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

Ex parte Robinson, in re Smith v. Goodwin [1841] NSWSupC 106

warrant of attorney - imprisonment for debt

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 6 November 1841

Source: Sydney Herald, 8 November 1841[1]



In this case a rule had been obtained, calling on the plaintiffs in the above action to shew cause why their judgment therein should not be set aside, on the ground that no affidavit of the sum due on the warrant of attorney, on which the judgment was founded, had been filed in compliance with the direction contained in the 24th rule of the Court; and on further grounds of irregularity.

            The SOLICITOR-GENERAL contended that the applicant Robinson was not in a situation, which would enable him successfully to maintain the application. It was true that where a party had any interest whatsoever in making the application, the Court would listen to it; but here Robinson had taken Goodwin in execution on a casa,[2] and any claim, which for that circumstance he might have urged, he was now precluded from advancing. There had been various other grounds assigned in support of Robinson's application, but they were merely technical informalities, of which no description whatsoever had been given in the notice which had been served on the defendant, to answer the matter previously in chambers. Of these informalities, therefore, Robinson could not now avail himself. The only case on which the applicant could rely was that of Harrod v. Benton, in the 4th volume of Barnwell and Creswell's Reports, which decided that any party might make an application for upholding or setting aside a warrant of attorney, who had any interest either in supporting or quashing it. The learned gentleman concluded, by quoting various cases with a view to show tha[t] the above decision had been contradicted on several occasions by later authorities.

            Mr. MANNING followed on the same side, and said, that Mr. Robinson having made his election of suing out his remedy against Goodwin's person, his claim was satisfied, and he had now no further remedy against the defendant Goodwin. The cases in this point were so numerous that it would be quite superfluous to advert to them any further. The only cases that could be cited in favour of Robinson were those which allowed a plaintiff to have a further remedy against the goods of the defendant, when the latter had escaped from, or died in, custody. Robinson had in one part of his affidavit set forth that Goodwin had assigned his effects for the benefit of his creditors, and that he (Robinson) being a creditor, was entitled to a dividend, and therefore entitled to apply to the Court to set aside this warrant of attorney. But in this Robinson had set forth what was not a legal fact. His judgments having been satisfied by the ca sa, he was not able to come in among the creditors. And even supposing he were not thus disqualified, how did it appear that he was entitled to a dividend? It might be that the appointment of the trustees was illegal; or Robinson might not have executed the deed of assignment; in either of which cases, Robinson notwithstanding the assignment to trustees, or his character of creditor, might not be entitled to a dividend. On the ground, therefore, of Robinson's claim having been satisfied, the learned counsel contended, that whatever might be the nature of the objections made by him, he could take no benefit from them. But even admitting that he was not thus totally incompetent, it was clear that the application came too late. It had been already adjudicated upon in chambers; all the grounds of the present application had been then discussed and disposed of. The applicants, by taking a further step in the matter, had waived all further objection to the then alleged irregularities; and now they could not be complained of. But if he were not thus disqualified from complaining of these irregularities, they were only such technical mistakes as the defendant in the action could have taken advantage; and which third parties could not be allowed to complain of at all.

            Mr. BROADHURST followed on the same side, and contended, that the irregularities complained of, were of so frivolous and contemptible a character, that he trusted the court would not en-entertain the application for a moment. The learned counsel then adverted to a series of decisions on similar irregularities, showing that only the defendant and not third parties could take advantage of mere formal objections, such as those excepted to in the present case. Robinson's judgment was entirely satisfied by his ca sa against Goodwin's person; and in now making this application he, Robinson, was acting the part of the dog in the manger, wishing to oust the Smiths from the enjoyment of their judgment, when his own was entirely satisfied.

            Mr. FOSTER having been requested by His Honor the Chief Justice to confine himself to the first point taken by the other side as to the asserted incompetency of Robinson to make the application, commenced by contending that if Robinson had been an entire stranger, and not a satisfied creditor, he might still, asamicus curiae, have come in and made this application for the information of the court. The other side had assumed the broad principle, that a creditor having issued execution against Goodwin's person, could not come in in any way afterwards to take under his estate. This position was however a false one. Lord Ellenborogh had decided that a debtor's person, merely discharged the debtor's liability, but did not extinguish the debt; and independently of this, and other decisions to the same effect, it was clear from the terms of the Insolvent Act of this Colony, that although Goodwin's person had been taken at the suit of Robinson, the latter might come in as a creditor and benefit from the prisoner's estate.

            Mr. WINDEYER followed on the same side, and said that the irregularities relied on were such that the instrument in which they appeared amounted to a nullity. The authority given to the Smiths, in the warrant of the attorney, given by Goodwin, was for them to appear and do certain acts. They had not appeared, and as all powers were to be construed strictly to the very letter, the warrant of attorney in favour of the Smiths was therefore void. Robinson, according to all the late decisions, and the Colonial Insolvent Act, had an interest as warranting this application on his part, and the learned counsel therefore trusted (all the equities being on the side of Robinson), that the present application would be granted.

            After their HONOURS had consulted together some time, the CHIEF JUSTICE said, that the only point which struck their Honors, as of importance, was, had Mr. Robinson a locus standi, for making this application? It was clear that, from the case of Harrod against Benton, in the 4th vol. of Barnwell and Creswell's Reports, Mr. Robinson had such an interest as would entitle him to make this application. His Honor agreed with Robinson's learned counsel, that the debt of Robinson was notlegally extinguished; but it was clear, that so far as the purposes of the then suit were concerned, that debt was extinguished. By electing to take Goodwin's person, Robinson had shut himself out from maintaining the present application. He could not have his pound of flesh and his bond both. Robinson, therefore had no locus standi in the Court, and the rule must consequently be discharged.

            His Honor Mr. Justice BURTON, ruled to the same effect, and said, that although, on the ground of no appearance having been entered for the defendant in the warrant of attorney, the instrument was void, yet Robinson, from his judgment, having been already satisfied, could not make the application.

Mr. Justice STEPHEN assented, and the rule was discharged accordingly, with costs.


[1]              See also Sydney Gazette, 9 November 1841.

[2]              Capias ad satisfaciendum, writ of arrest for non-payment of a judgment debt.


Published by the Division of Law, Macquarie University