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

Donaldson v. Coombes [1840] NSWSupC 55

contract, breach of, imprisonment for debt, abolition of, Supreme Court, jurisdiction over New Zealand, New Zealand, Supreme Court jurisdiction over

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, in Banco, 16 September 1840

Source: Sydney Herald, 21 September 1840

MR. BROADHURST moved for a rule, calling upon the plaintiff to shew cause why the Judge's order, upon which the Defendant had been held to bail, and all proceeding thereupon should not be set aside; or why an exoneratur should not be entered on the bail-piece upon filing a common appearance.  The defendant had been held to bail, in the sum of £2500, for an alleged breach of contract in the carriage of a certain cargo of oil, from Sydney to London, upon an affidavit sworn by the plaintiff, which he, Mr. Broadhurst submitted, was defective in all the essentials required by the act of council, 3 Vic., No. 15. "An act for abolishing arrest on mesne process in civil action, except in certain cases, in New South Wales, and the dependencies thereof."  In the second section of the Imperial Act, from which the provisions of the Act of Council had been adopted;[1] it was expressly enacted, that all actions should be thenceforth commenced by a writ of summons.  The reason of that provision was, perhaps, not very obvious; but the learned framer of the act (Sir John Campbell), and the Imperial Legislature, must have been well satisfied of its propriety.  It might be that the actual commencement of the action was required as an earnest of the plaintiff's bona fides, or that a statement in the affidavit of intended action was considered necessary as a guide to the Judge's discretionary power of granting the order.  But, however that might be, the Colonial Legislature, either by design or by inadvertence, had omitted that section in the local ordinance, while it had copied the third section verbatim.  The result, however, was the same in both acts.  The second section of the Colonial Act clearly declared, by implication, that an action must have been already commenced against a party by non-bailable process,[2] before he could be arrested.  The word "plaintiff," had a technical meaning, which was utterly inapplicable, to a person merely contemplating an action.  Until a writ has been issued there was, of course, no action, and consequently no plaintiff.  For that reason, it had always been held irregular to entitle an affidavit to hold to bail in any cause; if the word plaintiff could be construed to mean any person who might eventually bring an action, by the same rule, 'a Judge of the Supreme Court' might mean any person who was, or might hereafter become qualified to be such Judge. - Besides which, the general tenour of the section clearly shewed that the provisions of the Act were intended to apply to an action already pending.  It might be that, in point of fact, the intention of the Colonial Legislature was different, but where clear language was used in an enactment, it would be most inconvenient to vary its meaning by glosses.  The affidavit in question, then, was insufficient in not shewing that an action had been already commenced against the defendant; and even assuming the construction of the Act, which was contended for, to be erroneous, the affidavit was, at any rate, insufficient in not shewing that the deponent intended to bring an action.  The preamble of the Act recited that the present power of arrest was unnecessarily extensive and severe.  If, under the amended state of the law, a man could be arrested, while it was left in doubt whether any further legal proceedings would be taken against him, the intention of the Act would be entirely frustrated.  The present affidavit did not in any way shew that the deponent had the intention of suing Capt. Coombes.  It was quite consistent with all he swore, that he was perfectly aware of his having no legitimate cause of action whatever against him.  Independent of these objections, it appeared by the deponents own shewing, that the case did not fall within the perview of the Act.  The plaintiff swore that Captain Coombes was about to sail to New Zealand.  But New Zealand was not "out of jurisdiction of the Supreme Court of New South Wales."  Mr. Broadhurst then drew the attention of the Court to the defendant's affidavit, in support of the motion, from which it appeared, that he left this port with plaintiff's cargo of oil, in February, 1838, that he received the freight for it from the plaintiff's agents in London, Messrs. Donaldson and Lambirt, who expressed no dissatisfaction with his treatment of the cargo, nor took any legal proceedings against him, although he remained in London for three months; that he returned to Sydney about the 21st February, 1839, and that two or three days after his arrival he saw plaintiff, who then stated that he must look to him the defendant, for the loss of the oil, but that, with the exception of that conversation, although he was constantly in the habit of meeting and conversing with the plaintiff, he had no intimation from him, or any one one on his behalf, of his intention of taking legal proceedings against him, until seven o'clock of the evening of the 18th April, when he was preparing to set sail from Port Jackson, at which time he was arrested at the suit of the plaintiff.  The affidavit further stated that the defendant was fully intended at that time to return to the colony, which intention, as he believed, was well known to the plaintiff.  Upon this affidavit, coupled with that upon which the order to hold to bail had been made he (Mr. Broadhurst) submitted it was manifest, that the arrest of the defendant was groundless, and amounted to an abuse of the process of the court.  He cited Barton v. Haworth, 4, Barnewall and Adolphus' Reports, p. 462, to shew that, even under the old law of arrest, the court would interfere summarily where it could not but see that its process had been improperly used.  But the new law, he contended, gave the court a still wider discretion, and if, as in the present case, it were made apparent to them that a plaintiff had unduly lain by and only put the extraordinary process of the law in motion, when it was calculated to effect a party injuriously and oppressively, they would interfere at once and leave the plaintiff to avail himself of the ordinary remedies.  Rule nisi granted.

Dowling C.J., Willis and Stephen JJ, 26 September 1840

Source: Sydney Herald, 28 September 1840

DONALDSON v. COOMBES. - In this case Mr. Broadhurst moved that the rulenisi which had been granted should be made absolute; Mr. Foster showed cause against the rule, on the ground, that Mr. Donaldson's agent could not commence the action in England as the materials for it were in the Colony, also because the agent could not resist the payment of the freight, also because the Plaintiff had given instructions to his attorney, Mr. Norton, to commence the action a few days after Captain Coombes returned to the Colony, and that the Plaintiff had reason to believe that the defendant did not intend to return within a reasonable time to the Colony, if he had been permitted to leave for New Zealand, as the ulterior destination of the defendant was said to be South America.  He also called the attention of the Court to the fact, that the Defendant had given special bail in April last, and had not come forward in order to get common bail substituted until the present month, when the case was just about to be tried, another cause why it should be refused was, that it was the defendant's own fault that the case had not been settled by the arbitrators, viz. Messrs. Lamb, Curtis, and Dawse[sic], which had at first been agreed on by the parties, but the Defendant had afterwards made the election to have it tried by a Jury rather than settled by Arbitration.

            MR. DARVALL, also followed on the same side and argued that the applicant had not come promptly before the Court, also that the Court had, by holding the defendant to special bail, led the plaintiff to go to the expense of preparing for trial, and was therefore bound to hold the defendant to the same bail until the case was tried.

            MR. BROADHURST, in reply conceded that the cases cited for the plaintiff were good in regard to any irregularity, but could not support a material objection, as the affidavit was defective, also because at the time of the arrest the action had not been commenced.

            The CHIEF JUSTICE said that the object aimed at, in making plaintiffs go before a Judge was for the purpose of showing that he had just ground of action, as without this was done the Judge would not make an order for arrest.

            MR. BROADHURST maintained, that as there was no proof that the defendant was absconding to any remote part of the Colony, neither was he going to remove beyond the limits of the Colony but merely to a dependency of this Colony which is within the jurisdiction of the Supreme Court of New South Wales; that going out of the Colony is not necessarily a going beyond the jurisdiction of the Court; beside it was not shown in the plaintiff's affidavit, that his action against the defendant would be defeated but merely that he would be left without remedy; beside Mr. Coombes was known to be a regular trader between this Colony and London, while the plaintiff's affidavit was not specific as to the defendant being about to be absent from the Colony for more than an indefinite number of months which might mean two or twenty months; besides the affidavit had not stated that Captain Coombes had no property in the Colony.  He also thought that no weight could be attached to the excuse for delaying the arrest which had been put forth by the plaintiff viz., that a domestic affliction had prevented the plaintiff's attorney from attending to the case at an earlier period than the day on which the arrest took place, as although Mr. Unwin might be paralysed by the calamity his Clerks could have managed the business as well as he could.

            JUDGE WILLIS was of opinion, that the keeping at home in order not to see a party, who was outside the house, was an act of absconding, as well as removing to another place to evade being seen.

            JUDGE STEPHEN enquired if, during the absence of the defendant, his Attorney and Counsel were also absent, to which Mr. Broadhurst replied that he was not aware of that being the case, but from the definition given by His Honor Judge Willis it was most likely they had all been absconding with their Client.  The Court discharged the rule with costs each judge having individually expressed an opinion that to grant the present application would be to render the arrest on mesne process act a piece of waste paper.

            JUDGE WILLIS. - Said he would now throw out a suggestion, which in his view of the case would enable them to get it settled in a satisfactory and speedy a manner as it could be done in the Supreme Court, and that was to refer the whole matter in dispute, to the arbitration of the three gentlemen already named, viz Messrs Lamb, Curtis, and Dawes.  Mr. Foster for the plaintiff said he was willing to do as Judge Willis had suggested, and would even admit every thing which the defendant desired, in order to enable him to go to arbitration.  Mr. Broadhurst for the defendant declined the offer, as his client was not a mercantile man, and was desirous to have the case tried before a jury.


[1] (1828) 1 & 2 Vic. c. 110. See B. Kercher, "The Transformation of Imprisonment for Debt in England, 1828 to 1838" (1984) 2 Australian Journal of Law and Society 60-109.  This statute was the first in the very slow process of abolition of imprisonment for debt.  It abolished the plaintiff's right to begin proceedings by the arrest of the defendant (capias ad respondendum), instead requiring proof of the defendant's intention to abscond before a writ of arrest could be issued.  Later statutes abolished (or supposedly so) the writ of arrest to enforce judgment, capias ad satisfaciendum.

The law's two devices to restrict the effect of imprisonment for debt before these abolition statutes began to take effect were bail and insolvency (under which the debtor handed over all of her or his property to trustees, to distribute among the creditors, in return for a release from gaol).  Bankruptcy was restricted to debts owed by persons in trade.

[2] That is, by writ of arrest on the mesne process, a capias ad respondendum.

Published by the Division of Law, Macquarie University