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

Cooper v Clarkson [1831] NSWSupC 34; sub nom. Cooper v. Clarkson (No. 2) (1831) NSW Sel Cas (Dowling) 974

convict indent - felony attaint - married women's legal disabilities, wife of convict - convict evidence - succession - sciere facias - estoppel - dower

Supreme Court of New South Wales

Dowling J., 9 June 1831

Source: Sydney Herald, 13 June 1831[1 ]


Thursday, June 9. - Before Judge Dowling, and Messrs. Manning and McPherson, Assessors.

Cooper v. Clarkson, widow, executrix, and Rowley, executor.  This was an action in debt, brought on a writ of sciere facias, taken out at the suit of the plaintiff, upon a mortgage for the sum of £1000, and interest upon the house where the defendant at present resides.

Dr. Wardell contended on the part of the defendants, that the testator being a felon attaint, could not enjoy any civil rights, consequently the tenor of the premises were not legal, and the testator could not effect a mortgage upon them.

The learned Judge overruled these objections, and the Assessors found a verdict for plaintiff. - Damages, one shilling.


Forbes C.J., Stephen and Dowling JJ, 21 July 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466

[p. 93] [Where an executrix was sued for a debt due in the lifetime of her testator, agreed that her Attorney and the Plaintiffs Attorney should settle the accounts of her testator & the Clerk of each of the Attorneys had a meeting at which she was present and admitting their adjustment to be correct and that she had assets of the testator to the amount.  Held that she was bound by the written account to which she gave her assent.]


Thursday July 21st 1831

Coram 3 Judges

Cooper v Clarkson

This case was tried before Dowling J (being the second time) and a verdict being found for Plaintiff on question as to admission of assets, a new trial was now moved for on the ground that as executrix the defendant would not delegate her authority to admit assets but the Court thought that the defendant being present at the admission and giving her assent to it with the full knowledge of the facts, that was sufficient to bind her.


Vide Vol 54. p.50[2 ]


Rule Refused



[1 ] This case was also recorded in the notebooks of Dowling J.: Dowling, Select Cases, Archives Office of N.S.W., 2/3466 p. 61; Proceedings of the Supreme Court of New South Wales, Vol. 54, pp 50f and 119f (2/3237).  In the former, Dowling recorded the principle as follows: "An indent shewing on the face of it that I S. was ordered to be transported for 14 years does not necessarily import that he was a felon Convict: and his own admission cannot be taken to eke out that fact where the object is to disqualify him from holding land to disqualify a witness by showing that he is a felon convict the record of his conviction and judgment must be produced." 

In the latter, the record states that the issue had been tried twice before, on 23 May 1826, and 16 June 1828 (p. 120).  At p. 147, Dowling J. recorded the following on the attaint question: "Dowling case in felony   to disqualify a witness. - must prove the record.- I thing you can take out the defective indent by the testators admission. ... I regard the indent merely as a warrant for holding this man for 14 yrs ... For the purpose of this cause I think it is not evidence.  Every intendment to be in favour of the testator. ... I save the point."  He also noted at pp 151-152, that dower was not in issue yet, as there was no proof of it.  He went on to say that the question of the attainted status of Clarkson was also not in issue "for if the executors openly & with a knowledge of all the circumstances - beg for time & endeavour to make terms they are estopped from saying he was convict attaint."  At pp 153-154, Dowling continued: "Assuming that during the continuance of his sentence of alleged felony, his marital rights were suspended, & that he was incapable of acquiring property at that time, then wd. come a qu. whether upon the expiration of his sentence or pardon his marital rights wd. not be resumed - & wd. become then entitled to such property as his wife was entitled to unless settled upon her before marriage."  At p. 155, it concluded with a statement that the assessors found that there had been a full admission of rights, and that the verdict was for the plaintiff.

[2 ] This is incorrect.  This was reproduced from vol. 61, pp 109-110 of the Proceedings of the Supreme Court (Archives Office of New South Wales, 2/3244).

This reference is to the first of the two notebook accounts of the original trial, in vol. 54 of theProceedings of the Supreme Court.

Published by the Division of Law, Macquarie University