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

Brooks and Collins v Davidson [1832] NSWSupC 60

bill of exchange - infancy, claim for necessities - assumpsit

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 15 September 1832

Source: Sydney Gazette, 18 September 1832[1 ]

Mr. Moore moved that the trial of this cause - an action on a bill of exchange - be postponed till the third term in 1833; and that, in the mean time, a Commission be directed to issue, to examine witnesses abroad.  The learned Counsel moved on the affidavit of the defendant, which stated that the bill, the subject of the action, was drawn, when he was a minor, of the age of twenty, or thereabouts.

Mr. Wentworth, contra, said he might, perhaps, be disposed not to oppose the motion, had there really been any thing specific set forth in the affidavit on which it was grounded.  He contended, however, that that affidavit was most vague.  The defendant could not be ignorant of his own age, and yet, in his affidavit, he swore only to ``twenty, or thereabouts."  If he could not swear to the precise day of the year on which he was born, he might at least have laid before the Court some presumptive evidence of the fact, by stating the day of the year on which his natal day was kept in his own family.  Besides he (Mr. W.) would observe, that it did not at all follow that this bill of exchange would have at all to do with the case.  That bill was given for the defendant's passage to this country from Scotland; and it would be a question on the trial whether that was not such a debt as an infant might contract.

Mr. Moore said the action was brought, not by the party to whom the bill was made payable, but by an indorsee.

Mr. Wentworth - I beg your pardon : the action is brought by the owners of the ship.

Mr. Moore - There is an endorsement from the plaintiff to another person, and an averment to that effect in the declaration.

Mr. Wentworth - No such thing.  The bill was drawn in favour of Brookes, and by him endorsed over to Collins, who is part owner of the ship; ad the action is brought in the names of Brookes and Collins.

The Chief Justice - We are of the opinion that the affidavit upon which the application to the Court in this case is founded, is not specific enough.  This is at best a very inequitable line of defence to what may turn out to be a just claim; and the Court, therefore, feels itself bound to exact all the strictness which the law requires in such cases.  We direct, therefore, that the defendant's affidavit be amended, and the case mentioned again before the rising of the Court.


Dowling J., 24 September 1832

Source: Sydney Herald, 27 September 1832[2 ]

Brooks and Collins v. Davidson. - Important case. - This was an action of assumpsit on a bill or draft, amounting to £94 10s. for value in passage to this Colony in the ship Elizabeth.  The bill was drawn by Walter Rennie Davidson, payable to the order of R. Brooks, Esq. on Alexander McDuff Baxter, Esq.

There was another count for necessaries and passage provided to defendant, at his special instance and request.

The defendant pleaded the general issue, non assumpsit.  Mr. Wentworth stated the case to the Assessors.  He had been obliged to concede, that at the time of defendants drawing the bill, he was not of age, to prevent a commission going to England, and thereby delaying the trial of the cause.  The bill had been drawn on defendant's uncle, the late Attorney General, but on its being presented to him, not having any funds of defendant's, and being himself unable to discharge it, declined so to do, in consequence, it was allowed to remain over from year to year, on the repeated assurance of defendant, that the money should be paid by instalments, he (Mr. Wentworth) now considered that it was rascally to avail themselves of the defence that defendant was a minor.  His Honor was aware that nonity was of no consequence, as a passage consisted of board and lodging, therefore was what the law called necessaries, and if the bill was of no use, they could recur to the consideration for what it was given.  Since defendant had been in the Colony he had been in the Surveyor General's Office, it was therefore more unprincipled in him, as the consideration for which the bill had been given, placed him in the possession of funds, if he had the honesty or inclination to pay the debt.

R. Campbell, jun. Esq. proved defendant having consented to pay the bill by instalments.

Mr. Foster applied for a nonsuit, on the ground that the declaration contained a general charge for board and lodging.  There was no evidence that the bill had ever been presented to the drawee, or that the drawer had been duly noticed.  As they had been unable to prove certain facts, owing to the absence of witnesses , it was necessary for him to move also on the ground of infancy, which had been admitted on the other side, and if he was not bound when he gave the bill, he could not afterwards ratify it, as laid down in Chitty on bills, 17th, from 1st Campbell, 552, where Lord Mansfield said, ``who ever heard of an infant being liable for a bill of exchange."  Again, the promise of the party, being an infant at the time of drawing, should be in writing under the Act 9, Geo. 4, called Lord Tenterden's Act.  On these grounds he moved for a nonsuit.  The learned Judge replied he should leave the case for the Assessors.

Mr. Foster then addressed the Court, and wished to put in a letter of the drawee, but was overruled.

The learned Judge then summed up.  It was no doubt a general as well as a wise rule of law, that infants shall not be bound for civil contracts, but there were exceptions for necessaries of a proper and suitable description.  The plaintiff, in point of law, could not recover on the bill under Lord Tenterden's Act, where it was laid down that the ratification of an obligation must be in writing.  They would therefore confine themselves to the passage to this Colony; it had been contended there was no proof as to the situation in life of defendant, and certainly there was no doubt the evidence on that point was loose; but as to its being necessary for the defendant, it was conceded on both hands that the then Attorney General was his uncle.  Was there anything they could fairly collect that the defendant came here, not as a wild young man, but seeking his fortunes.  But if it was proved that he had run away from his parents, the law would wisely interpose to screen him from his rash acts; if he had come here on an excursion of pleasure, it certainly was not necessaries, but if for the purpose of bettering his fortunes, he held in point of law, that it was necessary expense. -  The assessors found a verdict for plaintiff for £80.  Messrs. Wentworth and C. H. Chambers for plaintiff's.  Messrs. Foster and W. H. Moore for defendant.


[1 ] See also Sydney Herald, 17 September 1832; Australian, 21 September 1832.

For another bill of exchange case in 1832, see Brown v. ForbesSydney Herald, 1 October 1832; Australian, 5 October 1832.  The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 75, Archives Office of New South Wales, 2/3258, pinned to page 129; and on appeal, see Vol. 78 (2/3261) p. 205.

[2 ] See also Australian, 28 September 1832; and see Dowling, Proceedings of the Supreme Court, Vol. 75, Archives Office of New South Wales, 2/3258, p. 25.

Published by the Division of Law, Macquarie University