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

Fisher v. Wilson [1840] NSWSupC 10 Peck v. Wilson

foreign attachment, service of process, Steam Packet Company, partnership, company law

Supreme Court of New South Wales

Dowling C.J., Willis J. and Stephen J., 18 February 1840

Source: Sydney Herald, 28 February 1840[1]

            Tuesday - Before Mr. Justice Willis.

Fisher v. Wilson: Peck v. Wilson. - The actions were brought under the Foreign Attachment Act, and the point was whether or not the Steam Navigation Company had been properly served with the attachment.  Judge Willis was of opinion that the Company was properly served, but at the request of the Counsel resolved to take the opinion of the other Judges upon the point.

            To-day Mr. Justice Willis delivered his opinion, as follows; - "In this case, it appears to me that a great deal of useless argument might have been saved, if the question had been at once stated with precision and clearly understood.  But in this, as in almost every other argument, it usually happens that much time is lost in referring to circumstances foreign to the purpose, and in maintaining propositions which are either not disputed, or whether they be admitted or denied, are entirely indifferent to the matter in debate - tending to perplex and confound with the endless subtleties of controversy - and by losing sight of the main question, rendering it more difficult to arrive at the truth.  The consideration of what may be reasonable, or unreasonable, makes no part of this question; we are inquiring what the law is, not what it ought to be.  To facilitate this inquiry, I will endeavour to clear the question of what appears to me to be foreign and indifferent matter, and then I imagine there is no one who will not be capable of forming his opinion upon it.  The question then, in my mind, is simply this; goods are attached in the hands of a very small numerical proportion of a partnership or company; it is alleged indeed, that the gentlemen against whom attachment is issued are trustees and directors of this partnership, but they are not so described in the writ, and, in my opinion, it matters little whether the fact be so or not, for it was admitted in evidence that the affairs of the partnership or company were subject to the control of the several shareholders or partners at their general meetings.  The service of the attachment is not on behalf of those served and the other members of the partnership, but merely on those gentlemen individually.  Now those who are served having, at the utmost, with regard to the goods, but a limited possession and a qualified power, during the pleasure of the majority of the partners, is this such a possession or power as to render the service legally sufficient under our Foreign Attachment Act?  I am clearly and decidedly of opinion that such service is insufficient, and that it will be unjust to the parties served, and an abuse of the process of the Court should such service prevail.  By the second section of the Foreign Attachment Act if the goods be removed from the hands of the garnishees, and the Sheriff make (as he must do), his return to that effect, the garnishees must make satisfaction to the plaintiff out of their proper estate, or be taken in execution.  Now in the present case as the garnishees cannot hold the property against the will of the shareholders or partners expressed at any general meeting, they may be compelled, if this service is to considered sufficient, personally to make satisfaction for that which has been proved to the Court is only in their possession or power jointly with others, and over which they do not possess such control as to enable them to keep it in their hands.  Would it be just that Colonel Shadforth and Mr. Edye Manning, and the other gentlemen who have been served as individuals should be made liable to be taken in execution for £18,000, merely because the writ of foreign attachment was not so served as to comprehend the partnership and those who in fact have the unqualified power over the goods.  Yet such might be the case if this service be considered sufficient.  Supposing I had in my possession a carriage belonging to J. T. Wilson, would any one suppose that service of a writ of Foreign Attachment on my coachman when driving it away after leaving me here would be good service? and yet he would have quite as much possession or power over the carriage as the gentlemen who have been served have over the steam boats.  Again, put the case of a common partnership of A, B, and C; surely service of a Foreign Attachment on A, as an individual, when the property is known to be in the hands of the partnership, and there has not been any attempt to serve the partnership, or the other members of it, ought never to be held sufficient service, regard being had to that justice to the garnishee, and jealousy of any abuse of its process, which a Court of Justice is, in my opinion at least, ever bound to exercise.  Such, then, are my sentiments on this matter - what may be that of the other Judges, as yet I know not, but I will now request Mr. Gurner to read it; and as I have already, in compliance with the wishes of the parties, consented to adopt it in order to save expense, it must decide this case.  It can, however, only be considered as the opinion of one Judge, and therefore will not preclude any ulterior proceedings on the ground of irregularity or otherwise, which the parties interested may be advised to take."

            The Clerk in the Court then read the following, being the written opinions of the other Judges, forwarded to Judge Willis at His Honor's request.

            His Honor Mr. Justice Willis having been pleased to reserve for the consideration of the other Judges, the question, whether it was not incumbent on the plaintiffs issuing the Foreign Attachment in these cases, to serve every member, of what was proved by parol, and not by writing, to be "the Steam Packet Company," I am called upon to certify my opinion upon the question so reserved.  I own that when this case was first mentioned to me in private by the learned Judge, and under my then impression of the facts of the case, (without reference to the provisions of the Foreign Attachment Act), I thought His Honor's decision on the point was incontrovertibly correct.  After hearing the question debated at the bar, and my attention being called to the provisions of the Act of Council, I am constrained to certify, that I cannot agree with my learned brother in his decision.  I may not have a very correct apprehension of the facts of the case, inasmuch as they were stated from the memory of the learned Judge, and from some loose notes of the evidence taken by His Honor, but I take it to be conceded. - First, that the plaintiffs in the actions, proved their debts, to the satisfaction of the Court.  - Secondly, that the steam boat which was attached, was the legal property of the defendant John Thomas Wilson, now out of the jurisdiction of the Supreme Court, and that the legal right of property was adjudged by the Court to

be in the absent defendant; Thirdly (for the sake of the question), that the garnishees served with the attachments had in fact, possession of the steam boat, but that they had not the entire control of the vessel, inasmuch as they were members of a Steam Packet Company, who, through their trustees, or managing committee, had contracted for the purchase of the steam boat in question, but could not get their title completed by reason of the absence from the Colony of the legal proprietor.  Assuming this to be a correct statement of the facts, necessary to raise the point, the question is, whether the persons also served with the attachments, can be properly regarded as garnishees, over whom the Court has control, for all purposes with the intent and meaning of the Foreign Attachment Act, 2. Wm. 4. No. 7?  Whatever may be the alleged imperfections of the local ordinance, the Court must confine itself within the peculiar jurisdiction thereby conferred by its express provisions.  The Court can not mould or modify the Act to suit the exigencies of any particular case, not within the contemplation of the Legislative.  It is obvious from the recital of the Act, that it is remedial for the benefit of creditors, and therefore must receive a liberal construction in furtherance of that object.  This appears to have been a hostile proceeding solely against the debtor, and not against the holder of the debtor's property; and I apprehend that upon its being clearly determined that the goods in the hands of the garnishee, whoever he may be, whether a wrong doer, or otherwise, the latter cannot make any resistance, but must surrender the property.  In terms of the Act it becomes "bound in law to satisfy the debt of the plaintiff's debtor".  The second section enacts, - that immediately from and after the service of the attachment the goods attached, shall be bound in law until the plaintiff's debtor or his attorney shall duly appear and put in bail to the action, or until the plaintiff's debt or demand shall be satisfied.  Upon the return of the attachment, the only duty cast upon the Court by the 5th section (after it has been adjudged that there is a debt due from the defendant to the plaintiff) is, to enquire whether the goods attached do belong to the plaintiff's debtor, and for such purpose any person in whose hands the goods shall be attached, may be summoned before the Court, and upon appearance shall be interrogated respecting the same, and upon refusing to appear or, upon appearing, shall refuse to answer, may be dealt with as for contempt, and the Court may then proceed to inquire exparte touching the goods.  In all this section the rights of the garnishee are not at all contemplated; the sole question contemplated is, whether the goods attached are in his possession or power.  This is an alternative proposition.  If the goods are his possession, the attachment binds them, and the like consequences follow if they are only in his power, whether wholly or partially.  By what means or under what circumstances, - whether on his own account, or on account of himself jointly with others, seems to be wholly immaterial so long as it appears that he had in fact the possession, and the goods are adjudged to be the property of the debtor.  The 6th section is in effect, a continuation of the 5th, and proceeds to enact, that if the person in whose hands the goods are attached, shall confess, or if after due enquiry it shall be determined by the Court, that the goods do belong to the plaintiff's debtor, or if the person in whose hands they are attached shall desire that the matter may be more fully investigated, the Court may order the matter to be tried by a jury.  In the present case it appears, that the steam vessel in question, was determined by the Court to be the property in law of the debtor Wilson, and the garnishees have not desired that the matter might be more fully investigated.  It follows therefore, that if the persons in whose hands the goods are attached have been duly made garnishees, execution must follow for the same.  The garnishees do not appear to have, nor do they claim any property in the vessel, nor in fact is any objection made on their part to the service of the attachment.  They have respectively appeared, - have been examined, - admit the possession, but under the qualifying circumstance that alone, they have not the entire control over the property, because they are members of a company or partnership, has not been duly proved, and the Court is ignorant of the terms and articles by which the company or partnership are to be governed between themselves.  But even if the Court were fully informed of these particulars, it appears to me, that they would be wholly immaterial for the purpose of this proceeding, in reference tot he provisions of the Foreign Attachment Act, which contemplates a bare possession, or control over the goods in the hands of the person or persons served with the attachment.  It is conceded that service of the attachment, upon A. B. "and others his partners" would be sufficient, but it does not appear to me, that this would help the difficulty if the objection were tenable, for the partners might come in and contend that they were not served, and knew nothing of the attachment.  I cannot see how the other members of the company, (if there be such a company), can complain, or have a right to complain, or interfere in any way in the proceeding.  Neither can I see how the plaintiff could be damnified, after it has been once determined, as it has been in this plaintiff's debtor.  The adjudication of that fact "binds the goods in law in the hands of the garnishee," and will exclude all other persons, except the debtor himself, who is protected from any injustice, by the provisions of the 7th section, which require the plaintiff to give security before execution goes against the goods, to restore the value of them, if within three years the defendant comes and disproves the plaintiff's debt or any part thereof.  Notwithstanding the sincere respect I have for the opinion of my learned colleague, I am, in the absence of any objection on the part of the garnishees themselves, and of any proof of collusion, or manifest injustice likely to arise to other persons supposed, but not proved to have an interest in this proceeding as garnishees, that these attachments must be made absolute, and execution thereon follow, subject to the restrictions of the local ordinance.


24th Feb. 1840.

                                                                                                            Half-past 8.P.M.

24th Feb. 1840.

Having been detained in Court till this late hour, and understanding that this paper is desired by eleven o'clock to-morrow, I am unable to do more than express shortly a concurrence in the opinion of His Honor the Chief Justice, that the possession of the property is, for the purposes of the Act, sufficiently in the present garnishees; and that, consequently, there being no question as to the ownership being in the absent defendant, the attachment ought to be sustained.


Court House.


[1] See also Sydney Gazette, 20 February 1840, listing very many cases against Wilson; and see Australian, 29 February 1840.  Due to imperfections in our copy of the Sydney Herald, some of the following was checked against the Australian.

Published by the Division of Law, Macquarie University