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

Lucas v Evans (1835) NSW Sel Cas (Dowling) 382; [1835] NSWSupC 57

bill of exchange - assumpsit, special and common - common money counts

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 13 July 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465




13th July]

[In special assumpsit by the acceptor of an accommodation bill, against the drawer, averring a promise on the part of the latter to provide funds for the Bill when at maturity.  Breach that he did not whereby Plf was called upon by the holder & did pay the same, Proof that the attorney of the holder, after action brought & verdict recovered against the Plf, took a note at 3 months of a third party on behalf of the Plf "as payment", though not due at the time of action brought, is sufficient to support the averment that Plf "did pay the same".

I. Lucas v C. Evans

Assumpsit that in consideration of Plf's accepting an accommodation Bill of Exchange for 25£.  Deft undertook to provide for the payment thereof when it became due; averment that he did not make such provision whereby Plf was called upon by the holder & did pay the same.  Non assumpsit.  At the trial before Burton J. & two assessors, the case was this: - The plf accepted a bill drawn by Deft upon him, by way of accommodation, the deft promising to provide funds to take it up when at Maturity.  The Bill was a indorsed to one Hugh Murray, & when due it was dishonored, whereupon Murray sued both drawer and acceptor & recovered verdicts and when execution was about to be taken out against the Plf, the attorney of Murray agreed to take the note of hand if one Pendray on behalf of Lucas for 25£ & £14.15.1. costs, recovered in the action against Lucas upon the accommodation [p.27] Bill, in discharge of both demands. Pendray's note was dated 16th March payable three month after date and would not be due until the 14h June following.  The process in the present action was sued out on the 1st Aprilreturnable the 1st May, being more than two months before Pendray's Bill would be payable.  The Attorney for Murray in the original action, swore that he took Pendray's note as paymenton behalf Lucas, for the debt & costs in the action against the latter on the accommodation Bill.  The deft was no party to this arrangement.  It was objected on the part of the Deft, that this evidence did not satisfy the averment in the declaration that the Plf did pay the Bill which he had accepted for defts accommodation.  The Learned Judge was of opinion that if the assessors were satisfied that Pendray's note was taken as payment of the demand [p.28] that was sufficient to satisfy the averment in the declaration.  The assessors found for the Plf.

Plunkett S.G. now moved to enter a nonsuit, & contended that there must have been a complete extinguishment of the debt, before the Plf could maintain this action.  The averment was that the Plf did pay the accommodation Bill.  It could not be said to have been paid, until Pendray's Bill was taken up.  That bill had two months to run before this action was brought.  There was therefore no extinguishment of the debt, even though Pendray's bill was taken as payment.  Non constat, that the latter bill would ever have been paid, & if not, then the parties would be remitted to their former condition.  The case of Maxwell v Jameson (2 B & A. 51.) is in point.  There one of the makers of a joint & several promissory note, after it became due, gave his [p.29] bond to the holder for the account but before the commencement of the action no money was actually paid on the bond, & it was held that until he had paid money upon the bond, he could not maintain an action for money paid, in order to recover contribution against any of the members of the original note.  The case of Barclay v Gooch (2 Esp. N.P.L. 571) & Israel vDouglas (1 H.B.L. 239) have both been ruled over by Taylor v Higgins (3 East 169) where it was held that one who became surety for the Deft before his discharge under an insolvent debtors act, & was afterwards obliged to give a new security of a bond & warrant of attorney for the old debt, cannot thereon hold the deft to bail by an affidavit as for so much money paidto his use.  A bond stands on the same footing as a Bill or note for this purpose, the only difference is in the form of action.  Here therefore, it cannot be said that the Plf did pay the Bill in question.  Beside Evans was [p.30] no way privy to this arrangement.

Stephen contra.  The cases relied upon on the other side are not in point; Maxwell v Jameson, was assumpsit for money paid & in Taylor v Higgins the bond was given by a third person for an original debt on bond, & as no money was paid, no action, as for money paid could on that account lie.  Beside in that case the question arose on an affidavit to hold to bail, where the Court requires the cause of action to be states with great accuracy.  The present is not an action for money paid but special assumpsit setting for the Defts obligation in law & conscience to pay the Bill.  In this case, Maxwell did not take Pendray's bill as a security for Lucas's liability, but to that as payment of the debt & costs, for which Lucas might then have been taken in execution.  The Attorney swore that he considered Mr Pendray a good mark, & therefore he took his [p.31] bill as payment of debts costs in the action Murray v Lucas.  This brings the case within the decision in Barclay v Gooch ( 2 Esp. N.P.L. 571) where it was held that although no money actually passed, but a note only was given, yet it was a sufficient payment because the party who might have enforced payment, accepted the note as money.  Payment by a promissory note or Bill of Exchange, from its negotiability is treated as money in the ordinary transactions of business.  A Bond stands on a different footing, because that is simply a security for a debt & cannot be considered as cash.  Suppose Pendray did not pay his bill, Murray not have suedLucas again; so that there is a complete extinguishment of the debt.  The fact that the Bill was taken as payment, is decisive proof of the averment that the Plf did pay.

curia. adv. vult.[1 ]

[p.32]Forbes CJ.  I am of opinion that the Plf is entitled to retain his verdict.  This is an action of special assumpsit setting forth the circumstances under which the defts liability arises.  On the common counts I agree that the Plf could not recover without proof of an actual payment of money.  All the authorities proceed on the distinction between special & common assumpsit.  Where the sum which a plf has paid is in the nature of unliquidated damages or costs, or cannot be considered as strictly paid for the use of the deft, or where a plf has not actually made a payment in money, but has merely been obliged to give security or his goods have been sold under a distress, the declaration must be special for not indemnifying, & so forth. (1 Chitty Pl. 305. 4 Ed.)  Here the declaration is special, & I [p.33] think the case stands clear of those cited on behalf of the deft.  The case of Barclay v Gooch is an authority in point.  That was special assumpsit for money paid, although a note only was given & yet it was held sufficient payment, because the party who might have enforced payment of the original debt, accepted the note as payment.  So here Murray might have taken Lucas in execution, & enforced payment in that way, but as he took Pendray's acceptance as payment, I think an action lies at the suit of the Plf against the deft, upon the special assumpsit to indemnify him.

Dowling J.  If this were merely an action of assumpsit for money paid to the use of the Deft, I think proof that Murray took the note of Mr Pendray as payment would not be sufficient.  But as the Plf has specially declared [p.34] upon the circumstances, & has averred that he was called upon & did pay I think proof that he discharged his own liability by getting the plf in the action to take Pendray's note as payment, is sufficient to sustain the averment.  The case ofTaylor v Higgins proceeded on the ground that the new security was not taken in satisfaction of the old one.  According to the evidence here Pendray's bill was taken & accepted as paymentof the debt & costs in the action against Lucas.  It is therefore an extinguishment & discharge of the debt.  The case of Kearslake v Morgan is an authority to shew that the evidence in this case would have been sufficient to sustain a plea that Murray had accepted Pendray's note in satisfaction & payment of Lucas' liability; even if he should not recover against Pendray.

Burton J. concurred.    Rule Refused.



[1 Curia advisari vult: the court wishes to be advised, or wishes to consider its decision.  This means that the judgment was not delivered immediately.

Published by the Division of Law, Macquarie University