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

Weston v. Fattorini [1837] NSWSupC 64

civil procedure - imprisonment for debt, voluntary escape - sheriff's liability - laches

Supreme Court of New South Wales

Dowling A.C.J., and Burton and Kinchela JJ, 30 September 1837

Source: Sydney Herald, 2 October 1837[ 1]

Weston v. Fattorini - Mr. Foster applied for a writ of attachment against the Sheriff for not having made a proper return to a writ of capias issued against the defendant.  In November, 1835, the writ was issued for £225, and afterwards the defendant was arrested, but allowed to go at large on the undertaking of an attorney.  The matter was then allowed to sleep until July last, when Mr. Lindo, the attorney, who had been introduced to the plaintiff called on the Under Sheriff to make a return to the writ which he did not do, and the present motions was made.

Mr. a'Beckett opposed the motion, he contended that the length of time which the case had been left without any steps being taken completely prevented the plaintiff from obtaining an attachment.  When the writ was issued Mr. Weston wrote to his attorney Mr. Nichols, stating that his debt for £225 might stand, but he wished to get hold of the defendant to make him give security for £3000 which was due to plaintiff's sister.

The Acting chief Justice was of opinion that the laches which had been committed by the plaintiff himself were so great that they could not issue an attachment which would fix the Sheriff with the debt.

Mr. Justice Burton was of the same opinion; it was quite clear that the matter would have been allowed to sleep if Mr. Lindo had not imagined that by sharp practice he could fix the Sheriff with the debt.  Rule refused.

 

Notes

[ 1] See also Sydney Gazette, 3 October 1837; Australian, 3 October 1837.

Published by the Division of Law, Macquarie University