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

Loane v Thrupp (1836) NSW Sel Cas (Dowling) 243; [1836] NSWSupC 7

Van Diemen's Land - Supreme Court, jurisdiction of - civil procedure - fieri facias - judgment, revival of old - debt recovery - laches

Supreme Court of New South Wales

Hearing, 20 February 1836

Source: Dowling, Select Cases, Vol. 7, State Records of New South Wales, 2/3465

[p.87] [1836

Saturday

20th February]

[The Court refused to revive an old judgment obtained in V. Dieman's Land whilst that Colony was under the jurisdiction of N.S.W; upon which a fi fa. & an alias fi.fa had issued respectively & no account was given of the latter writ although there was an acknowledgment of the Deft that the Judgment was still unsatisfied.]

Loane v Thrupp

This was an application to revive an old judgment in an action against the deft tried at Van Dieman's Land, when the Supreme Court of New South Wales had jurisdiction in that Island.  After the trial the record was brought up to this Colony, and it appeared that execution was taken out upon the judgment & a fi fa issued, upon which however nothing was done.  A second execution was afterwards taken out and an alias fi.fa. issued but what had become of that writ could not be ascertained.  Search had been made for a return to it in the office of the present Supreme Court, & no account could be obtained of it at Van Dieman's Land, although due diligence did not appear to have been used to search every quarter there where it might possible be found.  There was an affidavit [p.88] of the Deft produced acknowledging that in fact the Judgment had not been satisfied.  Since the Judgment had been obtained, lands of the Deft upon which the execution might have attached, had passed into different hands, & the object of the present application was to revive the Judgment in order to take out execution against those lands.

Per Curiam.  Adverting to the age of this judgment, the laches if the Plf, & not being satisfied that due diligence has been used to ascertain what has become of the alias fi. fa., we think we ought not to grant this application, now that the defts lands have passed into different hands.  The Defts acknowledgment that the judgment is still unsatisfied is not sufficient for there may be collusion between him & the Plf.

Rule Refused.

Published by the Division of Law, Macquarie University