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

Walker v. Appleton [1838] NSWSupC 83

contract, applicable law - conflict of laws - reception of English law, stamp duty

Supreme Court of New South Wales

Burton J., 25 June 1838

Source: Sydney Herald, 28 June, 1838[ 1]

Walker & Co. v. Appleton & Co. - This was an action brought to recover the sum of is £159 19s.  The plaintiffs put in a memorandum dated London, June 30th, in which Messrs. Appleton & Jones agreed to pay the sum of seventeen and a half per cent. on all monies advanced by Messrs. Walker & Co on their account, and to pay two and a half per cent. instead of fifteen per cent. on two sums of £3212 and £3185 for goods shipped before that date, on the ships Honduras and Lord William Bentinck, and it was this sum of additional interest which the action was brought to recover.  The defence was, that in February, 1837, Mr. Thomas Walker of Sydney, and Mr. Jones of the same place, entered into an agreement, by which the firm of Appleton & Co. were to be allowed to draw tot he amount of £20,000 per annum on the firm of Walker & Co. in Sydney, for which accommodation they were to pay fifteen per cent., and it was contended that under this agreement, the two bills for the goods by the Honduras and Lord William Bentinck were drawn, and the fifteen per cent. interest paid, and that consequently the whole affair was settled.  The bills for £6,898 were put in and proved to have been paid.  To this it was replied, that although the witnesses who could speak to the real nature of the transactions are in England, the fair inference from all the facts before the Court was, that Mr. Appleton and Mr. Walker of London, the senior members of the firms, entered into an agreement, by which seventeen and a half per cent. was to be paid for the money advanced, and on this agreement the bills for the goods by the two ships before named were sent out; after this, the agreement entered into between the junior partners in this Colony reached home, when it was determined that the agreement entered into in London should be fulfilled, and Mr. Appleton drew on the firm here for the additional two and a half per cent. on the sums previously advanced.  Some discussion took place as to whether the agreement could be looked upon as a note of hand, promising to pay the money in Sydney, or whether it was only an account stated; if it was a note of hand there was no occasion to prove value; but it was contended it was necessary that a note of hand drawn in London should be on a stamp; and if it was an account stated it was necessary to prove value, which had not been done.  His Honor said it was a very important point whether a note of hand drawn in London, where there are stamp laws, payable in this country where there are none, requires to be on a stamp; the point had never been raised in this Colony, but the impression on his mind was that a stamp is not necessary, but he would reserve the point. - Verdict of the plaintiff, damages £159 19s.


Dowling C.J., Burton and Willis JJ, 12 July 1838

Source: Sydney Herald, 13 July, 1838


Walker & Co. v Appleton & Co. - This was an action to recover the sum of £150, on an acknowledgment signed in London.  At the trial, Mr. Justice Burton held that the memorandum that h had been signed in London was a promissory note, and that a promissory note made in London payable here does not require a stamp.  This point His Honor reserved, and Messrs. Foster and Cheeke moved for a new trial on the point reserved, while the Attorney-General and Mr. Windeyer contended, that a contract is bound by the law of the country where it is to be performed, and as the promissory note was payable in this Colony, where no stamps are requisite, it does not require to be on a stamp.  After hearing the arguments of Counsel, the Court took time to consider the point.


Dowling C.J., Burton and Willis JJ, 15 September 1838

Source: Australian, 25 December 1838[ 2]


William Walker & others v. Appleton & Jones. - This was an action of assumpsit for goods sold and delivered, with the common money counts-plea, non assumpsit.  At the trial, before Mr Justice Burton and two Assessors, during the last term, the plaintiffs rested their case upon the proof of the following letter:--

``London, May 30, 1837.

``Messrs Walker & Co., Sydney.

Gentlemen - We hereby cancel the arrangement entered into between us, dated 10th February last, relative to your supplying us with funds in London, through your friends, Messrs Walker Brothers & Co.; and we agree to pay you 17½ per cent. advance of premium in place of 15 per cent., on the bills sent you by Walker Brothers & Co., which were drawn for the amounts advanced by them for goods shipped to us by the Honduras and Lord William Bentinck -

Say the former amounts to£3185   16   0

and the latter   3212     4   0


together£6398     0   0

2½ per cent, on which amount is £150 19s, and which sum of one hundred and fifty pounds we promise to pay you in Sydney on demand.  We are, Gentlemen, you obedient servants,


There was no other evidence produced in support of the plaintiffs' case; but this letter was relied upon, as evidence of money paid on money counts.  On the part of the defendants, it was contended, first, that the promise contained in the latter part amounted to a promissory note, and not being stamped with an English stamp, by the 55th Geo. III, c. 108, it was not capable of being recovered in this colony; and secondly, that if it was not to be treated as a promissory note, then there was no consideration proved to support the promise.  The learned Judge was of opinion that it was a promissory note, but was inclined to think that being made expressly payable in this colony, where there are no stamp laws, it did not require an English stamp, and under his Honor's direction the plaintiffs had a verdict, but he saved the point, and reserved to the defendants liberty to move for a non-suit or to enter a verdict for the defendants.

Messrs Foster and Cheeke now moved to enter a nonsuit, and argued as follows:--  The only question is, whether this note was, in fact, made in Great Britain - for if that cannot be disputed, then it clearly requires a stamp, by the English Stamp Act, 55 Geo. III c. 184, s. 11.  It matters not where it is made payable.  If this note could not be put in force in England without a stamp, it is clear that it could not be enforced here for the like reason.  This Court is bound to recognize and uphold the English revenue laws.  If this objection be not sustained, the greatest frauds may be committed on the English revenue.  Wherever the note is made, is the criterion of liability to the English stamp laws.  In Smith v. Mingay, 1 M. and S. 87, the question was, whether the bill drawn in blank in Ireland, on an Irish stamp, required an English stamp, when it was filled up in the latter country; but the Court held, that the signing and indorsing being made in Ireland, it required only an Irish stamp.  It may be true that this, as an English Court of Justice, will not take notice of the revenue laws of other countries: but can it be said that England is a foreign country in one of its own Colonies?  If there were stamp laws in this Colony, and if an instrument drawn here requiring a Colonial stamp, were sought to be enforced in England without such stamp, it clearly could not be recovered upon there.  There is a reciprocity between the Courts at Westminster, and the British Colonial Courts.  In Alves v. Hodgson, 7 T. R. 241, it was held, that the plaintiff could not recover upon a written contract made in Jamaica, which by the laws of that Island was void for want of a stamp.  Every obligatory instrument must be construed and governed by the law where it is made.  In Clegg v. Levey, 3 Camp. 167, Lord Ellenborough said, ``a contract must be available by the law of the place where it is entered into, or it is void all the world over."  If this note were made in England, it would not be available in England without a stamp, and for the same reason it is not available here.  This point can be no more contested than that, by the law of England, the eldest son is the heir at law.  There are no precise cases in point; only because nobody could doubt, that a promissory note made in England requires an English stamp.  The New South Wales Act, 9 Geo. IV. c. 83, s. 35, expressly exempts the indentures entered into by artificers and others engaging to serve in this Colony, if made in England, from the operation of the stamp laws; which shews that but for such provision, such instruments would be void here for the want of a stamp, and could not be enforced, although the indentures were to take effect here.

The Attorney-General and Mr Windeyer contra.  In the determination of this point, it is material to attend to the terms of the note.  They are these:-- ``And which sum of £150 19s we hereby promise to pay you in Sydney on demand."  Although, in fact, made in London, yet by fixing the place of payment to be at Sydney, and no where else, it becomes a Sydney contract.  If no place had been fixed an ambiguity might have arisen.  It is as much as to say, ``I will not pay you in London, where I have no funds, but I will pay you in Sydney, where alone I have the means of paying you."  It is to be observed, that this is not a negotiable instrument; it is not transferrable [sic]; it is not payable to ``order," but solely to the party in whose favour it is made.  ``The prevailing opinion of jurists," as is said by Burge in his Commentaries on Colonial and Foreign Laws vol.iii. p. 767, and which is adopted in the decision of the English, Scotch, and American courts, is, that the contract, in respect of the circumstances essential to its validity, and of the rights and obligations which result from it, is governed by the law either of the place in which it is made, or of that in which it is to be performed.  The place in which it is made is presumed to be that in which it is to be performed, unless the contract expresses that it is to be performed in some other place.  Hence, the law of the country in which the contract is made, is that by which it is entirely to be governed, unless its performance is to take place elsewhere."  Here this contract must be taken to be made where it is to be performed.  The defendant undertakes to perform his contract only at Sydney, for he guards himself against liability in England.  Both parties must be taken to look to and contemplate the laws of the place where the contract is to be performed.  It was understood by both to be a New South Wales, and not an English security, and therefore is not liable to an English stamp - Robinson v. Bland, 2 Burr, 1078.  The stamp law is a mere revenue law - it is a local law - and the objection now taken is quite beside the justice of the case.  The English revenue laws cannot be recognized in this court - and for the purpose of this case, England must be regarded as a foreign country.  In James v. Catherwood. 3 D. and R. 190, Abbott, C. J. said, ``In the time of Lord Mansfield, it became a maxim that the courts of this country will not take notice of the revenue laws of a foreign state.  There is no reciprocity between nations in this respect.  Foreign states do not take any notice of our stamp laws, and why should we be so courteous to them when they do not give effect to ours?"  This instrument cannot be considered as made in fraud of the revenue laws in England.  It was not intended to be enforced in England, and therefore it required no stamp.  No fair argument can be drawn from the 9 G. IV. c. 83. S. 35., for that contemplated obligations which might be performed or broken partly in England and partly in New South Wales, and the provision was made for the encouragement of emigration.

Mr Foster, in reply. - The judges of this court must broadly hold that they will not respect the English revenue laws, if they determine that this note was receivable in evidence without a stamp.  Conceding the wide field of argument taken on the other side, it does not touch the question, whether this was a promissory note made in England.  That is not disputed.  And if in England it was essential to its validity as a promissory note, that it should have a stamp, cadet quaestio.  Was it ever a binding promissory note in the place in which it was made, without a stamp?  Certainly not; and therefore it is not being here unless the court will not give effect to the English revenue laws.

The Court took time to consider of the case; and now delivered judgment.

Chief Justice Dowling. - I am of opinion that a nonsuit should be entered.  Admitting as a general principle, that a bill of exchange or a promissory note may be considered as having been made at the place where it is payable, according to the maxim, ``Contrarisse unusquisque in eo loco intelligitur in quo ut solverit se obligavit;" and that consequently, the contract should be construed and regulated according to the laws and usuage of that place to which the contracting parties have understood themselves subject; still it appears to me, that the principle cannot be carried to the extent of curing an inherent defect in the formation of such an instrument.  When once the instrument is complete in itself, the construction of the terms of it may then be referable either to the law of the place where it was in fact made, or intended to take effect, or to the understanding expressed by both parties.  Here the difficulty is, that in fact, this was not a complete promissory note at the place where it was made.  It is conceded that this must be taken to be a promissory note in fact, made in England, though payable in New South Wales.  By the English stamp laws, a promissory note made in England requires an ad vutorein stamp, and it is not a complete instrument in its concoction without a stamp.  At the time, therefore, it was issued by the defendants, it was not a complete binding instrument by the law of the country in which it was made.  Once establish that it will be open to the rules of construction contended for on the part of the plaintiffs; but here, in fact, the note was not a complete note, for want of a stamp, by the law of the country in which it was made.  I agree that English Courts of Justice do not respect the revenue laws of Foreign States, but the Courts of Westminster Hall respect the revenue laws, not merely of Ireland and Scotland, but of all British Colonies - upon the principle, that what is not an obligation in one place, cannot by the laws of another country become such in another place.  (See Chitty on Bills, s. 93, 7th Ed.)  I cannot accede to the proposition that England must be regarded as a foreign state to this, one of her own colonies - and that we must disregard her revenue laws.  Such a proposition would be monstrous, and lay the judges of this court open to a construction by no means enviable.  Happily, in this colony, we have at present no stamp laws; but, I apprehend that if this were an instrument made in Sydney, but payable in London, and it were sought to be enforced in Westminster Hall, the first question asked would be, did the laws of New South Wales require that it should be stamped as a promissory note? and its validity would be determined by the answer.  This principle is decided by the case of Alves v. Hodgson 7. T. R. 242.  There he promissory note was made payable personally to the payee in London, and not elsewhere.  Lord Kenyon said, ``This is a promissory note, though not negotiable, and as it is not stamped it cannot be received in evidence.  Then it is said that we cannot take notice of the revenue laws of a foreign country; but I think we must resort to the laws of the country in which the resort to the laws of the country in which the note was made, and unless it be good there it is not obligatory in a Court of Law elsewhere."  I cannot get over the fact that this note was made in England, though payable in Sydney - and that consequently, without an English stamp, it cannot be recovered upon in this Court.  I think a very strong inference may be drawn from the provision in the New South Wales Act, exempting indentures for the hiring of artizans coming to this country from stamp duty; for it is clear, that but for such a provision no such indentures could be enforced here without an English stamp, although the labour contemplated was to be wholly performed in this country.  This case is analogous to that in principle, and therefore, I think, this note was not admissible in evidence without an English stamp.

Mr Justice Burton concurred with the Chief Justice; Mr Justice Willis dissented.  Judgment of nonsuit.



[ 1]See also Sydney Gazette, 30 June 1838.

[ 2]See also Australian, 24 July 1838; Sydney Gazette, 18 September 1838; Sydney Herald, 17 September, 1838.  The Australian, 25 December 1838, has the date of judgment wrong.  The other newspapers agreed that it was delivered in September.

Published by the Division of Law, Macquarie University