Abbott v Rowlands, 1843

[civil procedure – judgments, enforcement of – debt collection – Montagu J., attitude to press]

The professional gentlemen having exhausted their motions, Mr. Edward Abbott requested permission to make a motion, which being granted, he moved for a rule to show cause why Thomas Wood Rowlands, Esq., a solicitor of the Court, should not deliver up a certain promissory note, signed by Geoffrey Eager, for the payment of £154 8s., or pay the same; or, in default, why an attachment should not issue against him for improper conduct in the matter.

Mr. Abbott read an affidavit, embracing the facts upon which his motion was grounded, and from which it appeared that, some time ago, Mr. Abbott had placed in the hands of Mr. Rowlands, whom he then professionally engaged, the promissory note in question, which he had received in payment for a printing press &c. from Mr. Eager. Being desirous to sue Mr. Eager upon the note, he had applied to Mr. Rowlands frequently, as well as to Mr. Midwood, his managing clerk, but could get neither the note nor its value, although he had offered a guarantee for the amount. Mr. Abbott stated that it was with great unwillingness he came to that Court; he had offered to refer the matter to any two gentlemen, professional or otherwise, and he could not, be submitted, have acted fairer.

Mr. Abbott replied there were not; he had paid Mr. Rowlands £200 within two years for law expenses.

Their Honors granted the rule, so far as the non-delivery of the bill was concerned, but refused it as to the attachment.

The Solicitor-General, who appeared for Mr. Macdowell, who was absent from indisposition, appeared to reply to an order, obtained on that day week, by Mr. E. Abbott, calling upon Mr. T. W. Rowlands to shew cause why he did not give up a certain Bill of Exchange, or Promissory Notes, to Mr. Abbott.

The learned counsel read an affidavit of Mr. Rowlands, stating, in effect, that Mr. Abbott, intending to hold Eagar to bail, for the promissory note, had instructed the deponent to proceed against Eagar; the draft of an affidavit was accordingly prepared, but never engrossed, because Eagar had threatened to declare himself insolvent, if Mr. Abbott proceeded against him.

It was afterwards arranged that Mr. Abbott should receive 50l from Captain Moriarty, and Eagar having an action pending against one Budds, at Launceston, the promissory note was to be paid, if the action was successful, if not, Mr. Abbott might sell two allotments at Launceston, for payment of the bill.

Mr. Abbott had possession of these allotments, so that Eagar was released from the bill.

Deponent also had a letter from Mr. Abbott, stating that he had arranged with Captain Moriarty, and had received from him a bill for 50l, with permission to sell the allotments. Mr. Abbott had also a claim upon Budd’s estate, he, Budds, having become insolvent. The deponent stated that Mr. Abbott had taken away the bill, and that his memory was refreshed upon this point, by certain instructions, which we found in his office; he had never seen the bill. When Mr. Abbott applied to deponent for the bill, he, deponent, said he had given it to him. Mr. Abbott then said he would look through his papers, and deponent promised to look through his; and he, deponent, verily believed that the bill was with Mr. Abbott, who had mislaid it. The affidavit here went on to state, that Mr. Abbott had improperly obtained the draft of the affidavit referred to; that he had never paid for it and had taken it out of a box in Mr. Rowland’s office. The note of Eagar was of no value to Mr. Abbott, who had employed the deponent to sue Budds. The reason why deponent declined the reference, which Mr. Abbott had offered, was, because Mr. Abbott had told persons, he meant to move the Court; and had endeavoured to persuade them the deponent had behaved improperly. The affidavit concluded by averring that Mr. Abbott was not precluded from selling the allotments. The action against Budds had not gone on, because he had left the Colony.

An affidavit from Captain Moriarty was then read, verifying the transaction relative to the 50l, &c., and another from Mr. Midwood, which stated that deponent had not seen the promissory note, since May, 1840; and that the draft affidavit was taken out of a box, without the knowledge or consent of Mr. Rowlands.

The Solicitor-General concluded by saying that distinct answers had been given to the affidavit of Mr. Abbott, who had no farther claim, relative to the bill. Mr. Rowlands had disclosed all the circumstances connected with the case, to show this, as well as to prove that there had been no improper conduct upon his part. Suppose the bill had been lost by Mr. Rowlands, it was nothing but what might occur; but to bring a party up in that manner, because he was an officer of that Court, and amenable to it, was, to say the least of it, rather ungracious.

Mr. Abbott, who had previously stated that the allotments could not be sold, pending the loss of the bill, would, in the first place, refer to the taking of the affidavit; this was not away in a box of papers, to which he, Mr. Abbott, had constant access, and for which access be paid Mr. Rowlands 100l, a year. Neither the affidavits of Mr. Rowlands, nor of Mr. Midwood, were complete.

Mr. Abbott. - They contain no dates. Has Mr Rowlands no memorandum by which he can fix the date of the occurrences? Have I not been writing to him, and constantly calling at his office? I state positively, and distinctly, that he never returned the note.

Mr. Abbott. - As a man of business Mr Rowlands ought to shew the dates; and Mr. Midwood states “to the best of his recollection and belief.” - Surely something more specific than his might be shown. He, Mr. Abbott, held an affidavit of Mr. Charles Abbott, who was a witness to facts stated in his, Mr. Abbott’s affidavit, which, if the Court would permit him, he would read.

The Chief Justice observed that the affidavit not being filed, could not be read; it contained new matter.

Mr. E. Abbott. - It merely went to corroborate his statements; and had been sworn before an officer of that Court.

The Chief Justice said, the Court could not hear it; it might contain something which the opposite party might wish to reply to.

Mr. Justice Montagu. -Neither the one nor the other; as the party who makes it cannot be punished for perjury, in the event of his having sworn falsely; as the character of a professional man was in question, His Honor had no objection to adjourn the hearing, if Mr. Abbott would risk the costs.

Mr. Abbott had, at the conclusion of his affidavit, alluded to the loss of another bill, to show, that Mr. Rowlands, having acknowledged that he had lost one bill, might, be humbly contended, have lost the other, as sworn to in Mr. Abbott’s affidavit.

The Chief Justice. - If an Attorney commits negligence in a case, the party complaining had an action against him.

Mr. Abbott here referred to a case in a neighbouring Colony, where a rule was made absolute, calling on an Attorney to restore two bills of exchange. Mr. Abbott said, he had a report of the case.

Mr. Justice Montagu. - In a newspaper! He never saw, in this Colony, any report in a newspaper that was worth one farthing; not only were the reports very incorrect, but they were intended to convey to the public a very erroneous impression!!!!

Mr. Abbott trusted that as his affidavit was clear and succinct, that their Honors would make the rule absolute.

The Chief Justice was of opinion that the rule should be discharged, and discharged with costs; the substance of the case lay in a nutshell; namely - that Mr. Rowlands may have lost the bill. Mr. Rowlands has sworn he delivered it over to Mr. Abbott; the misconduct imputed to him he had positively denied.

Mr. Justice Montagu concurred with the Chief Justice in discharging the rule with costs, but delivered his opinion at some length, conveying a strong censure upon Mr. Abbott for bringing the matter before the Court (!) and acquitting Mr. Rowlands of any improper conduct, in terms of the most unqualified complimentary style. We refrain, however from attempting any “report” of his Honor’s “speech”, for fear we should not be “quite correct,” and, not “intending” to convey to the publican “erroneous impression” of our Puisne Judge’s forensic eloquence!

On Tuesday, the first day of term, the plaintiff applied for a rule to show cause why a certain promissory note for £150, then in the possession of the defendant, should not be delivered over to him as the person in whose favour the document had been drawn out, by a Mr. Egan. Mr. Abbott had filed an affidavit, setting forth that the bill in question was illegally detained by the defendant; that personal application had been made to him, as also to Mr. Midwood, the chief clerk in his office, but without the return of any satisfactory answer.

The Solicitor-General, who appeared on behalf of the defendant, produced an affidavit from his client, stating that he had received instructions from the plaintiff to sue Mr. Egan for the amount of the note, but that as he had long since left the colony, the matter had remained over. Mr. Rowland’s conviction was, that Mr. Abbott had received back the document and must have mislaid it. He could not but complain of the course pursued by his opponent in stating to several persons that he had been guilty of unprofessional conduct in withholding the bill, which must be seen to have lost all value.

An affidavit, signed by Mr. Midwood, was also put in; its purport was, that, to the best of his recollection, he had not seen the bill since May, 1840.

Mr. Abbott, who appeared in person, contended that the document had not lost any of its value from the absence of Mr. Egan. In support of his opinion, he quoted from a report contained in one of the Port Phillip papers, in which it is said that the judge had granted a writ of attachment to a Mr. Meek, as attorney to Mr. Chisholm, against a person who had gone to one of the neighbouring colonies.

The Chief Justice. - The present application must certainly be dismissed: the whole affairs lies in a nutshell. Mr. Rowlands cannot be compelled to return a bill which he has sworn, by an affidavit filed in this Court, to have returned.

Mr. Justice Montagu. - The application cannot but be refused. It appears to me that the defendant has been unfairly treated, in being dragged before a Court of Enquiry and threatened with criminal proceedings, without having an opportunity of defending himself. What are the facts of the case? The plaintiff gives written instructions to Mr. Rowlands to sue on a certain bill a person absent from the colony; the bill is returned to the plaintiff, who, most likely, afterwards mislays it. He then turns round and accuses an officer of this Court of unprofessional conduct. It is a serious thing for any man to be charged with wilful and corrupt perjury. The plaintiff has affirmed that the bill was of value, but with that point we have nothing to do. He has thought proper to bring forward the report of a Port Phillip paper on a proceeding which took place in that colony; but what are newspaper reports? Are they ever correct? I never saw anything reported correctly by the press of this colony. [At other times His Honor blandly proclaims to the public that to read productions from the colonial press would be a derogation from his dignity.] Mr. Abbott states, that in the course of a conversation with Mr. Midwood, the latter owned that the defendant must be in possession of the bill; but here again Mr. Midwood declares that he has not seen it since May, 1840. The plaintiff has evidently been actuated by feelings of anger and revenge towards Mr. Rowlands. Why did he not bring an action of trover at the next Civil Sittings? I suppose he anticipated, that by dragging a man before his Court he would attain an object of spleen. He may have thought to himself - there will be Mr. Justice Montagu on the Bench - he will order the restitution of the bill, and then must follow the ceremony of striking off the Rolls? But no - Mr. Justice Montagu’s opinion is quite different. Anxious though he be to preserve the integrity of the bar uncontaminated, he will not allow himself to be led away by the splenetic inclinations of one individual towards another. No blame whatever can attach itself to the conduct of Mr. Rowlands, whilst the position in which the plaintiff has placed himself is far from an enviable one. I have spoken more freely than I should otherwise have done, under a hope that the present may prove an example to all persons making application to this Court on frivolous charges.

[1] Abbott was a public servant and farmer, S. and B. Bennett, Biographical Register of the Tasmanian Parliament 1851-1960 (Canberra, 1980), p. 1 and Rowlands was ‘a low peddling attorney, most discreditably known’ for ‘the vices of his craft’, L. Robson, A History of Tasmania (Melbourne, 1983), vol. 1, p. 372.

[2] See also Murray’s Review, 24 February 1843.