SUPREME COURT.—CIVIL SITTINGS Auckland, June 7, 1850. Before His Honor the Chief Justice. Gibson & Mitchell'v. Henry Matson.

New Zealander, Volume 6, Issue 433, 8 June 1850, Page 3

SUPREME COURT.— CIVIL SITTINGS Auckland, June 7, 1850. Before His Honor the Chief Justice. Gibson & Mitchell'v. Henry Matson.

The question between the parries, which exciter! considerable interest ninonjr the mercantile community, was the amount they could legally recover upon the defendant's dishonored bill of exchange, drawn upon Messis. Cox & Co., London, The plaintiffs alleging that by the uta^e nnd custom of the merchants of Auckland they were entitled to 25 per cent, re exchange, winch w*s to cover all interest damasjes and chnrgci upon the bill. The defendant denied that there was snob a custom in existence, and contended that the plaintiff could only recover 8 per cent., the legal interest of the colony. The following witnesses were examined on the part of the plaintiffs— the defendant called no witness. Alexander Kennedy, Manager of tfte Union Bank of Australia, having been sworn stated : I have been nine years in New Zealand ex( ept one year absent ; niy occupation dining th«t time has been that of banker. I was Manager of the former bank ( New Zealand bank). The usual charge by tlie bank on a bill drawn on England re'urned dishonored is 25 per cent, reexchange, with all expenses ; I have never known any other charge made; 25 per cent, re exchange and all iiotoiial charges additional is the charge that has always been paid ; I know several instances in which that has been paid— the first instance was as far back as 1842 or 43—25 per cent, according to my experience has been always demanded. Examined by defendant's counsel : But not always paid — the Government has retused to pay it and I did not get it. In many instances it was paid under special agreement, made at the time of discounting the bilii, but in one instance it was paid wi'hout any special agreement. It has been diluted and refused to be paid, therefore 1 had recourse to special agreement. I cannot say that all have assented to this practice, but it is usual with the bank ; I believe there is a difference of opinion existing— the 25 per cent, is to cover damages &c., sustained by lots of money. Re-examined : The precaution of special agreements was adopted a few years after the bank was established in the colonies, and I believe was adopted by all the branches of the bank. Since the bank was e*>t>ulished here, in January 1848, it bus been the practice to take special agreements. The instance in which the 25 per cent, was not paid was previous to the existence of the Union Bank here, I have known cases where the 25 per rent, has been paid, and others where it has been icfuaed. Theie have be.-n very few bills returned to the Union Bank, but the 25 per cent, has been paid under the spe<inl ag-ieement in each case. Charles Way brow Ligar, Surveyor General: My name was once to a dishonored bill of exchange, returned from England, which 1 endoried for anoiht-r person, I paid 25 per cent, re- exchange to the holder of thai bill. I paid it because I understood ie was the usual custom. Examined by defendant's counsel : I was endorser — it was not dove through the bank, it w»» through a private person, in November 1847. The bill was .£l5O — I paid it to Mr. Montefiore. By Court : I also paid £2 14s. notorial chmges. John Woodhouse, merchant, Auckland: I believe it is customary to clmrge 25 per cent, on a retnrned dishonored bill from England. Examined by defendant's cnunspl : I believe it ii customary independent of any special agreement, ever since I was in the colony I always undeistood it to be so, so for as my knowledge of the people ot Auckland went, I think it was the universally received opinion in Auckland. The dishonour of bills is very unfrequent, I believe it is desirable to establuh such a custom here. Thomas Lewis, merchant, Auckland : So far as my opinion goes there should be re-exchange on dishonOUied bills drawn on England to the amount of 25 per cent, and notarial charges. Examined by Deleudant's counsel : 2/» per cent is not sufficient remuneration. 25 per cent I beluve to be the custom, but I have not hud any experience of it, I Know nothing of it from my own pemonal knowledge. Charlfs Davis, merchant, Auckland : 25 per cent re-exchan^e is the charge made on returned bills of exchange from England. I know of one instance where it was paid previous to 1 8 1-8 . Examined by Defendant's Counsel : I never knew of any other instance, as far as my knowledge goes such a custom n> established. William imellie Gruhame, merchant, Auckland : for eight or nine yearw the demand usually made on returned dishonoured buls from England is 25 pe' cent re-exchange. I have claimed (hat sum. I think I hare always claimed that t>um m addition to notarial charges. 1 have received that amount in an account in 1842. I have also failed in getting that amount in Air. Hurt's

case. I demanded it but did not get ii-. There \va3 nlso a -£250 Government bill, they have paid no repxchange, they p<ud interest 5 per cent per annum. Thorn were other bills to the extent of £'M 2 upon which I made the demand, but did not leceive if, and I gave it up because I did not think the usa^e sufficiently established to warrant me bringing a:i action of law. Examined by Defendant's counsel : I believe it js very desiiable to establish such a custom, but 1 do no t think it is es'ablished, so far as n»y experience goes it is not universally recognised nor assented to. By the Court : There were three bills for the .£532 same drawer different endorsers, they were drawn about the tnd of 1847. and returned in the Bth or 9th month of 1848. Wilham White, settler, Auckland: on one occasion h bill came back to me dishonored fiora England, through Mr. Grahatne. 23 per cent was claimed on the original amount, I paid it. James Macky, merchant, Auckland : the testimony of thib witness went to conoborrtte the fact of a custom having been established in Auckland, on his rp-exa-minalion he stated ihat 25 per cent was a moderate amount, and thai in some instances 30 or 40 per ceut might not compensate the parties. Alexander Shepherd, Colonial Treasurer : I know of one instance where 25 per cent was paid beside notor.al fees on a returned dishonoured bill Irotn England. Re examined : I paid it myself because I lupposed it was thrf custom, it was a small bill. The bill was drawn about 1817, and I paid it in about 1848. F. \V. jVJerriman, Solicitor, Auckland: I hnve always understood that 25 per cent is the amount paid on dishonoured bills from England. 1 can call to my recollection six instances where that sum was paid. The bills were drawn and paid prior to 1843. Ido no} know of an instance wherp less has been paid. Examined by Defendant's counsel : I should say that bv all persons having transactions in Forrign bills the custom is generallyknown. D.ivid Nathan, merchant, Auckland : I am aware that the sum of 25 per cent it generally paid on dishonoured bills from England. I hare in three or four cases rectived that sum, that is the cußtomary charge. With the exception of the Government I have received it iueveiy case. Examined by Defendant's counsel : I have heard it rematked that there is no law for it. Mr. Wlntaker nddressed the Jury on behalf of the Plaintiff, Mr. Bunley for Defendant. The Jury after half and hour's consultation, returned into Court, finding Veidict Jor Plaintiff. The amount dawned £125 and costs.