[civil procedure - warrant of attorney - fieri facias, land - imprisonment for debt, groats - trusts - land, enforcement of judgment debt against - contempt, abuse of process]

Luck v. Rowlands

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., in Banco, 7 April 1835

Source: True Colonist, 10 April 1835[1]

After the Gentlemen of the Bar had been severally called upon by the Court, to make any motion which they might think proper, the Clerk of the Court stated that there was an Affidavit before the Court, upon which a private individual wished to make a motion; and after a great deal of very absurd hesitation, Richard Luck came forward, and was asked by the Chief Justice, if he had a motion to make to the Court - he replied yes; but could not be made to understand what a motion was. At length the Chief Justice remarked, that he had better get one of the Gentlemen of the Profession to make his motion for him, when Mr. Young said he would do it. As, however, he appeared to have some difficulty, as to what was the intention of Luck, he was reading the affidavit, when the Attorney General rose from his seat, and after perusing the affidavit, told their Honors that it contained nothing impertinent, and upon it two motions might be made. - One that Thomas Wood Rowlands, an Attorney of that Court, be ordered to answer to certain matters in that affidavit contained; and another for a rule to shew cause by a certain Warrant of Attorney should not be cancelled; and all monies under it be refunded. "If," continued the Attorney General, "the man wishes it, I will make those motions for him pro forma, in order that his case may be brought before the Court; but, I beg distinctly to state, that I do so only for the ends of justice, and to prevent his saying that Justice had been denied when sought for before this Court." Luck here thanked the Attorney General, who then proceeded to read the following affidavit:

Island of V. D. Land,

To wit

In the Supreme Court

Richard Luck against T. W. Rowlands

Richard Luck, of Clarence Plains, in the Island aforesaid, blacksmith, maketh oath and saith, that in the month of April, in the year one thousand eight hundred and thirty-two, this deponent was indebted to one Joseph Molloy, in the sum of twenty-six pounds five shillings, by note of hand. Rowlands, on behalf of Molloy, commenced an action in the Supreme Court, in which action the deponent suffered judgment to go by default, and on the second day of May, in the same year, this deponent offered the said Thomas Wood Rowlands, in satisfaction of this judgment, the sum of nineteen pounds sterling, in Bank notes of the Van Diemen’s Land Bank, and two promissory notes - one drawn by John Peevor of Richmond, for twelve pounds sterling, and another by Henry Thomas of Richmond, Surgeon, for the sum of ten pounds sterling, both payable for this deponent or order, making in all forty-one pounds sterling, which he, the said Thomas Wood Rowlands refused to take, and in a short time afterwards issues a Writ of Fieri Facias, under which Writ the Sheriff did seize sundry goods and chattels, the property of this deponent, to the value of seventy-five pounds sterling, which goods and chattels the Sheriff did, thereafter sell for the sum of nineteen pounds nineteen shillings, besides the Sheriff’s expenses, which sum this deponent is informed, and believes, was by the Sheriff paid to the said Thomas Wood Rowlands, on account of the said Writ, and afterwards - that is to say, in the month of July or August following, the said Thomas Wood Rowlands did issue another Writ of Frieri Facias, at which time this deponent had no property, real or personal, but he had in his possession, on the fourth of May, one thousand eight hundred and thirty-two, a Grant Deed for eighty acres of land, the property of John Huxley, then a Minor, whose mother is this deponent’s wife, and on that day, one Charles Young, who was then Under Sheriff, did question this deponent concerning the Deed of Grant aforesaid, and upon this deponent informing the said Charles Young, that the Deed of Grant was in the possession of this deponent, he, the said Charles Young, did then and there demand the said Deed of Grant, and on this deponent refusing to give it up, he, the said Charles Young, did then and there say, that if deponent did not give up the Grant, he, the said Charles Young, would give deponent into the custody of the Sheriff’s Officers; and this deponent saith, that for fear of being so given into custody, he did then and there promise to deliver the said Deed of Grant, at the Sheriff’s Office, in Hobart Town, which he did on the day next following. And this deponent further saith, that when he was first questioned by the said Charles Young, concerning the said Grant Deed, he, the deponent did inform the said Charles Young, that the said Grant was the sole property of John Huxley aforesaid, a miner as heir at law to his father, John Huxley, deceased; and that neither he, this deponent, nor his wife, nor any other person, had any right, title to, or interest in, the said Deed of Grant, or the lands thereby conveyed, excepting as custodiers of the Deed, for and on behalf of the said John Huxley, a minor. And this deponent further saith, that Dudley Fereday, Esq., Sheriff of Van Diemen’s Land, did afterwards put up for sale, by public auction under the direction of the said Thomas Wood Rowlands, as this deponent is informed and believes, did sell the right, title, and interest of the deponent in the land aforesaid, which the said Thomas Wood Rowlands did then and there purchase, as this deponent is informed and believes, for the sum of thirty shillings. And this deponent further saith, that in the month of November next following, the said Thomas Wood Rowlands did, in the action aforesaid, issue a Writ of Capias and satisfaciendum from the Supreme Court aforesaid, on which writ this deponent was apprehended on the twenty-eighth day of November, and imprisoned in the gaol at Hobart Town. That afterwards, on application to the Court, His Honor the Chief Justice ordered the plaintiff, Joseph Molloy aforesaid, to pay to this deponent a weekly aliment of seven shillings,[2] which was paid for about fourteen weeks, on each Monday; that after the expiration of fourteen weeks, or thereabout, the plaintiff neglected to pay the aliment on the Monday, and when he sent it on the Tuesday, the deponent refused to attend to receive it, being informed that he was entitled to his discharge in consequence of the plaintiff having made default of paying him on the Monday. That afterwards, Thomas Wood Rowlands aforesaid, did go before His Honor the Chief Justice, and offered to make oath, that deponent was so drunk when his aliment was brought to the gaol, that he was not able to come out of his room to receive it, whereupon His Honor ordered the aliment to be discontinued; and this deponent further saith, that on the second day of August, one thousand eight hundred and thirty-three, the said Thomas Wood Rowlands, did come to this deponent, and require from him to grant a Warrant of Attorney, in favour of Joseph Molloy, for the sum of fifty-six pounds twelve shillings and eight-pence, or six-pence; deponent is not sure which. And this deponent further saith, that there was no Attorney, or any other person present on behalf of this deponent, and that it was not witnessed by any person in presence of the deponent; and the deponent further saith, that on the said Thomas Wood Rowlands reading a part of the said Warrant of Attorney to this deponent, and informing him, that in the amount of the Warrant of Attorney was included the sum of five pounds, which the said Joseph Molloy had paid the deponent for aliment in prison, and two pounds for the attendance of the said Thomas Wood Rowlands and his Clerk before the Chief Justice, to oppose the deponents application for aliment, this deponent asked him what had become of the money to which this deponent’s property was sold when the said Thomas Wood Rowland answered, "you have no claim upon that it is all gone for expenses; and if you do choose to sign this, you may remain where you are." And this deponent further saith, that he did not hear the whole contents of the Warrant of Attorney read, but he did sign the same, knowing and believing it to be an extortion; and that he did so sign it for the purpose of obtaining his liberty. And this deponent further saith, that besides the original debt of twenty-six pounds five shillings, the said Thomas Wood Rowlands hath thus charged deponent in all, the sum of fifty pounds, six shillings and eight-pence, besides the proceeds of the illegal sale of Huxley’s Land, for expenses in the action aforesaid, where judgment was suffered to go by default.

The above affidavit having been read, the Attorney-General remarked that if tis contents were true, there could be no doubt that the Attorney had acted very improperly, both in going in to the Gaol, and getting a warrant of attorney from a man confined there as a condition of getting his liberty without witnesses, and also in including the sum of five pounds paid by the plaintiff for aliment by order of the Court, a thing never done except under very peculiar circumstances. The Solicitor-General, on behalf of Mr. Rowlands, said, that a very satisfactory explanation could be given. The Attorney-General remarked that he should watch this case very narrowly, as he suspected that under the plea of applying for justice, the man Luck, had been instigated by some other person to bring this case forward for other purposes. - Here Luck was asked who drew the affidavit, and replied, Mr. Robertson. - "Just so," said the Solicitor-General, emphatically. "As I expected." Said Mr. Stephen, and sat down something moved. Here His Honor, the Chief Justice Pedder remarked that the origin of this motion was quite apparent, "for," said he, "I see a Gentleman in Court advising Luck, who assisted Mr. Robertson on his trials," "Mind, Sir," said the Attorney-General, rising and turning to Luck, "if I find you have attempted to make this Court a means of disseminating private slander, your case will terminate in a way you little suspect." - "In Gaol," vociferated Judge Montagu. "As far as I am concerned, I hope the Attorney-General will bring all the parties connected before the Court for such high contempt." "I hope," said the Solicitor-General, "that your Honors, should you think proper to make any order upon that affidavit, will order that no publication of the proceedings of this day takes place until after Mr. Rowlands shall have had an opportunity of answering in the case." To this very luminous and liberal remark, no reply was vouch-safed; but a smile of ineffable scorn passed through the whole auditory - "It is evident that it is only intended to annoy me, "whimpered Rowlands. "I should hope," said the Judge, "that Mr. Rowlands will not be annoyed by any remarks on this case." This remark it is impossible to see the drift of. Whether His Honor hoped that the Reporters would not annoy Mr. Rowlands, by making any remarks, or that Mr. Rowlands would not be annoyed by any remarks which the Reporters might make, is beautifully uncertain, and therefore we take it in the latter sense, as we can not suppose His Honor would attempt to give any thing like countenance to Mr. McDowall’s wished for interdict. - After a little consideration, the Attorney General said, that if Luck’s case was a bona fide one, he would, for the ends of justice, carry it through, and go to the uttermost to obtain redress for him. The Court said the affidavit was too general, they could not make any order upon it. Mr. Rowlands hoped that their Honors would, as he was anxious that the case should be heard. The Court declined - but observed, that it was still open for Mr. Rowlands to answer to the avidavit if he thought proper.

Notes

[1] See also Molloy v. Luck, 1835.

[2] In England, this allowance paid by the creditor of an imprisoned debtor was traditionally called groats. If the imprisoning creditor failed to pay it, the debtor was released from gaol.