me; I [t]hink the Bill was drawn before she accepted it; I passed the Bill to Mr. Baynton; I owed him about £30, and I had his bill for the difference, which I passed to Mr. Cleburne. (A long examination ensured about a man named Crabtree which did not seem to bear upon the case.)
Mr. Baynton. - I received this bill from Farris about a fortnight after its date; I have another bill of Mrs. Speke's, passed to me by Farris, for £130; I do not consider myself liable for more than the amount on the bill; I have nothing to do with the action; I gave Farris a bill for £24, and he owed me the balance. Mr. Cleburne had the £24 Bill, and I paid it to him. Before I took the £130 Bill, I called upon Mrs. Speke, the acceptor, and the witness to the Bill, and they both told me it was correct; I then let Farris have £70 in goods, and he has since had the full amount within a few pounds.
Thomas Wood, -- I know Mrs. Speke and George Farris. I had a conversation with her about her accommodation bi[l]ls to Farris. I think it was in September last. She offered to accept bills to about £100 to a friend of mine who was about selling Farris goods. She first objected to it; but Farris said he had always paid the Bills she had accepted for him, and pressed her to do it, as he had then £50 in his hands in Bank notes, to take up another Bill of hers then coming due; she did not so much object to accept, as to the amount; but upon his reasoning with her, she consented; Mr. Doddery was also present, but he is gone to Sydney; he it was who was about to the goods to Farris.
Cross-examined. - She hesitated at first, to accept for so large a sum, but at last consented; she would have done it, but we would not take her, upon enquiring as to her property; it was for about £170; she would have gone as far as £100; I knew that she was responsible for a bill of £40, or one of £50; there was no reference to any other bills; I understood from Farris, that she was in the habit of obliging him.
Henry Segrim Townsend. - I know Mrs. Speke; I was alone when I saw her as to George Farris; I called upon her as to Mr. Doddery; it was in Sept. last; Mr. Farris had purchase goods from Mr. Doddery to the amount of £200; I went to Mrs. Speke for some bills, but she said she would have nothing [t]o do with Mr. Wood and Mr. Doddery, who had been there and abused her and called her a convict, or else she would have given her bills for Mr. Farris, for she had always found him very honorable in all his dealings with her; she alluded to having accepted bills for him, and she would have had no objections to have again accepted for him, but for Mr. Doddery's abuse of her. This was the Plaintiff's case.
Mr. Gellibrand addressed the Court for the Defendant; he expressed his astonishment that a Solicitor of this Court should have lent his name to such an action, knowing that Mr. Baynton was in fact the real Plaintiff. The defence is, that Mrs. Speke never did accept the bill in question; and that it is a base and wicked fraud and collusion between Farris and Child, to make the poor woman pay the bill. Mr. Gellibrand commented upon the evidence with great severity, and at considerable length, and concluded with a strong appeal to the Court, to protect the poor old woman from so palpable a conspiracy, as that which he asserted to exist in this case. Mr. Gellibrand called no witnesses.
The Chief Justice summed up with great care and precision. He pointed out the dangerous consequences of persons who are to witness bills, writing the words accepted and the name, not in the presence of the acceptor. On the other hand, His Honor pointed out the great case with which a pretence of forgery may be set up by persons who wish thereby to evade their obligations. His Honor went through the whole of the evidence, and pointed out the tendency and bearing of every part. - Verdict for the Plaintiff.

Notes
[1] AOT SC 139/1, p. 63 gives the parties as Thomas Wood Rowlands and Ellen Speak (not Speke) and damages assessed at £51 5s 9d. See also Colonial Times, 15 January 1830; and see Rowlands v. Johnson, Tasmanian and Austral-Asiatic Review, 14 May 1830.