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

Donovan v. Jones (1836) NSW Sel Cas (Dowling) 978; [1836] NSWSupC 73


Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 26 September 1836

Source: Dowling, Select Cases, Vol. 7, S.R.N.S.W. 2/3465, p. 75

In assumpsit by the administratrix, upon a promissory note made in favour of her intestate payable 12 months after date, and 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 and effect of the note, without laying a promise to the administratrix.

Assumpsit on a promissory note for £11 dated 27th July 1834 payable twelve months after date, made by the defendant 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 reason that the promise should have been laid to the administratrix but the plaintiff had a verdict. Stephen now renewed the objection and moved for a nonsuit. Foster was heard contra.

The Court. There is nothing in the objection. The note is declared upon according to its legal effect, namely, that the defendant 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 by 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 defendant would pay the intestate, if he lived, when it was due and if he did not live, that he would pay his representatives. The law implied the promise and the plaintiff alleges that the defendant did not pay the note when due.

Published by the Division of Law, Macquarie University