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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Campbell v. Cox [1828]

promissory notes - bills of exchange - currency - accountancy

Judicial Committee of the Privy Council, 1828

Appeal from New South Wales

Unreported

Source: Printed Cases in Indian and Colonial Appeals Heard in 1828 Part 1, pages 445-465 (kept in the office of the Judicial Committee of the Privy Council)).

9th Feby 1828

Lord President

Mr Elliot

Master of the Rolls

Sir George Nassender [?]

Mr Frankland Lewis[1]

IN THE PRIVY COUNCIL

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ON APPEAL FROM NEW SOUTH WALES

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BETWEEN

Robert CampbellEsq... APPELLANT;

AND

William CoxEsq. ... RESPONDENT.

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THE APPELLANT'S CASE

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            AT the date of the transactions which gave rise to these proceedings, the Appellant was a Merchant residing and carrying on his trade and business at Sidney, in the territory of New South Wales; and the Respondent was the Paymaster to His Majesty's 102d Regiment of Foot, then called the New South Wales Corps, and resided at Clarendon in the same territory.

            In consequence of the impossibility of procuring in so distant a colony sufficient specie or real money of any description for the payment of the troops, It was customary for the Respondent to give, in lieu thereof, his promissory notes for small sums, which were called Paymaster's Notes or Cash Notes, and when any considerable number of such notes had accumulated in the hands of any merchant in the colony, to redeem them by giving his Bill of Exchange for the aggregate amount drawn in triplicate by himself, as Paymaster, on Messrs. Cox and Greenwood, the Army Agents in London.

            The Appellant had, prior to the month of March in the year 1803, taken from time to time in the course of his business as merchant, many of these Cash Notes, and had amongst others received from the Respondent, in lieu thereof, six several bills of exchange drawn as above-mentioned, payable to the Appellant or his order at periods therein specified, being numbered and dated, and for the sums respectively as follow, viz:-

£.         s.          d.        

No. 154, dated Oct. 3d, 1801, for ...   526      16        4

-      173,  -     May 27, 1802 ...         700      0          0

-      177,  -     June 26, 1802 ...         1000    0          0

-      178,  -     June 28, 1802 ...         990      15        0

-      182,  -     Sept. 25, 1802 ...        500      0          0

-      192,  -     Jan. 26, 1803 ...          1000    0          0

And had besides received another bill of exchange, numbered 161, and dated 26th January 1802 for 400l., drawn in the same manner by the said Respondent upon Messrs. Cox and Greenwood, payable to one James Larra or his order, and indorsed by the said James Larra to the said Appellant.

            In the month of March 1803, the Respondent having become insolvent, assigned all his estate and effects in the said territory of New South Wales to certain Trustees for the benefit of his creditors, to be distributed amongst them in part liquidation of their several demands.

            The Appellant had before this period indorsed and transmitted to Messrs. David Scott and Company, his agents and correspondents in London, the bill for 700l., numbered 173, for the purpose of enabling them to have the same duly presented for acceptance and payment for and on the account of the Appellant, and had indorsed and transmitted to Messrs. Campbell and Company, the Appellant's agents and correspondents at Calcutta, the other six several bills abovementioned for the purpose of their being by them transmitted to London for a similar purpose, and the same with the exception of the bill for 400l. had been by them indorsed and transmitted to Messrs. David Scott and Company, as their agents in that behalf, and the other bill for 400l. had been indorsed and transmitted by Messrs. Campbell and Company to Messrs. Fairlie, Gilmore and Company, and by them indorsed and transmitted to Messrs. David Scott and Company, but the Respondent being further indebted to the Appellant upon other accounts to the amount of 1315l. 0s. 7d., the Appellant was immediately admitted a creditor by the Trustees for that amount, and having afterwards had returned to him dishonoured three of the several bills of exchange abovementioned, namely, those numbered 154, 177 and 178 for 526l. 16s. 4d., 1000l. and 990l. 15s. respectively, and also having received notice of the dishonour and the protests for the non-acceptance and non-payment of the three other bills of exchange, drawn in favour of the Appellant as aforesaid, for the several sums of 700l., 500l. and 1000l. respectively, the Appellant was thereupon admitted as a creditor to the further amount of all such six several bills of exchange, and received dividends amounting to 15s. in the pound, upon each of these several bills respectively, as well as upon the other items of his claim, which dividends were expressly and specifically paid in part liquidation of each of such bills respectively, and not generally, on account of the aggregate sum of the Appellant's demand.

            On the 2d of June, in the year 1818, the Appellant having received no further payment, and having in the interval received notice of the dishonour of the last-mentioned bill for 400l., and having been debited with the amount thereof by Messrs. Campbell and Company his said agents, he commenced an action or suit against the Respondent, in the Plea side of the Supreme Court of Judicature, in and for the said territory of New South Wales, and its dependencies for the recovery of the balance still remaining due and unpaid to the Appellant as aforesaid, and of other debts incurred subsequent to such assignment amounting in the whole to the sum of 7401l. 8s. 7d., and filed his declaration or plaint therein containing counts upon the seven several bills of exchange above specified, and also upon the several other causes of action abovementioned, and for interest thereon.  To this declaration the Respondent or Defendant pleaded the general issue only, and gave no notice of any claim to set off against such balance so demanded by the Appellant, any debt or demand alleged to be due from him to the said Respondent: issue having been joined upon such plea, and the cause having come on to be heard, the Appellant duly proved to the satisfaction of the said court his right to recover the amount of his claim in respect of all the items of his demand, except the sums claimed by him in respect of the four several bills of exchange following, viz., No. 161, for 400l., No. 173 for 700l., No. 182 for 500l. and No. 192 for 1000l.  And the principal question raised between the parties on the trial was relative to the Appellant's right to recover the balance remaining unpaid upon these four several bills of exchange, and the interest and damages in respect thereof.

            The Appellant in order to establish such his right produced and proved in evidence the notarial copies and protests for the non-acceptance and non-payment of each of these bills, from which it appeared, that they had been severally indorsed as above stated, and he further produced and gave in evidence the triplicates of the two bills, No. 182 for 500l., and No. 192 for 1000l. respectively, and proved that one part of the bill No. 161 for 400l., had been stolen out of the Office of his Solicitor.[2]  And he also produced and gave in evidence a paper writing and account in the hand writing of the Respondent, whereby it appeared that dividends to the amount of 15s. in the pound, and no more, had been expressly and specifically paid to the Appellant in respect of each of the said bills, and of the other different items of his demand respectively, except the said bill for 400l.  And in order to shew to the said court that he the Appellant was the real and bonâ fide holder of the four several bills in dispute and as such entitled to recover the balance still remaining due thereon, he further tendered in evidence and produced to the said Supreme Court an original letter from the said Messrs: David Scott and Company, dated London, 5th November 1804,[3] addressed to the said Messrs. Campbell and Company of Calcutta, whereby the said Messrs. David Scott and Company acknowledged that they held said bill for 1000l. as agents only, and not on their own account as indorsees thereof, which said letter though proved by the Appellant to be the genuine letter of the said Messrs. David Scott and Company to whom the Respondent contended the property in such bill had passed by the endorsement thereof, the said Supreme Court after having the same read and marked as an exhibit in that cause, refused to allow it as legal evidence, but rejected the same on the ground that it was not a direct communication to or from either of the parties to that suit.  The Appellant further produced and tendered in evidence at the said Trial two other letters[4] from the said Messrs. David Scott and Company, addressed to the said Messrs. Campbell and Company, whereby he proposed further to prove that the said Messrs. David Scott and Company retained the possession of the several bills in dispute merely as agent, and not as an indorsee, claiming any property therein, and was ready and willing and then offered to prove the same to be the genuine letters of the said Messrs. David Scott and Company, but the said Supreme Court refused to allow the proof thereof, or to have them received or read in evidence for the same reasons upon which such first letter was rejected as aforesaid.

            And in further support of his claim, the Appellant further tendered and offered to prove and give in evidence, three several accounts between him and the said Messrs. Campbell and Company, to whom all the said bills, except the bill for 700l. had been indorsed and transmitted by the said Appellant as aforesaid, whereby it appeared that the several bills in dispute, (except the said bill for 700l.,) after having been credited to the Appellant, were afterwards upon their dishonour debited against him with the charges and expences attendant thereon, which said accounts the said Supreme Court refused to allow to be proved, or read in evidence, for reasons similar to those upon which they rejected the letters from Messrs. David Scott and Company as aforesaid. Yet the said Supreme Court permitted and allowed the Respondent to prove and read in evidence, a certain deed purporting to have been made between the said Respondent of the first part, the said David Scott and his partners, of the second part, and other the English Creditors of the Respondent, of the third part, but to which the Appellant was not in any way either party or privy, for the purpose of proving that the said Messrs. David Scott and Company, were the bonâ fide holders of such bills, and as such had received from the Respondent's estate in England, a dividend of 12s. in the pound, thereon and thereupon the said Supreme Court, on the 16th day of December, in the year of our Lord 1822, pronounced their verdict and judgment in that suit, and thereby determined, that according to the evidence before them, Messrs. David Scott and Company, and not the plaintiff, the now Appellant, were the real holders of the said four several bills of exchange for 400l., 700l.,500l. and 1000l. respectively, and had lost their remedy upon them against the Plaintiff as indorser by compounding with the Defendant as drawer, and that they the said Supreme Court of Judicature, had therefore disallowed, and struck out of the account current which they had framed between the parties all claims by the said Plaintiff, in respect of such bills, and had allowed, as satisfactorily proved, all the other items of his demand with interest thereon to the amount in whole of 10,238l. 0s. 1d., but that they had allowed and set off against this last mentioned sum the amount of all the dividends paid to the Appellant as aforesaid upon three of the said four bills so disallowed to the Appellant as aforesaid, with interest thereon amounting in the whole, to the sum of 10,924l. 5s. 4d., and that they had thereupon struck a balance of 686l. 5s. 3d. against the Plaintiff, the now Appellant, and therefore they gave a verdict and judgment for the Defendant, with costs. The Appellant feeling himself aggrieved by this verdict and judgment of the Supreme Court, and by their refusal to receive and consider the evidence tendered by the Appellant upon the trial as aforesaid, and their reception of the deed aforesaid in evidence against him within the time prescribed by the rules of the said Supreme Court, moved the said Court for a new trial, or that a nonsuit might be entered against him, instead of a verdict, in order to give the Appellant an opportunity of again bringing the said cause before the said Court for revision with any further evidence he might be able to advance in support of his claim. But the said Supreme Court refused to grant the said Appellant the relief he prayed, alleging that as the Court of Appeals in that territory had claimed and exercised the right of hearing and receiving fresh evidence, in addition to that which had been adduced in the court below, the Appellant might there bring forward or tender the evidence which the Supreme Court had refused to accept, or any other evidence he might wish to offer to that court, and recommended to the Appellant to prosecute his appeal there, if he should be so advised.

            The Appellant consequently on the 24th day of December, in the year 1822, appealed from the said verdict and judgment of the Supreme Court, of the 16th of December, 1822, to His Excellency Sir Thomas Brisbane, Knight, &c. &c., the Governor of that territory and Judge of the High Court of Appeals therein, and presented to the said court his memorial, or written statement of the cause of such his Appeal, setting forth the nature and extent of his claim in the said action before the Supreme Court in the form of two several accounts current, as set forth in the Appendix hereto. And stating at length the judgment pronounced by the said Court as set forth in the Appendix hereto. And further stating that he felt himself aggrieved by the said Supreme Court having struck out of the Appellant's account and disallowed the amount of four bills of exchange for 700l., 500l., 400l. and 1000l. respectively, and interest thereon, although he the said Appellant had paid the amount thereof to the Agents of Messrs. David Scott and Company, the person to whom the same were indorsed which he the said Appellant could clearly and satisfactorily prove to his said Excellency as Judge of that High Court of Appeals. And thereby prayed His said Excellency to take that his Appeal into consideration, and to issue process of summons for the examining such witnesses as might be necessary for proving the payment by Messrs. David Scott and Company of the amount of the said four bills of exchange for 700l., 500l., 400l. and 1000l., and to reverse the judgment, sentence and decree pronounced by the Supreme Court as aforesaid, and to decree that the Respondent should pay the amount of the said four bills of exchange with the interest and other charges and expences thereon, or to afford the Appellant such equitable relief in the premises as in His said Excellency's judgment should seem meet and conducive to the ends of Justice.

The Appellant refrained from introducing into such written memorial any detail of the Evidence which had been adduced before the said Supreme Court, because it was then considered to have become an established rule of practice that the said Court of Appeals would proceed to examine witnesses, and would receive any fresh evidence that the parties might require by way of interrogatories, in which form the said Appellant fully expected that he should have been at liberty to proceed. But upon the said Appeal coming on to be heard, His Excellency the Governor, as Judge of the said Court of Appeals, declared that he had but lately received the opinion of the Law Officers of the Crown in England that all evidence whatsoever was unadmissible in that Court, and that consequently he could not take or receive any in that appeal. And upon the Appellant praying His said Excellency would be pleased to investigate the said accounts as stated upon the said memorial of Appeal, His said Excellency declared that he was not bound, nor would he enter into any investigation of any accounts whatever, that he should take for granted that the said Supreme Court had properly investigated the accounts, and that he should not open any matter of account which had been settled and passed by that Court. And His said Excellency as Judge of the said Court of Appeals, afterwards on the 20th of April, in the year 1824, affirmed the said verdict and judgment of the said Supreme Court with costs, without permitting the said Appellant to produce any evidence in support of his claim, and without investigating the propriety of the decision of the said Supreme Court upon the said account.

The Appellant being advised that the said Verdict and Judgment of the said Supreme Court of Judicature, and the said Judgment of His said Excellency the Governor as Judge of the aforesaid High Court of Appeals affirming the same are erroneous and contrary to Law, and being greatly aggrieved thereby, hath appealed therefrom to the King's most Excellent Majesty in Council, and humbly hopes that the same may be reversed and annulled, and that His Majesty in Council will be pleased to direct a Verdict and Judgment to be entered in the said Supreme Court for the said Appellant against the Respondent for the amount so claimed by the Appellant as aforesaid, or that the cause may be remitted to the said Supreme Court of Judicature to be more fully investigated, or that His Majesty will in lieu of such verdict and judgment direct a Nonsuit to be entered against the Appellant, so as to enable him to bring his said claim again before the said Court, with such other Evidence as he may be enabled to adduce in support of his said claim, for the following amongst other

R E A S O N S:

FIRST,             BECAUSE the said Letters from the said David Scott and Company to the said Messrs. Campbell and Company which were tendered to the said Supreme Court by the Appellant as evidence that the said David Scott and Company held such Bills of Exchange if at all as Agents only and not as parties interested therein, were good and legal evidence of that fact and ought to have been received and considered by the said Supreme Court before they delivered their judgment in such cause.

SECONDLY,  BECAUSE the said accounts between the said Messrs. Campbell and Co. of Calcutta and the Appellant, which were tendered to the said Supreme Court by the Appellant as evidence that he had paid the amount of such Bills in account with the said Messrs. Campbell and Co. the Agents of the said Messrs. David Scott and Co. were good and legal evidence of that fact, and ought to have been received and considered by the said Supreme Court before they pronounced their verdict and judgment in that suit.

THIRDLY,       BECAUSE the Deed between the Respondent and the said Messrs. David Scott and Co. and others the suppose Creditors of the said Respondent which was produced by him and received by the said Supreme Court as Evidence that the said Messrs. David Scott and Company were the real holders of the Bills in question was not good and legal evidence of that fact or of any other fact in that Cause as against the said Appellant, who was neither party nor privy to such Deed, and ought not to have been received and read as evidence in the said cause.

FOURTHLY,   BECAUSE the Judgment of the said Supreme Court is manifestly erroneous in disallowing the Claim of the said Appellant upon the said Four Bills of Exchange, even as the Evidence stood before them, inasmuch as it was obvious from such Evidence that the said Appellant was the real and bonâ fide holder of such Bills.

FIFTHLY,       BECAUSE, even if the Appellant were not entitled to recover in such Action upon the Evidence produced, the amount of the said Bill for 400l. and the balance remaining due upon the other three disputed Bills, still the Judgment of the said Supreme Court of Judicature is manifestly erroneous in setting against the amount of the other Claims which were fully proved, the amount of the Dividends already paid upon such Three disputed Bills, the same having been paid by the Respondent with full knowledge of all the facts and upon the production of the same Documents which were proved at the Trial.

SIXTHLY,       BECAUSE such Dividends having been paid by the Respondent specifically upon such Three disputed Bills, and not as payments generally on account, it was not competent for him to set off such Dividends against the other Claims of the Appellant in the said Action, without either pleading or giving notice of such set-off therein.

SEVENTHLY,BECAUSE, by the terms of the Letters Patent for the constitution of the Court of Justice in the said Colony, dated the 4th day of February 1804, it is provided amongst other things, that "if either Party shall find himself aggrieved by any Judgment or Decree to be given or pronounced by the said Supreme Court, where the thing in demand shall exceed the sum of 300l, sterling, he, &c., shall and may appeal to the Governor, or in case of his death or absence, to the Lieutenant-Governor for the time being, who shall and may be assisted by the Judge Advocate." And the said Governor with the assistance of the said Judge Advocate, is thereby empowered and authorized to hear and determine such Appeal, and to issue process of Summons to answer such Appeal, and the like process of execution as the said Supreme Court was thereby directed and empowered to issue; and because, therefore, His said Excellency the Governor ought to have received heard and considered such Evidence as the said Appellant was prepared and ready to produce upon such Appeal before he determined the same.

EIGHTLY,       BECAUSE if His said Excellency the Governor were right in refusing to receive and consider Evidence in such Appeal, yet inasmuch as the Appellant was misled by the established practice and usage of such Court of Appeals for the said Colony and by the recommendation of the said Supreme Court, and has thereby lost the opportunity of bringing before the said Court of Appeals the Evidence given, received, tendered and rejected in and by the said Supreme Court, some opportunity should be afforded to the said Appellant to have his Case fully heard and re-considered.

NINTHLY,      BECAUSE the erroneous principle upon which the Supreme Court of Judicature decided against the Appellant, sufficiently appears upon the face of the Judgment of that Court as stated and laid before the said Court of Appeals, and therefore such Court of Appeals ought to have investigated the propriety of such Judgment and of the account as stated by the said Supreme Court, and to have reversed the said Judgment thereon.

T. DENMAN,

T. ERSKINE.

Continued


Notes

[1]             The date and  membership of the committee are handwritten.

The Appeal Book 1781-1819 (held in the office of the Judicial Committee of the Privy Council) records the following:

[1825]

New South Wales

Rt Campbell v Wm Cox

[Received] 4 May 1825

[First lawyers' column] Hall & Brownley

[Second lawyers' column] Mr. Gwinnell

The Appeal Book 1820-1836 (held in the office of the Judicial Committee of the Privy Council) records the following:

From Whence 1825 New South Wales

Parties Robt Campbell v Wm Cox

Received 4 May

Referred 14 June/25

Reported 9 Feb/28

Appd 13 Feb 28

Appell Solcr Hall & Brownley

Resdt's Poole & Greenfield

Observations 19 Octr 1826

[2]             Marginal note: Appendix No. 1.

[3]             Marginal  note: Appendix No. 2.

[4]             Marginal  note: Appendix Nos. 3 and 4.

 

Published by the Division of Law, Macquarie University