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

Lord v. Campbell [1814]

bill of exchange - seal skins, trade in

Appeal Committee of the Privy Council, 1814

Unreported[1] 

Source: Printed Cases in Indian and Colonial Appeals Heard 1807-1826 (kept in the office of the Judicial Committee of the Privy Council).

To His Most Excellent Majesty in Council.

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Appeal from New South Wales.

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SIMEON LORD.....Appellant,

AND

JOHN THOMAS CAMPBELL....Respondent.

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THE CASE OF THE RESPONDENT.

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            THE Respondent is the agent at Sydney, in New South Wales, of Messrs. Bruce, de Ponthieu, Bazett, and Co. of London, Merchants; and the action which gives rise to the present appeal, was brought by him in January 1812, in the Court of Civil Jurisdiction of the above settlement, upon a bill of exchange for £1,300, drawn by the Appellant, and of which Messrs. Bruce and Company were indorsees.

            The following is a copy of the bill.

Sydney, New South Wales,

October 11, 1811.

            Gentlemen,

                                    At sixty days after sight of this my second of exchange, (first and third of the same tenor and date unpaid), please to pay Anthony Burnside, Esq. or order, the sum of thirteen hundred pounds sterling, for value received, and place the same to the account of the Schooner Antipode, as per advice from,

                                                                        Gentlemen,

                                                                                    Your obedient Servant,

                                                                                                S. LORD.

Messrs. Hullett, Brothers, and Co. }

Merchants, London.                         }

                                                            3511.

                                                            W.F. 23d April, 1810 - 1s. 6d.

                                                            W.F. 25th June, 1810 - 1s. 6d.

                                                Indorsed as follows:

            Pay the within to Messrs. Bruce, de Ponthieu, & Co. or order.

A. BURNSIDE.

It was admitted at the trial, on the part of the Appellant, that the bill was drawn by him, and the indorsement of Burnside was proved.  The Plaintiff also gave in evidence a notarial protest, under seal and stamped, signed Wilson Forster, Notary Public, dated the 25th of June, 1810, protesting against the drawers, and all concerned in the said bill, for non-payment.

The following are copies of the protests for non-acceptance and non-payment of the said bill.

"On this day, the 23d of April, anno 1810, at the request of Messrs. Bruce, de Ponthieu, Bazett, & Co. of London, Merchants, I, Wilson Foster, Notary Public, by lawful authority admitted and sworn, dwelling in London, exhibited the original bill of exchange, whereof the copy is on the preceding side, written to a clerk in the house of Messrs. Hullett, Brothers & Co., to whom the same is directed, and demanded acceptance thereof.  He answered, that the said bill would not be accepted at present.  Whereupon I, the said Notary, at the request aforesaid, did, and do, by these presents protest, as well against the drawer of the said bill, as all others whom it doth or may concern, for exchange, re-exchange, and all costs, damages and interests, suffered, and to be suffered for want of acceptance of the said bill, thus protested in the presence of Robert Forster and Peter Hum, Witnesses.

Prot. 17s. 6d.                           Signed (L.S.) "WILSON FORSTER, Not. Pub."

            "On this day, the 25th of June, anno 1810, at the request of Messrs. Bruce, de Ponthieu, Bazett, & Co. of London, Merchants, I, Wilson Foster, Notary Public, by lawful authority admitted and sworn, dwelling in London, exhibited the original bill of exchange, whereof the copy is on the preceding side, written to a clerk in the house of Messrs. Hullett, Brothers & Co., to whom the same is directed, and demanded payment thereof (the time limited for payment of said bill being elapsed, since the first presentation by me, Notary.)  He answered, that the said bill would not be paid at present.  Whereupon I, the said Notary, at the request aforesaid, did, and do, by these presents protest, as well against the drawer of the said bill, as all others whom it doth, or may concern, for exchange, re-exchange, and all costs, damages and interests suffered, and to be suffered, for want of payment of the said bill. Thus protested in the presence of Robert Forster and Peter Hum, as witnesses.

                                    (Signed)          "WILSON FORSTER, Not. Pub."

            Notice of the dishonour of the bill it appeared reached the Appellant on the 3d of July, 1811.

            The Plaintiff also proved, by the evidence of George Crossley, who was his agent in the cause, an acknowledgment, on the part of the Appellant, of his liability on the bill.  Crossley deposed that a few days before the action was brought, he called upon Mr. Lord, in order to induce him to pay the bill in question; that he presented it to him with others, when Lord said he had not sterling money enough to pay it; that he had made overtures to Mr. Campbell for time, and he thought it very hard that Mr. Campbell had not acceded to them.  He further proved that since the action was brought, proposals had been made by Mr. Lord and other persons to take up the bill; but Mr. Campbell did not accede to them.

            On his cross examination he admitted that he had been indicted for perjury in England, at Common Law, and convicted; but he also stated that he had afterwards been pardoned.

            On the part of the Appellant, it was contended, that the protest for non-acceptance could not be dispensed with.  That the notice of the dishonour of the bill was too late, and that Crossley was not a competent witness.

            He likewise further insisted, that, supposing the said Crossley to be a competent witness, still that his evidence did not cure or do away any of the defects or objections above relied upon.  He likewise gave in evidence, that a collateral security was given for the payment of the bill in question to Captain Burnside, which security was a bill of lading of certain skins, shipped on board the Boyd, which was lost at New Zealand, which bill of lading, dated Sydney, New South Wales, the 11th of October, 1809, was read, and purported to be the shipment of 2860 seal skins on board the Boyd, by S. Lord, of Sydney, merchant, and consigned to Messrs. Hullett, Brothers, & Co. merchants, or their assigns.  The following indorsement upon which bill of lading was also read in evidence:- "I, the undersigned, having drawn a set of bills, at sixty days sight, in favour of Anthony Burnside, Esquire, or order, for £1300 sterling, on account of the Schooner Antipode, do agree, in case of the said bills not being duly honoured, that as many of the within named seal skins should be sold as will discharge the said set of bills, they being part of the disbursements of the said Schooner Antipode, which procured the said skins.

"S. LORD.'

            Having heard the above defence, the Court gave judgment for the Plaintiff, the present Respondent - damages £1491: 3: 4, costs £2: 3: 10.

            From this judgment the Appellant appealed to His Excellency Lochlan [sic] Macquarrie, [sic] Esquire, Captain General and Governor in Chief of New South Wales, who, on the 22d of May, 1812, affirmed the Judgment of the Court of Civil Jurisdiction.

From the above judgment the Appellant has further appealed to Your Most Excellent Majesty in Council; but the Respondent humbly hopes that the appeal may be dismissed with costs, for the following, amongst other

REASONS:

_______________________

FIRST - Because there is sufficient evidence of the non-acceptance and non-payment of the bill by the drawers; and because it does not appear in evidence that there was any delay on the part of the indorsees, in giving notice of the dishonour of the bill to the drawer, the Appellant.

_______________________

Second - Because the conversation with the witness, Crossley, amounts to a promise on the part of the Appellant to pay the bill, and is a waiver of any previous informality, supposing such to have existed.

_______________________

Third - Because this promise to pay, is proved by competent evidence.

_______________________

Fourth - Because the evidence respecting the bill of lading and the seal skins is wholly immaterial to the present action.

_______________________

W.D. BEST.

RALPH CARR.

Ex parte[2]

IN COUNCIL

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APPEAL

FROM

NEW SOUTH WALES.

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SIMEON LORD ... Appellant.

AND

JOHN THOMAS CAMPBELL ... Respondent.

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RESPONDENT'S CASE

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            To be heard before the Right Honourable

the Lords of the Committee of His Majesty's Most

Honourable Privy Council for Plantation Affairs,

on the     Day of     1814.

                                                GREGG & CORFIELD,

                                                Solicitors for the Respondent.

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Johnson, Printer, Hoxton.

Source: PRO PC2/195 Council Register 15 July 1813 to 23 June 1814 (kept in the office of the Judicial Committee of the Privy Council), 6 May 1814

New South Wales

Appeal of Lord vs.

J.T. Campbell

Refd. to Committee

            Upon reading this day at the Board, the humble Petition and Appeal of Simeon Lord Esqre. Against John Thomas Campbell from a Decree of the Governor of New South Wales of the 22nd. May 1812, pronounced in a Cause upon an Action brought in the Court of Civil Jurisdiction there touching a certain Bill of Exchange for £1300 Sterling drawn by the Appellant upon Messrs. Hullet Brothers and Co. of London Merchants, and humbly praying that the said Decree may be reversed, or for other Relief in the Premises; - It is hereby Ordered, &c. -

Notes

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

[1814]

New South Wales

Simeon Lord v John Thomas Campbell

[Received] 8 March

[Referred] [tick mark put in this box]

[Second lawyer column] Gregg & Corfield

Petition to dismiss withdrawn. Appeal lodged 28 March 1814 Mr. G Long 14 Southampton Buildings Elm Court March 1814.

Later in the same volume, the following appears:

[1814]

Do. [referring to New South Wales]

Simeon Lord v John Thos. Campbell

[Received] 28th March

[Referred] [tick mark put in this box]

[First lawyers' column] Do. [referring to Mr. G. Long 14 Southampton Buildings]

[Second lawyers' column] Gregg & Corfield

Ex parte (Respt.)

Under Enquiries, the same Appeal Book recorded the following:

Do. [referring to New South Wales]

Simeon Lord v JT Campbell Esq

[First lawyers' column] Mr C. Long Elm Court

[Second lawyers' column] Gregg & Corfield

[2]              On the back of the preceding page, the first two words in handwriting.

 

Published by the Division of Law, Macquarie University