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

Cain v. Bloomfield [1833] NSWSupC 25

felony attaint, convict service, assignment of, work and labour

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 28 March 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266[1 ]

[p. 34] This was assumpsit for a Blacksmiths Bill for work & labour.  The deft paid 5£ into court, & pleaded by way of a set off as to the residue of plf's demand, an agreement that the plf was do all Defts blacksmiths work, in consideration of the services of a convict blacksmith assigned to him by the Government.  The judge ruled that supposing such an agreement to be contrary to the Government regulations, still that the plf was particeps criminus & could not take advantage of his own wrong.  The deft had a verdict.

R. Therry now moved for a new trial on the ground that the agreement relied upon by the Deft was illegal & void.

Norton contra was stopped by the Court.

[p. 35] Forbes C.J.

By the New South Wales act 9 G. 4. C. 88. the assignee of a convict servant has a property in the services of the man.  He cannot reassign the servant without the consent of the Governor.  It may be that by certain police regulations the assignee is prohibited from employing a man in the manner proved in this case; but this Court cannot take notice of such regulations as law by which they are to be bound.  Without a positive law upon the subject, I see nothing to prevent the Deft. from setting off the services of his assigned servant in answer to this action, it being proved that the Deft. had entered into an agreement that he should do so.

Burton J.  I see nothing illegal in the agreement to pay for the services of this man, which are in fact the property of the deft.  I hold that the assignee [p. 36] of a convict servant may employ his servant in this manner if he chooses.

Dowling J.  Why might not the deft maintain an action for the work & labour of his convict servant, in which he has as much property as the services of a hired free servant?  If he might do so, surely he might agree to sett off such work & labour in answer to the plf's action.  The Government Regulations are not law by which we are bound.

Rule Refused.


[1 ] On the assignment of convict labour, see Historical Records of Australia, Series 1, Vol. 16, p. 625.

There was a new statute in 1832 to regulate the summary trial and punishment of convicts in New South Wales: see 3 Wm 4 No. 3, Sydney Herald, 29 October 1832, Sydney Gazette, 6 September 1832; and see a Circular to Magistrates, 24 September 1832, in Forbes Papers, Mitchell Library A 1381, Reel CY 986 (near the end of the Forbes Papers).  On these changes, see also Australian, 31 August, 7, 14 and 21 September 1832.

Published by the Division of Law, Macquarie University