SUPREME COURT. Wellington, October 16, 1844. Before H. S. Chapman, Judge, Pownal v. Fitzherbert.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 6, 16 November 1844, Page 2

SUPREME COURT. Wellington, October 16, 1844. Before H. S. Chapman, Judge, Pownal v. Fitzherbert.

Tnis was an action lor money had and received. The plea set forth that the defendant had remitted the plaintiff a bill of exchange, which he had retained for eighteen months after it had been dishonored, and that he had therefore made the Bill his own, and had thereby extinguished the original debt. The trial came on before Mr. Justice Chapman, and a Special Jury, on the 1 1th September. Evidence was given as to the custom' eof c of merchants respecting the necessity of im_mediately returning bills of exchange. His Honor explained to, the Jury that, by what the law called laches, the plaintiff's right of action, not only on the' bill, but the original debt, would be extinguished, -£- and the question for them to decide.. was, whether the custom merchants required that the holder of an unpaid-bvll should return it at once, or whether the defendant ought to send and take it up. On an inland bill the holder undoubtedly did all the law required q|* him by giving notice of dishonor. . ? H,e -might then keep the bill in his possession until *lhe money was tendered ; but the question was, - whether the holder abroad .(at Sydney) is placed in „the same position : — whether ought not, according' to the customs of merchants, to send the bill to some agent at the place of th.c defendants residence, so as, to briqg it. within, the defendants reach, aridstf reduce: it to the footibgrof an inland bill. T-htey ha8 i heard evidence oh Bo&TsideSi' aff&\}t' r vrks'-f6f. . {fefem"' to 'decide. The Jury" fauna 1 _for,»jf|e plaintiff! ,^ ' t . -. . , .-.liirsro c Afterwards, Mr.: Ross maved-for' a" «W- . trial, on the-ground that- ,by receiving^ bill^ ; exchange in payment/ the figt}fcJ p£ rMjufoii'jtj^ the original debt was .gone; and that by the ' plaintiffs, laches, no action could be maintained on the bill. It,iyas.,aJ«o\cpntgn4#fe tnat a cettain paper, which seems to hav<pgbt accidentally^inTo~thTe hand&roCrthe" . JuTfy, (what it was' did not|appear)rhad innuejaced i them ) and further, that the Judge fiad imy ipropexly^rejgcited evidence as to a mistake of the defendants, in omitting to endorse one of the^bills. y „ >■- ~,\: ,«- -„ 7 s Mr. Hakson opposed the rule for a new tr|al.. .1. As, tcfthe leffef Vhfch went to, the Jury, ;tWe is no-affidavit to show" whYt l i|_ was, or hqw4t. opjerated on -^he iwty. :sDhe

"Judge told them it was" not evidence, and therefore it must be held not- to have gotte to them at all. 2. Taking a .bill does not discharge the debt, unlesiT there are laches, and this delay is none. After notice of dishonor the law knows no ladies; though the point is not to be found in the books, the principle may be collected from Callow v. Lawrance, 2 M. & S. 97 : Pring v, Clarkson, 18. & C. and other cases — Instead of greater strictness in foreign bills, there should be greater latitude. — Mellish v. Rawdeu, 9 B. & C. In the case of Van Wort v. Woolley, 3 B. and C, the defence was laches, in not giving due notice of dishonor ; but the case showed that the bills had been retained for several years, but neither Counsel nor Judge threw out a suspicion that such delay would have been a defence. Yet, if it had been a good defence, would it not have been pleaded ? In Humphry v. Sanderson there was a delay of five years. The Judge properly directed the Jury they might use their own knowledge of custom. . Mr. Ross supported the rule. The Jury cannot go so far as the learned Counsel contends, otherwise there would an end of the use of witnesses. They are sworn to decide according to the evidence. The learned Judge did not tell them they were to dispense with the evidence, and yet they have clearly don« so, for the weight of the evidence is on the defenant's side. The original debt in this case is discharged. In all the cases where the contrary has been held, the bill was merely between theparties ; but there is a distinction where the bill is on a third party. As the plaintiff had retained the bill, he cannot fall, back on the original debt. Before he is entitled to do so, he should first have returned the bill. This case is even stronger, for the defendant wrote saying he would not pay the bill unless it was -sent back, and he was entitled to have the bill placed within his reach ; it is not his duty to seek for the bill. The verdict was clearly against the weight of evidence — four witness said the bill ought to have been returned, and only two were against it, and they admitted that they should have hesitated about paying the bill under such circumstances. Mr. Sea, on whom they rely, only spoke as to the custom of Bankers, which all know differ from that of Merchants — of which Mr. Sea admitted he knew but little. On Monday, the 16th October, Mr. Justice Chapman gave judgment : — This action was brought to recorer the sum of ;gllO 133, 5d., being the proceeds of goods sola by the defendant on the plaintiff's account. There ■wm no question as to the original cause of action, the amount being admitted in an account of sales rendered by the defendant in the regular course of his business ; but the defence set out in the plea is, that the plaintiff's right of action has been determined by his own lacket, in detaining, for about sixteen months, a Bill of Exchange which the defendant had remitted him. The trial was had before a Special Jury, compri.iag several gentlemen txperienced in mercantile affairs, and especially in bill transactions both here and in Europe ; evidence was given as to the custom of merchants in relation to the duty of immediately returning, or right of retaining a Bill of Exchange after it has been dishonoured; and the Jury found for the plaintiff. The defendant now seeks to haTe the verdict set aside and a new trial granted on the following grounds : 1. Tbat the verdict is against lair, as the plaintiff by receiving the bill in payment gave up his right of action on the original debt. 2. That it is against evidence, as the whole of the testimony showed that the detention of the bill amounted to such laches,— to such a breach of the usuage of merchants, as to discharge the defendant, 3. That evidence to explain the want of indorsement on the bill produced was improperly rejected. 4. That a letter or paper which fell into the hands of the Jury, improperly influenced them. 1 The taking a Bill of Exchange does not amount to absolute payment or extinguishment of a debt. It merely suspends the right of action during the time the bill has to run, but on the bill being dishonoured that right revives, and it is settled that the creditor need not declare upon tjoe bill, but may confine himself to the original debt. This was decided long since, and the rule of law has been recently reviewed and confirmed by the Court of Common Pleas, in Barden v Halton, 4 Bing. 6541 The distinction contended' forby the learned Counsel for the defendant, moreover, does not exist in law, as to this point many cases are to be foundliketheprespnt,and this action, consequently is properly brought. 2.. The next point is as to the alleged laches -. that is, the efiect of the detention of the bill for a period of 15 or 16 months ; and this really involves the whole question at issue. Whether such a detention amounts to laches; is a point that has never yet been raised in a Court of Justice, and must therefore be determined by mercantile usage. Before Loid Mansfield's time many poinU-which we now very properly treat as settled law, were mere matter of owage lite the present ; settled,rno doubt,, among merchants, bat wholly uniettl&din the mindsof the Judges. Until a question of usige has been reduced, to a rule of law, ityemains a-questipn "for 'thV Jury; and the Court would step beyond its province and usurp the function* of the Jury* were it to decide. In this caie there was evidence both for and against the custom contended for on the, part of the defendant, and although the learned Counsel for the defendant is right in saying the Jury ought not to dispense .with the testimony of the witnesses, yet this m precisely one of those cases, in which the Jury mix J *JP D ?y i,thcir own knowledge of mercantile osuage, -in estimating the weight of the testimony, and having: determined r that weight to' be on one side, the Court is^really riot competent to inter-

pose and sty it is on the other. 3. A point is also raised as to the want of indorsement on the bill which it is now said could hare been explained to have been an error, and that the other bills of ihe set were indorsed. I think now, as I thought at the trial, that itdoes not affect the real question. The only difference seems to be this : if indorsed, the plaintiff could bring his action either on the bill or on the consideration ; if not indorsed, he would be confiued to the original consideration ; thus, in either case, the action was properly brought for the original debt. I therefore suggest the withdrawal of the evidence explanatory of the want of indorsment was for the purpose of saving time. 4. As for the letter which was accidently mixed up with the papers in the cause, the foreman very properly brought it into Court, when it wa3 found, and asked me if it should be looked at. 1 told him it was not evidence in the cause, and it went to them no more. In no way therefore could it have affected their verdict, as it stood, even in a weaker position than testimony which the Jury is told to dismiss from their minds ; and we have no reason to suppose that it had any thing to do with the point at issue. Although the case is new in its most important feature, and I amglad to have had it fully discussed and considered ; yet as the question is one proper for the Jury and not for, the Court, and as a competent ' Jury has decided -upon the evidence, I can see no reason for disturbing the verdict. Rule discharged, (with cottt.J