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

McLaren v. Lyons [1842] NSWSupC 25

bill of exchange - South Australia - Union Bank

Supreme Court of New South Wales

Burton J., 1 February 1842

Source: Sydney Herald, 2 February 1842

This was an action on a bill of exchange. Mr. Foster and Mr. Darval appeared for the plaintiff, and Mr. Windeyer and Mr. Broadhurst for the defendant.

            Mr. DARVAL opened the pleadings.

            Mr. Foster stated that the present action had been brought by the Union Bank against the defendant to recover the sum of £1,061, being the amount of a bill of exchange which had been discounted for them by the bank, and returned dishonoured by the acceptor at South Australia .

            Mr. Want examined by Mr. DARVAL -   Witness called and asked Mr. Lyons what he intended to do about the bill. Mr. Lyons said the bank had taken security of from the acceptor Walker, at South Australia, and would not pay it. A few days after Lyons called on witness and asked him if he had the protest and bill, both of which Mr. Want showed him. Some conversation took place, and Mr. Want proposed that Mr. Lyons should give another bill at three months. Lyons then asked whether witness thought that the bank would take his ( Lyons ') bill in favour of Samuel, and endorsed by him. Another bill, endorsed by Mr. Manning, was afterwards given by Mr. Lyons, in order to take up the bill in question.  

            Mr. Sea examined by Mr. Foster - Witness was the manager of the Union Bank. Had received from South Australia two parts of the bill in question; one an accepted, and the other an unaccepted part. The protest came with the second and unaccepted part, which arrived first from Adelaide . Witness had prepared a notice of dishonour, both for Mr. Lyons and Mr. Samuel. Was sure that the notice was headed Union Bank of Australia . Gave it to Mr M'Pherson to take some where. The Union Bank had not a branch, but only an agent at Adelaide . Received the bill originally from the clerk of   A. and S. Lyons . The Union Bank had discounted the bill for Mr. Lyons in fact, and on the usual terms. Witness, two or three days after the 19th September, called on Saul Lyons, to ask him to arrange for payment of the bill: he said the Bank at South Australia had taken security for the payment of the bill, and answered he would not pay it. After this Lyons offered a bill of Samuel's to witness, in payment of the bill in question. Some time after, on the 20th October, witness received the first part of the bill also from South Australia . Immediately after this, witness put the bill in Mr. Want's hands, for that gentleman to commence proceedings on it.

            George M'Pherson examined by Mr. DARVAL. This witness proved the service of the notice of dishonour on the defendants in the usual form - This was the plaintiff's case.

            Mr. WINDEYER contended, that the alleged protest could not be put in evidence, as there were no marks about it of its being an authentic notarial document. The learned gentleman cited a case from Barnwell and Creswell's Reports, wherein Lord Tenterden had said that a notarial seal was necessary to be affixed to mercantile documents, in order to give them authenticity, and to make them evidence in foreign courts. He also objected that it did not appear, by the protest that the notary had drawn it was a sworn notary; and the envelope bearing the post office stamp of South Australia, and in which the documents had had been forwarded, had not been produced, so as legally to shew that the documents had ever actually come from South Australia.

            His HONOR reserved the points.

            Mr. WINDEYER also submitted that the plaintiff must be nonsuited, inasmuch as the want of legal evidence of the protest and notice of dishonour, arising out of the absence of the post office mark, had prevented the plaintiff from proving the issues which had been raised by the defence.  

            His HONOR reserved the points, and allowed the case to go to the Jury.

            Mr. WINDEYER then addressed the Assessors on the case for the defendant, urging the same points he had before advanced in applying for the nonsuit; as well as contending that from the absence of any notarial seal, there was no legal evidence of the protest being a notarial act.

            Mr. FOSTER, on the other side, answered this latter point, and contended, that the argument was untenable, as, if any thing more than the protest itself were required, it would be always necessary for parties in England, or at any other distant part, to send a person out with a protest, to prove its authenticity.

            Mr. Windeyer not calling any evidence, his HONOR summed up, and the Assessors found a verdict for the plaintiff to the amount of the bill, the re-exchange, and the interest calculated from the time of the arrival of the bill from Adelaide .

Dowling C.J., Burton and Stephen JJ, 11 February 1842

Source: Sydney Herald, 12 February 1842 [1]

In this case, which had been set down for argument on Friday, instead of Thursday, which was the first Banco day after the trial, Messrs. Foster and Darvall took a preliminary objection to the case being heard, on the ground of the established practice having been departed from by the above mistake.

            Mr. WINDEYER and Mr. BROADHURST contended that the rule of court not naming any particular day, there had been no infringement of any rule in the present case; and all that was required was, that notice should be given for the first convenient Banco day, which requirement had been complied with on the present occasion.

            The CHIEF JUSTICE said, that the Court in the point under consideration, could not look merely at the question whether justice had, or had not, been done in the case. The only question was, whether a sufficient notice of a motion for a new trial had been given; and the Court was of opinion that such notice had not been given. The Court, by the 69th rule, must hold that, parties intending to move, should give notice to the first Banco day, after the expiration of the four days' notice, after the trial of the cause. If the Court were to decide otherwise, nothing would be easier than for parties in every instance, if they chose, evading altogether the application of rule of Court. The case, therefore, must be struck out of the list.


[1] See also Australian, 12 February 1842.

Published by the Division of Law, Macquarie University