[libel - costs, legal - warrant of attorney - imprisonment for debt, groats - imprisonment for debt - judges, administer law and do not legislate]

Molloy v. Luck

Supreme Court of Van Diemen's Land

Pedder C.J. and Montagu J., 7, 10, 14 April 1835

Source: Tasmanian, 17 April 1835[1]

Tuesday April 7

(Before both Judges in Banco)

After the Bar had been gone through, Mr. G. Stephen, the Clerk of the Court, informed their Honors, that a private individual wished to make an application to the Court, upon which Mr. Luck, the Defendant in the case of Molloy v. Luck, which produced the late libel prosecution at the instance of Mr. Solicitor Rowlands, accompanied by Mr. Campbell, Clerk to Mr. Robertson, of the Colonist, stood forth. The Chief Justice asked him whether he wished to make any application to the Court, and if so, what was its object. Luck replied, that "Mr. Rowlands had charged him too much costs," and producing an affidavit, referred thereto, as containing the grounds of his motion. The man appearing to be not quite equal to the task he had undertaken, the Attorney General and Mr. Young (we believe the former at the suggestion of the Court, the latter of Mr. Rowlands) kindly tendered their assistance, and after a sort of conversational discussion, a motion was framed for a rule to shew cause why the warrant of attorney given in the case should not be given up to be cancelled; and all money received under it refunded. The affidavit was of so exceedingly loose a nature, that the Court was of opinion that the rule could not be granted, but the Solicitor General requested, on the part of Mr. Rowlands, that it might be, in order to give that gentleman an opportunity of answering on oath, the attacks which had been made upon him. It appears that the affidavit of Luck had been prepared by Mr. Robertson, the Attorney General expressed much dissatisfaction thereat. He stated in very plain terms, that although if he was convinced the man came there solely to obtain justice, that he (Mr. Stephen) would assist him to the utmost of his ability; yet on the other hand, if it appeared that he was the mere tool of others, used for the purpose of assailing Mr. Rowlands, he would not only have nothing to do with him, but would adopt other proceedings against the parties, which such an attempt would call for. The Chief Justice and Mr. Justice Montagu made some observations to the same effect, and refused to grant the rule. The Solicitor General then repeated his solicitation on the part of Mr Rowlands, that the Court would grant it, and the Judges acquiesced, solely in order that Mr. Rowlands might answer the affidavit if he thought proper, but making no order upon him to do so.

Friday, April 10.

This day, Mr. Solicitor General McDowall shewed cause in the above case. He produced two affidavits - the one, of the plaintiff, Mr. Molloy; the other, of Mr. Solicitor Rowlands - and he introduced them in a very impressive and energetic speech, in which he pledged himself to shew incontestibly, that the whole of the statements which had been made against Mr. Rowlands were not only most direct falsehoods, but, also, that they had been put forth deliberately, knowing that they were so. Mr. McDowall, after giving a very clear and succinct statement of the entire case, which was fully substantiated by the affidavits he produced, designated the whole charge against Mr. Rowlands as "one of the most deliberate- unblushing, and wilfully base attacks which had ever been offered to the consideration of a Court of Justice." The affidavits denied positively the whole statements made by Mr. Robertson and Mr. Luck, except that the sum of £5, paid by Mr. Molloy to Luck as what is called groats, had been included in the warrant of attorney, Mr. Molloy deposing, "that he insisted upon being repaid it, in consequence of Luck having imposed upon the Chief Justice when he obtained the "groats" by swearing that he possessed no property, when the contrary, as clearly appeared, was the fact." Two technical points, therefore, only remained for consideration; the one, whether it was necessary that a warrant of attorney, given by a defendant in prison upon ca. sa., should be witnessed by an attorney upon his part - the other, whether Mr. Rowlands had not become the absolute purchaser of Luck’s interest, in certain property put up for sale by the Sheriff, under the first writ of execution - the fi. fa.. The first of these was shewn to be clearly not necessary - and the Attorney General very handsomely admitted, that he had, in some degree, aided in misleading the Court upon that point, for knowing that the presence of an attorney for the defendant was necessary in all cases of warrants of attorney given by defendants in custody upon Mesne process, he had also believed, that a rule so evidently founded upon the best and most salutary principles extended to writs of execution. It appeared, however, clearly that the contrary was the case. The Chief Justice, in reference to one of the decisions of Mr. Justice Lawrence, quoted from the books upon the point - stated, that the ground of difference was, that in the case of Mesne process the amount due not being ascertained, it was necessary that the defendant should have some person present to see that his interests were properly protected - while, on the other hand, where the defendant was in custody in execution, there being a final judgment, no difficulty could exist as to the amount of the debt. The Attorney General observed, that with every respect for the high authority of Judge Lawrence, he could not understand that doctrine. Every reason for having an attorney present in the case of Mesne process, operated with encreased force in the case of execution. He adduced numerous instances of fraud, which might be practised upon a defendant in execution in giving a fresh warrant of attorney; but, he added, that it was occupying the time of the Court quite unnecessarily in commenting upon what was established law - there was no doubt upon that head, and he had no more to say about it. Nothing then remained but the aliment money and the not giving credit for the thirty shillings, at which Mr. Rowlands had put up the interest of the defendant of some property when offered for sale by the Sheriff. The Chief Justice enquired whether Mr. Rowlands could not now go with his thirty shillings in his hand and insist upon a conveyance of the property. The Solicitor General drew His Honor's attention to that portion of Mr Rowlands’ affidavit, in which it was sworn, that Mr. Rowlands having caused the property to be put up for sale at the solicitation of the defendant Luck himself, who had stated, that there was a person named Page, desirous of purchasing it, he (Mr. Rowlands) had bid the thirty shillings, in order to see if any purchasers would offer - and that he had afterwards stated expressly to Luck, that he had bit that sum for that purpose alone; and that as he should no farther interfere he (Luck) might do as he pleased with the property. The Attorney General observed, that Mr. Rowlands then was only "puffer" upon this occasion. It will be convenient here to state, (for it is impossible to give an inteligible report without going out of the strict order of occurrence, the whole proceeding being extremely desultory) that the Attorney General himself afterwards produced an agreement between Luck and some other person, in which Luck and his wife had actually sold the very interest in the property which he complained of Mr. Rowlands having purchased! The Attorney General in producing this, stated he felt it due to Mr. Rowlands’ character to do so. Thus there was, therefore, of course, an end of that charge, independent of the fact upon which the Chief Justice commented strongly, that even Luck himself had sworn, that the purchase was a purchase of nothing, for that he had no interest to dispose of in the property. The Attorney General expressed himself in the strongest terms in respect to the manner in which Mr. Rowlands had been assailed, "there not being the shadow of just imputation against him," with which both the Judges concurred. The matter there dropped, their Honors deferring their decision as to the taking re-payment by Mr. Molloy of the five pounds he had advanced to Luck by order of the Court the only point upon which the slightest question remained.

***

The Solicitor General solicited the judgment of the Court upon the application made by Mr. Luck in this case.

The Chief Justice. - "I am of opinion that this Rule must be discharged. It appears to me, that Mr Rowlands has acted throughout with the most perfect honesty and integrity. I think, however, that although Mr. Rowlands considered it his duty to his client to include in the warrant of attorney the sum of £5, or thereabouts, which had been paid to the defendant by order of this Court, believing, as Mr. Rowlands did, that the Court had been imposed upon by false statements, yet, perhaps, it would have been better if it had been omitted. As respects the thirty shillings bid by Mr. Rowlands at the Sheriffs sale for some property of the defendant’s, it is quite clear that Mr. Rowlands cannot be charged with it. It is perfectly obvious he put the property up at that sum entirely to serve the defendant, by obtaining a purchaser, if one could be found. Perhaps there might be a reference to the Master to ascertain what sum had been paid by the defendant - and after omitting the £5, to let the judgment stand for the remainder."

Mr. Gellibrand, although not in the case, suggested, that the Court could do that at once, without reference to the Master, with which suggestion the Chief Justice acquiesced, as, also, did Mr. Attorney General Stephen on the part of Luck.

The Solicitor General. - "I hold in my hand an affidavit sworn before the Court by Luck himself. It unfolds a most strange detail, which it would be very desirable for the Court to be possessed of; but, I apprehend, that in this stage of the proceedings, I cannot read it."

Mr. Attorney General. - "I object certainly."

Mr. Justice Montagu then delivered his opinion at considerable length, and with great clearness and precision - he stated his entire acquiescence in all which had fallen from the learned Chief Justice. "This Rule," said His Honor, "has been obtained by the Attorney General upon a mere point of law, which very point has been since abandoned by the Attorney General. The attack made upon the character of an officer of this Court in this application, has been extremely unjustifiable. The defendant considering that he had cause of complaint in respect to the heavy costs to which he had been put, and being an ignorant man, instead of blaming the law, blames the minister of it. His imputations against Mr. Rowlands have been most unjust, for his conduct has been, throughout, extremely kind and indulgent: although he was not called upon to do so, yet he has set forth his whole bill of costs, to not one item of which has the Attorney General considered it proper to object. There is, therefore, no ground of imputation upon him upon that head. I think it right to state, that however heavy may be the expense of proceedings in this Court, the Judges are not to blame. This office is not to legislate, but to administer the law as they find it; so, also, as respects the witnessing the warrant of attorney - it is regularly executed according to the established practice. In respect to the observations so properly made, therefore, by the Attorney General, I do not consider that we are called upon to say one word: we are to administer the law - not to legislate. But there is one point, upon which I consider Mr. Rowlands to be very seriously reprehensible. Finding, as he did, that the order for aliment had been obtained by fraud and perjury, thereby imposing upon the good feeling of the Chief Justice, I consider Mr. Rowlands to have acted very improperly, in lending himself to compromise those offences instead of proceeding at once to the Police office, and instituting criminal proceedings for such flagrant offences; but I trust that the Attorney General will feel it this bounden duty to do so. I am sorry that Mr. Rowlands assisted in compounding this fraud and perjury, for which, I consider him extremely reprehensible; and that, therefore, costs should not be allowed in discharging the rule. In respect to the thirty shillings, there can be no doubt that Mr. Rowlands never intended to be the purchaser, and that he told the man so at the time. Indeed, it appeared at the sale, that there was nothing to purchase; and Mr. Rowlands was induced to bid solely to ascertain if a purchaser would offer, and Luck, therefore, instead of blaming, should have thanked him. It appears quite clear to me, that Luck has made the present application under the influence of some malicious person; he seems to be a very ignorant man - and I am convinced that the malicious falsehoods which he has put forth against Mr. Rowlands are not of his own invention, but must have originated in some person for the gratification of private malice- for Mr. Rowlands, all the way through, instead of oppressing Luck, has shewn great kindness to him; I, therefore, entirely agree with the Chief Justice, that the £5 included in the warrant of attorney should be deducted, and that it should stand for the remainder - and that the rule be discharged, but without costs."

The Attorney General. - "If my humble opinion is of any weight, I think it proper to state, that Mr. Rowlands has come out of this investigation without the shadow of imputation upon him of any kind."

Adjourned to Tuesday.

Notes

[1] See also Colonial Times, 14 April 1835; and see Luck v. Rowlands, 1835.