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

Morgan v. Jones [1834] NSWSupC 96

gambling, defence of - promissory note, consideration

Supreme Court of New South Wales

Dowling J., 19 September 1834

Source: Australian, 23 September 1834[ 1]

Morgan v. Jones. - This action was brought to recover the sum of £15, upon a promissory note, made by the defendant, in favour of Samuel Dean, and by him indorsed to a third party, who had indorsed it to the plaintiff.  The defendant pleaded the general issue, non assumpsit, and gave notice that he would dispute any consideration having been given for the same.  The note having been produced and proved, it was contended for the defendant, that it had been obtained from him for money lost at Cards, and it was therefore absolutely void by the statute, and that even an innocent holder, could not recover on it.  It was proved that the defendant had lost a sum of money at cards, for which, being ``cleaned out," to use the expression of the wistress [sic], he had given two promissory notes, payable, on demand, for the respective sums of £5 and £10.  On the next morning he stated his inability to pay - but proposed giving the present note for £15, at three months date, which was accepted, and subsequently before, it became due, passed to the present holder.  Upon the part of the plaintiff it was argued, upon the authority of George v. Stanley, 4 Taunton, 683.  That a renewed security given for a gambling debt was valid in the hands of a bona fide holder before it became due; the defendant ought to have availed himself of this ground of defence when the first bills were presented for payment, and that it was now too late for him to set it up, the bills having been passed for value to an innocent holder.  The learned Judge told the Assessors that the point for their consideration was, whether the two first bills had been renewed, or whether the present one had been merely substituted for them.  If they were of opinion it was a renewal of the security, they would find for the plaintiff, if, on the contrary, they thought it was a mere substitution of one note for the two, they would find a verdict for  the defendant.  The Assessors found a verdict for the defendant.

Counsel for the defendant, Messrs. Keith and Nichols; for the defendant, Messrs. Therry and N. Allan.

 

Notes

[ 1] See also Sydney Herald, 22 September 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3286, vol. 103, p. 61.

Published by the Division of Law, Macquarie University