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

Fairs v Barker [1835] NSWSupC 83

married women's legal disabilities - money had and received - felony attaint - Moreton Bay - trusts

Supreme Court of New South Wales

Dowling J., 15 October 1835

Source: Sydney Herald, 19 October 1835[1 ]


Fairs v. Barker. - This was an action brought for the recovery of a sum of money had and received by the defendant for the use of the plaintiff, a married woman.  It appeared that the husband of the plaintiff, was convicted of a felony in 1829, and sent to Moreton Bay under a sentence of seven years; having a number of houses in Sydney and other property, from which a rental of £500 or £600 was derived, he executed a trust deed under which Mr. John Dixon was appointed trustee in order to enable him to receive these rents during his absence, directing to his wife, the present plaintiff, the sum of £1 per week; Mr. Dixon acted on this direction until he left the Colony when the estate of Fairs went with other matters belonging to Mr. Dixon, into the hands of the defendant, who continued, although not named in the deed, to receive the rents and pay the plaintiff her stipend until a certain period, when he continued paying her allowance which had accumulated to the sum now sought for.  A letter of of directions which the plaintiff's husband, when on board of the Hulk was handed in, a passage of which was read, which directed the Trustee to pay of the rents an allowance of £1 per week to his wife for twelve months, or until she could obtain permission to follow him, when she was to receive £40 or £50 for the purchase of such necessaries as she might require; if she refused to go, then her allowance to be discontinued.  She had never proceeded to join her husband, but the money was regularly paid until recently, when in consequence of directions from the husband of the plaintiff these payments were discontinued.

Mr. Kerr on the part of the defendant, contended that the plaintiff should have gone further than to shew merely that the defendant had adopted the act of the Trustee, by continuing to pay the money, and have further to shew that an actual promise had been given by him to pay the plaintiff, as no such undertaking had been proved, the plaintiff must be nonsuited.

His Honor after hearing the reply of Mr. Wentworth, was of opinion as then advised that under the authority of the cases cited by Mr. Kerr, a nonsuit must be entered and the case closed.



[1 ] See also Australian, 20 October 1835; Sydney Gazette, 17 October 1835.

Published by the Division of Law, Macquarie University