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

Bloodsworth v Weston [1833] NSWSupC 45

assumpsit - promissory note - waiver - laches

Supreme Court of New South Wales

Dowling J., 5 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 84, State Records of New South Wales, 2/3267[1 ]

[p. 37]Assumpsit by the indorsee agt the payee of a promissory note drawn by E.A. Hayes in favour of deft 2 mos[2 ] after date of 9th April 1831 for £10 18s. 8d. - common counts.

Admitted that there was no regular notice of dishonor given to Deft. after presentment to the maker, but Plf relied upon a subsequent promise to pay by Deft, so as to cure the laches.  The defence was twofold - 1.st That this was a mere accommodation transaction, with privity on the part of the Plf of that fact, without consideration. & 2d That the Plf by giving time to the maker after the dishonor of the note, released the defts liability.

The whole case rested upon the testimony of the Plf's witnesses.

(Read it)

I told the assessors that if the Deft promised to pay the note after it was due, with full knowledge of the Plf's laches in not giving due notice of the dishonor, he would be bound.  The Plf relied upon the defts waver of notice, but a waver to be sufficient, must be with full knowledge of what a man waves.  Here the deft was entitled to prompt notice of dishonor.  This note was due on the 12th June 1831, & no application to deft until the latter end of that month or beginning of August.  Even after then the Plf gives further time to the maker Hayes, which goes to shew that this was only an accommodation transaction & a mere lending of the Defts name, with knowledge in the Plf of that circumstance, Hayes being embarrassed.  After summing up to this effect, the Plf elected to be nonsuited.

 

Notes

[1 ] The transcript of the trial is at pp 37-43. The report reproduced here is on a separate piece of paper, attached to p. 37.  It is Justice Dowling's summary of his address to the assessors.

[2 ] Months.

Published by the Division of Law, Macquarie University