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

Berry v Lord [1825] NSWSupC 45

action on Bill of Exchange - laches - new trial - fresh evidence

Supreme Court of New South Wales

Forbes C.J., 27 and 29 January, 3 October 1825

Source: Australian, 3 February 1825


The Court was occupied the whole of Thursday and Saturday with this case, which was an action to recover on a Bill of Exchange for one thousand pounds, drawn by Mr. Lord[1] so long since as January, 1809, on his agents in London, Messrs. Plummer and Co. It appeared in evidence that the bill had been refused acceptance by Messrs. Plummer and Co. when presented to them in 1811, and had afterwards been protested for non payment, though not for non acceptance, which ought to have been done in the case of a foreign bill of exchange. Notice of non payment was for the first time given to the defendant in 1815. It was also proved that the defendant had been applied to for payment some time in the year 1818 or 1819, and he had than said that he "knew he was liable," or words to that effect. On the part of the defendant it was contended that the neglect to give due notice within reasonable time of the dishonor of the bill, to the defendant, who had funds, or had a right to expect that he had funds in the hands of Messrs. Plummer and Co. precluded the plaintiff from recovering. It was also contended that the want of a protest for non acceptance was fatal to the suit: and that even if the above words of the defendant constituted a sufficient admission, so as to be considered a waiver of the laches of the plaintiff, still the averment in the declaration that such a protest had been made ought to be proved, and if not proved on this ground, the defendant was entitled to a verdict. The Chief Justice gave it as his opinion that the plaintiff had, under all circumstances, a right to recover, and a verdict was accordingly found for the plaintiff - Damages, £1000, but without interest or costs.



Source: Australian, 6 October 1825

Berry v. Lord.


Chief Justice - In this case a rule was granted last sittings to shew cause why a new trial should not be had on the affidavit of defendant in this case, on the grounds of a discovery of fresh evidence since trial. Having heard the arguments of Counsel in support thereof, I have since looked into the rules of practice in such cases, and it is undoubtedly clear that a new trial may be moved for on the discovery of fresh evidence. There is no question but that this Court has the power to grant a new trial, but of course the Court must be satisfied on what grounds it is granted. Where a satisfactory affidavit is made out and laid before the Court, stating that since the trial defendant has discovered new evidence, which was wholly unknown to him at the time of trial, and which he believes, if produced at the time of trial, would have been attended with a reverse result; then it is for the Court to look into the nature of the evidence, and weighing those allegations determine whether there was a possibility when the case should come on again, in fairness and justice, that the verdict would be disturbed by such fresh evidence. On looking into all the cases in point for granting new trials I find that the affidavit should be very particularly framed. The reason of this is very obvious - for then it is with the Court to draw its conclusion, whether if it had been adduced on trial it would have been an important point at the time. Under the full view then which I have taken of this case, and looking into all the facts before the Court, I am of opinion the rule must be discharged.



[1] Simeon Lord was an emancipated convict, a magistrate, and a leading merchant in the early years of the colony. He suffered in the recession which began soon after the arrival of Governor Macquarie at the end of 1809; this was one of many actions taken against Lord. See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 16-17 and see chap. 8.

Published by the Division of Law, Macquarie University