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Decisions of the Superior Courts of New South Wales, 1788-1899

Clarkson v. Calcott [1814] NSWKR 6; [1814] NSWSupC 6


Court of Civil Jurisdiction
Bent J.A., 7 July 1814
Source: Court of Civil Jurisdiction Proceedings, 1788-1814, State Records N.S.W, 5/1110 (case no. 478)[1]

[387] Thomas Clarkson of Sydney, dealer, plaintiff and Richard Calcott of Sydney, dealer, defendant

Writ for £20.0.0 sterling due on ten promissory notes drawn by defendant payable to the bearer on demand for £2 each.

[388] The defendant appears and pleads non assumpsit and the Statute of Usury.

Henry Holland sworn and examined for the plaintiff, says I live in Cumberland Street. I am subscribing witness to these ten promissory notes now shewn me. Richard Callcott signed them all in my presence. I wrote them and Calcott signed them as maker. Thomas Wright was present. He goes by the name of Tommy the Banker. Calcott gave him the notes.

Cross examined by defendant, says Tommy Wright gave Calcott £20 in current notes for the notes in question. The £20 was given at two different times, and five of these £2 notes were drawn on one day and five on another. The money was lent by Wright to Calcott. When the first £10 was lent Calcott gave him five promissory notes each for £2 sterling, and Calcott was besides to pay Wright one shilling in the pound per week for so long a time as these notes remained in Wright's hand. For the last £10 which Wright lent Calcott, Calcott gave him the other five promissory notes and Wright said as he was a good customer he should only charge him seven shillings a week for so long a time as the notes remained unpaid. Calcott once left ten shillings at my house on account of this agreement which I gave to Wright.

The plaintiff's agent admitting that he had no evidence to rebut this witness' testimony the court dismisses this action.
Costs allowed £6.12.0.


[1] In this case Ellis Bent, the Judge Advocate, applied the English usury statute to refuse the recovery of the principal due on ten promissory notes. The notes were payable to Tommy the Banker, who demanded interest of 5 per cent per week (a shilling in the pound) plus the difference between currency and sterling (up to another 50% of the total). The penalty of loss of principal may have exceeded even the English usury statute's penalty for usury.

         In Macdonald v. Levy, 1833, the Supreme Court of New South Wales declared by majority that the usury statutes of England were not in force in the colony. The local practice of lending at up to 8 per cent per annum interest was held allowable.

           See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W. (Federation Press, 1996) at 172-173.

Published by the Division of Law, Macquarie University