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

Donovan v Jones (1835) NSW Sel Cas (Dowling) 978; [1835] NSWSupC 70

promissory note - succession - intestacy

Supreme Court of New South Wales

Hearing, 19 September 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p.75]

[1836[ 1]

Saturday

19th September]

 

[In assumpsit by the administratrix, upon a promissory note made in favour of her intestate payable 12 months after date, & the intestate dies before the note became due, it is held enough to lay the promise to the intestate in his life time according to the tenor & effect of the note, without laying a promise to the administratrix.]

Mary Donovan administratrix of John Donovan v Thomas Jones

Assumpsit on a promissory note for 11£ dated 27th July 1834 payable twelve months after date, made by the deft in favour of the intestate in his life time.  The promise was laid to the testator in his life time, according to the tenor and effect of the note.  The intestate died before the note became due, and it was contended at the trial for that reasons that the promise should have been laid to the administratrix but the Plf had a verdict.

Stephen now renewed the objection & moved for a nonsuit.

Foster was heard contra.

Per Curiam.  There is nothing in the objection.  The note is declared [p.76] upon according to its legal effect, namely, that the Deft promised to the intestate in his life time, to pay the note according to the tenor and effect of the instrument.  It is true that the note did not become due until after the death of the payee, but still there is an assumpsit included to pay his legal representatives.  Whether it was due before or after his death, makes no difference as to the legal effect.  The tenor and effect of the note is that the Deft would pay the intestate if he lived, when it was due, & if he did not live, that he would pay his representatives.  The law implied the promise, & the Plf alleges that the deft did not pay the note when due.

Refused.

See Sarell v Wine 3 East 409.

 

Notes

[1 ] This decision was likely to have been made in 1835, not 1836.  It is among the 1835 cases in the notebook.

Published by the Division of Law, Macquarie University