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

Blaxland v Cavenagh (1830) NSW Sel Cas (Dowling) 367; [1830] NSWSupC 35

bill of exchange, protest, waiver

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 1 June 1830

Source: Sydney Gazette, 3 June 1830


This was an action brought by the plaintiff, the indorsee of a bill of exchange, against the defendant, the payee, to recover the sum of £100, under the following circumstances.  The defendant lately a merchant in Sydney, having had some mercantile transactions with Mr. Thomas Raine, also a merchant in this town, an exchange of bills took place, and Mr. Raine drew on Messrs. Harper and Bell of London, in favour of the defendant, for £350, which bill was indorsed by the defendant to Gregory Blaxland, Esquire, then in London, and who presented it in due course for payment.  Messrs. Harper and Bell paid 250l. that being the amount of the funds belonging to the drawer in their hands; and, on Mr. Blaxland's arrival in this Colony, which took place in a short time after, his agent (Mr. Maziere) presented the bill to the defendant, as the payee, by whom it was endorsed to the plaintiff, for the balance.  The defendant promised to pay on consideration of getting three months' credit, giving his promissory note for the amount, which was acceded to by Mr. Maziere, on the part of the plaintiff; but the conditions not being complied with, after repeated applications to the defendant, an action was brought to recover the amount.  On the trial it was contended, first, that the payment to the plaintiff by Messrs. Harper and Bell of part of the amount of the bills, amounted to an acceptance, and released the indorser from any further liability; and, secondly, admitting non-acceptance and non-payment that the defendant should have received notice of dishonour.  Mr. Justice Dowling, who tried the case,[1 ] told the Jury, although the authority of law which required that the indorser of a foreign bill of exchange should receive notice of protest for non-acceptance and non-payment was too strong for the Court to disturb, still the defendant might waive his legal right by his own acts.  In the present case, the defendant had not stood upon his right in this respect.  He had waived it by a promised to pay the balance, and had engaged to give his promissory note at three months for the amount; which engagement, however, after repeated applications by the plaintiff's agent, he had neglected to fulfil.  The Jury found for the plaintiff.

Mr. W. H. Moore moved for a new trial in the above cause, on the ground that the verdict was contrary to law, and that fresh evidence with respect to the nature of the engagement entered into by the defendant with the plaintiff had come to the defendant's knowledge since the trial.

Mr. Norton, on behalf of the plaintiff, replied.

The Court held that the application for a new trial ought not to be granted; first, because the defendant, by entering into an undertaking to pay the balance, had waived his objection on the ground of not having received notice of dishonour; and secondly, with respect to the fresh evidence, although it appeared that it might easily have been had on the trial, no steps were taken to bring it forward at that time.  -  Motion refused.



[1 ] For records of the trial, see Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 286; Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 32, Archives Office of New South Wales, 2/3215, p. 105.  In the Select Cases, Dowling J. recorded the principle as follows: " In an action by Indorsee against a Foreign Bill of Exchange where the Drawee paid part, and there was no protest for non payment of the remainder, but the Payee agreed to pay the balance and Interest if time was given him.  Held that the objection for want of protest was waived."

In Watson v. Gilchrist, which was also decided in 1830 (Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 11), Dowling J. summarised the result as follows: " The Plaintiffs who resided in Scotland sent out to N.S.W. through an agent of a Scotch Com. an authority by Letter to seek payment of a bill of Exchange drawn by Defendant.  The Agent having died before the Letter reached  him held that his successor could not maintain an action on the bill in the name of the Plaintiff although the defendant did not dispute the suburgent [sic] authority, and had required the Plaintiff to give security for costs."

Published by the Division of Law, Macquarie University