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

Biddulph v. Unwin [1834] NSWSupC 34

bill of exchange - res judicata

Supreme Court of New South Wales

Forbes C.J., 4 March 1834

Source: Sydney Herald, 6 March 1834[1 ]

Tuesday. - Before his Honor the Chief Justice, and Dr. Foster and Mr. Icely sitting as Assessors.

Biddulph v. Unwin. - This was a case of Indorser against Indorser, brought to recover the amount of a bill of exchange for £100, amounting with expense of protest, &c., to £128 16s.

The facts of the case are these: - Messrs. Robert and John Wainwright, of Gray's Inn, London, gave a bill of exchange for the sum above named, in favour of Mr. Unwin, who indorsed and passed it to a person named Mitchell, receiving from him consideration for the same; the bill afterwards came into the hands of Mr. Biddulph, and on being presented for payment was dishonoured, on the grounds of no effect.  Mr. Mitchell stated that he received the bill in question form Mr. Unwin, and gave him the value for it; the bill was afterwards presented and dishonoured, and notice to that effect was given to defendant on the 29th of June - in attempting to prove the legal service of which, however, was a failure; defendant stated to witness that he would give him a power of attorney to receive the money in twelve months, and wished him to wait till a convenient period to pay it.  The learned Judge in summing up observed, that as the notice was not proved to have been legally served, the question for the Assessors to decide would be, whether the words made use of to Mr. Mitchell by Mr. Unwin amounted to a promise to pay. - Verdict for plaintiff, damages £106.


Forbes C.J., Dowling and Burton JJ, 1 April 1834

Source: Sydney Herald, 3 April 1834[2 ]


Tuesday. --- In Banco. --- Biddulph v. Raine. --- In this case a rule nisi was granted on the 1st of March, to shew cause why the amount of damages in this case and all subsequent proceedings should not be set aside on the ground of the summons not being regularly served.

Mr. Keith moved that the rule be made absolute.

Mr. Foster opposed the motion, quoting Price's Report, vol. 2, p. 2. and Chitty's Reports shewing that the Court could not, after verdict, arrest a judgement on affidavit, that a bill has been found against a witness indicted for perjory on a material point of evidence; nor did it seem that a conviction would be a sufficient ground for sending back a cause to a jury for investigation.

Mr. Keith replied at some length, and after a short consultation by the Court, the Chief Justice delivered his opinion, that the case ought not to be re-opened.  Rule discharged with costs.



[1 ] See also Australian, 3, 7 and 10 March 1834; Sydney Gazette, 3 and 8 March 1834.

[2 ] See also Dowling, Proceedings of the Supreme Court, vol. 95, State Records of New South Wales, 2/3278, p. 182.  According to this source, Forbes C.J. said that it was too late to reopen the case now.  He continued: ``It is a wholesome rule, that a case once solemnly decided should there rest.  The interests of the public, & the due despatch of business require a strict observance of this rule."

Published by the Division of Law, Macquarie University