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

Moore and Keith v Macdonald [1832] NSWSupC 31

insolvency - imprisonment for debt, maintenance - imprisonment for debt, satisfaction of judgment - reception of English law, debt recovery - Supreme Court, Master's insolvency - judgments, when stale - fieri facias

Supreme Court of New South Wales

Dowling J., 14 April 1832

Source: Dowling, Proceedings of the Supreme Court, Vol. 67, Archives Office of New South Wales, 2/3250[1 ]


[p. 213]

This was a rule calling upon the Plaintiff to shew cause why the writ of fieri facias issued in this cause should not be set aside, and in the mean time all further proceedings stayed.

The affidavit on which the rule was founded stated that the action was commenced and tried upwards of three years ago, and the deft was taken in execution[2 ] and confined in gaol under the judgement obtained in the same cause; that upon application to the Court he obtained our order for his groats, and in consequence of plf having failed to comply with such order, the deft was discharged from such execution, that on the 4th April [?] the Sheriffs officer levied on deponents goods under an execution issued in the same cause returnable on the 4th May next under which his effects would be [p. 214] sold unless the Sheriff was restrained by the order of the Court. 

In support of the rule two points were made.  1st. That as it appeared that the judgement had been obtained three years since, there being nothing to shew that it had been revised by scire facias, or kept alive by entering circumstances on the roll, it must be presumed to be satisfied (Tidd 1070. 1133.)  2nd. That taking the person of the Deft in execution (though afterwards discharged) was in law a satisfaction of the debt, and the Plf could not take out a fi. fa. without commencing a fresh action.

Contra.  There are new grounds of irregularity or illegality stated in the affidavit on which a judicial opinion can be given, for the court must presume everything in favour of the execution until the contrary is shewn; but waiving this objection, the points made on the other side in argument shew no vice in the proceeding by fi. fa. against the defts goods, notwithstanding his person had been taken in execution.  First the practice of Westminster Hall which requires the entering of continuances from town to town to keep a judgement alive, and of revising [p. 215] a judgement bysci. fa. after a year & a day have expired, is not in force in the Supreme Court of New South Wales.  There writs of execution are tested on the day they actually issue, and continue in force until actually executed or satisfied.  But assuming the practice here to be the same as in England, still for anything that appears to the contrary here there may have been continuances or the judgement may have been reviewed by Sci. fa.  Secondly, though it may be a general rule of law that taking the person of a debtor or a ca. sa. is a satisfaction of the judgement, yet where a party, after being taken in execution, gets out of prison merely for now payment of maintenance money under the local ordinance, (which is wholly a collateral matter), it does not impeach the judgement, or preclude the plf from proceeding against the Defts goods if he has any.  The practice of this court has always been, to allow a plf to sue out a fi. fa. upon the same judgement against the deft, although he may have been taken in execution upon a ca. sa. but discharged [p. 216] for non payment of his groats.  In England it is quite of course in such cases to proceed in this manner under the Lords' Act.

Dowling J.  It having been certified to me by the Chief Clerk of the Court that it has hitherto been the practice as a matter of course in like cases with the present, to issue a writ of fieri facias against the goods of a debtor, notwithstanding his person has been before taken in execution on a capias ad satisfaciendum, on the same judgement, but discharged out of custody for non conformity to the order on the plf, to maintain him whilst in gaol, I have thought it right to fully to consider whether there is any thing in law contrary to such practice; and I am of opinion that the rule nisi obtained in this case must be discharged.

The affidavit in support of the motion is very bare of facts and dates, but I collect from that document as well as from the agreement, that the true question intended for discussion is [p. 217] whether, the deft having been taken in execution upon a ca. sa. but afterwards discharged by the default of the plf in not maintaining the Deft in gaol pursuant to the order of the Court, the plf can afterwards, take out a fieri facias against the goods of the deft, upon the same judgement for the same cause of action.  That he might do so if the proceeding was taken in due time, so, did not seem to be much doubt by the Defts counsel or the argument - the [?] of his argument being that the judgement must be considered to all intents & purposes satisfied, in as much as no continuances had been entered on the roll to keep the judgement alive or no sci. fa. sued out to revive it after the expiration of a year & a day.  I am of opinion that the latter argument cannot prevail and that the technical rules of practice of the Courts of Westminster do not apply in this country to a case, circumstanced as this is.  The fiction of law that a judgement after the expiration of a year and a day, without any steps being taken upon it, shall [p. 218] be presumed to have been satisfied even against the facts unless kept alive by continuances or revived by sci. fa., may have been resorted to for very wise purposes, but it appears to me that it does not at all touch the present case.  Here the judgement was obtained three years ago, and in point of fact the deft was immediately taken in execution upon that judgement & lodged in gaol, so that all the learning upon the subject ofcontinuances & sci. fa. doe not apply to the case.  The substantial question really is, whether the personal imprisonment of the Deft in execution upon the judgement, is in law such a satisfaction of the debt, under the peculiar circumstances of this case, as will preclude the plf at any time afterwards from making use of the same judgement for seizing the Defts goods under a writ of fieri facias, without a scire facias, & proceeding therein by action to another judgement.  Now what are the facts of this case?  The deft being in prison in execution, applies to the Court under the local ordinance [p. 219] of 6G. 4. March 1825. entitled "An Act for the relief of persons imprisoned for debt", calling upon the plf to support him in gaol, he swearing that he has no means of maintaining himself whilst in prison.  An order is accordingly made upon the plf with which it appears he did not comply and the Deft was discharged out of custody.  By the local ordinance it is enacted that if the plf after such order shall have been duly served upon him, shall make default in the payment of such allowance for the space of one week such deft shall be discharged out of custody at the suit of the plf".  Here the discharge of the defts person is the act of the Court, but I apprehend that this cannot be considered either as a satisfaction of the judgement or of the debt.  It is no more than a discharge of the defts person from prison.  The judgement still remains unsatisfied.  If the letting out of prison was the voluntary [p. 220] act of the plf, then I agree that this would be evidence of the judgement being satisfied, but where a duty is imposed by the humanity of the legislation in relief, perhaps of a starving debtor in gaol, but which duty the plf may not be of ability to perform or declines performing from his unwillingness to lose more money by paying further maintenance of his debtor in gaol, I apprehend that it would be going farther than any decision has yet gone in any Court of justice, if we were to hold that the judgement was thereby satisfied.  If such had been intended by the legislature, I should have imputed that the act would have gone on to say that, he the Deft should not only be discharged out of custody at the suit of the plf, but that such discharge should be deemed & taken to be a satisfaction of the plfs judgement, & payment of his debt on demand.  Although the Lords act 32. G. 2. c. 28 is not operation [p. 221] in this country yet, I think it may be regarded in pari materia with our local ordinance.  Now by the 2d section of that act though a prisoner's person is discharged out of custody, yet the judgement against him remains in full force, & execution may be taken out at any time afterwards agt. his estate & effects, the same as if he had never been before averted, taken in execution & released out of prison.  I am clearly of opinion that the only effect of a discharge for nonpayment of a debtors gaol allowance, is to release him from prison to prevent his starving in gaol, but that the judgement remains in full force against any estate or effects he may have, & may be taken in execution by fi. fa. or the same judgement, without resorting to the [?] and expensive course of bringing another action by sci. fa. on the judgement.



Forbes C.J., Stephen and Dowling JJ, 19 July 1832

Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255


[p. 89]

The deft had been declared insolvent but the Creditors conceiving that the effects possessed by the deft not worth dividing, abstained from calling a meeting to appoint Trustees.  In the meantime, the Plf's finding the Deft possessed of property which he declared to be his own, they took out execution [p. 90] for a debt due before the insolvency.

F. Stephen now appeared for other creditors, & prayed the appointment of Trustees, & that the effects, or the proceeds in the hands of the Sheriff be paid over into their hands for rateable distribution amongst his creditors.

Keith opposed the application on the ground that the effects seized had been acquired by the Deftsince the decln[3 ] of insolvency, according to his own declaration.

Per Curiam.  We thing the other creditors have a right to try that question; & having regard to the policy & provisions of the Insolvent act we thing the rule ought to be made absolute.

Rule Absolute.



[1 ] A colonial Act was passed in 1830 (11 Geo. 4 No. 7) to deal with both insolvency (release from prison) and bankruptcy (release from debts as well), but was found to be inadequate after two years.  In April 1832, it was replaced by 2 Wm 4 No. 11 which was a conventional insolvency Act.  Under it, an imprisoned debtor who had been in gaol for more than three months could be released from prison on giving up all of her or his property to the creditors and engaging to pay the whole of the debt should he or she subsequently obtain sufficient property to do so.  See Bourke to Goderich, 19 March 1832, Historical Records of Australia, Series 1, Vol. 16, p. 566; and for the statute, see Sydney Gazette, 29 March 1832; Australian, 27 January, 3 February, 30 March, 6 April 1832.

The 1832 Act was a very harsh law, both because of the three months' wait, and because local traders could not obtain the bankruptcy relief which was available to their counterparts in England.

Insolvency was quite common by 1832.  For example, McLeay informed Forbes C.J. on 16 February 1832 that Carter was to be removed as Master of Supreme Court because of insolvency:Chief Justice's Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, p. 298, and see p. 303.  See also Historical Records of Australia, Series 1, Vol. 16, p 639.

[2 ] This meant imprisonment for debt on the final process, that is, imprisonment for non-payment of a judgment debt.  The writ was called capias ad satisfaciendum.

[3 ] declaration

Published by the Division of Law, Macquarie University