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

Stephen v Brigstock (1835) NSW Sel Cas (Dowling) 385; [1835] NSWSupC 75

bill of exchange, failure of consideration  -  passenger on ship  -  replevin  -  pledge of goods  -  lien on goods

Supreme Court of New South Wales

In banco, 19 September 1835

Source: Australian, 25 September 1835[ 1]

Stephen v. Brigstock. - In a case where plaintiff had given a bill to defendant, leaving certain goods in his possession, for passage money from England, which on account of insufficient accommodation, he refused to honor, paying into Court £100 as a sufficient sum for his passage; he then brought an action of replevin for the recovery of his goods.  Defendant at he trial offered to shew that the goods were lodged as a specific pledge for the bill - this was thought unnecessary by the learned Judge, who left the case to the Assessors, upon the fact of insufficiency of provisions, who found the money paid was sufficient.

The other two Judges, however, were of a different opinion that the question of the partial failure of provisions ought not to be gone into.  There might have been a question whether the goods were given as a pledge for the payment of the bill.  In that case the onus of proof would have lain with the plaintiff, to show that the bill had been paid.  But a partial failure of a contract for which a pledge is given, will not warrant the party giving it, to get back the pledge itself.  If an action had been brought against plaintiff for the passage money, it would have been competent for him to allow that he had not got value.  But where a bill is given, and a pledge is made, the pledge follows the bill.  The arguments used by plaintiff's counsel would have been good if the pledge had been given for the passage money only.  But it was very different where a bill was given.  A verdict was entered for defendant for the amount of bill, £150.


In banco, 19 September 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463



19th September]

[Where a passenger on board a ship from London to Sydney gave a bill on a friend to the Captain and expressly pledged his luggage as a security for the due acceptance of the Bill, & the bill was dishonored on presentation.  Held in replevin that the Pf could not go into evidence of a partial failure of the consideration for the Bill, as that he had not been properly supplied with necessaries during the voyage.]

Stephen v Brigstock

Replevin for certain articles of wearing apparel, & luggage which Deft wrongfully detained.  Avowry of the taking on two grounds by Deft, first, as Master of the ship Westmoreland in which Plf & his family were carried as passengers from London to Sydney under an agreement to pay the sum of 150£ which sum he had not paid, & that he held said goods as a security until the same was paid; Secondly that Plf had agreed with one Bottomly (the owner of the ship) to pay for the passage of himself & family, the sum of 150£ & gave a bill in Sydney for that sum, & had agreed that the said goods should remain as a security for the acceptance of such bill, which had been presented & dishonored.  Replication to last plea; that although the Plf had deposited the said goods as a security for the acceptance of such bill, yet such pledge was given under an express contract that the Deft should victual & provide Plf & his family, as usual in first class passage vessels, & avers a failure of the deft in performing this part of the express contract.  At the trial before [p.136] Burton J. the plf offered to go into evidence upon this part of the case, viz. the failure of Deft to provide Plf & family with adequate supplies & provisions for the passage to Sydney, but the learned Judge inclined to think that as the goods had been expressly agreed to be left as a pledge for the acceptance of the bill, it was not competent for the Plf to go into evidence of a partial failure of consideration for the bill, but he allowed the evidence of the matter stated on the record to be gone into, & directed a special finding by the assessor upon the fact of the consideration for the passage, & the assessors found accordingly "that the deft had partly neglected to fulfil his contract, & thought that the sum of 150£ was fully equivalent to the supplies found", subject to the opinion of the Court upon the question whether such evidence was admissible.  On a former day a motion was made to enter a verdict for the Deft, & the Court took time to advise upon the case; & now

Forbes CJ. delivered the Judgment of the Court:-  We agree with the learned Judge in ruling that the evidence was [p.137] inadmissible but still it was a question of fact whether the goods were deposited as a pledge for the acceptance of the bill, & supposing them to be so pleaded whether it was qualified by any consideration as to the supplies & provisions being duly found for the voyage.  It makes all the difference in the case, whether the goods were expressly pledged for a specific object, or held only by force of a legal lien.  It was admitted on the record that the goods were pledged as a security for the payment of the bill, & the onus of proof lay upon the plf to shew that the pledge was qualified in the manner he has stated on the record.  He failed to do so, & there is no such fact in proof before the Court.  The question therefore is reduced within this very narrow compass, - whether the partial failure of consideration for which the bill was given, can be gone into in an action to recover back the pledge given for the due honor of the bill.  We are of opinion that it can not.  If an action had been brought on the bill itself, it would have been no defence, that part of the consideration had failed; & it follows that partial failure [p.138] of consideration would be no ground of defence in an action brought to recover back the pledge.  There is a difference between a lien arising in law upon some demand or claim upon the subject matter of lien and between a pledge for a specific object.  The case has been argued by the Plaintiffs Counsel upon the ground of a legal lien independently of an expressed contract.  But we are of opinion that to support the right to a legal lien the consideration must be coextensive with the right claimed.  For example, suppose an action brought by the Defendant against the Plaintiff to recover the amount of the passage money, the Defendant could only have recovered for the amount of the service he had performed, and for the same reason he could not detain goods for more.  The case of Basteu vButler 7 East and Birley v Gladstone 3 M.S. 205 go to this point. (2 Merv. 404 Cowell vSimpson 16 Ves. 280).  There goods were pledged for freight and it was held that they could not be detained for any amount beyond the freight earned.  But here there was a bill given, and goods were pledged for payment not of the passage money but of the Bill and [p.139] as a partial failure of consideration would be no defence to the bill, so there would be no ground of action to recover the pledge for the payment of the bill.  It has been argued, however, that this bill having been negotiated, by the owner having endorsed it to the Defendant, the Captain of the Ship, this destroyed the lien and the case of Horncastle v Tiarren 3 B & A 497 was cited.  But it is not broadly laid down there that to negotiate a security given for a specific object is to destroy any lien in respect of the same object.  That was the case of approved bills, to be given before the delivery of goods held as a security for freight.  There Bayley J. said that "If the drawer of the bill had agreed to the negotiation; and that the other should retain his lien he would have been bound by his agreement."  All that was held by the Court was that negotiating the bills amounted to the fact of approving the bills.  Here a negotiable security was given to be paid at a distant place; the Captain is the agent of the owner and the bill being for passage money [p.140] it became necessary to endorse it over to the Captain, as a means of receiving payment.  It was no more than transmitting it to be given up on payment of the hundred and fifty pound.  The Defendant held the goods as agent of Bottomly; of course the bill must be given to him to authorise him to hols the goods till the bill was in point.  That case was decided on its own circumstances.  On these grounds it appears to us that judgment must be given for the Defendant.

Judgment for the Deft


[1 ] See also Stephen v. Brigstock, 1833.

Published by the Division of Law, Macquarie University