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

Dickens v. Macquoid [1829] NSWSupC 73

sheriff's liability - debt recovery - imprisonment for debt, voluntary escape - nominal damages

Supreme Court of New South Wales

Dowling J., 8 December 1829

Source: Australian, 12 December 1829

 

Before Mr. Justice Dowling, and Messrs. Hely and Raine assessors.

Dickens v. Macquoid.  This was an action for debt, to recover the sum of 34l. 11s. from defendant, in his office of Sheriff, for permitting a prisoner to be at large after he was in custody, for six days.  It appeared by the witnesses for the plaintiff, that a person named Kelly, against whom an execution had been issued in the month of April last, on a warrant of attorney, had gone to the Sheriff's office for an order to see his brother, who was on board the hulk; that while at the Sheriff's office, he was taken into custody by the usual officer, and allowed to go about Sydney with him, to see if he could collect the money, but not being able, Mr. Prout, Under Sheriff, admitted him to bail for six days, when he was allowed to go at large.  This was the escape complained of.

The witness for the defence denied, in toto, the charge of setting him at liberty after he was in custody, assuming that Kelly was not in custody at the time.  Verdict for the plaintiff  Damages, -- One Shilling.[1 ]

Notes

[1 ] The allegation in this case was one of voluntary escape, as contrasted to a negligent escape.  The standard of care may have differed between these two, but the result was potentially the same: the sheriff or gaoler could be held liable to the creditor.  See B. Kercher, Debt, Seduction and Other Disasters: the Birth of Civil Law in Convict New South Wales, Federation Press, Sydney, 1996, pp 119-121.

On the sheriff's liability for an escaped debtor, see also Rapsey and Mitchell v. McQuoid, Australian, 24 September 1830; Stock v. Macquoid, Sydney Gazette, 22 September 1832.

Published by the Division of Law, Macquarie University