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

Brown v Dixon (No 2) [1833] NSWSupC 70

assumpsit - promissory note - bill of exchange - forgery - business history

Supreme Court of New South Wales

Dowling J., 4 July 1833

Source: Sydney Herald, 8 July 1833[1 ]

Thursday. - Before Judge Dowling and the following Special Jury: - L. Duguid, foreman, G. Druit, J. Campbell, W. Cox, J. B. Montefiore, W. Cordeaux, J. Mackie, R. C. Lethbridge, C. W. Wall, C. Cowper, T. Walker, and J. Tingcomb, Esquires.

Brown, Manager of the Australian Company, v. Dixon. - This was an action of assumpsit, to recover the sum of £355 11s. d6. balance due on a promissory note, and a bill, the former drawn by defendant in favour of R. Cooper, and by him endorsed to E. M. Scott for £487 14s. 2d. the latter drawn by Scott, and accepted by defendant, for £439 2s. 3d.

The defendant pleaded the general issue, a receipt to the amount of £300, and a set off.

Mr. D. Chambers having opened the pleadings, Mr. Foster stated the case to the  Jury, and called the following witnesses to substantiate it.

T. Inglis, Esq - I am agent to the Australian Company of Edinburgh, (document put in).  This is a certificate of the Clerk of Sessions of the Members of the Company; this is the seal of the Court of Session, the signature of Thomas Peat, the Keeper of the Records, is in his own hand writing; the other signature is James Warrell, he is Clerk to the Lord President of the Court of Session, the signature is his hand-writing; Robert Brown is Manager of the Company; I was acquainted with him up to December, 1829; I am in correspondence with him as Manager of the Company (certificate read by the Clerk of the Court and the 8th section of the Act of Parliament in-corporating the Company read); I know the hand-writing of defendant; this is a promissory note for £487 14s. 2d. the signature is John Dixon, it is endorsed R. Cooper; that is Mr. Cooper's writing; this is a bill for £439 2s. 3d. the acceptor is Dixon, and the drawer Scott; the hand-writing are theirs; since I have acted as agent in this Colony I have had transactions with defendant on behalf of the Company; on assuming my duties the beginning of May, 1830, I found accounts pending between Dixon and the Company; I succeeded Mr. McLaughlan, who came up from Hobart Town, in consequence of Mr. Scott's death; I proceeded to wind up the accounts; I applied to defendant in June for the payment of a bill that had fallen due in May; I applied particularly for that, and something that was due for goods; defendant called at my office in Sydney; we had a conversation about a balance due on the note and bill now sued upon, over and above the bill due in May, and the open account; Dixon promised to pay soon the May note for £126 16s. and about £24 for goods; I spoke of the balance due on the notes now sued upon, they being overdue some time; he said in reference to the balance on those notes, that he thought he had settled all with Mr. Scott; I had them in my possession, but I don't know if I produced them; we spoke of them as being perfectly understood; nothing was paid then, and we parted; on 15th Nov. 1830, I wrote to him, requesting a settlement of the May note, and in reference to the balance on the two notes sued upon (letter read); in a day or two Mr. D. called and paid the May bill and the open account; the payment was in part of a bill of Klensendorlffe's, credit for store rent, and £55 16 s. 9d. in cash; this was paid on the 17th Nov. 1830, every thing was then paid, except the balance of the two notes now sued for; Mr. D. attended personally and paid the balance; on that meeting I asked Mr. D. to be diligent and send the receipt he had spoken of; he said he would; nothing further took place; whenever I met Mr. D. I adverted to the subject, and asked him if he had got such documents; he used to say, he could  not find it, but he hoped he should; he added on one occasion that he had it somewhere; nothing more particular occurred till the 5th Feb. last, Mr. D. came to the premises, and I met him in the yard, and some conversation irrelevant to this matter took place; he said ``Iv'e found that d--d  thing of Scott's now;" we were on the way to the counting-house; I knew what he alluded to, and said, I'm glad of it, as I have much more satisfaction in reporting that circumstance to the Company, than in pressing for money on which there was a doubt whether it was due; we went to the counting-house, and Mr. D. requested me to refer to his account in the ledger; before I turned to the books he said it was a receipt for £300, and the date was 13th or 15th July, 1829, and wished me to see if that sum had not passed to his credit; I then opened the book, and we both looked at it; I could find no such entry, and I went into another room to get the cash book which would contain the original entry if it existed, but I could find no such entry; I left Mr. D. at the ledger, examining it, while I referred to the cash book; I have the cash book here; I could find no such entry, and I went into another room to get the cash book which would contain the original entry if it existed, but I could find no such entry; I left Mr. D. at the ledger, examining it, while I referred to the  cash book; I have the cash book here; I could find no such entry; Mr. D. expressed his astonishment, and said it would have been a cursed job, or a bad thing, if he had not found the receipt; I requested him to produce the receipt; he said he had it not with him, but he would bring it down; either the next day, or the day after, he came down; I asked him if he had brought the receipt; he produced the receipt he mentioned, a receipt for £100, and a memorandum of a sum that had passed to his credit during the transactions of Mr. Scott; they were pinned together, the receipt for £300 being undermost; I thought there was something wrong about the date, and remarked that some one had been scribbling on it; he made no remark to that, but said you see its for the even £300; having the ledger at my dwelling-house, I requested Mr. D. to leave the receipt that I might refer again to the books; Mr. D. did not object to leaving it, but said I could get or see it at any time, and he put the three documents in his pocket; I had the old cash book with me, and I referred to that, saying, it's a most extraordinary thing that Scott should have received so large a sum and omitted it, as his cash must have been to that amount over; we parted, Mr. D. taking the voucher's with him; when I went home late in the evening, I referred to the ledger, and found no such entry ever stood in the books; I found that the sum of £300 had been paid on the 13th July, 1827, of which I was not aware till I referred to the book; there was a corresponding entry to that in amount and date in the cash book; that entry in the ledger appears in the same leaf of the ledger, which Mr. D. inspected, when I turned round to look at the cash book; the entry in 1827 is eight or nine lines above where the £300 would have appeared in 1829; the entry of 1827 is perfectly right; the entry in 1827 is in the hand-writing of Mr. Black, Book-keeper to the Company; after the entry of July, 1827, there are several entries, but no entry of £300 on the 15th July, 1829; the entry is £300; Mr. D. made no observation on the £300 in 1827, but expressed his surprise there was no entry for that amount in 1829; I took no notice of the entry in 1827 at that time; I have referred to the £300 in 1827; it was paid, as appears by the cash book, in the hand-writing of Mr. Scott, ``John Dixon received from him £300 Stg.;" at that date there was about £500 standing at Dixon's debit, and this £300 is paid to account; the state of Dixon's balance on the 6th July being the last entry, was £156 9s. 4d. including account of goods; the first bill sued upon becomes due before the alleged payment of £300, the second a month or six weeks afterwards; the £156 9s. 4d. balance, included the £432 2s. 3d. exclusive of interest; it was placed to his debit in October as an overdue-bill; it stood in the bill book as an overdue bill, but was not brought for ward till Oct. that being our periodical balance; without posting that bill he would be in credit £280 or £290; supposing the alleged payment to have been made, he would have been entitled to have the bill due in 1829; Dixon is not debited with the interest, as we keep a separate interest book, and do not post it until the transaction is closed; when the bills are fully paid, it is usual to close the transaction; had the £300 been paid as alleged, a very considerable sum would have been overpaid, and which could not have appeared on the books for some weeks to come; the sums that went to defendant's credit on the bill for £487 14s. 2d. were from the 6th July, £100 in August, £120 15s. less discount, £115 6s. 10d. dividend of Raine's admitted credit, and a note of Williams' £39 11s. 8d. making a total of £372 12s  4d. that would be applicable to the  retirement of the bill due in August, presuming the £300 to have been paid on the 15th July; against that sum there is £24 4s. 11d. which deducted from £372 12s. 4d. leaves £348 7s. 5d. which would go to the payment of the bill for £487 14s. 2d. adding the over payment which was made on the former bill, the defendant would now be in credit about £53; he also would be in credit for any sum due him for store rent that has never been carried to his credit, supposing the defendant entitled to credit for the £300, he would be in credit £53, and what he claims for store rent; the payment of the £56 for the May bill was not necessary if this state of accounts were true.

W. H. Moore, Esq. - I produce from the custody of the Attorney-General a receipt for £300, and two other documents.

T. Inglis Esq., examination continued. - These are the three documents produced by Mr. Dixon to me which he stated he found together, they all purport as they now stand, to be vouchers for 1829; the £300 in that receipt has no entry in the books, which I examined in reference to the other two documents; the account is credited with those amounts; the £100 is on the 20th August entered to Mr. Dixon's credit in the cash book, and posted to make up the accounts in the ledger; it is in the hand-writing of Scott in the cash book and posted by John McKellup; the memorandum contains various transactions with Scott, and it bears his initials; I find corresponding sums put to Dixon's account; the extreme dates extend from 30th June to 27th August 1829; the receipt I hold for the £300 is between those dates, providing it to be genuine; my attention has been called to the date of that receipt; when I formerly used the words scribbling, I meant then and I mean now that the date of the month and the year have been altered, it to me appears to have been the 13th July, 1827; I see distinctly the 3 in Mr. Scott's hand writing under what is now altered, to a 5; the 7 has been altered to 9, it is not in Mr. Scott's hand-writing; I can see an erasure as I now look at it, the addition is not in the same ink as the original; the erasure of the 7 has only affected one part, the top, which has been erased, and a circle put to make it appear like a 9; I have held the paper up to the light, the erasure is visible, the surface of the paper is rough; I have not examined it through a magnifying glass, I have one here.  If it is possible to confirm my opinion it is now beyond doubt the ink is different in both cases, but especially in the 5.  Part of the set-off is for Store rent, it has been accruing for some time; I was aware Store rent was due but not the whole amount now claimed, the first claim for it was to my solicitor after action brought.

Cross-examined by Dr. Wardell - Mr. Scott died in November 1829, and I arrived in the April following; Mr. Scott was in a bad state of health for a considerable time; his accounts have subsequently fallen under my notice; they were all made up before I took charge; all the accounts of the Company were intelligible; there have been disputing; the books were generally correct; I never mentioned to Dixon or any one that Scott had not made cash entries for two years; the cash books I have here speak to the contrary; the books were behind before I took charge; there was some difficulty in making them up; I have made entries of transactions that took place in Scott's life; some persons have made claims which were not in their accounts; trifling sums from ten to fifteen pounds; Mr. Scott has admitted to Dixon's credit a composition of a debt of Raine's; Mr. Scott's interference with Raine's affairs cost the Company a great loss; some large claims have been made against the Company, but I have admitted none of any magnitude; I have disputed many claims; I don't recollect one of any magnitude that was the same in its results as if I admitted it; I accepted four hundred pounds of Mr. Cooper because I thought his affairs were in a deranged state; Mr. Black brought up the books after Scott's death; Mr. Scott had not been able to post his accounts from the 21st of September 1829, that is the last in his handwriting; there are transactions posted of a prior date not in his hand-writing; instances have occurred where the accounts were not brought forward; I heard that he was obliged to keep to his house, but he kept the books in his parlour; he kept the cash book not the ledger; Dixon's account is posted part by Black and part by McKellup; the ledger got behind, one of the causes was Mr. Black leaving, and there being no competent person to make up the books; the receipt of the 15th July 1829, would be at the time Mr. Scott was in ill-health; in 1827 he was in good health, at which time there is an entry of three hundred pounds; there is a necessity in all cases for a receipt; I believe Mr. Scott sent at stated times the cash book to the book-keeper, therefore it could not be always at his house; I don't think Mr. Scott would give a receipt without making an entry; if you called at my house and paid me £100 I would not refuse it, I would give a receipt and enter it in my private book; if I was in ill health I can't say what I would do; at the settlement of accounts with Dixon, I gave him a copy of the account signed with my name; I am confident I did; I have frequently received money from a merchant without giving a receipt; I never received the money from Mr. Dixon and forgot it; I remember the transaction well, as I had great trouble in getting Mr. Dixon to a settlement; the two bills were allowed to remain over, that Mr. Dixon might look for the receipt, it was a distinct account altogether; Mr. Dixon said he thought he had settled all that with Scott, meaning the two bills now sued upon; if Mr. Dixon had stated to me that he had overpaid the Company, I should have been able to account for his backwardness; Mr. Scott credited Dixon £115 6s. 10d., as a compensation for Raine's estate; Mr. Scott made large advances on Raine's affairs which have been lost to the Company; Dixon could not I think have obtained the money for Raine's debt anywhere than from Scott; I don't think the money was paid unexpectedly, as Dixon must have known that Scott engaged to pay it; I should think Dixon would be pleased at receiving the money; it is unusual in a merchant's books for purchases, for the balance to be first on one side and then on the other; Dixon's accounts were for purchases; when I asked for a settlement with Mr. Dixon at the commencement I asked him to pay the goods account, and with reference to the bills he told me he thought he had settled them; I was requested by Mr. Dixon to look at a particular entry and I did so, and could not find it; I did not trace up the account to 1827, because the receipt was for 1829; on the second occasion, as I could not find the entry at the date stated, I went over the whole account; I could scarcely bring myself to the conclusion at the first, that the receipt which he showed me was false, there is a decided appearance of alteration; I was not prepared to receive such a document; I was busy when he first came, and I told him the books were at my house, and I asked him to leave it, he took it up instantly and put it in his pocket, saying I could see it any time; the next day I sent him a note, and he sent them by my servant; they were folded up; I am not aware of any hesitation or delay; I was not satisfied with the receipt at first, but when I looked in the ledger and saw the payment in 1827, it put it beyond all doubt as I saw how easily it could be altered; probably Mr. Dixon did not know what I meant, when I said there has been scribbling here; if I had made the alteration and any one had said there has been scribbling here, I should have thought I was nearly found out; I heard that I was charged with doing it; it was not the sole reason for taking any steps on these notes, that defendant charged me with it.

Re-examined. - I find some of Scott's entries as late as September, 1827; I don't think it likely Scott would have received £300 and forgotten it; Dixon said to me at first respecting these bills, that he thought he had settled all that with Mr. S.; the May bill had been renewed two or three times; Dixon said he had been so drained, that he had not as much in his pocket as would keep the devil out; he told me that the receipt purporting to be for £300, would affect the balance of the May bill; when I first saw the receipt I said some person has been scribbling here; Dixon did not say a word in reference to that observation; it did not surprise me that Dixon produced the receipt; we were on good terms, and I thought he would not have produced such a document as this.

By a Juror. - Mr. D. did not ask me what the balance was on those bills; the credit claimed by Dixon is on the 15th July, 1829; when I first saw the receipt I said there had been scribbling on it; I felt dissatisfied, and wished he would leave it; it arose from the alternation of the dates; but I did not like to accuse Mr. Dixon without being certain; when I succeeded Mr. McLachlan there were thousands of pounds over due; they were all good claims as far as I know; they have been all settled and delivered up; if those bills had been paid I should have expected they would have been delivered up as receipts; there were private transactions between Scott and Dixon, but nothing in reference to this; I believe Mr. Scott in every instance gave receipts in his own name.

Mr. James Brown. - I am a wine merchant; I knew the late E. M. Scott, and had often opportunities of seeing his hand-writing; [cash-book produced] the whole of these entries are in his hand-writing; I observe the seven in the kook or top part it is very light; [receipt put in] it is dated 15th July, 1829; the 5 in the 15, and the 9 in 1829, appear to have been erased; I swear upon honor, that they have been crased; there appears to have been alterations since I saw it at the Police Office; the 9 and 5 have been altered; the 9 was then quite black, blotted.

T. Inglis, Esq. - That is the receipt produced by Mr. D. to me, and exhibited at the Police Office; it is exactly in the same state.

Mr. D. Chambers. - I saw this receipt the beginning of February, when Mr. I. Said he had it from Dixon; it is precisely in the same state as to the figures; when it was shewn to me, I said the figures had been altered; I am of that opinion now.

This closed the plaintiff's case.

Dr. Wardell then addressed the Jury, and called the following witnesses to rebut.

Mr. Wm. Panton. - I am a grazier residing in the Cowpastures; I have known Mr. Dixon for 9 years; I remember being at his house on the 6th February; I was dining there at that time; Dr. Sherwin was also there, but he left before the receipt was shown; I know it was the 6th of February, because it was the day Mrs. Dixon died; a little after dinner, about four o'clock, he mentioned that he had been down to Mr. Inglis endeavouring to settle his accounts, and he had shown to Inglis receipts and documents to upwards of £800, and he was happy to say the balance was in his favour; he then put his hand in his pocket and pulled out the documents, handing them to me, saying look at them; I should know them again; [put in] this receipt was placed as it is now; I observed the 15th July, but it was not in this state; I think there has been an alteration since that time; there was no erasure then; it is evident now; from the inspection I had of the document, I am sure the alteration has been made since; I can speak on that point with positive certainty; I am sure if I had seen the document in its present state it must have struck me; we were sitting after dinner taking a glass of wine; I asked Mr. Dixon if he had his accounts settled with the Company; he said no - the books were at Mr. Inglis' dwelling-house; Dr. Bland attended on Mrs. Dixon; I saw him there.

Cross-examined. - I dined with Mr. Dixon on the day of Mrs. Dixon's death, and on that day he produced these documents; it was on the 6th February; Mrs. Dixon died some hours after these documents were shown; Dr. Bland did not see these documents; Mr. Dixon told me that he had taken these documents to Mr. Inglis on the forenoon of the same day; he pulled them out of his pocket as if he had just come from there; I understand these documents made up the £800; they did so and more; Mr. Dixon mentioned that the £300 receipt had been mislaid for some time; that was the circumstance which called that particularly under my attention, and that distinguished it more than the others; he said he had found the receipt in a drawer he did not expect while looking for some duplicates of Treasury bills; he did not usually keep receipts there; he did not tell me where he got the others from; they were all pinned together; he did not tell me the other documents related to a procrastinated enquiry; it did not strike me why a document which had been lost should have been attached to the other documents; it was February, quite light, and we were sitting after dinner; had the receipt been in the present state it would have struck me; I swear it was not in its present state; there is a scraping and blotting about the 5 and 9; there has been an alteration; I swear unreservedly that it was not in that state; it read when clean exactly the same as it now is, 15th July, 1829; I am quite positive of that; the reason why I observed it closer, was that Mr. Dixon told me it had been laid aside; I am positive that it was the 15th July, 1829, that I saw; I saw it stated in the papers that it had been exhibited at the Police Office about six weeks afterwards, and I remembered that it was the 15th July, 1829; the receipt read - ``Received from John Dickson, Esq., £300. - E. M. Scott."  I think it was sterling; Mr. Dixon did not point my attention to the date; I am sure that it was the 15th and not the 13th; the 9 is not so blotted as the 5, but it is palpable there has been some alteration; I should say that the 9 has been altered since I saw it; Mr. Dixon took it up and put it in his pocket; Dixon said that Mr. Inglis appeared perfectly satisfied with the documents, and would have settled the account only the books were at the house and not at the office; Mr. Dixon did not say why he did not leave the documents at the office with Mr. Inglis; after coming to Sydney I talked to Mr. Dixon about what I saw in the newspapers respecting him; it was a little more than usual as I saw such a charge against him; I said I supposed it related to the receipt I had seen; he asked me if I had seen any alteration on it; I said no; Mr. D. is a friend of mine and I stop at his house when I come to Sydney; I am indebted to Mr. Dixon, who holds a mortgage for the amount.

Re-examined. - Mr. Dixon has a mortgage on my landed property; the 5 and 9 have been altered in that document since I saw them.

Dr. Bland. - I attended the late Mrs. Dixon; I can't say the day she died; I saw the last witness there on the day of her death, and I spoke to him.

Cross-examined. - It is not unusual to see him there; I know of no papers exhibited between him and Dixon.

T. Barker, Esq. - I know Mr. Inglis; I have not seen this receipt before; he showed me a receipt about three months ago, and said he suspected it had been altered; I think the date of the year on the one he showed me was on the top; he called my attention to the date; there were flaws in the paper the same as this; I think it was a receipt for £300; I saw no other receipt; I see an alteration in the figures of this, and there was an alteration in the one he shewed me; I know Mr. Dixon's writing; I should not think him capable of altering the receipt as regards his penmanship and character; I told him so.

Cross-examined. - I married defendant's niece; I am acquainted with Mr. Inglis; I think the receipt was presented to me three months since; Mr. D. Chambers accompanied Mr. Inglis; he said knowing me, he had called to let me know before he took any further steps; I thanked him; I was with Mr. Dixon 12 years, and he wrote very little; I never saw him make a neat figure; the five appears to have been written over some other figure; the whole of the five appears to be one ink; [memorandum put in] that is Mr. Dixon's hand-writing; I see the nines and a five, but none like those in the receipt; the date of the receipt was 1829.

By the Jury. - I think it was three months ago I saw it; but I so little noticed it, that I thought the date was at the top.

Mr. John Paul. - I am an auctioneer; I know Mr. Dixon, and have had considerable dealings with him; it has happened lately that Mr. Dixon has paid a bill which I held without taking it up; I mentioned the circumstance to two or three friends as another proof of his carelessness in business; I have seen Mr. Dixon writer, he is a bad penman.

Cross-examined. - The bill became due on the 4th of April last; I had been bail for him about this very affair; it is payable at the Bank of Australia; I did not get payment there when it was due, I asked him to pay it, he said he could not, but would shortly, he gave me £50 and a bill for £150, but he never asked me to give it up.

By the Juror. - Mr. Dixon took up a bill from the Bank for the same amount, but not that one.

T. Walker, Esq. - I have had considerable transactions with defendant; I have bills in my hands of his for £1000 that have been paid and not asked for, they were due two or three years ago; they are all paid; I have no lien on them whatever; I think they have been paid the last twelve month; they were paid after they became due; they were debited to him as overdue bills, and paid in the general account which has been closed between us; some parts were paid in money, and I think when it was so I gave receipts; if I carried bills to an account, I would not give them up without a receipt.

Re-examined. - The practice when money is paid is generally to take a receipt, except when a check on the Bank is given.

Mr. James Robertson. - I had some dealings with the Australian Company before Mr. Inglis took charge; I had a little difficulty in settling it, the account was correct, it was a bill of mine and I paid it twice; it was to be a set off against Gordon Brown's estate who was indebted to me, and Mr. Scott assured me when it became due he would set it off, as he managed Gordon Brown's affairs; Mr. Inglis refused to satisfy it; I would not believe Mr. Inglis on his oath if I had a transaction with him again.

Cross-examined. - It was a bill Scott held of mine; I had a charge against Brown, and Scott agreed to pay his debts, and my bill to the Company was to be set off; Mr. Scott died in the mean time and never paid it; that is what I mean by paying it twice; Mr. Inglis offered to take wool for the bill, I sent it to him and he offered me less than any body else, I wanted to take it where I could get more; there he said was a man to whom I owed a large sum of money and I wanted to take it there; he said as I owed him so much money he would not let me take it there, that is the reason I would not believe him on his oath.

Mr. R. Cooper. - I had considerable dealing with the Company in Scott's time; I had to settle some dealing with Inglis; the books did not show my credit; there was a transaction with Mr. Warren and what Mr. Scott had; I came into this Court, and Mr. Inglis agreed to take £400 instead of £1,100, and cry quits.

Cross-examined. - I am as good an accountant as you; I make mistakes sometimes, no man is infallible; there was no mistakes with Mr. T. Walker; I swear that he swore false that day, and you and him ought to blush.

Mr. Norton. - I do blush Mr. Cooper, but it's for you.

Mr. Scougall. - I am a merchant in this town; I have known Mr. Inglis at one time but not now; I would not know him; I would not believe him on his oath when his self-interest is concerned.

Cross-examined. - I don't know Mr. Inglis; I beg your pardon, I've not ceased to know myself.

This closed the defendant's case.  Mr. Foster having replied - the learned Judge summoned up,[2 ] and put the case to the Jury on the point of whether the receipt was or was not genuine, who after an absence of ten minutes, found a verdict for plaintiff £333 15s. 8d.; the receipt was ordered to be impounded by the learned Judge.

Messrs. Foster, Norton, and D. Chambers, for plaintiff - Dr. Wardell, and Messrs. Wentworth, and C. H. Chambers, for defendant.

 

Notes

[1 ] See also Sydney Gazette, 13 July 1833; Australian, 5 July 1833; Dowling, Proceedings of the Supreme Court, Vol. 85, State Records of New South Wales, 2/3268, p. 84.

[2 ] The Sydney Gazette, 13 July 1833, summarised the judge's summing up.  The principal question put to the jury by the judge was whether the receipt was genuine.

Published by the Division of Law, Macquarie University