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Decisions of the Superior Courts of New South Wales, 1788-1899

Chandler v Eckford (1830) NSW Sel Cas (Dowling) 372; [1830] NSWSupC 6

promissory note, deceased payee, felony attaint

Supreme Court of New South Wales

Dowling J., March 1830[1 ]

Source: Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462

[p. 289]

[Where a Trader in Sydney in the ordinary course of business took a promissory note of Defts in favour of a man who was executed for Felony before action brought, but without knowledge of that fact on the part of the indorsee, who brought the action in the name of the Payee  Held after verdict that the Execution on the Judgment could not be stayed there being no fraud in the Indorsee.]

 

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 33, Archives Office of New South Wales, 2/3216

 

Chandler v Eckford

This was an action upon a promissory note payable to bearer.  At the trial before Dowling J the defence was that the Plaintiff at time of action brought had been executed for felony at Wallis Plains.  This defence could not be made out and there was a verdict for the supposed Plf.  A motion was afterwards was made for a new trial. on the same ground but the fact could not be established  Execution was afterwards taken out upon the judgment agt the defendants goods on a former day a rule nisi was obtained for setting aside the execution on the like ground supported by the affidavit of the Defendant alone.  Cause was now shewn on affidavits that the real Plfs were Rapsey & Mitchell who had taken the note in the ordinary course of business for value, & that the deft had repeatedly called upon them & promised to pay the note.  There was no proof that Rapsey & Mitchell knew that the Plf was executed at the time of action brought.

Per Curiam This being an application to the equitable jurisdiction of the Court, we think that in the absence of proof of fraud in the holder of the note, the deft comes too late.  The question is who ought to suffer.  There being no proof demerits in R & S we think the deft ought to suffer.  Rule Discharged with costs.

 

Notes

[1 ] From its position in the notebooks, it is likely that this case was decided in March 1830.  A motion to set aside the judgment was refused: Australian, 24 March 1830.

For earlier proceedings, see Charleton v. Eckford, 1829.

Published by the Division of Law, Macquarie University