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

McNamarra v. Wilson [1834] NSWSupC 27

felony attaint - married women's legal disabilities, wife of convict - police uniforms - convict service, assignment to spouse - Bill of Middlesex

Supreme Court of New South Wales

Dowling J., 10 March 1834

Source: Sydney Herald, 13 March 1834[ 1]

Monday. - Before His Honor Judge Dowling, and two Assessors.

McNamarra v. Wilson. - This was an action brought by Eleanor McNamarra, against the Chief Police Magistrate, Colonel Wilson, to recover the balance of an account, £109, for goods sold and delivered by her husband, acting as her agent.  The plea on part of the defendant was, that a Convict's wife has not any property in goods sold and delivered.

Martin Wright deposed, that he was a barber and hair-dresser, in King-street, and that he was connected with the constabulary force in October last; Colonel Wilson - a row having been made about the clothing, ordered that all the constables should be dressed in uniform by the 1st of November; Mr. Pendray charging too much, constables received orders from Colonel Wilson, on the public parade, to supply themselves either with long coats or jackets, which ever the preferred, from McNamarra; the order was to this effect, that they who had money must pay at once for them, and those who had not, would be allowed three months credit, and the amount to be paid by three monthly instalments; deponent wore his dress about twelve days, and then returned it to Mr. Gaffney, Inspector of Police - a demand being made for 5s. for the wear and tear of it; this, deponent refused to pay; an application was made to McNamarra, to frame the flap of the trousers in a particular way, but he refused, on the grounds of its being contrary to Colonel Wilson's order; witness considered that Colonel Wilson was answerable for the payment of the amount; in fact, he had expressed himself in language that made it more than probable that he was.

Cross-examined by the Solicitor-General. - McNamarra had made a pair of trousers for him in Limerick; but he did not believe that he would give him credit for any clothing in this Colony.

Patrick Henry, tailor, stated that he was in McNamarra's employ in October last, when the constabulary's clothing was made, and assisted in making some part of it; Colonel Wilson called several times when the clothing was in hand, and, on one occasion, cut out a pattern on horse-back, and ordered his (witness') master to proceed as expeditiously as possible; deponent never heard anything about the payment: there were about sixty suits made.

Lawrence Gaffney, general dealer, stated, that he was Inspector of Police in October last, under defendant, but had no uniform; as there was to be a distinction between the common constables and inspectors, and wardsmen, and the former were to have their uniform made first.  McNamarra stated to witness, that he was to give three months credit, in order to get away the job from Pendray; Colonel Wilson stated in the Police-yard, that the men were to pay for their clothing by instalments - the first two months 17s., and the last, 16.; witness was appointed receiver of the money, which was paid at the discretion of the constables, but he had no order to make a demand for it; he paid McNamarra the first instalment £40 9s., for supplying the constabulary force with clothing."  This receipt was tendered by witness to Colonel Wilson, on a Sunday morning, who threw it on the table, and declared he had nothing to do with it, and was not at all connected with the transaction; stating, that he had desired the men to get the clothing in the best manner they could.  Witness stated, that although he was a Limerick man, he did not understand the word tick, which appeared to excite the astonishment of the Solicitor-General.  Witness never heard of any contract for supplying clothing; whenever a constable was dismissed, the clothes were given in to the receiving watch-house, he paying at the time, a proportionate price for the wear and tear of the same; this was done by the men voluntarily, as they justly considered that they had no claim to them.

Some questions being put to this witness by Mr. Therry, after cross-examination by the Solicitor-General, he (the Solicitor-General) observed, that it was irregular in a Court of Justice, to go upon the principle of his learned friend Mr. Therry, who was putting questions after cross-examination, which were decidedly new matter, and ought to have been put on the first examination of witness.

Witness further stated, that he did not offer the second instalment to McNamarra, having no authority to do so; the money was collected by the authority of Colonel Wilson, and witness considered that he was not justified in paying it away without the Colonel's order; McNamarra was desired to be at the Treasury on the pay-day of the men, and then to receive a portion towards the clothing, which he did, but witness did not see any of the men pay him; it was at the suggestion of the Colonel that the uniform was adopted by the constabulary force.

Mr. Charles Nye, Keeper of the Records in the Colonial Secretary's Office, produced the indent of the transport ship, in which McNamarra came out, in 1822.

Mr. Ryan proved that McNamarra was assigned to his wife in 1826.  Application has been made for a conditional pardon in consequence of his good behaviour. - The evidence closed here.

The Solicitor-General then addressed the Court, and stated that the case had not been made out; the plaintiff must therefore be non-suited.  Mr. Therry had stated that a bill of particulars had been filed - but it was no such thing; nor had Colonel Wilson received any bill, describing the clothing and number of suits.  The learned gentleman contended that no wife can sue for goods sold and delivered by her convict husband.  Eleanor McNamarra is the plaintiff, her husband being her assigned servant, and under sentence as a transported felon.  There was also, he said, no proof that any contract had been made between McNamarra and Colonel Wilson.

His Honor Judge Dowling observed, that a convict's wife can sue and be sued during the sentence of her convict husband; in this case, he acted as agent for his wife, and she was therefore, entitled to maintain the action.

The Solicitor-General, finding this plea over-ruled, stated, that the action was brought prematurely, as according to plaintiff's acknowledgement, three months credit were to be given; the clothing was made in November, and on 24th December, this action was entered, and was therefore brought prematurely.

On this ground, by the decision of the Judge, the plaintiff was Non-suited.

For the plaintiff, Mr. R. Therry; for defendant, the Solicitor-General.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Sydney Herald, 20 March 1834[ 2]

 

McNamara v. Wilson. - An action of assumpsit, for goods sold and delivered.  The Chief Justice stated that this action was brought to recover balance of a bill for supplying the constabulary force with clothing, and an attempt was made to fix the responsibility on defendant.  The plaintiff was nonsuited, on the grounds that the action was brought before the credit had expired, therefore prematurely.

Mr. Therry moved that a new trial be granted, on the grounds of misdirection on the part of his Honor Judge Dowling, who presided on the occasion, the credit having expired when the declaration was filed.

The Chief Justice explained the case, and said it was the decision of the Bench that the verdict returned was a just one. - Motion refused.

 

Forbes C.J., Dowling and Burton JJ, 15 March 1834

Source: Dowling, Proceedings of the Supreme Court, vol. 94, State Records of New South Wales, 2/3277[3 ]

 

[p. 52] This was an action of assumpsit tried before Dowling J.[4 ]  The plf was non suited on the ground that the action was brought too soon. [p. 53]  The deft had contracted to make clothing for the Sydney Police, and agreed to give three months credit, the amount to be paid in three instalments out of the monthly pay of the constables.  The goods were delivered on 1st November.  One instalment was paid in the 18th Nov.  The next wd. be due the 18th Decr. & not being paid, the Plf commenced proceedings & issued & served a summons on the 24th Decr. 1833.  On the 1st Feb. 1834. the declaration was filed.  The Judge thought, that this being an entire contract the action was brought too soon, even for the second instalment, & ruled that to recover that, the Plf should have declared specially.

Therry now moved to set aside the nonsuit, & contended that the filing of declaration was in law the commencement of action, & proof of a demand one before declaration, was sufficient to entitle the Plf to recover it, though not one before the issuing of the summons.  He likened the declaration in this case [p. 54] to the bill of Middlesex in England.  He relied on Best v Wilding 7 J. R. 4.

Plunkett S.G. contra said that the Bill of Middlesex was surely an invention of the Court, to attract to the KB at Westminster, business which had originally belonged to the C. P.  In England the bill of Middlesex was the commencement of the action being in fact the first proceeding.  He cited Archr P. 338.  4 Earl.  Essinapeu Treatise of Nisi prius 99.  In this court the summons is the commencement of the action.

Forbes C. J.  I am of opinion that the nonsuit is right.  The Deft. was to have three months credit which would not expire until the 18 January.  The summons was issued on the 24 December previously.  In this court we have held that the Summons is the commencement of the action, & therefore this action was brought too soon.  The analogy to the Bill [p. 55] of Bill of Middlesex to a declaration in this court does not hold.  A bill of Middlesex is in fact a precept.

Burton J.  The commencement of the action is the bring out of the written summons.  There the suit commenced before the credit had expired.

Dowling J.  Same opinion.

Rule refused.[ 5]

 

Notes

[1 ] See also Sydney Gazette, 11 March 1834; Australian, 15 March 1834.  The trial notes are in Dowling, Proceedings of the Supreme Court, vol. 93, State Records of New South Wales, 2/3276, p. 51.

[2 ] See also Australian, 17 March 1834.  The trial date is taken from the Australian, not the Sydney Herald.  There was further litigation on 26 June 1834: Australian, 4 July 1834.

[3 ] See also 2/3283, vol. 100, p. 9.

[4 ] See Ante Vol. 93 p.

[ 5] Marginal note in manuscript:  See Phillips Ev. 119.

Published by the Division of Law, Macquarie University