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

Marcus v. Healey [1840] NSWSupC 30

sale of goods, non-delivery, contract, non est factum, drunkenness, civil defence, felony attaint, married women's legal disabilities

Supreme Court of New South Wales

Willis J., 22 June 1840

Source: Australian, 27 June 1840[1]

            Marcus v Healey. - This was an action upon a special contract. The plaintiff is the wife of a ticket of leave holder, who conducts a retail store at Campbell Town, and the defendant is a small farmer, residing at Appin. On the 15th January last, the plaintiff had a sale by auction at her premises, at which the defendant attended, and purchased a few scripture paintings, some slop clothing, and other property, amounting in all to the value of £9. On the following morning, not having the cash to pay for the goods he had purchased, and being about to take his trial at the Court of Quarter Sessions, which was then sitting, for an assault committed by him when in a state of intoxication, he was induced to sign a written contract to deliver to the plaintiff in three days from that date, twenty-two bushels of wheat at nine shillings per bushel, as a satisfaction for the debt, that price being alleged to be at that time a fair marketable price for wheat. The breach was, that the defendant refused to supply the wheat. The defendant pleaded that at the time he signed the contract, he was in a state of intoxication, and that the plaintiff had fraudulently induced him when in that state, to sign the document without being aware of its contents, to his great damage, wheat then being worth 18s. per bushel. The witnesses for the plaintiff, the auctioneer who sold the goods, and the plaintiff's clerk, swore that the defendant was perfectly sober and well aware of what he was about at the time he signed the written contract. They also swore that at the same time, from 9s to 10s was a fair marketable price for wheat, although in the course of the month it rose in value in consequence of the prevailing heavy rains, to 18s. per bushel. On the same day that the defendant signed the contract, he was sentenced at the quarter sessions to three months imprisonment for the assault, and that was the reason assigned why the plaintiff could not demand the wheat at the expiration of the three days limited in the written contract. On the part of the defendant, evidence was called to show that the defendant was intoxicated at the time was bidding at the sale, and that he was also inebriated on the following day when he was undergoing his trial for the assault, so much so, as to call forth the rebuke of the chairman of the quarter sessions. Mr. a'Beckett addressed the assessors at some length on behalf of the defendant, but they under his Honor's direction, found a verdict for the plaintiff, damages £18. Counsel for the plaintiff, Messrs. Foster and Darvall; for the defendant, Mr. a'Beckett. In this case his Honor observed that the defendant not having pleaded in bar to the action, that the plaintiff was a femme couverte, no objection could in the present case be made upon that point, but he thought it involved an important consideration, how far a married woman under the control of her husband, although under legal disability to sue, could have a locus standi in court.


[1]              On the legal rights of women married to ticket of leave holders, see B. Kercher, "Perish or Prosper: the Law and Convict Transportation in the British Empire, 1700-1850" (2003) 21 Law and History Review 527-584.

Published by the Division of Law, Macquarie University