Pedder C.J., 26 July 1826

This cause, which certainly was of a nature as important in many considerations as any which has ever come before the Court, was heard this day, when at midnight a verdict was delivered for the defendant.  Mr. Solicitor-General Stephen was for the plaintiff, and Mr. Gellibrand was for the defendant.  The subject matter of the action was relative to two promissory notes, for £150 and £75, which our Readers may recollect, Mr. Lord advertised some time ago, that he had endorsed without consideration, at the request of Mr. Assistant Commissary-General Moodie.  Mr. Stephen, in his opening, stated it was a case of character; and his assertions appeared in the course of the proceedings to be fully borne out.  Some extraordinary details were elicited in the course of the trial, which we shall report fully in our next.

This was an action brought by the plaintiff, a Solicitor of this Town, against Mr. D. Lord, a Gentleman of much respectability, to recover, the sum of £225, as the indorser of two promissory notes, of a Mr. Richard Downward, a Settler at Pitt Water. Mr. Solicitor-General Stephen was for the plaintiff, Mr. Gellibrand for the defendant.  Mr. Stephen, in stating the case observed, that it was one character.  The plaintiff had received the bills in payment for cattle sold by him to Captain Wood, a Magistrate residing at the Clyde, who had received them from Mr. Assistant Commissary General Moodie, who had received them from the defendant.  The bills were dated so long back as September and October 1823.  Mr. Downward having occasion to borrow money, had applied to Mr. Moodie to accommodate him, who had done so; and these bills had been endorsed by Mr. Lord, at the request of Mr. Downward, and Mr. Moodie had kept them thus long, in order to pay them to the defendant, for the rent of apartments which he occupied in defendant's house.  In support of this statement, Mr. Stephen called Mr. Moodie, who stated, that he knew the parties, both plaintiff and defendant.  Mr. Downward, the maker of the notes, had frequently applied to witness for pecuniary accommodation; witness refused it.  Defendant told him, that if he would do so, he (defendant) would endorse Downward's bills by way of security; that witness did then advance to Downward various sums, and to defendant various other sums for Downward, amounting in the whole to the sums for which the bills were drawn.  That a third of the money at least was advanced to defendant; the whole was advanced at the request of defendant.  Witness kept the bills to balance the rent, which was accruing for rent of apartments witness occupied in defendant's house.  Upon cross-examination by Mr. Gellibrand, Mr. Moodie stated, that he had known Mrs Downward 18 years.  She wrote him a note, when she arrived in this Colony, three or four years ago.  Witness did not introduce Downward or his wife to defendant; nobody was present when defendant offered to endorse the bills; the bills are in witness's hand-writing; Mr. Downward signed them at the Commissariat Office; nobody else was present; defendant never saw the bills until they were signed by Downward; they remained in witness's hands from the time when they were made until about two months ago, when witness paid them away to Capt. Wood; defendant had previously refused to pay them; witness did not endorse them; Capt. Wood took them without; witness never shewed them to defendant, nor ever mentioned them to him until about Christmas last, when he tendered them to him in payment for rent; witness had frequently seen Downward during the period between the making of the bills in 1823 and Christmas last, but had never asked for payment, or mentioned them; witness did not ask defendant to endorse the bills, because being a Government Officer, he did not like it to be known that he lent money.  Defendant told witness the money after witness demanded payment of the bills, that defendant had put his name to them at witness's own request.  Some very high words passed.

Captain Wood was the next witness.  He stated, that he paid the bills to plaintiff for cattle and sheep, about two months ago.  Witness did not let him know they were disputed bills.  On cross-examination, witness stated, that he first saw the bills about Christmas last.  Mr. Moodie shewed them to witness and told him that defendant refused payment of them.  They were placed in witness's hand to obtain payment.  Witness gave Mr. Moodie 214 sheep for them.  The sheep were marked in Mr. Moodie's name.  Witness advised Mr. Moodie to pay the bills away to enforce payment of them.  Witness did not require Mr. Moodie's to endorse them, nor did he himself endorse them when he paid them to plaintiff.  Witness took them with all intention of placing them in Mr. Patterson's hands.  Witness knew that defendant refused payment of them, and that Mr. Downward was in embarrassed circumstances.  Plaintiff owes witness at this time upwards of £200, but yet plaintiff paid him for these bills in sheep and cattle.  Witness did not recollect whether he had any security for what plaintiff owed him.

Mr. Richard Downward stated, that the plaintiff presented the bill for payment about two months ago.  The same day plaintiff told defendant in witness's presence, in the course of a desultory conversation, that he would sue him on his endorsement.  Defendant said he would not pay them.  Witness became acquainted with Mr. Lord through Mr. Moodie.  Witness's wife had known Mr. Moodie for many years, and witness considered him his particular friend.  Witness received all his money for the first note from Mr. Moodie himself.  Mr. Lord was out of town.  Witness signed the notes at the Commissariat Office after all the money was advanced.  Witness never saw the notes after signing them, until plaintiff presented them for payment about two months ago. - Mr. Moodie some months ago promised witness that he would give him time to pay them.

Mr. Solicitor Pitcairn proved notice to defendant of non-payment of the notes, on the Tuesday after presentment to Downward on the preceding Saturday.

Mr. Gellibrand made a most animated defence.  He stated, that this was an attempt to obtain the payment of these bills by the defendant, in a manner to which he applied terms which called forth the interference of Chief Justice Pedder, and which of course we cannot repeat.  He stated, that Magistrate after Magistrate had appeared to support the case, but stripped of all ornament, the naked facts were proved by the evidence for the plaintiff to be such as entitled the defendant to a verdict.  That defendant had endorsed the bills at the request of Mr. Moodie, in order that Mr. Moodie might oblige his friend Mr. Downward, without appearing in the transaction, to which as a Government officer he had objections.  That Mr. Moodie kept the bills three years.  When he wants to pay his rent, he tenders them to defendant, who, of course, refused payment with proper indignation at such an attempt.  That Captain Wood, the next witness, advised Mr. Moodie to pass them away out of his own hands, in order to enforce payment from defendant.  That neither Mr. Moodie nor Captain Wood endorsed them, and thus they find their way into the Court.  The Chief Justice summed up the evidence in an able and impartial manner.  He stated, there were three points for consideration.  First, whether there was any notice of dishonour to defendant.  Secondly, whether if there was such, whether it was sufficient.  Thirdly, whether they were over due bills.  If defendant's endorsement was in the nature of accommodation to Downward, he was not entitled to notice.  But if he received the money himself from Mr. Moodie, then a different legal objection arose, and notice was necessary.  The Jury retired for some time, and at midnight returned a verdict for the defendant, the Chief Justice stating that he differed with them in opinion as the law of the case applied.

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