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

Long v Hedges [1833] NSWSupC 13

promissory note, discounting - married women's legal disabilities

Supreme Court of New South Wales

Burton J., 6 March 1833

Source: Sydney Herald, 11 March 1833

WEDNESDAY. - Long v. Hedges. - This was an action brought to recover £30 8s. 6d., being the amount of a promissory note drawn on the 16th April, 1832, at six months date, payable to Messrs. Gunn, McLean, or bearer, and endorsed by them to plaintiff.  The note was signed Jane Hedges.  Plea, the general issue.

It appeared that defendant is a mariner, and during his absence at sea, the note in question had been drawn by his wife for some building which had been done; the note was offered to plaintiff to discount; before he cashed it he sent his clerk with it to Hedges, whom he saw with his wife; Mrs H. said it was her hand writing and Hedges himself said that he permitted his wife to draw bills while he was at sea, and when it was due it would be paid.  The bill was then discounted by plaintiff, deducting 15 per cent. for the time it had to run.

Mr. Foster, on behalf of defendant, objected to the liability of the defendant, for had there been the most ample testimony that Jane Hedges had been authorised to draw bills in the name of her husband, she must do it in his and not her name, as in the case of an agent he must act in name of his principal - 6 Term Reports, 176.  In the case of Barlow v. Bishop, 1st East 432, where a promissory note being given by the defendant to a married women, whom he knew to be such, with intent that she should indorse it to plaintiff in payment of a debt which she had contracted to him in the course of carrying on a trade on her own account by the consent of her husband; it was held that the property in the note vested in the husband by the delivery to the wife, and that no interest passed by her endorsement in her own name to the plaintiff.  On these grounds he considered his client was entitled to a verdict.

Mr. S. Stephen thought that if his learned friend had read a little further, he would have found out his mistake, the continuation of the note cited was this - ``but there the defendant had made no promise to the indorsee after the indorsement.  Except in the instance of a feme covert, it is no defence to an action on a bill or note, that the plaintiff derives title through one who would not himself have been liable upon it.  Taylor v. Croker, 4th Esp. Cas. 187; Haly v. Lane, 2 Atk. 182."  In the case now before the Court, it was proved that defendant had recognised the act of his wife, and promised to pay it when it became due.

Judge Burton was of opinion that the objections were invalid.  He should put the case to the Assessors, whether Hedges had or had not authorised his wife to sign the note - there was all the difference between a mere endorsement and an acknowledgement of that endorsement.

A witness was then called to show if possible the impossibility of defendant authorising his wife to sign the note.

Mr. S. Stephen having replied, Judge Burton summed up, putting the case to the Jury on the question whether Mrs. Hedges had any authority to draw the note for her husband, if so, plaintiff was entitled to a verdict.  Verdict for plaintiff £30 8s. 6d.

Mr. S. Stephen for plaintiff, and Mr. William Foster for defendant.

Published by the Division of Law, Macquarie University