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

Spark v Josephson [1826] NSWSupC 46

imprisonment for debt - Sheriff's liability

Supreme Court of New South Wales

Forbes C.J., 25 July 1826

Source: Monitor, 28 July 1826


Dr. Wardell moved for a Rule calling on John Mackaness, Esq. High Sheriff of the Colony, to shew cause, why Jacob Josephson should be permitted to be at large out of the Gaol of Sydney.  An affidavit of C.H. Chambers, Esq. Attorney at Law, was read, which set forth, that four writs of Capias ad Satisfaciendum had issued for the amount of 1120l. against the defendant, and had been placed in the hands of the Under Sheriff for execution, that subsequently the deponent had enquired of the Governor of the Gaol if the defendant was within the Gaol, but had not received a satisfactory reply - on a second application he had learned that the said Josephson was in private lodgings in Prince-street, Sydney.  Rule granted.[1 ]



Forbes C.J., 27 October 1826

Source: Australian, 28 October 1826


An application was made to the Supreme Court, a short time ago, for a Rule calling upon the Sheriff to shew cause why he should allow Jacob Josephson to be at large out of his Majesty's Gaol of Sydney, he being a debtor under execution.  Yesterday the Chief Justice heard the arguments on both sides, and deferred his decision until he should have looked into the various authorities; and if it appeared, keeping clear of the question of escape or no escape, that the case warranted him in requiring that Josephson should be kept in safer custody than a private house could be considered, his Honor stated that he should pronounce judgment accordingly.



Forbes C.J., 21 November 1826

Source: Sydney Gazette, 25 November 1826

Spark v. Josephson.


In this case, which was an application to the Court calling upon the Sheriff to shew cause why he permitted one Jacob Jospephson, taken in execution under the judgment of the Court, to be at large out of His Majesty's Gaol, at Sydney, the Chief Justice proceeded to pronounce judgment.  His Honor, after observing, at som[e] length, on the novelty of the application, observed that he most particularly wished to be understood as guarding himself from giving any opinion as to the question of escape; and that h[e] would only say that there was a power within th[e] Court to direct where its prisoners under civi[l] process should be kept.  The way, therefore i[n] which he would dispose of the motion, should be by saying, that he had inspected the gaol i[n] order to ascertain whether there was a plac[e] within it, in which debtors might be securely[,] and in other respects properly kept.  He found there was such a place, only wanting a few necessary repairs and alterations, which were then in progress; and he would therefore rule in a very few days, as soon as the gaol was in readiness, that, in that place, and that only, should debtors in future be kept, unless by special order of the Court under particular circumstances.[2 ]



[1 ] Capias ad satisfaciendum was the writ of imprisonment for debt issued to enforce a judgment debt.  In England, imprisoned debtors were sometimes allowed to live out of gaol, on lodgment of a security.  This was called a voluntary escape, though the sheriff remained liable.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, p. 120.

See also Halloran v. Hall, May 1826, on Josephson's debts; and see Polack v. Josephson, August 1825; and R. v. Polack, February and April 1825.  The latter case shows that Josephson was a Pitt Street jeweller.

[2 ] This was also reported in the Monitor, 24 November 1826.

More than a year earlier, on 29 May 1825, Forbes C.J. had written to the governor stating that he had received complaints from prisoners about the lack of food and covering against bad weather in the Sydney gaol.  He noted then that the gaol was too crowded for a proper division between debtors and criminals.  (Source: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 36; and see p. 44.)  Until imprisonment for debt was supposedly abolished, debtors were not in gaol for the commission of an offence, but simply for non-payment of what they owed.  They were thus treated differently from criminals.

Finally, on 23 March 1827, the Colonial Secretary, McLeay, informed Forbes that the new accommodation at the gaol for ``debtors of a better class" was complete: Chief Justice's Letter Book , Archives Office of New South Wales, 4/6651, p. 100 and see pp 107-108, 182.

Published by the Division of Law, Macquarie University