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

Murphy v. Prout [1837] NSWSupC 18

promissory note - attorney, sharp practice

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 29 March 1837

Source: Sydney Herald, 30 March, 1837[ 1]

Wednesday, March 29.  In Banco - Before the three Judges.

Murphy v Prout - This was an action of assumpsit, brought to recover the sum of £17, 11s. 4d., the amount of a promissory note with interest and costs, tried before Mr. Justice Kinchela, and Assessors, when a verdict was returned for the defendant.  The facts were as follows.  On the 7th of December, the attorney for the plaintiff received instructions to sue Mr. Prout, on a promissory note for £16, 14s.  On the 14th of December he wrote to the defendant and the endorser of the note, requiring payment.  On the following day Mr. Prout sent his servant to the attorney with £16, 14s which the attorney refused to take without two shillings interest, and thirteen and fourpence costs.  Mr. Prout then sent the two shillings, interest, but that was likewise refused. Subsequently the defendant called at the attorney's office, and paid the £17, 11s. 4d. to the attorney's clerk; in the interim, a summons was taken out at the Supreme Court Office, and the clerk was sent back with the money to Mr. Prout, and the action went on.  At the trial, the attorney distinctly swore, that when Prout's servant called the second time, he had taken out the summons.

His Honor said the only question for the Jury was, did they consider the summons was issued before the money was paid; if they did, they must return a verdict for the plaintiff.  The Assessors returned a verdict for the defendant.  A new trial was now moved for, on the ground that the verdict was contrary to evidence, the attorney having sworn that the summons was issued before the second tender was made.

Mr. Justice Burton said that it was certainly the sharpest practice he had ever heard of.

The Acting Chief Justice thought the verdict could not stand, but he could hardly have believed that the attorney would have acted so; he was a young man for whom he had a great respect.

Mr. Foster offered, on the part of the plaintiff, to allow a stet processus to be entered, and as the Court was of opinion that the verdict was contrary to evidence, and could not stand.  Mr. Windeyer, for the defendant, after a short address, to shew that the verdict could be sustained, consented to have the proceedings stayed.


[ 1] See also Sydney Gazette, 30 March 1837.

Published by the Division of Law, Macquarie University