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

Stephen v. Joyce [1829] NSWSupC 79

imprisonment for debt - costs, legal - debt, allocation of repayments

Supreme Court of New South Wales

Forbes C.J., 15 December 1829

Source: Australian, 18 December 1829

Mr. Chief Justice Forbes was the sitting Judge to day, and Messrs. Brown and Spark were the Assessors.

Stephen v. Joyce. - this was an action to recover 131l. 4s. 6d. money lent.  Mr. Francis Stephen conducted his own case, and Mr. Kerr the case for the defendant.

It appeared in evidence for the plaintiff, that defendant had been taken in execution,[1 ] at the suit of two parties, and his premises were about to be sold, when he went to plaintiff, and requested, as a great favour, that he would advance the money to save the premises, and offered them as security, and 20 per cent interest on the money.[2 ]  Plaintiff offered to advance the money on the security offered, and take twelve and a half per cent. interest, which was paid, and defendant discharged out of execution.  A short time after defendant went to Mr. Stephen's office, for the purpose of signing the mortgage bonds, which were drawn up and ready for that purpose, but on some excuse left the office, and afterwards refused to sign them, or to refund the money.

For the defendant it was endeavoured to be set up, that Mr. Stephen had received several sums of money from defendant, which he had applied to pay off his own bill of costs, instead of applying them to liquidate the amount advanced.

Mr. Chief Justice Forbes, in summing up, observed, that it was a clear point in law, if one person was indebted to another on two separate accounts, and money was paid into his hands, without any specific order as to the appropriation of the amount, he had a right to apply it to which debt he thought proper.[3 ]  Verdict for the plaintiff, 131l. 4s. 6d.

 

Notes

[1 ] This expression meant imprisoned for debt for non-payment of a judgment debt.  It was also called imprisonment on the final process.  The writ was called capias ad satisfaciendum (that you may seize or take hold for the purposes of satisfaction).

See also Stephen v. Joyce, 1831.

[2 ] According to the Sydney Gazette, 17 December 1829, Stephen, who was the defendant's legal adviser, was initially offered 25%, not 20%.

[3 ] The Sydney Gazette, 17 December 1829, summarised the judge's words as follows: "The learned Judge held, that there being no express stipulation between the parties as to the way in which any particular sums of money received by the plaintiff were to be applied, and there being two unsettled accounts between them, he had a right to apply such sums to the liquidation of either of the claims, as he thought proper."

Published by the Division of Law, Macquarie University