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

In re Duggan [1838] NSWSupC 71

Court of Requests, remedy against land - fieri facias, against land - imprisonment for debt, attitude of Burton J. - Burton J., attitude to imprisonment for debt

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 21 July 1838

Source: Australian, 24 July 1838[ 1]

The Attorney-General said that he had a motion to make on a petition which had been presented to the Court by a person named Duggan.

The Court said that this day had been set down specially to deliver the decision of the Court in certain cases, but not for new motions -- if they were to go on so the term would never be finished.

The Attorney-General said he knew it was not in course of regularity, but it was a particular point on which the Commissioner of the Court of Requests desired the opinion of the Court before he acted.  It was whether by the provisions of the Court of Requests act, he could issue execution upon real property after the person had been taken in execution.  In this case the man Duggan had been in gaol some time on execution from the Court of Requests, when it was discovered that he had landed property to the value of £800, and execution had been applied for which the Commissioner had refused to issue.

Mr Justice Willis wished to know what effect the Act,8th Geo. 2nd. (which made landed property liable the same as personal property in the colonies) had in this Colony.

Mr Therry said that if it extended to matters in the Supreme Court, the Court of Requests was guided by a distinct Act, which provided for its particular regulation.  He then pointed out the difficulty under which he laboured which was, that one clause of the act provided that execution should issue against the goods and chattels, whilst another clause mentioned the word ``estates," which certainly seemed to include landed property.

Mr Justice Burton said, that whatever might be the meaning of the act he could not conceive it that it extended to landed property, and he would never consent that an execution from the Court of Requests should extend to real property; he questioned the policy of allowing the person to be taken in execution for so small a debt, as he thought it quite enough to seize upon all a man had without taking his body.  If a man give up all his goods it was as much as could be expected and taking his body was of no service to the creditor; but as to execution in that Court extending to real property it was ridiculous, and would be attended with bad consequences.  As the Court of Request Act had lasted for so long a time without complaint, perhaps it was a question whether it would be worth while for the Attorney-General to provide some amendment in it, at the same time the law of debtor and creditor was under the revision.  He certainly thought that in debts of £10 the incarceration of the person might be done away with, the goods and chattels alone being liable; but with regard to Mr Attorney-General's motion, for a bailiff of the Court of Requests to have the power to seize and sell lands, it was monstrous.  However, no petition had been received by the Court from the man Duggan, and there was nothing regular before the Court.

Mr Justice Willis said, that the law in the Court of Requests so much cheaper, for persons who had to recover small debts, many of which had been brought into the Supreme Court, that if the question was brought regularly before the Judges he certainly should be an advocate for landed property being liable under execution from the Court of Requests.



[ 1]See also Sydney Gazette, 24 July 1838.

Published by the Division of Law, Macquarie University