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

Turner v. O'Ferral [1838] NSWSupC 14

guarantee - imprisonment for debt - distress for rent

Supreme Court of New South Wales

Burton J., 27 February 1838

Source: Australian, 2 March 1838[ 1]

Before Mr Justice Burton, and Messrs Shadforth and Semphill, Assessors.

Turner v. O'Ferral. - This was an action of assumpsit on a guarantee for the payment of £200, being for one year's rent of premises, let by the plaintiff to one John Montgomery.  The guarantee was so far conditional, that the defendant was not to be called on for the £200, ``untill [sic] all lawful means had been resorted to by the plaintiff to induce payment of rent from Montgomery."  The plaintiff proved a lease from himself to Montgomery, dated 10th May, 1836, being the day previous to the date of the guarantee.  The lease contained a power of re-entry in case of non-payment of rent, which was covenanted to be paid quarterly.  It appeared also that the premises in reference to which the guarantee was given, consisted of a public-house, and three small cottages attached.  Evidence of the guarantee was given, and also that a distress had been made on the premises in January 1837, for half a year's rent, but that only £6 was obtained, and subsequently Montgomery was arrested by Turner for the whole year's rent, and lodged in prison, whence he was removed to the hospital where he died.  The distress appeared to have been made on the premises occupied as a public-house, but not on the adjacent cottages, which it was proved had been occupied by tenants of Montgomery.  This was the plaintiff's case, upon which the defendant's counsel, Mr. a'Beckett contended that there must be a nonsuit.  He relied on several points, but principally on the two following, viz: -- that there was no sufficient consideration expressed on the guarantee; and that if the consideration were sufficient, the guarantee could not be enforced, because all lawful means had not been resorted to by the plaintiff to receive the rent from Montgomery.  The guarantee commenced in the words, (addressed to Turner.)  ``In consideration of having let, &c., I undertake, &c."  Mr. a'Beckett contended that this was insufficient inasmuch as the guarantee ought to have stated, as alleged in the decleration [sic], that the lease had been granted at the request of the defendant, and cited cases to that effect.  He contended also that all lawful means had not been resorted to, for recovery of the rent from Montgomery, inasmuch as no distress had been put in at the end of each quarter, but only at the end of the first half year, and then that the distress should have been levied on the cottages, as well as the house in which Montgomery resided.  On behalf of the defendant, Messrs Foster and Windeyer contended that the guarantee was sufficient, and that the plaintiff was not bound to take all lawful means to recover the rent from Montgomery, but only such lawful remedies as he might think best suited to the object.  His Honor, however, was of opinion that the objections on the side of the defendant's counsel was well founded, and therefore directed the plaintiff to be nonsuited.



[ 1]See also Sydney Herald, 5 March 1838; Sydney Gazette, 6 March 1838.

Published by the Division of Law, Macquarie University