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

In re Maher [1834] NSWSupC 72

certiorari - habeas corpus - convicts, harbouring - supervision of inferior courts

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 14 June 1834

Source: Dowling, Proceedings of the Supreme Court, State Records of New South Wales, 2/3281, vol. 98

[p. 79] In re Thomas Maher.

This was an application for a Habeas Corpus to bring up the body of the Deft to be discharged for a defective warrant of commitment under the harbouring act.  On a former day the keeper of the Hulk Phoenix bid the prisoner into Court & returned the commitment under which the deft was detained.  On that occasion the Court noted that as the commitment recited a conviction, they could not discharge the prisoner, however defective in commitment, until they saw the conviction, for if the conviction was good, they would remand the prisoner to have the warrant amended.  And exdebito justicia[1 ] they awarded a Certiorari to the convicting justices to return the conviction.  The prisoner was remanded & a certiorari having issued, the Magistrates returned last Saturday 7th June, that they [p. 80] had transmitted the conviction to the Clerk of the Peace.  Whereupon a fresh Certiorari was directed to the latter, & upon an affidavit of service, & no return thereto being this day made as required.

The Court proceeded to consider the defects of the commitment.

The Harbouring Act 5 G. 4. No. 3 S. l. renders a person, liable, for harbouring convicts to a penalty of five, & not more than 10 Dollars.  By S. 4 the fine is leviable with 3 days, first by sale of the offenders effects; & secondly of no effects, the party is to be imprisoned for 10 days & not more than three months.  By 6 G. 4. No. 19 all fines & penalties hereafter to be levied, are leviable by distress of the goods of the offender; but if he had no goods then the Justices may order imprisonment.  By the 3 Wile 4. No. 23. J. 25. The penalty on a free person for harbouring convicts is 5£ & not more than 10£.  The deft in question [p. 81] was committed absolutely for 3 months, to Sydney Gaol, & the commitment did not shew that he had been committed for want of a sufficient distress.

Per Curiam.  In the absence of the conviction, or other proof that the deft had no goods where in the penalty might be enforced, we think this is a fatal objection to the Commitment [sic].  It is a general rule in summary convictions that where imprisonment is only inflicted by the statute as an alternative punishment for want of sufficient distress, the commitment ought to notice that fact.  In one case a commitment was quashed because it only stated that the officers had returned to the warrant of distress that the deft had no goods, instead of expressly alleging the fact to be so.  R. v. Chandler 1 Ld Ray 545.  But in a later case it was [p. 82] held to be sufficient to state in the warrant of commitment that the constable had certified that there was no distress.  Rv Whitelocke 1 Stra. 263.  Here the commitment is wholly silent as to there being no distress, & therefore the commitment must be quashed, & the prisoner discharged.


SeeIn v. Clarke  Vol. 19. P. 44.

In v. Cox.  - Vol. 22. P. 89.

In v. Maken.   Vol. 15. P. 92.

In v. Stone.   Vol. 72. Pp. 71 & 87.



[1 ] Ex debito justitiae: as a debt of justice; as a legal obligation; from a lawful or just debt.  A remedy available as of right, such as habeas corpus.

Published by the Division of Law, Macquarie University