Skip to Content

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

Wild v. Driver, 1837

dower - married women's legal disabilities - convict rights - felony attaint

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 28 October 1837

Source: Sydney Herald, 2 November 1837

Wild v. Driver. - In this case which was a bill in-equity filed for the recovery of a dower, the defendant had pleaded that the plaintiff was a prisoner of the Crown and a convict; to this plea a demurrer had been filed, which Mr. Foster now appeared to oppose.  After Mr. Foster had been heard, the Court decided that the plea must be overruled, as nothing had been stated that would bar the plaintiff from her right to dower; she might be a prisoner of the Crown for debt or a prisoner of war, or she might have been convicted in the Colony, neither of which would be any bar to dower, the Act of Parliament only barring transported felons which must be averred in the plea, before the plaintiff could be barred.

 

Dowling A.C.J., and Burton and Kinchela JJ, 28 October 1837

Source: Sydney Gazette, 2 November 1837

 

Wild v. Driver. - In this case a bill had been filed calling on the defendant to pay her her [sic] dower, to which the defendant pleaded that the plaintiff was a prisoner of the Crown and therefore debarred from dower; to this plea the plaintiff demurred, and the demurrer now came on for argument.  Mr. Foster, who opposed the demurrer, said there was only one point for the Court to determine, and on that point he could find no precedent in the books (Mr. Justice Kinchela said he was not likely to find any precedents out of this Colony).  The plaintiff admitted that at the time of her husband's death she was a convict under sentence, but that she became free in March last, and was therefore entitled to her dower.  The defendant alleged that the plaintiff was a prisoner of the Crown, and in another place that she was a convict, but did not state that she was such a prisoner or convict as would debar her from her dower; she might have been a prisoner of war, or convicted of an assault.

The Court was of opinion that the demurrer must be overruled, as it did not state sufficient to bar the plaintiff from her dower.  According to the Act of Parliament it was necessary to state that the plaintiff, when her dower became due, was a transported felon.

Published by the Division of Law, Macquarie University