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

In re Lihr [1840] NSWSupC 95

insolvency, fines, enforcement of

Supreme Court of New South Wales

Stephen J., 23 November 1840

Source: Sydney Herald, 24 November 1840

John Lihr applied for his discharge on the ground that he had no means of paying the debt, which had been incurred in an action against three constables of the Sydney police, named McMichen, Murphy and Kent, who had been the means of the insolvent being convicted of sly grog selling, and fined in the sum of £30 with costs, which he had not paid; he had afterwards brought an action against them for conspiracy.  When the case came on for hearing, there was not a tittle of evidence against the plaintiff; the expense of his defence amounted to £15.  Mr. Thurlow examined the insolvent, who denied that he had any property, or that he had brought the action maliciously.  The insolvent was remanded, in order to enable his Honor to make enquiry into the circumstances of the case, as should it turn out that the insolvent had brought a malicious prosecution, he should remand him for a period according to the aggravation which might appear on the face of the proceedings.  As it appeared he had employed counsel to defend him in the case against him for sly grog selling, it was not likely that there had been an error in the conviction.

Stephen J., 27 November 1840

Source: Sydney Herald, 28 November 1840

John Lhir, incarcerated for costs, who had been remanded on a previous day, in order to enable his Honor to make enquiry into the merits of the action for the costs of which he had been incarcerated, was again brought up, when his Honor stated that he had read the whole papers and depositions connected with the case, and had also consulted Mr. Windeyer, senr., the magistrate who had adjudicated on the sly-grog case, and although it was not his duty to say what passed between him and that gentleman, yet he had no hesitation in saying, that had he been on the bench he would not have convicted on the evidence of Kent and Murphy, as the former had since then been committed for perjury, and Murphy had since then been also removed to another district, where it was not likely that he would have an opportunity of coming forward to support such informations in future; besides it appeared from the depositions, that although Kent was searched before he went into the insolvent's premises, yet it was not shown that he had been searched when he left it, until he had had an opportunity of obtaining a ginger beer bottle with spirits from an adjoining house; whether it was done or not did not appear; at the same time he though that he was justified in stating, without wishing at all to impugn Mr. Windeyer's judgement, that there were other magistrates who would have dismissed the casse under these circumstances.  It was also evident from the proceedings that McMakin had given true evidence, and there was no just ground for the insolvent charging him as he had done with either perjury or conspiracy; as the insolvent had illused him it was his duty if ever he became possessed of money, to pay the expenses he had caused McMakin.  His Honor was of opinion that the insolvent had also been hardly dealt with, and under all the circumstances of the case he should discharge him.

Published by the Division of Law, Macquarie University