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

Mitchell v Walker [1832] NSWSupC 40

promissory note - assumpsit - partnership, dissolution of

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 16 June 1832

Source: Sydney Herald, 18 June 1832

 

Mitchell v. Walker. - This was an action of assumpsit tried last term,[1 ] brought to recover the sum of £115 10s. 6d., the amount of a promissory note drawn by the defendant, in favor of Rapsey and Mitchell.  At the trial the bill was produced, and the endorsement was proved to be in the hand-writing of Mitchell.  It also appeared that Rapsey and Mitchell had dissolved partnership, and Rapsey, on being put into the box, could not say whether the endorsement had been made since the dissolution.  The Assessors, under the direction of the learned Judge, found a verdict for plaintiff.  Last Saturday a Rule was obtained to show cause why the judgment should not be set aside, on the ground that the verdict was contrary to evidence.  The Chief Justice now delivered the judgment of the Court.  It had been pressed upon the Court at the time of trial, as clear law, that when a dissolution of partnership took place, they became separate persons, and had a separate interest in the partnership property, it would, therefore, be necessary for both parties to endorse the Bill before the present plaintiff could sue; they were, however, of opinion that the verdict should stand; Rapsey did not negative the assertion, that the endorsement was made before the dissolution, but said he couldnot say it had been made since, the presumption therefore was, that it was made before: also, Rapsey did not deny that a sufficient transfer of the property had been made to Mitchell, to entitle him to sue.  Motion dismissed.

 

 

Source: Dowling, Proceedings of the Supreme Court of New South Wales, Vol. 72, Archives Office of New South Wales, 2/3255

 

[p. 72] [See Ante vol. 65 p. 154]

A motion having been made for a new trial in this case, the Court looked into the circumstances.

The question was whether the plf having been in partnership with Rapsey, & the Deft having given a promissory note payable on demand to both partners, the plf could sue in his own name after the dissolution of the partnership, without proof of special indorsement or that the indorsement took place before the dissolution [73] of the partnership.  The latter was a question left to the assessors to determine upon the evidence, whose verdict affirmed the fact that the indorsement by the plf took place before the dissolution between Mitchell & Rapsey.

The Court determined, that under the circumstances of the case, the burthen of proof lay on the deft. to shew that the indorsement took place after the partnership, & as he had failed so to do, the plf was entitled to recover.

Rule Refused.

 

Notes

[1 ] See Sydney Herald, 26 March 1832, the trial being held on 21 March 1832 before Dowling J.   The verdict was for the plaintiff, £117 19s.

Published by the Division of Law, Macquarie University