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

Pendray v. Nichols [1834] NSWSupC 37

Statute of Limitations - infancy - reception of English law, Statute of Limitations

Supreme Court of New South Wales

Burton J., 20 March 1834

Source: Sydney Herald, 24 March 1834[1 ]

Thursday. - Pendray v. C. Nichols.

This was an action to recover the sum of £282 9 s., for clothes supplied to defendant during several years.  The defendant pleaded the statute of limitations and non-age.

Plaintiff's son, and several other witnesses, proved that the clothes were made and delivered to defendant by his order, and not by the order of Captain Piper, his guardian, and executor under his father's will.  It was also proved that defendant had promised to pay the bill when he attained his majority.  The prices charged were the regular trade prices, although such an extension of credit had been given.  Defendant had been seen by all the witnesses to wear the clothes.

Mr. S. Stephen, for the defendant, contended that it was necessary, under the new statute of limitations, for the plaintiff to prove a written promise or undertaking to pay, after the expiration of six years.

Mr. Foster, plaintiff's counsel, said that as the new statute had not been re-enacted in this Colony, it was not in force here, and that in consequence no written promise was necessary.

The Court was of the same opinion, and stated to the Assessors that the question for them to decide would be, whether the clothes supplied to defendant were necessary for his condition in life - and if so, whether the charges were fair and reasonable?

Verdict for the plaintiff for the full amount claimed - £282 9s.

 

In banco, 4 April 1834

Source: Australian, 11 April 1834

 

Friday. - Pendray v. Nichols - Mr. S. Stephen moved for a new trial in this cause; first, because the verdict was contrary to law; secondly, that the learned Judge misdirected the assessors in stating to them that the statute 9th Geo. 4th. c. 14, was not in force in this colony, and that therefore a written promise was not necessary to take a case out of the statute of limitations, or to the confirmation of promises made by infants after full age, and thirdly, that the verdict was contrary to evidence and contrary to law.

The learned gentleman, in a long argument, contended that the act 9, George 4th, is in force in this colony - the Court, however, proposed that the verdict given at the trial be reduced from £282 to £182, which was consented to by the plaintiff.

 

Notes

[1 ] See also Australian, 21 March 1834, stating that Foster and F. Stephen acted for the plaintiff, and S. Stephen and G.R. Nichols for the defendant.  See, briefly, Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3279, vol. 96, p. 21: ``Query wher the Stat. 4 G. 4 c. 14 is in force in this Colony? Infancy."

Published by the Division of Law, Macquarie University