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

Green v. Woodroffe (1828) NSW Sel Cas (Dowling) 106; [1828] NSWSupC 76

convict service, assignment to spouse, felony attaint, married women's legal disabilities

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 13 September 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[pp 334-335]

[A prisoner of the Crown assigned to his Wife carried on trade as a free man and contracted debts and one of his creditors makes affidavit of his debt, and the insolvency of his debtor   The Court will not subject the Creditor to a viva voce examination but leave him to be prosecuted for perjury if his affidavit be false.]

[p. 334]

Saturday 13 Sept 1828

Green v Woodroffe

The defendant in this case being a prisoner of the Crown assigned to his wife, had an action brought against him for a builders bill, and the Plaintiff was entitled to execution.  Two years hence he would be [p. 335] entitled to emancipation by efflux of time.  He followed the trade of a Baker.

Poole now moved to have the execution stayed until the Defendant became emancipated for till then he laboured under a legal disability to sue or be sued, and if taken in execution he must be liberated by reason of his being a prisoner of the Crown.

Moore contra for the Plaintiff cited the case of Aaron v Jelly where the defendant stood in the same situation, and it was held by the Court that he could not take advantage of his being a convict felon.  This defendant had himself taken upon him to commence actions in his own name.

Forbes C.J.  In the ordinary case of an assigned convict Servant taken in execution for a debt contracted which he was not sui juris,[1 ] the law would have been too strong to justify his being taken from his master who has an interest in his services during the period of his assignment.  But in the case of a Convict assigned to his wife the law properly considers him liable to legal process in the same way as any other man who deals with the public as a free man[.]  Here is a man assigned to his wife carrying on trade as a free man and contracting debts in the way of his trade and it is suggested that [p. 336] he has himself sued for debts in in [sic] his own name.  We therefore cannot permit him to avail himself of his supposed legal disability in order to defeat a debt contracted in the way of trade.  If a convict assume the priviliges of a free man, and contracts debts he must be liable to all the legal obligations which such priviliges entail.  He is not to stand in a better situation than a free man and be enabled to take advantage of his own wrong.[2 ]

Rule refused

Stephen J. & Dowling J. concurred.


[1 ] Of one's own right.  A person who has attained majority and is of full legal capacity.

[2 ] This is an important judgment.  The conventional view was that an attainted convict, a person who had been condemned to death for felony, was unable to sue in civil courts, but could be sued.  Forbes C.J. here distinguishes between convicts on the basis of their assignment status, with the aim of protecting the interest masters had in the services of their assigned convicts.  The rights of masters to the labour of their convicts were preferred to those of the servants' creditors.  The rights of masters to their servant's work was also in issue in the famousIn re Jane New, 1829.  See also Convict Assignment Opinion, 1827.

The wives of attainted convicts were free of the legal restrictions suffered by other wives.  They were able to act as if they were unmarried.  In the case of In re Mary Smith, 15 November 1828, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 105, the full case record is: "This woman who was married to a prisoner of the Crown who was assigned to her, came up to be examined touching her estate and effects, she being insolvent.  She traded as sole trader, in the business of a baker some of her debts were contracted by her husband she had been arrested in October last.  On her examination She appeared to be insolvent and was declared Insolvent accordingly and George Burn Esqr was appointed trustee and executed an assignment of her effects."  On attaint and its impact on married women, see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, ch. 2; B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, ch. 3.

On 4 April 1828, the Sydney Gazette noted that there was a local version of the law of attaint.  Serving convicts were unable to sue or be sued, but Forbes C.J. had decided that ticket of leave holders were treated as if they were free, able to both sue and be sued.  It appears then, that despite Bullock v. Dodds (1819) 2 B. and Ald. 361, the Supreme Court reverted to the local version of attaint law which first appeared by 1804.  See Kercher, Debt, Seduction and Other Disasters, pp 57-58.

Published by the Division of Law, Macquarie University