Supreme Court of New South Wales

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Hill v Owen [1828] NSWSC 73 (10 September 1828)

Last Updated: 12 October 1998

[bill of exchange, notice of dishonour - common money counts]

[p. 101]

[In an Action upon a draft or order for the payment of money to bearer want of notice to the drawer of the dishonor will not prevent the plaintiff from recovering the money on the Common Counts.]

Wednesday 10 Sept 1828

Mr Sparkes and Mr E Scott

Assessors

Dowling J present

Hill v Owen

Assumsit on a draft for 50£

Moore opens

James Lindsay. I know the handwriting of the Defendant. This order was written and signed by the Defendant in my presence 9th December 1827 I have seen it presented to the Defendant I saw it presented to Owen and to Middleton

Keith objects. No notice of the Non payment.

I[1] overruled the objection because first no proof that Defendant had assets in Middletons hands. There [p. 102] is notice proved admitting that bankers check or draft are negotiable as bills of exchange and subject to the same rules.

Msr Middleton

Pay the Bearer fifty pounds.

Sterling your truly

December 9 1827 Henry D Owen.

It was given to Mr Hill on account of Monies due to him.

No part of this has been paid.

I received a Letter from Owen complaining of Middletons conduct in not paying the order.

This was a month after the date of that order this letter destroyed 43£ was paid on another account by Middleton after this draft was given. This was for money lent to the Defendant.

This was money received from Middleton

Verdict for Plaintiff Damages 50£

=

Keith moved for a new trial in this case but the Court after hearing my report of the case thought there was no injustice done, for the Plaintiff might have recovered under [p. 103]

the Common Counts.

Moore for Defendant see Chitty on Bills 6 Ed 496.

Rule refused