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

Field v. McDonald, Marr and Rose [1833] NSWSupC 67

penal bonds- succession, administration of estate - Field, Barron

Supreme Court of New South Wales

Burton J., 21 June 1833

Source: Sydney Herald, 24 June 1833[1 ]

Baron Field v. McDonald and wife, Marr and Rose. - This was an action of debt on a bond given by defendant's wife Macdonald to plaintiff, as the Judge of the Supreme Court, when she took out letters and administered to the goods and effects of her former husband.  The defendants Marr and Rose were securities.  The sum sued for was £500, the penalty of the bond.

The breaches assigned on the bond were - First, that she did not make an inventory of the credits, goods, chattels, and effects of the deceased, and she did not exhibit it before the 1st. of October, 1817, or after that period.  Secondly - That the goods and chattels, credits and effects, which came to her hands, had not been duly administered according to law; and Thirdly - That she did not up to the period of bringing the action, make a true account of the administration, as she was bound to do before April, 1818.

The defendants pleaded non est factum.

The case was clearly proved, and the assessors found for plaintiff.  For plaintiff, Solicitor General, W. C. Wentworth, Esq., and Solicitor, J. Dillon, Esq.  For defendants, W. Foster, and J. Norton, Esqrs.

 

Forbes C.J., Dowling and Burton JJ, 29 June 1833

Source: Sydney Herald, 1 July 1833[2 ]

 

Field v. McDonald and others. - This was an action brought to recover £500, the amount of the penalty of the bond entered into by defendant's wife before marriage, on her taking out letters of administration to the effects of her first husband, and the Assessors found a verdict for plaintiff.

Mr. Foster now moved to set aside the verdict, on the ground that the bond was improperly taken by the Judge before the Supreme Court was opened in this Colony, it was therefore extra-judicially, and on the plea of non est factum, the defendant was entitled to take that objection.

The Solicitor General was about replying, when he was stopped by the Chief Justice, who observed, that as to the taking of the bond before the Court was opened, they could not enter into that on the present notice, the bond itself had been taken through the Judge, which was expressly commanded so to be done by the Charter, then what reasonable objection could be made to it?  He saw no reason to disturb the verdict.  The other Judges were of the same opinion.

 

Notes

[1 ] See also Sydney Gazette, 25 June 1833; Australian, 1 July 1833.

[2 ] See also Sydney Gazette, 2 July 1833; Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266, p. 134.  The latter included a marginal note, "See Cowper's Reps."

Published by the Division of Law, Macquarie University