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

Beale v. Raine [1829] NSWSupC 41

convict service, assignment to spouse - married women's legal disabilities, wife of convict

Supreme Court of New South Wales

Dowling J., 13 June 1829

Source: Dowling, Proceedings of the Supreme Court, Vol. 20, Archives Office of New South Wales, 2/3203

 

[p. 64]

[Rosetta Beale v John Raine]

Dowling J. delivered the opinion of the Court in this case.[1 ]

This was an action of assumpsit to recover a sum of 56£ claimed to be due to the plf for the work & labour, &c of John Beal an assigned servant of the plf bestowed to & for the Deft & at his request, with counts for money laid out, money lent, money had & recd, & upon one account stated.  Plea 1st. the general issue.  2nd. That the plf. at the time of the cause of action arising was under coverture of the said John Beal, her husband, who was still living in the said Colony, & ought to have been joined in the action.  At the trial before His Honor the Chief Justice on the 16th December last, a verdict was found for the Plf, subject to the opinion of the Court upon a special case.

The case stated in substance [p. 65] that the plf, whose maiden name was Rosetta Johnston, a free subject was married to John Beal her new husband, at Parramatta by the Revd Samuel Marsden on the 1st. June, 1828, that at the time of such marriage the said John Beal was a felon convict sent out to this country from Great Britain under a sentence of transportation for the term of his natural life; that after such marriage the Governor of New South Wales by virtue of the authority to him given by the statute, assigned the said John Beal to the plf; and that the cause of action in this suit arose after the said marriage.  The question for the consideration of the Court is whether the said Rosetta Beal can sue as a feme sole for the work & labour performed by her husband[2 ] he being assigned to her as a [p. 66] servant by virtue of the transportation laws.  We are of opinion that the plf, under the circumstances of this case may well sue as a feme sole for the work & labour of her servant & husband.  In deciding this case we having had regard to the mixed & peculiar state of a large portion of society in this part of his Majesty's dominions, and from the necessity of the case have been compelled to come in conflict with rules of municipal law universally applicable to the inhabitants of the parent state, which it is impossible to extend to the transactions of a certain class of persons in this community.  Yielding to necessity we have been obliged to mould the law as we find it to the exigency of the occasion.  In the abstract terms of the question, it would [p. 67] seem to be a paradox to predicate in a Court of British law that a married woman could sue as a feme sole for the work and labour of her husband & servant.  Nothing but the peculiar state of our community could give rise to such a position; but the apparent absurdity of it may be resolved into congruity with reference to the operation of the transportation law.  The husband in this case is an attainted felon now undergoing the sentence of the law pronounced upon him by a Court of Competent Jurisdiction - that is, transportation to this Country for the term of his natural life.  He is therefore in the eye of the law civiliter mortuus.  He cannot be restored to his civil rights without pardon during life, for according to the case of Bullock v Dodds 2 B & C. 258. the term of transportation [p. 68] is meant, not merely the conveying of the felon to the place of transportation, but his being conveyed, & remaining there during the whole term.  In this state of incapacity he is, by the policy of the government, and with a view to the melioration of his condition & the improvement of his moral habits, allowed to contract matrimony with the present plf.  This contract, it could not be contended could restore an attainted felon to his civil rights.  If not, then he must still be subject to all the consequences resulting from his condition of attainted felon in this Colony, one of which is that the Crown would have an absolute right to his personal labour & services.[3 ]  [p. 69]  By law the property in the services of offenders transported to this settlement are in the first place vested in the governor, with power to him to assign those services to whom he shall think proper.  The assignee of a transported offender has an absolute right to his or her services subject only to such conditions as are contained in the 9th Section of the 9th G. 4 C. 83.  Whatever may be the effect of those conditions they clearly do not apply to this case, because the assignment in this instance took place before the passing of that act.  As the assignee of a transported offender has an absolute right to the services of the person assigned, I apprehend that in an ordinary case, that is where the assignee [p. 70] is not the husband or wife of the servant, an action could be maintained by such assignee for the work & labour done & performed by the servant under his or her direction for the benefit of third persons.  If this be not denied, then what difference does it make in principle that in the present case the assignee happens to be the wife of the assigned servant?  The marriage will not alter the relation of the convict servant so as to restore him to civil rights which he had lost as the consequence of his conviction.  His character of husband merges in that of servant being still civiliter mortuus though in tender mercy to [p. 71] him he is allowed to cohabit with his mistress in the character of husband.  The law regards the assignee whether male or female as the person responsible for the conduct of the servant.  All the difference in substance & effect between the situation of a married man & a married woman in a free & in a bond state, is that where the wife is free & the husband bond, the wife quoad society possesses all the civil rights - and is alone capable of suing & being sued upon contracts made with both or either.  In short she is with regard to delegations & liabilities in society in the same place that a married free man would be with respect to his wife's simple contracts.  Following this principle up, I apprehend that a wife would [p. 72] be liable as a feme sole, for necessaries suitable to her degree supplied to her assigned husband & servant.  She would be liable also for such debts contracted by her husband servant, as a free husband would be liable for when contracted by a free wife or servant.  But in all transactions with society I think that the character of convict servant would always predominate over the more tender & domestic relation of wife & husband.  This would be a consequence necessarily resulting from the present state of the law applicable to persons in this condition, & whatever inconveniences it might give rise to in practice it is perhaps impossible to avoid.  It will be found that the principle upon which this [p. 73] case must be decided has been tacitly acted upon in several cases since the establishment of Courts of Justice in the Colony.  Instances we are told have not been infrequent in the Governor's Court as it was called in the time of General Macquarie, & in the Court of Requests since then where the free wife has sued as a feme sole, & in turn has been sued as a feme sole for debts contracted by the husband.  Since I have had the honor of a seat on the bench, I know of one instance in which a free wife has taken the benefit of the insolvent Debtor Clauses in the 4 G. 4. C. 96 in respect of debts contracted by the husband during coverture, he being then alive, & at large as her assigned servant.  In matters of this kind the convenient practice, & assent of the public to a rule of [p. 74] necessity as well as of convenience in so singular a state of society, has, as it ought to have, the weight with the Court in determining the question now submitted to our consideration.  No mischief can be apprehended from this exposition of the law, for in these cases the public will have to look to the wife instead of the husband and may frame the contract accordingly.  On the whole, therefore, it appears to me that judgment ought to be given for the plf.

 

Source: Australian, 16 June 1829

 

It has been recently settled, that a free married female, the wife of a prisoner living, can sue, and be sued, as a femme sole. The reason offered by the Judges for this departure from British law, strikes us as very sound and judicious, and the grounds of the cause which produced that decision were as follows: A free woman, named Rosetta Beal, being the assignee of her husband, John Beal, sued a gentleman who had employed Beal, on the score of 56l., and upwards, in wages, being due to him.  An objection was taken to the plaintiff suing by herself, and not conjointly with the husband; but this Mr. Justice Dowling, on Saturday, overruled, pronouncing it as the opinion of his learned Colleagues and himself, that Rosetta Beal did right in sueing as a femme sole -- that her husband, of whom she was the assignee, being a prisoner of the crown, could neither sue nor be sued, and that an absolute property being moreover vested in her as the assignee, the Court awarded amount of wages sued for in her favor.  Doubt on similar points can no longer exist.  The transmutation from husband to wife, will, of course, follow, in diametrical ratio.

 

Notes

[1 ] The case was argued on 31 March 1829: Sydney Gazette, 2 April 1829.  On behalf of the plaintiff, Stephen argued that the husband was not obliged to be joined in the action, as he was civilly dead.  The governor assigned the property in his services to his wife, who could sue for the value of his services.  Wentworth argued for the defendant that where the parties lived together, the rules of attaint did not affect the case.  Wives of transported convicts could sue as if unmarried, he said, but only while the parties were separated.  There was no precedent for this situation, and either the action should have been brought in joint names, or in the name of the King.  The trial was reported by the Sydney Gazette on 16 June 1829.

Assignment of convict services had long been in issue.  See for example, Sydney Gazette, 15 August 1828.

[2 ] This would seem to have been in breach of Governor Darling's Regulations, dated 9 March 1826, governing the assignment of convict labour.  The ninth regulation said that no convict would be assigned to any person who let his servant out for hire: see Historical Records of Australia, Series 1, Vol. 12, pp 252-253.  Regulation 11 provided for assignment to spouses, and when the man was assigned to his wife, they may have had little choice, in many cases, but for the man to work for third parties.  See also Convict Assignment Opinion,1827.

[3 ] The following appears in the manuscript here, crossed out: " By the transportation acts, however, the Governor of this territory has the power of assigning convict "

Published by the Division of Law, Macquarie University