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

Lyons v Macquoid (1835) NSW Sel Cas (Dowling) 233; [1835] NSWSupC 32

imprisonment for debt, voluntary escape - sheriff's liability - reception of English law, liability of sheriff - counties - negligence, development of

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 30 March 1835

Source: Dowling, Select Cases, Vol. 4, Archives Office of New South Wales, 2/3463[ 1]

[p.122] [Where a deft residing at Maitland was arrested upon a writ lodged on the 19th Nov at Sydney and another writ was lodged on the 21st November but before the warrant on the latter could be sent to the bailiff by possibility, the deft paid the debt under the first & was discharged out of custody.  Held that the Sheriff was not liable for an escape, notwithstanding the lodging of the second writ in the office.]

In Banco

Saul Lyons v Thomas Macquoid Esq

Debt against the sheriff of New South Wales for the escape of one Cox.  Plea nil debet.  At the trial before Burton J. during the present term the plf had a verdict for 77.7.1, subject to the opinion of the Court on the following case: -

A writ of casa.[2 ] against Cox at the suit of Spencer was lodged with the Sheriff on the 19thNovember 1834, and on the following day, Thursday, a warrant was thereupon forwarded to the sheriff's bailiff at Maitland where the Deft resided.  Another writ of casa. against the sameCox at the suit of Lyons the plf in this action was also lodged with the sheriff in Sydney on the 21st November, & a warrant thereupon was forwarded by the next post to the Sheriff's bailiff atMaitland.  After Lyons writ was lodged with the Sheriff, but before the warrant could reach the sheriff's bailiff at Maitland, by [p.123] the ordinary course of post, Cox was taken on the writ at the suit of Spencer, when he immediately paid to the sheriff's bailiff the sum for which he had been so taken by him on Spencer's writ together with the poundage thereon & on such paymentCox was immediately discharged out of custody by the Sheriff' bailiff.  The bailiff on receipt of the warrant on the writ at the suit of Lyons again took Cox, and being unable to discharge the amount for which he was then taken, he was at his own request lodged in Sydney gaol.  On this last writ, the Sheriff made his return of Cepi Corpus.  The question for the opinion of the Court is, whether the Deft Cox having been in the custody of the Sheriffs bailiff at Maitland onSpencer's writ, & discharged whilst another writ against him at the suit of Lyons, was at the time of such custody & his charge in the Sheriff's office in Sydney, does not [p.124] render the Sheriff liable to the plf in this action for escape, & if the Court shall be of opinion that the sheriff is liable, then the verdict for the Plf is to stand, but if the Court shall be of a contrary opinion, then a verdict is to be entered for the Deft.

Foster for the Plf.  The Deft is liable under the circumstances stated in the case for an escape, according to the law of England.  It is laid down in Bull. N.P.66. citing Salk.274 that if A be in custody of the Sheriff at the suit of B & a writ be delivered at the suit of C, the delivery of the writ is an arrest in law; and if A escape C may bring debt against the sheriff for the escape. (Seliv. N.P. 7 Ld.p.613.)  Here the writ at the suit of Lyons was actually lodged in the Sheriff's office, before the Deft Cox was discharged on the writ at the suit of Spencer.  The Sheriff is bound to detain the Deft in custody a reasonable time to search the office to see if there are any [p.125] other writs against him.  If the Sheriff will rake upon himself to receive the money of the Deft before the return day of the writ & thereupon liberates his prisoner he is liable for an escape. - Slackford v Austin (14 East 468).  So it has been holden that the Sheriff can not take the debt & costs before the return of the writ without the assent of the plf in the suit.

If the law of England therefore is to prevail in this Colony, the Deft is liable for an escape.

Plunkett S.G. contra.  First the law of England is not so clear upon the subject, as stated on the other side; & second, if it be so clear it is not applicable to this Colony.  The authority from 2Salkeld is not disputable, but it is not relevant.  It may be conceded at once, that if the Sheriff be actually aware of a writ lodged in his office by a second Plf after the Deft is arrested on a prior writ, and he does not detain him on the second [p.126] writ, he is liable to an action for an escape.  That principle is founded upon the equity of the statutes 13 Edes 1.C.11. & 1 Ric.2.c.12.  Unless it be within the knowledge of the Sheriff, that there is a second writ lodged before the Deft was discharged upon the first writ, the action will not lie.  If this action laid, the Sheriff would not have had the power of retaking the Deft, for if the mere lodging of the writ was to be considered an arrest, the Sheriff would have been liable for an action of false imprisonment in taking the Deft at the suit of Lyons.  In Watsons Sheriff 141. all the authorities are collected on this point.  To render the Sheriff liable it must be a voluntary escape, in which case the Sheriff could not have retaken the party.  That the mere lodging the writ is an arrest, is not borne out by the authorities.  In the case of Slackford v Austin all that was there decided was that the Sheriff having [p.127] taken the debt before the return of the writ & having neglected to pay the money over to the Pf in that case, he was held liable.  This is not like the case of Beuton v Sutton (1 Bos & Pul 24) where the Sheriff's bailiff having arrested the Deft, allowed him to go about with his follower, which case the Sheriff was held liable for an escape.  If the Sheriff has knowledge of the second writ, and allows the party to be discharged under the first writ, it is conceded that he would be liable, but here there was no such knowledge.  Neither is it disputed that the Sheriff may detain the party a reasonable time to ascertain whether there are any other detainers lodged, where it is possible for the Sheriff so to do, before the Deft is discharged - as is the practice in London & elsewhere.  The case of Atkinson v Jameson (5 T.R.25) is in point with the present.  There the Deft was arrested on the 3d November & discharged on the same day [p.127 (back page)] the Sheriff not knowing at that time there was a detainer lodged in his office against him at the suit of the present plf.  This being afterwards discovered the Deft was arrested on this writ next day which was Sunday, and the Court discharged him, Lord Kenyon saying "The deft was not in the Sheriff's custody in this action before the second arrest.  But even if he had been, the distinction between a voluntary & a negligent escape us recognized in the case in Barnes.  If a party wrongfully escape from the custody of the law, he may be retaken at any time, & is not protected by the statute 29 Car.2. which forbids an original arrest on Sundays.  But here the deft was not guilty of any contempt; he was regularly discharged on the Saturday, the Sheriff not even knowing that he was authorized to detain him"  If the arrest in this case had taken place in Sydney, where there is the power of searching at the Sheriff's [p.128] office, the same rule as to the right of detaining for search would hold as in the Mother Country.  Here the writ at the suit of Spencer was lodged on the 19 November, & that at the suit of Lyons on the 21st the warrant upon which could not be forwarded until the next post the day after.  The Sheriff was therefore guilty of no laches in discharging him upon the first writ on the payment of the debt by the Defts.  The Sheriff could not lawfully detain the deft & bring him to Sydney to ascertain whether there were any other writs lodged against him.  There was no other mode of conveyance from Maitland, but by sea, & it was very doubtful whether the Sheriff could lawfully compel his prisoner to travel to Sydneyby sea.  Then suppose he evicte [sic] to Sydney by post, he must have waited three or four days for an answer & if he detained his prisoner all that time he might have been liable to ab action for false imprisonment.  But secondly, whatever may be the law & practice [p.128 cont (back of page)] of England on such subjects, they are wholly inapplicable to this Colony, for the mere want of machinery.  The laws of England are applicable to the circumstances of the Colony.  By the rules of the Court founded upon necessity, the Sheriff is not bound to execute writs by himself or his officers beyond certain limits.  It might therefore be impossible in certain cases to bring the body of the debtor to Sydney, as for instance where the part is at Norfolk Island,Moreton Bay or other dependencies of New South Wales.  More then 6 months might elapse before the man could be brought to Sydney to ascertain whether any other writ were lodged; & it would be an intolerable infringement of the liberty of the subject, to hold that the Sheriff was bound to detain the party [p.129] until that fact could be ascertained.  And if to avoid this inconvenience, the debtor was allowed to go free, a grievous hardship would be imposed upon the Sheriff, if the mere fact of lodging a writ under such circumstance is equivalent to an arrest, for it would render him liable to an action for an escape in every instances.  The Court must take judicial notice of the localities of the Colony & of the difficulty of communicating regularly with distant places, may of which are only accessible by sea.  The Court has already decided in several instances that many of the laws of England are inapplicable from local circumstances, of which they gave taken judicial notice.  This as the principle of their decision as to the Navy laws of England, amongst many others.  But [p.130] resting this case upon the Equity of the acts of 13 EJ.1.& 1 Ric 2. & the common sense of the case, as well as the case of Atkinson v Jamison, which is in point the Deft is entitled to judgment.

Foster was heard in reply.

Forbes CJ.  I am of opinion that the law and the Justice of this case are with the deft and that he is entitled to judgment.  It is a fact stated upon the special case, that at the time Cox was arrested and discharged at Maitland on Spencer's writ there was a physical impossibility for the Sheriff's bailiff to be made acquainted with the fact that another writ at the suit of Lyons was lodged against the same [?] at Sydney.  Whatever may have been the ruling of this kind, our decisions would be in keeping with them under similar circumstances:  But (see post p.153) [p.153] there are such complete local difference & the application of legal principles is so varied by the peculiar circumstances of this country, that it would be impossible to abide implicitly by those decisions without producing the greatest hardship and injustice in many cases.  There is no positive statute which enacts that where a Sheriff arrests a man upon one writ, and another writ is lodged in his office, he shall be liable to an action of escape if he permits him to go at large without detaining him in the second, if the first be satisfied; and it would be difficult to find such a principle in the old law of England.   A rule of convenience has indeed been adopted, & has become a rule of practice in the Mother Country, giving the Sheriff certain time to satisfy himself whether in his office against a deft, before he discharges him upon an arrest; [p.154] but that is a mere rule of convenience for the Sheriff's office.  In Counties in England the Sheriff is allowed to detain the party for 24 hours to ascertain if there is another writ lodged, and from the limited extent of his bail within that country he has the means of ascertaining the fact within that time; but to apply that rule of practice in all cases to this country is impossible.  It is true that the settled parts of New South Wales are divided into counties, but they are not made the subject of statutable division.  The term county is used merely as a term of local description for purposes of territorial allotment.  The counties so denominated do not carry with them any part of the Constitutional law of England, as applied to counties in England.  Here we have but one Sheriff for half [p.155] a continent.  The mere predication of such a fact points out so complete a distinction between a Sheriff here and the Sheriff of a county in England, as to make the rule contended for obviously inapplicable to this country, however convenient it may be in practice at home.  The Sheriff here is not only Sheriff of half a continent, but of half a continent so thinly populated, and the means of conveyance from one place to another so limited, as to render it often a matter of difficulty to communicate with remote parts.  It is admitted here, that the first writ was lodged on the 19th November & on the following day a warrant was made out & forwarded to the bailiff at Maitland.  On the 21st November another writ is lodged in the Sheriff's office and a warrant is made out, & forwarded in the ordinary course of past without [p.156] loss of time.  These facts place the case in such a point of view as to shew the inapplicability of the English rule to this Colony.  If indeed such a rule were to be laid down as applicable to all cases, we should be fettered by the terms of the law without regard to its substance and meaning.  It was in contemplation of points of difficulty of this nature & to meet local circumstances that the New South Wales act extends the law of England to the Colony only so far as it is applicable.  To make the Sheriff liable for an escape in this case, would be such a case of hardship & injustice, as to make us pause before we apply a positive law, if such it really be, to a case where in spirit it is inapplicable.  The reason of the rule ceases here.  InEngland the Sheriff [p.157] has the means of ascertaining within a reasonable time whether another writ is lodged.  But in this extensive territory he has not the means of so doing within a reasonable time.  If a man is arrested at Moreton Bay or other distant settlement, is the Sheriff bound to detain him until he case ascertain whether another writ has been lodged at the office in Sydney?  The means of communication are precarious, & it is to be made by seas when perhaps a packet sails but once in three or four months.  Is the Sheriff to keep him until the fact is ascertained?  It would be a monstrous doctrine to hold that he could.  I am clearly of opinion that the rule of law contended for is not applicable to the present case.  In England there is every facility of communication, & although [p.158] Yorkshire is the largest county still the means of communication are not to be compared with this infant country.  By post to Maitland is the shortest way that communication could have been made; and it may be questionable how far you might carry the defendant on the high seas to Sydney, or whether the Sheriff would not be bound to carry him overland, at the greatest personal inconvenience and expense to the defendant.  The whole case presents such a body of circumstances as to demonstrate the greatest hardship and injustice of binding the Deft by a rule of law clearly not applicable to the state of this Colony.  Sparing as I always be in too narrowly interpreting the Section of the act of Parliament, which leaves it to the Judges to determine [p.159] what laws of England are applicable to this Colony, I do say that if we were to hold this rule of law applicable to the Colony we should be making the laws of England the means of working great injustices and bringing the administration of justice into contempt.

Dowling J.  As there is a physical impossibility in applying the rule in question to this case, the reason of the rule ceases.  Here the Sheriff has been guilty of no neglect.  He has done everything in his power to execute the duties of his office, & it would be outrageous to make him liable for what no human foresight could guard against.

Burton J.  If there is a physical impossibility, there is a legal impossibility, & [p.160] consequently the Sheriff cannot be liable.

Judgment for the Deft.



[ 1] On new debtors' prison, see correspondence in Chief Justice's Letter Book, 1824 - 1835, 4/6651, State Records of New South Wales, pp 395-396, 401, 409.  The debtors were moved to the new prison in November 1835: Australian, 20 November 1835.

[2 ] Capias ad satisfaciendum, the writ of arrest for non-payment of a judgment debt.

Published by the Division of Law, Macquarie University