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

Marshall v. Nelson [1838] NSWSupC 91

promissory notes - Emigration Committee

Supreme Court of New South Wales

Dowling C.J., 24 September 1838

Source: Sydney Herald, 26 September 1838[ 1]

Marshall v. Nelson. - This was an action on a promissory note for £20.  The plaintiff was agent for the Emigration Committee in London, and the defendant a widow who, with her four daughters, wished to come out to this country, and for that purpose applied to the Emigration Committee.  The Committee gave free passages to the daughters, but told the mother that being above the age prescribed by the government, they could not give her one, but they would give an authority for her to have a passage in the same ship with her daughters, if she could agree with Mr. Marshall.  He asked £20 for her passage, and the defendant being a very poor woman and not having the money, gave a promissory note for £20, payable in Sydney after her arrival, with Colonial interest, and upon that was supplied with a passage in the Canton, along with her daughters.  These facts were sworn to by a Mr. James, who was at that time clerk to Mr. Marshall.  Mr. Windeyer said that his defence was, that the defendant did not know that she was signing a promissory note, but thought that she was to have a free passage; but before going into it, he moved for a non-suit on several grounds, one of which, a variance between the words in the note and as stated in the declaration, His Honor held to be fatal, and directed a non-suit to be entered.

 

Dowling C.J., Burton and Willis JJ, 6 October 1838

Source: Australian, 9 October 1838[ 2]

 

Marshall v. Nelson. - This was an action of assumpsit, brought by the plaintiff, the emigration agent, to recover the sum of a note of hand for £20, with colonial interest, from the defendant, a passenger by the ship Canton.  The case was tried before His Honor the Chief Justice and assessors, and a nonsuit entered on the grounds of variance between the declaration and the instrument.  On the trial, the contract to pay for her to the colony was proved, and her acknowledgment that £20 was due to the plaintiff for services done.  The declaration contained a special count on the note of hand, and the usual common counts for money due.

The Court now held that the plaintiff could proceed on the common counts, setting aside the special count on the instrument, and put in the note of hand as evidence of the debt.

A new trial was granted without costs.

 

Notes

[ 1]See also Dowling, Proceedings of the Supreme Court, Vol. 153, State Records of New South Wales, 2/3338, p. 129.

[ 2]See also Sydney Herald, 8 October 1838; Sydney Gazette, 9 October 1838.  The Gazette reported the following: ``The debt sworn was £20, and as the promissory note stated with colonial interest, it was not legal".

Published by the Division of Law, Macquarie University