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

Williams v Hanson (1835) NSW Sel Cas (Dowling) 173; [1835] NSWSupC 59

felony attaint - ticket of leave

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 16 July 1835

Source: Dowling, Select Cases, Vol. 7, Archives Office of New South Wales, 2/3465

[p.44]

[1836][1 ]

[Thursday

16th July]

[No action can be maintained by a Plf upon a contract entered into & performed by him, during the time he was serving under a sentence of transportation.]

Williams v Hanson

Assumpsit on a contract for goods sold and delivered.  Plea the general issue.  It appeared in evidence, that at the date of the contract viz. 13th March 1834, the Plf was a transported convict, and assigned to a master.  Between the 18th March, and the end of May 1834 the goods were delivered.  He became free on the 10th July 1834 and this action was commenced on the 14.h August 1834.  The Plf had a verdict, subject to the question whether he could recover under a contract, which had been made and performed, during the time he was under a sentence of transportation.

Foster for the Deft contended that the action was not maintainable, & cited Stat. 2 & 3. G. 4. C. 62. s.2. Bensley v Bignold (5 B&A 335) & Bullock v Dodds (2 B&A. 258.)

Stephen contra argued that upon the plf becoming sui juris, he might maintain action upon a contract entered into during his legal disability.

[p.45]Forbes CJ.  I am of opinion that this action is not maintainable.  It was clearly the intention of the legislature in passing the statute 2 & 3 G. 4. c. 62. s.2. that the penal laws of Englandshould not be defeated in their effects, by allowing persons under sentence of transportation to acquire property.  There is much higher ground of legal objection than that, for the words of that act of Parliament are only in affirmance [sic] of the ordinary principle of law.  But if there were any doubt of that, the words of that statute are too strong.  It is thereby enacted, that no transported person, whether for misdemeanour or felony "shall be capable of acquiring or holding any property, or of bringing any action for the recovery of any property, until after such person shall have duly obtained a pardon."  It appears to me that this case is incapable of argument.  Independently of the general policy of the law, the act puts the Plf out of Court.  We have repeatedly held that ticket of leave holders can maintain no action. 

Dowling J. & Burton J. of the same opinion.

Verdict entered for the Deft.

 

Notes

[1 ] This date appears to be wrong; the case is among those decided in 1835.

Published by the Division of Law, Macquarie University