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

Doe dem. Cotton v. Farrall [1847] NSWSupC 18

ejectment, felony attaint, married women's legal disabilities, conveyancing

Supreme Court of New South Wales

Stephen C.J., Dickinson and Therry JJ, October 1847

Source: Sydney Morning Herald, 30 October 1847, in Supreme Court Collection, Vol. 2, pp 19-20 [1]


This was an action of ejectment, brought to recover possession of two and a half perches of land, situate on the locality known by the name of the "Rocks," Sydney. The case was tried before His Honor Mr. Justice Dickinson last August, when the following facts appeared in evidence. The plaintiff claimed title to the property in question, from one Hanslow, who bought of one Jane Farrall, the widow of the present defendant. The deed of conveyance from Mrs. Farrall to Hanslow was very inartificially drawn, being, as it was alleged by counsel for the defendant, at the trial, neither a bargain and sale, nor an indenture, and in other respects void, for not distinctly describing the parcels purporting to be conveyed thereby. The deed of grant from the Crown to Mrs. Farrall, was put in and received in evidence, the grant having been made to her individually, as it was alleged; for though a married woman, yet that her husband at this time was a prisoner for life, having arrived as a convict, as it was attempted to be proved at the trial, in the year 1814, in the ship the Three Bees. To prove this latter circumstance, the plaintiff produced from the Colonial Office, under the Act in that case made and provided, a certain "indent," purporting to contain the names of the persons who came as prisoners in that vessel, and in that "indent" was found the name of a person bearing the same Christian and surname as the defendant, but no clear evidence was adduced to prove that the defendant was the person so described; or that he came out in the said ship as a "convict"; or that upon his arrival he was treated as one.

For the defendant evidence was adduced to show that he was married to the said Jane Farrall at the time she conveyed, and therefore as he was not likewise a conveying party, the deed to Hanslow was void as against him.

His Honor told the Jury that he thought the title had been properly traced, and that the "indent" was under the Act sufficient evidence to prove that the defendant arrived in the colony as a prisoner for life, and therefore upon the authority of the case Doe dem. Smithers v. Clarke, decided in this Court (1834) Jane Farrall was in the eye of the law a feme sole, and therefore as such might have legally conveyed her property without the intervention of her husband. The Jury found a verdict for the plaintiff. The case to-day came before the full Court on a motion for new trial, when Mr. FOSTER, for the defendant, contended as follows:- That the deed from Jane Farrall to Hanslow was void, it being a mere deed poll, and not inter partes, and therefore could not be viewed in the light, as it was at the trial, of a bargain and sale, nor was it an indenture, and much less was it a feoffment, because it did not contain the usual technical language of such a deed. 2 Blac. Com., and Jacobs's Law Dictionary. The deed was also void in respect of the parcels; and the evidence adduced at the trial, to reduce that certain in this respect, viz.: the parcels, which was otherwise uncertain, sufficient. And lastly, that the "indent" of the fact of the defendant's having arrived here a prisoner was improperly received. It was submitted on this point, that as such evidence was received by virtue of a statute which substituted such evidence for the highest evidence the law recognises, viz., records, that that Act ought to be construed strictly; the provisions of that Act (3 William IV., No. 3, section 35), require that the indent produced shall contain the name of the convict, his offence, and sentence. Now, the indent produced did not contain the offence for which the defendant was transported; and it may so have happened that he was transported for an offence that was not a felony in itself; and as it was suggested by the Court, in the course of the argument, that it was not apparent at law why a person even transported for life for an offence not a felony might not have acquired land by grant. Besides, in other respects the evidence at the trial did not show that the defendant was treated as a convict on board the vessel, or that he had been so treated upon his arrival here. All the evidence adduced was consistent with the defendant having arrived here as a sailor on board the vessel.

Mr. MICHIE appeared in support of the verdict, and contended that as to the "indent," that was conclusive evidence of the condition in which the defendant arrived; the sentence was given in the indent, and this was ample to guide the Court; besides the mere fact of the grant during the marriage being made out in the name of the wife, there was some evidence as to his condition at that time. And the act that substitutes this evidence cannot be applied so strictly to this indent, as it was passed long after this indent was made out. And on the other point contended that the deed from Jane Farrall to Hanslow was good --- both in respect of its own effect, and of its having been executed by Jane Farrall herself.

A new trial was refused on the other grounds taken, but as to the indent,

Their Honors the Chief Justice and Mr. Justice Therry thought that an indent, to be evidence of a person having arrived in the colony as a convict, ought to state the "offence;" for this the Act seemed to contemplate; here the indent produced did not state the offence, nor did the evidence produced prove that the defendant had arrived here as a transported felon, and was reputed and dealt with as such, when in the colony, which the Act required.

His Honor Mr. Justice DICKINSON disagreed on this point with the rest of the Court,--- intimating that, looking at the preamble of the Act, and the several clauses, he considered that the indent was merely meant to be evidence of the "term," and not the "sentence" for which the convict came, and therefore that the indent was rightly received, though it did not state the sentence.

A new trial was granted, the costs to abide the event.


[1] This case concerns the great puzzle of law in a convict colony: what to do about the legal rights of a wife married to a convict husband. The husband's legal rights were restricted while he was attainted, as was the wife's due to her marriage. See Doe dem. Clarke v. Smithers, 1834.

See also Doe dem. Cotton v. Farrell, 1848.

Published by the Division of Law, Macquarie University