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

Town v White [1833] NSWSupC 87

guarantee - assumpsit - business history - bill of exchange

Supreme Court of New South Wales

Dowling J., 5 June 1833

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

[pinned to p. 15][2 ]

Assumpsit on a Bill of Exchange drawn by Deft on Frederick Orr on 12th May 1828 payable 3 mos after date, accepted by Orr, & by the Deft indorsed to Plf.

The amount of the bill was not set out in the first count.

The second count was upon an indemnity given by Deft to Plf to save him harmless on account of the said bill in the first count mentioned. -  Common counts.

The Bill produced in evidence was for 45£.

There had been a bill of particulars delivered after filing declaration setting forth that the Plf sought to recover the amount of the bill mentioned in the declaration describing the amount to be for 45£ sterling.

Several objections were made by Defts counsel, who went for a nonsuit.

1.st For a variance, or rather for uncertainty in the decln,[3 ] which set forth a Bill of Exchange between the parties without stating the amount - the bill produced being for 45£.  It was admitted that if the bill of particulars had been delivered with the decln, there w.d[4 ] be nothing in the objection; but having been delivered afterwards it could not be admitted to piece out the decln.

The like argument was applicable to the second count which tied up the guaranty to the said bill ment.d [5 ] in the first count - the amount of which was not stated.  And as there was no evidence of consideration between these parties, the Plf could not recover on the common counts.

More general points taken & relied upon were

1.st No notice of dishonor given in due time to the deft.

2.d Time or indulgence given by Plf to acceptor.

In reply to these, it was contended that the terms of the defts indemnity cured these objections.

I nonsuited upon question of variance, but saved the point, & also reserved the other objections in case the Plf should fail on the first point.

 

Burton J., 8 October 1833

Source: Sydney Gazette, 10 October 1833

 

This was an action of assumpsit brought by the plaintiff against the defendant, Doctor Henry White, to recover the sum of £45 on a bill of exchange.  In the month of May, 1828, Mr. Ord, a Commissariat clerk, employed at Emu Plains, having occasion for a sum of money, applied to the defendant, who agreed to negociate [sic] a bill for him.  He accordingly drew on Mr. Ord for £45 at 3 months date, which Ord accepted, payable at the Bank of Australia, and in order to insure its being more easily discounted, the defendant applied to the plaintiff a responsible person at Richmond, to lend his endorsement to it, which he did, receiving at the same time, a guarantee from defendant that he would be held harmless in case of the bill being dishonoured when it arrived at maturity.  The bill in the course of business passed into the hands of Cooper and Levey, and when presented at the Bank, there was no effects, neither were any of the parties known there.  Cooper and Levey, after holding the bill sometime in their possession brought an action against Mr. Town and recovered, and the present plaintiff now sued the defendant both as an endorser and as guarantee.  Witnesses were called, who proved that notice had been regularly served to the various endorsers at the time the bill was dishonoured.  The assessors returned a verdict for the plaintiff, with interest from the 15th August, 1828, the day the bill was due.

Mr. Wentworth for plaintiff ;Mr. D. Chambers for defendant.

 

Notes

[1 ] The trial notes run from page 15-29, some of it in Dowling's shorthand.  The plaintiff was nonsuited.  On 25 June 1833, the court ordered nonsuit to be set aside: Dowling J., Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 107.

[2 ] Marginal note in original: ``See Ante vol. 83. p. 107."

[3 ] Declaration.

[4 ] Would.

[5 ] Mentioned.

Published by the Division of Law, Macquarie University