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

Lyons v. Cave [1827] NSWSupC 11

married women's legal disabilities, wife of convict, felony attaint

Supreme Court of New South Wales

Forbes C.J. and Stephen J., March 1827

Source: Sydney Gazette, 27 March 1827

 

(Important Case.)

LYONS versus CAVE.[1 ]

In this case, which was an action for goods sold and delivered, the Court and Assessors found a special verdict, that the defendant had traded as a feme sole, under the name of Dockerell, and in the month of October, 1825, intermarried with Samuel Cave, then reputed to be, and (still as the Jury found) being a prisoner transported to this Colony, and not since pardoned; that in the month of Dec. 1825, the said Samuel Cave was transferred from the Carters' Barracks, by order of the Chief Engineer, to the Government Establishment at Emu Plains; that, on the 2d day of March, 1826, the said defendant obtained credit for a case of goods of the value of £71 1l 1d. delivered to her by order of the plaintiff; that the credit so given, was to the said defendant alone, and not in any manner to her said husband, and that the entry in the plaintiff's day book, at the time, was in the words "Mrs. S. Cave."

Mr. Rowe, having obtained a rule to shew cause why the said verdict should not be set aside, upon the ground that the defendant's husband, Samuel Cave, should have been made party to the said action, Mr. W. C. Wentworth, this day, appeared to show cause against the rule.  The learned Gentleman contended that Samuel Cave, the defendant's husband, being under sentence of transportation, was not in a situation to relieve his wife from responsibility for debts, contracted for goods delivered to herself, and on her own credit.  That by the sentence of transportation, Samuel Cave, was no longer a free man.  That servitude operated as a transfer of the rights of personal labour, and personal coercion to the assignee of the transported person, and that although no cases could be found exactly parallel in the books, yet the principle upon which the Courts at home have decided, that the wife of a transported prisoner, not having returned, is liable for her engagements as a feme sole, is applicable to transported prisoners in this Colony.

Mr. ROWE, on the other side, contended, first, that the action should have been in the name of Samuel Cave, the husband, and not against his wife, the defendant; and, secondly, that the husband should have been joined for conformity.  Upon the first ground, Mr. Rowe contended that the consequences of determining against the necessity of bringing the action against the husband, would be to release a very large portion of this community from their just debts.  The ticket-of-leave men, for example, are still prisoners of the Crown; and if they are not held not to be liable for debts contracted during coverture, by their wives, it would open a door to the greatest collusion and fraud.  Mr. Rowe, in support of his argument, cited the case of Clayton v. Adams, 6 T. R. 604.

By the CHIEF JUSTICE.  There are so many important consequences growing out of the relation of husband and wife, and so many difficult points connected with the state of persons under sentence of transportation to this colony, that Mr. Justice Stephen and myself have concurred in one opinion, not to touch these abstract questions in this case, as it is not necessary.  The Jury have found that the defendant having traded as a feme sole, afterwards intermarried with a prisoner under an unsatisfied sentence of transportation; that after such marriage the defendant, upon her own credit, obtained a case of goods of considerable value, which were delivered to herself, and charged in her name, and that the husband was in no manner concerned in the transaction.  Such being the state of mere fact, the defendant, as the person actually obtaining the goods, is bound to pay for them, unless she can legally shift the debt from her own shoulders to those of her husband.  Now, what we decide is, that a free woman, marrying a person under an unsatisfied sentence of transportation, and obtaining goods upon her own credit, is liable to an action for such goods, as a feme sole.  We desire to be understood as not holding that, if the husband under such sentence, has in any manner party to such credit, he might not be sued either alone, or jointly with his wife.

Verdict for the plaintiff, £71 11s. 1d.

Notes

[1 ] See also Monitor, 6 April 1827.

Published by the Division of Law, Macquarie University