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

Doe dem. Clark v. Smithers [1834] NSWSupC 36

ejectment - felony attaint - married women's legal disabilities, wife of convict

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 April 1834

Source: Sydney Gazette, 10 April 1834[1 ]

Doe ex dem. Clark and another v. Smithers and another. - Judgment was this day delivered by Chief Justice Forbes, as follows:-

``Noble was tried at Exeter in the month of April 1817, and convicted of felony, for which he was sentenced to be transported for the term of fourteen years.  He appears to have been accordingly sent to this Colony, and some time after, to have married Anne Eliza Noble, with the permission of the Local Government.  During the coverture of Mrs. Noble she kept a shop in Sydney, and with the profits of her trade, purchased the land in question from one Osman.  The conveyance from Osman to Anne Eliza Noble, is dated September 1822, and is made to her and her heirs in fee.  It is not necessary to trace the title any higher, as there is no dispute about Osman's title.  It is stated by the subscribing witness to the deed from Osman, that the purchase money was paid by Mrs. Noble, in the presence of her husband, and that she remarked at the time ``she had made a little money, and was desirous of laying it out in land for the benefit of their children".  On the 24th of March 1831, Mrs. Noble conveyed the premises to the plaintiffs in trust for her children.  In the month of April, Noble, the husband, became free, by the expiration of his term of transportation.  In the following year, an action at law was commenced against the husband, for some cause against him alone, upon which judgment was had, and execution, in the usual form of this Court, issued on the 12th of May, 1832.  The land in question was seized and sold under this execution to the defendants, as the property of - Noble, the husband; and the Trustees of Mrs. Noble have brought the present action, for the purpose of trying the validity of the Sheriff's sale.  At the trial of the cause before Mr. Justice Burton, during the last Term, it became a general question of fact whether there was fraud in the conveyance by Mrs. Noble to the Trustees, with the view of evading the debts of her husband; and as there was some evidence upon the point, it was left as matter of fact for the Assessors to determine.  The Assessors negatived the fraud by their verdict; and the question now raised is, simply, whether the deed from Anne Eliza Noble to the plaintiffs, executed in March 1831, she being at that time a married woman, is a good and valid deed.

This is the first time in which the question has been raised for the deliberate opinion of this Court, how far a woman married to a prisoner, under a subsisting conviction for felony and sentence to transportation, is to be considered a feme sole as to be enabled to alienate her estate by a deed.  It has been ruled by the Court in several cases, that for the purposes of carrying on trade, and of contracting for necessaries, as well as of suing and being sued, a married woman, under similar circumstances, is to be regarded, as a feme sole.  The decision of this Court has been, in such cases, in conformity with the decision of the Court in England.  The only difference in the application of the rule, arises out of the realm; - whereas in this Colony, the transported husband may be actually domiciled with his wife, and in fact is usually living with here, as her assigned servant.  But the principle and good sense of the law are equally applicable to both cases, because in both they proceed upon the argument of necessity.  The protection of the community against surprise and fraud, as well as the protection of the wife in the acquisition of the means of maintaining herself and her family, alike require, that during the suspension of the civil rights and liabilities of the husband, the wife should, to a certain extent, be considered a single woman.  The rule of necessity in such cases becomes the rule of the law, and prescribes its own limits.  ``By the general rule, a married woman can have no property real or personal.  Her contracts are entirely and universally void; for her contracts, even for necessaries, are the contracts of her husband; she cannot be sued or taken in execution.  This is the general rule.  But then as times alter, new customs and new relations arise; these occasion exceptions, and justice and convenience require different applications of these exceptions, within the principle of the general rule.  Exceptions have been made in this case.  Where the husband is in exile, or has abjured the realm, and credit has been given to the wife alone, justice says she must pay, for the husband cannot be sued.  So it is in the case of transportation; though the case is not exactly the same; for there the absence is only temporary, because the husband may return and be sued afterwards."  Corbett v. Poelnitz. I. T. R. 8.  The reasoning of Lord Mansfield is cited at some length, although the case which called it forth is not quite parrallel [sic] with the present, because it lays down the true principle upon which Court should proceed in the application of the rules of English Courts, to cases peculiar to the society in which we live, and not exactly similar, in all points, to cases which have been actually determined in England.

The case before the Court is reduced to a singly point.  Is the deed of Mrs. Noble in March 1831, a good deed?  After a careful, and in reference to the consequences which must follow the decision of the Court, we may add, a painful consideration of the whole of the circumstances under which the deed was executed, we are of opinion that it is not valid in law.  In stating the grounds upon which our opinion is founded, we will shortly consider, first, the legal effect of conviction, and transportation for a clergiable felony, and the disabilities they involve; secondly, the effect of enduring such sentence, and the restitution of rights, which results from it; and thirdly, to what extent the legal state of a married woman is affected by the condition of her husband, both before and after the endurance of his sentence of transportation.  And first, of the legal effect of transportation for a limited time, it will be necessary to refer to the state of the law in 1817, the year when Noble, the husband, was transported to this Colony.  He appears to have been convicted of a clergiable felony, and to have been sentenced to be transported for fourteen years.  The effect of his conviction was an immediate forfeiture of all his goods and chattels to the crown, and the profits of his lands, if he possessed any, and a future disability to hold any personal or real estate during the subsistence of his conviction.  The law upon this head is not very clearly laid down in any text writer which we have consulted, but it is so stated in Foxley's case, 5 Rep. 110, in which the authorities are collected.  The same doctrine is admitted by Lord Hale, when he says that by the allowance of clergy, and burning in the hand, the convict acquired a capacity of purchasing and retaining other goods, and a right to be restored to the possession of his lands, and the enjoyment of the profits thereof.  2 H.P.C. 289.  It would be difficult to understand this passage in any other sense, than as laying it down that a conviction for a clergiable felony deprives the convict of all future, as well as present right of retaining either real or personal property, during such conviction.  He might acquire - but he cannot retain, 1 Inst. 2 b. Bullock v. Dodd, 2 B. and A. 275.  But besides the effect of conviction for felony at common law, there are certain consequences arising out of the state of transportation, which would prevent the convict from acquiring or holding property in his own benefit.  The law which orders transportation as a punishment accompanies it with servitude.  The transport is no longer liber et legalis home.  The property in his services is vested in another.  He has no legal right to the profits of his own labour.  In this view of the law the recent Act of Parliament, 2 & 3 W. IV. cap. 62, which enacts that no person under sentence of transportation shall be capable of acquiring or holding any property, or bring any action for the recovery thereof, until after a pardon, is to be regarded as affirming the law, as it was before, in cases of felony, and extending it to cases of transportation for misdemeanor.  It is quite clear, then, that during the whole term of Noble, the husband's transportation, he was disabled from acquiring any personal estate for his own benefit, as well as from holding lands, or receiving the profits thereof; and as a consequence of this disability, he could not sue in any Court.  Let us proceed to enquire how far the endurance of his sentence of transportation had the effect of restoring him to his civil rights.  It will be again necessary to recur to the state of the law at the time of his conviction.  His offence was what was then termed a clergiable felony.  Benefit of clergy has been since abolished by Act of Parliament, 7 and 8 Geo. IV. cap. 28; but that Act was passed after the transportation of Noble, and does not affect his case.  Before the passing of the 4 Geo. I. cap. 11, the mode of allowing the benefit of clergy was by burning in the hand, after which the convict was restored to all his civil rights and capacities.  By the 4 Geo. I., it was enacted that the Court, before which any offender within the benefit of clergy should be convicted, might, instead of ordering such offender to be burnt in the hand, sentence him to be transported; and that when any such offender should be transported, and should have served the term of his transportation, such service should have the effect of a pardon for his offence to all intents and purposes.  It has been decided, that actual transportation, and service of term, have the same effect, since the passing of the Act Geo. I., as the allowance of clergy and burning in the hand had before; that is, that they restore the transported offender to all his forfeited rights.  (See the case of Rex v. Burridge, 3 P. Wms. 489).  The law upon this point is too clear to admit of doubt.  It has indeed been declared, in a very recent statute (9 Geo. IV. cap. 32, sec. 3), that it is expedient to prevent all doubts respecting the civil rights of persons convicted of felonies not capital, who have undergone the punishment to which they were adjudged.  But the doubts which had been raised, related solely to the moral character and legal credit of such persons as witnesses, and the Act was evidently framed with a view to remove such doubts.  We may assume, therefore, that a person having been convicted of a clergiable felony, and transported in pursuance of his sentence, was by force of the 4 Geo. I., restored to all his civil rights and liabilities - among these rights was that of taking the profits of all lands he might have possessed before, or have acquired after his conviction; and among his liabilities, that of being sued upon his wife's contracts, during coverture.

Then, coming to the contract of marriage between - Noble and his wife, how was it affected by the different conditions of the husband during his sentence, and after its expiration?  There is a material distinction in law between exile for life, after attainder, and mere transportation for a limited term of years.  In the one case, it is a civil death, and involves an entire loss of all legal rights whatever; in the other, it causes only a temporary suspension of such rights.  This distinction is drawn by Lord Coke in the following manner:- If, by Act of Parliament, the husband be attainted of treason or felony, and saving his life, if banished for ever, this is a civil death, and the wife may sue as a feme sole.  But if the husband, by the Act of Parliament, have judgment to be exiled for a time, which some call a relegation, that is no civil death - (1 Inst. 133, A).  Upon this latter part of Lord Coke's doctrine, his very able and learned Annotators remark, ``though it is not a civil death, yet for the time, the effect is the same to the wife; and therefore it is equally necessary that she should have a right to sue alone."  This qualification, however, of Lord Coke's doctrine, does not interfere with the distinction taken between banishment for life after attaint, and banishment without attaint, for a limited time.  The decisions in the Courts in England have all proceeded upon this distinction; and there is no reported case in which the Courts have gone further, in case of temporary transportation, than to hold that the wife may sue and be sued as a feme sole, or be treated as a sole trader under the Bankrupt Laws.  In no case of transportation merely has it been held that the wife might alienate her real estate by deed.  We do not lay much stress upon the form of the conveyance, or the rule of law, which holds that all deeds executed by married women are absolutely void.  If the mode of alienation only were in dispute, it might be difficult to discover any stronger reason against a married woman binding herself by deed of conveyance of land, that by a contract, which in its consequences, might involve the sale of her land.  By the general rule, she is no more liable upon contract, than she is bound by a deed.  In the case of abjuration, which like attainder and banishment, works a civil death, it was held so long ago as the reign of Edward I., that if the baron abjures the realm, the wife is able to aliene [sic] the land.  Brooks Ab. Tit. Coverture, Pl. 76.  So in the case of the Countess of Portland v. Progers 2 Vern 104, it was decided, that a wife, whose husband was by the Act of Parliament, banished during life, might make a will, and act in all things as a feme sole.  The distinction, therefore, is not based upon the form of the instrument, or the manner of alienation, but upon the difference between what is termed in law a civil death, and a temporary suspension of the marital rights of the husband.  In the former case the wife becomes, as it were, divorced from her husband, and acquires a separate position in society, and a complete power of acting, in all respects, as if her husband were dead - in the other she is only considered as a feme sole for certain necessary and indispensable purposes, and for no other, and for non longer time than the necessity continues.  The whole of the cases in which it has been decided that the wife of a transported person is to be treated as feme sole have gone upon the rule of necessity.  In this colony we have perhaps gone further than they might be disposed to allow in England, not only because of the more frequent occurrence of a relation between parties here, similar to the one under consideration, than happens in England, but because land is, by Act of Parliament, made subject to execution for debt, in like manner as personal property (54 Geo. III. cap. 15).  We should not hesitate, therefore, to treat a married woman, living with a convict husband, and dealing with other parties, in all respects whatever, as a feme sole, to the full extent of such dealing, because the interests of the public and the necessity of the case require it.  But the case is different as between the parties themselves; and in determining the extent of such difference, we will not attempt to lay down any fixed general rule, but applying our judgment to the particular act under consideration, enquire how far the existing condition of the parties, and the relation between them admitted of the application of the law of marriage, or required a necessary departure from the general rule - bearing in mind, that the marriage contract is more closely connected with the first principles on which the compact of society is founded, than any other --that the legal identity of husband and wife is the general rule - and that the suspension of the husband's rights and liabilities is the exception; and like all other exceptions to general rules of law, should not be carried one iota further than the necessity of the case demands.  Now, applying these consideration to the case before the Court, at the point of time when Mrs. Noble executed the deed of trust to the defendants, how did the husband and wife then stand in relation to each other?  The husband was under a temporary suspension of his civil ability, and consequently he was not in a condition to interpose between his wife and her personal liability, upon any of her contracts and dealings with third parties.  As therefore she was so far a feme sole, it became necessary, as well as reciprocally just, that while her husband remained under disibilities [sic], she should have the power of acquiring and disposing of property, in the same manner as a sole trader. - And so long as she confined her dealings to this extent, the Court would not have felt itself authorised to set aside any bona fide disposal of land, any more than if it had been personally.  But neither necessity nor reciprocal justice require that the wife should be considered a feme sole any farther.  Her husband's civil rights would revive at the expiration of his term of transportation, and with them his liability to be sued upon her contracts, and her right to be endowed of any real estate he might have possessed either before his conviction or acquired after, upon the expiration of his term of transportation.  In marrying a prisoner, the wife had contracted an obligation, which became binding on herself.  She could not voluntarily divest herself of the consequences of her contract.  To the world at large she might be a feme sole; but to her husband, she was still a wife; and although some of the rights of the husband were suspended for a time, yet their restoration was prospective and certain.  The marital rights of the husband are conveyed to him by law, in consideration of the burthen which the law enforces upon him.  Strathmore v. Bowes, 1. vol. c. 2. I. 28.  It is not in the power of the parties themselves to diminish or alter the legal effects of the marriage contract.  Whatever doubts may have been formerly entertained upon the subject, it is now settled law, that a man and his wife cannot, by agreement between themselves, change their legal capacities and characters.  March v. Rut, 8 T. R. 548. St. John . v. St. John 11. vol. 531.  So far as the law had effected the condition of Noble and his wife, it was altered, but no further.  The law was the limit - it suspended the legal rights of the husband for a limited time, and during such time his wife, for certain purposes, was to be regarded in the light of a feme sole.  But is was not in her power to pass beyond those limits, and by a voluntary conveyance to trustees in favour of her children, deprive her husband of the rights which he had acquired, which were only suspended, and would be restored at the expiration of his sentence, over real estate purchased by her during her coverture.  We are not called upon to say what estate or interest the husband acquired under the deed from Osman to his wife, or whether the land having been purchased by the wife during her husband's disability, is to be regarded as the husband's or the wife's estate.  The facts at present before the Court are not sufficient to enable us to form an opinion upon the nature of the husband's legal estate in the land, even if it were competent to us, sitting as a Court of Law, and not as a Court of Equity, to entertain that question.  but in this form of proceeding, which is in ejectment, to try the legal title to the possession of the land, at the time of the demise, it is sufficient to say that the deed from Mrs. Noble was void in law, and that the plaintiffs have failed to make out their title as laid in their declaration.  A new trial must therefore be granted.



[1 ] See also Sydney Gazette, 3 April 1834; Sydney Herald, 3 April 1834; Australian, 4 April 1834.  The reports of the Australian and Sydney Gazette are the same, showing that they probably printed a written judgment.  There is a copy of this printed judgment in the Forbes Papers in Mitchell Library, at the back of the Jane New papers: A742.

This is one of the few cases in the Forbes years to be formally reported: see vol. 1 Supreme Court Reports at Appendix, pp 33-39.  The editor included it in the volume because of the ``high authority of that eminent Judge Sir Francis Forbes, whose services as the first Chief Justice of the Supreme Court can be adequately appreciated only by those acquainted with the previous system of administering justice in the colony".  The editor felt that the next case in the volume (Brown v. Tindall, 1860, p. 39) should have been reargued in the light of this decision of Forbes C.J. (p. 33).  This report of Clark v. Smithers was accompanied by the following note: ``A. having married a convict undergoing sentence of transportation for years for felony, during the term purchased real property, and conveyed it by a voluntary deed in trust for her children.  Held, that the deed was void, because it deprived her husband of the rights which he had acquired over his wife's property, and which were only suspended during the term of his sentence.  Principles upon which a married woman is treated as a feme sole considered."  The body of the report is the same as that reproduced here.

Dowling also prepared a written judgment, but noted that it was not delivered, as the decision of Forbes C.J. was for the whole court: see Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3276, vol. 93, pp 7-14, 27-37.  The judgment of Forbes C.J. is in 2/3278, vol. 95, pp 1-39.  The latter includes a note at p. 39 that there is a printed copy at the end of the volume, but that copy has apparently since gone missing.

Dowling also made a marginal note at p. 1 of vol. 95 that his own opinion of the case is in vol. 93 (2/3276), pp 7 and 27 and went on: ``Suppose the case of a man transported for life - & while in that state the wife conveys land as a feme sole - & afterwards the husband gets a pardon, can he rip up the wife's conveyance? Even with words of restitution?"  Page 7 contains Dowling's trial notes, and p. 27 his judgment.

See also Doe dem. Cotton v. Farrall, 1847.

Published by the Division of Law, Macquarie University