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

Oliver v. Terry [1837] NSWSupC 29

goods sold and delivered - married women's legal disabilities

Supreme Court of New South Wales

Dowling A.C.J., 7 June 1837

Source: Australian, 9 June 1837[1 ]

Wednesday. - Before His Honor the Acting Chief Justice, and John Campbell and T. U. Ryder, Esquires, Assessors.

Oliver v. Terry. - The plaintiff in this case was Mr. Andrew Oliver, of Pitt-street, linen draper, and the defendant, Mr. Edward Terry.  It was an action brought to recover the sum of £129 12s. 8d. for goods sold and delivered to the wife of defendant.  The fact of Mr. Terry's having had a running account for goods at Mr. Olvier's shop, with the knowledge and consent of her husband, was fully proved, also that the articles were not beyond the station in life, and supposed circumstances of the party, and that the charges were fair and reasonable.  The bill had been delivered, and Mrs. T. had written at the bottom ``correct, E. Terry."  The defence set up was, that the goods were had without the knowledge of the husband, and the account most exorbitant for the Court to allow any woman to run her husband to in the article of dress; and that although Mrs. Terry was at the time the account was running living with her husband, yet that she might have signed the bill subsequently in a feeling of anger towards her husband, a disagreement having taken place, and a temporary separation.  The Learned Counsel urged that there was no case whatever to go the Assessors and told the Assessors that in cases of long running shop accounts opened with the knowledge of the husband, it was fair to presume that the bill rendered was a correct amount, as it might be impossible to prove the delivery of every article, but it was especially so in the present case, where Mrs. Terry having certified to the receipt of the goods; and as there was no evidence that the defendant had not authorised his wife to make the purchases, or had repudiated them, or limited her as to the amount of them, nor that the goods obtained were such as were not becoming her situation in life, it must be presumed that she was authorised, -- was so far the agent of the defendant, and for whose purchases he was certainly liable.  The Assessors returned a verdict for the plaintiff for the whole amount -- £129 12s. 8d.  Counsel for the plaintiff, Messrs. Foster and Windeyer, and Messrs. Carr and Rogers, Attorneys.  For the defendant, the Attorney-General and Mr. a'Beckett; and Messrs. Unwin and Want, Attorneys.  His Honor certified for two Counsel.

Notes

[ 1] See also Sydney Herald, 8 June 1837; and Sydney Gazette, 8 June 1837; Dowling, Proceedings of the Supreme Court, Vol. 135, State Records of New South Wales, 2/3319, p. 132.  The Gazette contains more details of the evidence, but the Australian has the better account of the legal arguments.

Published by the Division of Law, Macquarie University