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

Ward v. Nobbs [1828] NSWSupC 46

Supreme Court of New South Wales

Dowling J., 23 June 1828

Source: Australian, 25 June 1828

This was a trial which excited more than ordinary interest - the parties, plaintiff and defendant being respectively well known, and the case singular in its character.[1 ]  The action was brought in the way of an action of assumpsit, to recover a sum of £650, on a promissory note, at three years date; to which the defence set up was, that the note in question was absolutely a forgery.  The trial of it lasted from ten o'clock in the forenoon till six in the evening, during which a mass of evidence was raised.  Counsel for the plaintiff opened his case, by stating that in the latter part of the year 1825, the plaintiff took a note of hand from the defendant, for a sum of £650. payable at three years after date.  In the month of February last, shortly before leaving the Colony, plaintiff put the said note in the hands of one Abraham Hearne, a resident in Sydney, who discounted £300 upon it, with an understanding that the remaining balance of value on the note, when it fell due, should be paid over to Ward, jun. the plaintiff's son.  In furtherance of which a warrant of attorney was executed, empowering Hearne to receive the full amount of the note in question, the note for £650, from defendant.  this note ran in the words and to the effect following:

£650 stg. Sydney, April 19, 1825.

Three years after date, I promise to pay Joseph Ward, or order, the sum of six hundred and fifty pounds sterling, for value received by me, JOSEPH NOBBS.

Payable at my house, 52, Pitt-street, Sydney.

The principal evidence in support of the plaintiff's case was

JAMES HOBBS, who, being sworn, deposed as follows: -- I am assigned government servant to Mr. Abraham Hearne.  I remember in the month of April, 1825, drawing out a promissory note in a house in Castlereagh-street.  After the note was drawn out, I accompanied plaintiff to the house of defendant, in Pitt street.  Plaintiff at the same time took with him from five to six hundred dollars, in a handkerchief, and also a quantity of dollar-notes on the Old Bank, and, I believe, a few cheques.  On arriving at defendant's place of residence, plaintiff handed the money to him, and produced the note, which he immediately signed.  I would know the note again if I should see it.  A manuscript was here put into the witness's hands, which, upon viewing, the witness went on to say -- this note, I will positively swear, is the same as was produced on the occasion just adverted to.  The body of the note is in my hand-writing.  I swear that I saw the defendant sign it, and that I further saw the money, £650, counted out to the defendant on that occasion.  This witness underwent a long and a severe cross-examination by the defendant's Counsel.  Witness swore that he saw the entire transaction; but he would not swear that so large a sum of money, as that stated in the note, had been advanced without mention once being made as to the terms of interest upon which it should be lent.  At the period when Abraham Hearne deposed to have advanced a sum of £350 on the note, the latter, the witness believed, to be rather embarrassed in circumstances.

A variety of evidence was gone into, principally with a view to prove the defendant's hand-writing, and that the latter was presented with the bill in question at the time proper for such purpose.  That he then appeared confused -- said it was a forgery, and took pains to enquire of persons as to the recognition of his signature; but had, not withstanding, suffered the present proceeding to be brought against him, without having on the other hand instituted criminal proceedings for forgery.

On the part of the defence witnesses were called, who deposed to the easy circumstances in which the defendant had lived for a number of years past.  That so far from being a borrower of money, he could not possibly, to their certain knowledge, have have [sic] had any occasion for a loan; but, on the other hand, was generally known to be in the habit of lending money on interest; and who gave it as their belief, that the signature Joseph Nobbs, which purported to be the plaintiff's signature, was a forgery.

Mr. JUSTICE DOWLING recapitulated the evidence to the Assessors, with considerable precision, leaving it with them to say to which set of witnesses they felt disposed to attach the greater credit.  It was a most important issue to try, as affected the parties in question, and ought therefore to claim their most patient investigation.  If the first witness that had been examined (Hobbs) was to be believed, then there could be no doubt but that the paper-writing in question was a genuine instrument, and a verdict must follow in favour of the plaintiff.  On the other hand, there was equally positive testimony, that this was not the hand-writing of the defendant, and evidence hed [sic] beeng [sic] one into, to prove by circumstances that no transaction as the one that had been contended for had taken place.  The whole case turned upon the credit the Assessors would attach to the witnesses.

The Assessors, preceded by the learned Judge, then left the Court for the anti-room, where they remained for thirty minutes in consultation.  Upon coming into Court, the Judge pronounced the following decision: -- "The Assessors find a verdict for the defendant, and I have ordered this note (meaning the note in question) to be impounded."

The Court then adjourned.

Notes

[1 ] See also Sydney Gazette, 25 June 1828, showing that Dr Wardell and W.C. Wentworth acted for the plaintiff, and Norton for the defendant.

Published by the Division of Law, Macquarie University