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

Davis v. Smith [1834] NSWSupC 30

promissory note - felony attaint - married women's legal disabilities, wife of convict

Supreme Court of New South Wales

Burton J., 21 March 1834

Source: Sydney Herald, 24 March 1834[1 ]

Friday. - Davis v. Dr. Charles Smith.  - This was an action brought to recover the sum of £72 amount of a promissory note.

The facts of the case are these:- Davis the husband of the plaintiff, was sent to this Colony, for some offence not stated in the records, for seven years; he was engaged in the employ of Mr. Richard Smith, brother of the defendant, and whilst with him, accumulated some money, which he was induced to lend to the defendant, to the amount of £72, taking at the same time defendant's note for the sum advanced; he subsequently was in the employ of Mr. S. Stephen, when an order was issued to send him down to Port Macquarie; he wanted to endorse the note over to Mr. S. Stephen, who refused to have any thing to do with it.  Mrs. Davis came out to join her husband, and the note was endorsed over to her, for the object of suing for the amount.  She brought out with her, her family, to one member of which, a man by the name of Beech, second mate of the vessel, became attached, and the note was ultimately endorsed over to him, and Mr. F. Stephen, (after application had been made for the payment), was instructed to bring an action against the defendant for the same.  This action was commenced, and had advanced some way in the preliminary proceedings, when Mr. F. Stephen declined proceeding, on the ground that he could not get possession of the note.  It appeared that Beech had advanced the sum of £16 to Mrs. Davis, she being at the time short of cash, and it was for the purpose of securing that sum, that the note was endorsed over to Beech, Mrs. Davis still keeping possession of the note; when Beech found Mr. Stephen would not proceed in the case, he applied to Smith, and on his paying him the £16 due from Mrs. Davis to him, he gave a receipt for the action, that is for £72.

Mr. Therry for the plaintiff, stated, that it was a most irregular transaction, and regretted that defendant, being an intelligent man, should suffer his name, not only in this, but in other transactions, to be so familiar in the court; there was an evident intention on the part of some individuals to defraud, as in receiving the receipt from Beech, no demand was made for the note in question, but parties appeared anxious to wipe their hands of the affair, no matter in how dishonourable a manner.

Mr. S. Stephen on behalf of defendant, stated, that when the note was presented to him, he refused to pay it on the grounds that the money for which the note was given, was obtained by a sale of goods, obtained from his brother, Richard Smith, whilst Davis was in his employ.  An action had been brought, and he Mr. S. S. should have moved for a nonsuit, but the affair was arranged.  Mr. S. S. then produced the receipt given by Beech, in full of all demands for the amount claimed, and called J. W. Ward, clerk to Mr. F. Stephen, who stated, that he knew Beech very well, from his coming often to the  office, respecting the action against Smith. - when the action was settled, witness heard Beech say, that he had received a note of hand for £16, and nothing more.

Daniel Rogers stated, that he was a publican in George-street; Beech owed him £30, and in part payment gave him a note of hand for £16, given to him by Smith, which note has never been paid.

The learned Judge stated the case to the Assessors, who returned a verdict for the plaintiff - damages £56.

Judge Burton observed, that this was the most disgraceful defence that ever was produced in a Court of Justice.  The defendant received the money from Davis, with the belief that it had been taken from his brother, gave his note for it, and then refused to pay it; and subsequently prevailed on Beech to give him a receipt for £72 knowing at the same that he had paid only £16 of the money; It was in every respect a most disgraceful defence.



[1 ] See also Australian, 24 March 1834.

Published by the Division of Law, Macquarie University