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

McLeod v Moore [1832] NSWSupC 74

evidence, competence of witness - married women's legal disabilities

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 6 October 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 78, Archives Office of New South Wales, 2/3261

 

[p. 215] Assumpsit for the non delivery of a mare.[1 ]  To prove the contract, a man named Seggison being examined on the voir dire, he admitted that he cohabited with the Plf Mrs McLeod, but was not domiciled with her.  She carried on the business of a publican on her own a/c & participated in no part of her business.  He carried on trade on his own seperate [sic] account.  It was objected that he was an incompetent from the nature of his relation to the Plf to prove the contract, & a dictum of C.B. Richard of 1 Price 81. was cited - Dowling J. however admitted [p. 216] the evidence but saved the point, which was now brought under the consideration of the whole court.

Per Cur. We think Seggison was a competent witness under the circumstances disclosed - He was not so domiciled with the Plf as to deceive the world.  He did not participate in the profits of her trade, nor can we perceive what benefit, he could expect, or receive from the result of the action. This is not like the case cited from 1st Price.  There the woman in a criminal case had first represented herself to be married to the prisoner; but finding that her evidence wd. be of use to him, she disclaimed the married, & set up her concubinage.  The ground of that decision was the attempted fraud in blowing hot & cold.  This is not like the case tried before Dowling J. a few days since where the proposed witness was completely domiciled with the plf - went by his name & had children by him.[2 ]  Without laying down any general inflexible rule, we think this witness was competent, but it was for the Jury to judge of his credibility.

Rule refused.

 

Notes

[1 ] Marginal note in manuscript: ``see vol. 75. p. 80."

[2 ] Footnote in manuscript: ``Clegg v Solomon Ante p. 207."

Published by the Division of Law, Macquarie University