Sarah
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Treman's Exeter Flying Post: On, Plymouth and Cornish Advertiser. Thursday 06 Aug 1812
Page 4 Column 3
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At the last assizes, for the county of Devon, a cause was tried, in which Ann BRAUND and Thomas BRAUND, [executors of William BRAUND, deceased,) were plaintiffs, and Arthur KELLY, the younger, Richard EASTCOTT, and John Holman LANG, the partners of the late Tamar bank, at Launceston, were defendants. The action was brought by the executors, for recovery of the sum of 150l. and interest, secured by a promissory note, dated the 31 st day of March, 1810, entered into by Mr. Benedictus Marwood KELLY, attourney-at-law, of Holsworthy, as agent to the defendants, which note was payable 21 days after sight, to William BRAUND or order, with interest at the rate of three per cent. per annum, to the day of acceptance; if left one year, to pay three and half per cent. The plaintiff's counsel having proved their case, the counsel for the defendants called, as witnesses, Mr. KELLY, the agent, and Miss Juliana KELLY, his daughter, and the account which they gave, was, that about a month or six weeks after the promissory note was entered into, William BRAUND, the testator, applied to Mr. KELLY, the agent, for re-payment of the money, without bringing the note with him, or without having previously tendered it for acceptance, and that Mr. KELLY paid BRAUND, the testator, the 150l. all in one pound Tamar notes, on BRAUND's promise to burn or destroy the promissory note, as soon as he got home; that the Tamar notes were counted four times, but no receipt or memorandum was signed by BRAUND for the money, and that, his pocket book not being large enough to hold the Tamar notes, BRAUND tied them in his pocket handkerchief, and his pocket, wherein the handkerchief was put, was afterwards pinned with three pins, by Miss Juliana KELLY. After some deliberation, the jury returned a verdict for the defendants.
The decision in this case is of no inconsiderable importance to the public, as it may not be generally understood that the law admits of parol evidence of the payment of a sum of money, for which a written security has been entered into, whilst such security remains uncancelled in the hands of the person, or of the representatives of the person, to whom the same was originally given.
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