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

Weller v Campbell (1830) NSW Sel Cas (Dowling) 374; [1830] NSWSupC 53

bill of exchange, laches, law reporting

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 10 July 1830

Source: Sydney Gazette, 13 July 1830


In the following cases, argued during the last term, the Judges had taken time for consideration, and this morning

Mr. Justice Dowling sat alone to deliver the judgment of the Court:[1 ]

Weller and others v. Campbell.

The following cases, said the learned Judge, argued during the late term, were considered and our judgment therein determined upon,[2 ] and I have been deputed by their Honors to deliver the judgment of the Court.  This was an action of assumpsit by the payers against the drawer of a money order for £11, drawn by defendant at Sydney on the 2d of September, 1829, upon one Hewitt, residing at Wallis' Plains, in favour of the plaintiffs ``or order."  The declaration averred presentment of the order to Hewitt, and non-payment by him, and notice thereof to the defendant.  The defendant pleaded non-assumpsit.  At the trial before Forbes, C. J. and two assessors, at the sittings of last term, there was no proof of presentment to and non-payment by Hewitt, or of any notice of dishonur to the defendant.  In order, however, to supply this defect. and to shew that the plaintiff's laches were waived by the defendant, a witness was called, who proved that in October last he called upon the defendant with the order and asked him to settle the amount.  The defendant said, ``I will call upon Mr. Weller and settle it."  On his cross-examination the witness said, ``I don't remember saying any thing to him about Hewitt, or saying that Hewitt would not pay it on its being presented.  I said nothing of that kind."  It was objected on the part of the defendant that this evidence was not sufficient to dispense with proof of presentment to, and non-payment by Hewitt, and notice thereof to the defendant.  The learned Judge reserved the question, whether the mere naked promise by the drawer to settle the amount of the order in the manner proved, was a waiver of the proof that the law would otherwise require of presentment, non-payment, and notice of dishonour.  The Judges have fully and maturely considered the point, and the numerous authorities bearing on it, and find themselves constrained to come to the conclusion, that the evidence in this case did not amount to a waiver of the plaintiff's alleged laches.  If this matter were res integra the Court might perhaps have come to a different conclusion in this particular case, last finding themselves fettered by a current of authorities upon the subject, they think it safest to adhere to the general rule.  Although the amount of the order in this particular case is trifling, yet as the question involved is one of general importance, and may affect future transactions of the like kind, the Court is fearful of laying down nice distinctions.  We have diligently examined all the decided cases in which a promise to pay a bill or note by the drawer and indorser, after dishonour by the acceptor or payer, has been held to amount to a waiver of the holder's laches, and we cannot find a single decision or even a dictum in which such a promise has been held to amount of a waiver without some proof of the knowledge of the holder's default.  The leading cases on this point are Vaughan v. Fuller, 2 Stra. 1246; Horford v. Wilson, 1 Taunt. 12; Lundie v. Robertson, 7 East. 231; 3 Smith, 225, s. c.; Wood v. Brown, 1 Starkie, 217; Hooper v. Alder, 6 East. 16; Rogers v. Stephens, 2 T. R. 713; Gibbon v. Coggan, 2 Campb. 188; Biblie v. Lumbie, 2 East. 469; Stephens v. Lynch, 12 East 38, 2 Campb. 32, s.c.; Taylor v. Jones, 2 Campb.105; Greenway v. Hurdley, 4 Campb. 52; Patterson v. Beecher, 6 Moore, 319; Hopley v. Dufresne, 15 East, 275; Gunson v. Metz, 1 B. & C. 193; 2 D. & R. 334, s. c. 


Upon an attentive perusal of these cases, it will be found, that in every one of them there was proof either of knowledge on the part of the drawer or indorser, of the default of the acceptor or payer, of the laches of the holder, or something to show that the party must necessarily be presumed to know of the default of the acceptor or payer, or of the laches of the holder.  The promise here relied upon was before action brought.  If it had been made after the delivery or filing of the declaration, it would probably have a different effect, according to Hopley v. Dufresne, 15 East. 276, and Lundie v. Robertson, 7 East. 231, because then the attention of the defendant must be presumed to have been drawn to the declaration of presentment and nonpayment by Hewitt. The waiver is founded merely upon the naked declaration of the defendant before action brought.  ``I will call upon Mr. Weller and settle it."  The defendant had no intimation that it had been presented to Hewitt, and by him dishonoured.  If he had been distinctly informed of this circumstance, then there would be something to which the supposed waiver would be referable; but a man cannot be said to waive an objection or a right, unless he know what he is waiving.  The doctrine of waiver in the ordinary case of forfeiture of a legal right, as between landlord and tenant, &c. is applicable to the case.  Without, however, very nicely considering this point, it is sufficient for us to say there was not in the case evidence upon which the defendant could be said to have waived the plaintiff's laches.  The plaintiff having averred presentment to and non-payment by Hewitt, and that the defendant had notice thereof, was bound strictly to prove it, unless he could shew that the defendant, after knowledge of the truth of these averments, or at least of the default of Hewitt, promised to pay the order.  There was nothing proved at the trial to shew such knowledge in him, and consequently we think he ought not to be concluded by his promise, so as to dispense with the necessity of proving presentment and notice of dishononr [sic].  This decision may be attended with inconvenient results in a young colony like this, by imposing difficulty and expense upon the holders of such securities, but at the same time we think that a contrary decision would lead to great laxity of proof and possibly to injustice in cases of like nature, and tend at all events to unsettle a well established rule applicable to negociable [sic] securities.  Under these circumstances, we are of opinion, that the amount of the verdict recovered by the plaintiff's must be reduced by the amount of the order together with interest, and for the balance judgment is to be entered.  We have considered the consequences of this decision, as it would affect the costs of the action, and we are of opinion that though the verdict will be hereby reduced below £10, it is not a case within the operation of the Court of Requests' Act, so as to deprive the plaintiff of his costs.[3 ]



[1 ] The authenticity of this judgment is shown by the fact that there is a handwritten version of it in the notebooks of Dowling J.: see Dowling, Select Cases, Vol. 2, Archives Office of New South Wales, 2/3462, p. 333.  See also Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 40, Archives Office of New South Wales, 2/3223, p. 152.  The Select Cases version includes the following sidenote presumably written by Dowling J.: "Where a declaration by payee against a maker of a bill of Exchange avered presentment to and nonpayment of by the drawee and notice thereof to Deft but of which there was no proof:  Held that the mere statement of the Defendant before action brought 'I will call upon Mr W and settle it I will call down and settle it', was not sufficient to render the drawer liable, without proof to infect him with distinct knowledge of the laches of the drawee."

[2 ] In Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 40, Archives Office of New South Wales, 2/3223, p. 152, Dowling J. noted the following here: "These judgmts were delivered by me alone, out of term on the 10th. July 1830.  This was arranged with the other judges."

[3 ] Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 40, Archives Office of New South Wales, 2/3223, p. 158 added the following note at the end of the judgment: "Note Stephen J. differed from us at the conference, but said he would look into the authorities, & acquaint us with his opinion, if he ultimately differed from us, & knowing that the decision was to be given this 10th. July 1830 we have not heard from him."

Published by the Division of Law, Macquarie University