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

Underwood v. Wheeler (1829) NSW Sel Cas (Dowling) 361; [1829] NSWSupC 64

promissory note - currency - Spanish dollars - custom of merchants - statutory interpretation

 

Supreme Court of New South Wales

Hearing, 1829[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[pp 252-253] [By the custom of Sydney notice of a dishonored bill may be given to the indorser on the same day of the dishonor.  The local ordinance preventing the issues of notes payable in dollars is retrospective as well as prospective].

[p. 252]Underwood v Wheeler

Assumpsit by the indorsed against the maker of a promissory note dated 12th March 1824 payable three months after date for 168 Spanish Dollars 39 cts. or £42.1.9. Currency.  At the trial before Forbes CJ it appeared that the note when due was presented at the house where the Defendant had made it payable, and it was found that the Defendant was gone from thence and the house shut up. [p. 253] On the same day notice was given to the indorser of the dishonor.  A witness proved that it was the custom of Sydney to give notice to the Indorser of bills and notes of the dishonor on the day of the dishonor.  It was contended first, that the notice of dishonor in this case was too soon, for that the maker of the note had the whole day to pay it when presented; and second that the note being for the payment of Spanish Dollars was void it being overdue 3 months before the passing of the local ordinance in Sir Thomas Brisbane's Government 28th Sept 1824.  The learned Judge thought both objections untenable and ruled that the local ordinance was retrospective.

The Plaintiff had a verdict.

Supreme Court of New South Wales Hearing, 1829[1] Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462 [pp 252-253] [By the custom of Sydney notice of a dishonored bill may be given to the indorser on the same day of the dishonor. The local ordinance preventing the issues of notes payable in dollars is retrospective as well as prospective]. [p. 252]Underwood v Wheeler Assumpsit by the indorsed against the maker of a promissory note dated 12th March 1824 payable three months after date for 168 Spanish Dollars 39 cts. or £42.1.9. Currency. At the trial before Forbes CJ it appeared that the note when due was presented at the house where the Defendant had made it payable, and it was found that the Defendant was gone from thence and the house shut up. [p. 253] On the same day notice was given to the indorser of the dishonor. A witness proved that it was the custom of Sydney to give notice to the Indorser of bills and notes of the dishonor on the day of the dishonor. It was contended first, that the notice of dishonor in this case was too soon, for that the maker of the note had the whole day to pay it when presented; and second that the note being for the payment of Spanish Dollars was void it being overdue 3 months before the passing of the local ordinance in Sir Thomas Brisbane's Government 28th Sept 1824. The learned Judge thought both objections untenable and ruled that the local ordinance was retrospective. The Plaintiff had a verdict. Norton now moved for a new trial on both grounds and after hearing Wentworth contra. The Court was of opinion 1st That the notice of dishonor, the shutting up the Defendants house being equivalent to a refusal to pay the bill; and they cited 1 Rose 303, 19. Vesey. 216. 3 Camp.193. 8. Cast. 169; and 2nd that the ordinance being remedial [p. 254] for the prevention of frauds, and retrospective in its terms as well as present and prospective, it applied to the case at bar. Rule Refused Notes [1] From its position in the notebook, it is likely that this hearing took place between October and December 1829.Norton now moved for a new trial on both grounds and after hearing Wentworth contra.

The Court was of opinion 1st That the notice of dishonor, the shutting up the Defendants house being equivalent to a refusal to pay the bill; and they cited 1 Rose 303, 19. Vesey. 216. 3 Camp.193. 8. Cast. 169; and 2nd that the ordinance being remedial [p. 254] for the prevention of frauds, and retrospective in its terms as well as present and prospective, it applied to the case at bar.

Rule Refused

 

Notes

[1 ] From its position in the notebook, it is likely that this hearing took place between October and December 1829.

Published by the Division of Law, Macquarie University