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

Anonymous (No 2) NSWSupC 45

[promissory note - imprisonment for debt, maintenance - groats - laches]

Supreme Court of New South Wales

Forbes C.J., 19 June 1829

Source: Australian, 19 June 1829

Mr. Chief Justice Forbes presided in the Western Court Room to-day, the other room not being occupied.  The whole day was spent in adjudicating civil issues, principally disputed actions of debt on Bills of Exchange and Promissory Notes.  One case possessed features peculiarly singular.  It was on a Promissory Note, to which there were several indorsers, the last indorser sued the payee, who rested his defence to the action, on the ground that the note had not been presented for payment in due course, and that the drawer had quitted the Colony (after suffering imprisonment for debt in his Majesty's gaol of Sydney, and suing for his groats[1 ]) with the consent and approbation of the plaintiff.  The question followed thence, whether the plaintiff had or had not by the laches so imputed to him, disqualified himself from seeking his remedy at the hands of the plaintiff.  Defendant's Attorney argued in the affirmative, plaintiff in the negative, calling evidence in proof, that the note had been presented for payment when due.

Mr. Chief Justice Forbes felt delicate about deciding on the question just then, recommending the Attornies on both sides to prepare a special case from it for his consideration.

For the plaintiff Mr. Williams; for the defendant Mr. W. H. Moore.

Trial, July 1829

Source: Sydney Gazette, 7 July 1829

 

The following case was decided in the Supreme Court last week, but which we omitted to report.  It may be interesting to the commercial portion of the community.  The maker of a promissory note paid it over to P; P endorsed and paid it over to C, who endorsed and paid it over to H.  The note, on becoming due, was presented for payment by H to the maker, who was subsequently sued and taken in execution for the amount, but afterwards liberated from gaol for non-payment of groats, which had been ordered him by the Court.  H then sued C, as the last endorser; C paid the amount, and, in his turn sued P, who resisted payment on the ground that the maker, having been discharged from the debt, the endorsers were released.  Upon these facts a special case was submitted to the Court, which, upon hearing Counsel on both sides, decided that C was entitled to recover from PH having received the amount from C had no further claim on the maker, and could not have detained him in confinement; but C, having paid the money to H, was certainly entitled to recover from P, who had gave him the note in question for valuable consideration.

Notes

[1 ] See In re Roach, 1829.

Published by the Division of Law, Macquarie University