[dower]

Bradbury v. Shiel

Supreme Court of New South Wales

Dowling C.J., 29 January 1841

Source: Sydney Herald, 30 January 1841[1]

COURT OF EQUITY.

FRIDAY, -- Before His Honor Sir James Dowling, Judge in Equity.

            This was a bill praying to be allowed dower on the lands of which the late M. Bradbury died possessed. The defendant by her answer admitted that the plaintiff was the widow of the deceased, and that he died possessed of certain lands, but denied the plaintiff’s right of dower because, it was asserted, that she went away from her husband and lived in a state of adultery, and that afterwards the deceased did not live with her. At the hearing it was suggested, that the bill must be dismissed for want of parties, as, since the bill was filed, the defendant’s husband, Dennis Shiel, had died, and she was married to a man named Cannon, but as there was no evidence of that fact, His Honor overruled the objection and the arguments were gone on with.

            His Honor now delivered judgment. He said it had been urged that under the circumstances he ought to order a commission to be sent to England to obtain evidence, and direct the issue to be tried, as to the fact of adultery; but there was no evidence whatever of the adultery, it was a mere suggestion, and it is only when a judge cannot satisfy his own mind that he directs a particular issue to be tried; but in this case there was nothing to embarrass the mind of the judge, and therefore he should not direct the issue to be tried. He was at liberty to look at the records of the Court, although not properly before him, and in another case, arising out of the same proceedings, he found it stated that the defendant was married to a man named Cannon, and therefore as Cannon, or the representatives of the deceased Shiel, were not before the Court, he would not decree an account of the past rents and profits, but would decree an assignment of dower in future; and if the plaintiff would not accede to this, the case must be adjourned until Cannon and the representatives of Shiel were before the Court.

            Mr. a’Beckett, for the plaintiff, applied for time to consider which course he should adopt; which was granted, and the case adjourned to the next court day.