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

Jones v Howe [1831] NSWSupC 38

goods sold and delivered - civil procedure - Court of Requests

Supreme Court of New South Wales

Forbes C.J., in banco, 18 June 1831

Source: Sydney Gazette, 23 June 1831

DEMURRER.

Richard Jones, Esq. and others, executors, v. John Howe.

Mr. Foster said this was an action brought by the plaintiff's, executors of the late Robert Howe, against the defendant, for goods sold and delivered; the declaration alleging that the cause of action existed in the life-time of the deceased Robert Howe.  To this declaration the defendant had pleaded that the plaintiff's could not maintain their action, inasmuch as, the said executors had already recovered a verdict in the Court of Requests at Parramatta.  A replication had been filed to this plea by the plaintiffs, setting forth that the verdict recovered in the Court of Requests was not for the identical cause of action, but for debt due to the executors since the death of Robert Howe.  To this replication the defendant had demurred, on the ground that is was not denied, but impliedly admitted, that the plaintiffs had recovered a verdict, subsequent to the existence of the debt for which they now sued; and that as, under the provisions of Courts of Requests in this Colony, a plaintiff could not split his demand; the plaintiffs were therefore debarred from maintaining this action.  The learned counsel contended, under the authority of the Act of Council, that these were substantial grounds of demurrer, as the plaintiffs might have joined the amount sued for in the Court of Requests with any other causes of action which had accrued in the life-time of the testator.

Mr. Kerr, for the plaintiffs, contended that the demurrer ought to be overruled; inasmuch as the judgment recovered had been for a debt contracted with the executors since the death of the testator.  The estate was now managed by an agent who sued in his own name for all debts contracted since the decease of Mr. Howe, as for debts due to himself, and had nothing at all to do with debts which accrued in the life-time of the testator.

Mr. Foster - The replication admits that the judgment was recovered in the names of the executors.

Mr. Kerr - If the demurrer were to be allowed, and the Court rule that no debts could be recovered from the debtors of Mr. Howe, in his life-time, some thousands of pounds will be lost, beause the now managing agent for the estate has hitherto invariably sued in his own name, as agent.

Mr. Foster - No; what we contend is, that you should have joined the whole cause of action in the same declaration.

The Chief Justice - We are of opinion that the demurrer ought to be overruled, and the parties go to trial on the pleadings.  The declaration avers that the plaintiffs are executors, and, as such, come before the Court to claim a debt due to the testator in his life-time; a second count averring the debt to be due, and a promise to pay in the life-time of the deceased, Howe.  A plea is put in that a judgment has already been recovered for this identical debt.  To this plea, a replication has been filed, that the debt recovered was a debt contracted with the executors since the death of the testator, and that what they now claim is a debt due to him in his life-time.  The learned Counsel, in support of the demurrer, argues that the two causes of action might have been joined, and that, as they were not, ergo it must be presumed that the now sued for is the debt for which a judgment has already been obtained.  We presume no such thing; and are of opinion that the case is sufficiently clear to go before assessors, for them to ascertain what these parties are really disputing about. Demurrer overruled.

Published by the Division of Law, Macquarie University