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

In re Cave [1826] NSWSupC 38

imprisonment for debt - married women's legal disabilities, wife of convict - felony attaint

Supreme Court of New South Wales

Forbes C.J., July 1826

Source: Sydney Gazette, 29 July 1826

 

A question of some import was decided in the Supreme Court last week, before His Honor the Chief Justice.  A woman named Cave, whose husband is a prisoner of the crown, not holding a ticket of leave, and at present under sentence by the Magistrates to a penal settlement, was arrested for a debt, contracted by her since her husband has been in prison, at the suit of Mr. Samuel Lyons.  Mr. Rowe moved for her discharge from the custody of the Sheriff, on the ground that she, being a married woman, was not liable to be arrested for debt during her coverture.  Mr. W.C. Wentworth opposed the motion, and His Honor, on a review of all the circumstances of the case, ruled that the defendant had contracted the debt, trading as a femme sole,[1 ] and refused to grant the application.

 

Notes

[1 ]An unmarried woman. The rule was that the wives of attainted convicts had the same legal rights and obligations as men and unmarried women.   This enabled them to live independently.  Most married women, like attainted convicts, had limited legal capacities.  Attaint did not attach to all convicts, but only to those sentenced to death for felony.  The practical problem facing Sarah Cave was not necessarily that her husband had no legal capacity, but that during their separation, she had to earn her own living.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 66, 70; and see Doe dem Tugwell v. Farrell (1847) 1 Legge 399.  This case was also reported by the Monitor, 4 August 1826 (giving her name as Sarah).  See also R. v. Cable, July 1826.

Lyons was a dealer and auctioneer in Sydney: see Sydney Gazette, 29 July 1826, reporting the prosecution of John Dent for robbery.

Published by the Division of Law, Macquarie University