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

In re Hallett [1841] NSWSupC 81

habeas corpus - insolvency - imprisonment for debt

Supreme Court of New South Wales
Burton and Stephen JJ, August 1841
Source: Sydney Herald, 4 August 1841


Mr. WINDEYER having in an earlier part of the day obtained a writ of habeas corpus, to bring up the body of the above mentioned prisoner now moved for his discharge.
The learned gentleman moved upon the affidavit of Mr. Nichols, and upon the gaoler's return to the writ.
The return stated that the prisoner was in custody under an order of the Supreme Court, which was to the following tenour. "The insolvent, William Hughes Hallett, to be imprisoned for three calendar months in the common gaol of Sydney, at the expiration of that term to amend his schedule, and take out a fresh rule to be brought before the Court.
(Signed) "D. B. HUTCHINSON." 
Mr. WINDEYER said, that it was plain from the return that the insolvent was in custody, under a document, which was no order of the Court, which was no warrant, which contained no statement of how or for what the party was committed, which was a mere general minute for an indefinite imprisonment, showing no authority by its signature, or in any other way, for the legal custody of the prisoner, who under such a document ought never to have been imprisoned.
Mr. Justice BURTON said, that it was then within the judicial knowledge of the Court that the prisoner was imprisoned under the Insolvent Act for three months, and that as the practice, when a party is brought up under an informal warrant, is to remand him and amend the warrant of his committal, he doubted whether that course should not be taken in this case.
Mr. WINDEYER submitted that the Court could only take cognizance of the return to the writ, and that that plainly showed no authority.
Mr. Justice STEPHEN said that it never was the practice of the judges to prepare and to draw out their own orders, and that, therefore, he had never done it; but that he must admit he never knew that the orders of the court were made out in this way; though, as a Court of Record can commit for contempt without any warrant, and as a magistrate can always prepare his warrant of commitment at his leisure, he saw no reason why he should now concur in setting at naught the order which he himself had made.
After considerable discussion between the bench and the learned counsel for the prisoner, 
Mr. Justice BURTON said, that the case was too important to be decided hastily, and that, therefore, the prisoner should be remanded till to-morrow (this morning), when, perhaps, Mr. Windeyer would be sufficiently prepared with authorities.
Mr. WINDEYER hoped that the court would direct that, in the mean time, no addition should be made to the prisoner's punishment of imprisonment; for that he was instructed that the prisoner was placed in solitary confinement, and had been prevented from seeing his wife and his attorney.
Mr. JUSTICE BURTON said, that, of course, no addition should be made by any man to the punishment appointed by the court, and that he had no doubt that no attempt of the kind would be made.

Burton and Stephen JJ, August 1841
Source: Sydney Herald, 4 August 1841

At eleven o'clock, Mr. JUSTICE STEPHEN took his seat on the Bench, and the Assessors cases being adjourned, Mr. JUSTICE BURTON called on Mr. WINDEYER in the case of the prisoner Wi[l]liam Hughes Hallett, who appeared in custody.
Mr. WINDEYER said that he thought he could show that the prisoner was entitled to his d[i]scharge, for that nothing could be more defective than the document by which he was detained in prison. It was not addressed to any one, nor signed by any one purporting to have the least authority; it was a mere naked memorandum, showing no offence, mentioning no court ordering the imprisonment, not stating when the imprisonment was to end, or any cause for its commencement; besides the prisoner's name was not stated as it should be at length, in fact the document contained none of the particulars required by the authorities referring to commitments. Hulton, page 121, The instrument did not say that the prisoner was committed by any Court or for safe custody; no special authority of any kind was stated; although from the paper itself, and from the use of the word "insolvent," it might be conjectured that the imprisonment was under the Insolvent Act; but the 7th and 8th sections of the Insolvent Act authorised imprisonment for certain periods for certain offences, and to justify an imprisonment under either of those sections, the warrant should state with the utmo[st] precision the particular offence or offences for which the imprisonment was ordered, and yet there was no statement of any offence of any kind in the document before the Court. According to the Chitty's Burns' Justice, page 766, the warrant must be directed to a jailor, it must state a cause for the committal, it must show the offence, and if it be by statute that too must be stated, besides it must comply with the forms, which were all omitted in this document.
Mr. Justice STEPHEN - There can be no doubt that the warrant is as defective as it can be.
Mr. WINDEYER continued - The document was so defective, that no cases could be cited as exactly referring to it; but in the 4th Ann. Rep. page 223, and in the other cases referred to in Chitty's Justice, the court would find some authority for showing that although in commitments for safe custody the court might amend the commitment, yet in commitments upon a conviction, the court would not make any amendment; and, therefore, as this document, if it were anything, was a commitment upon a conviction, the court would not amend it. The prisoner had been tried and wrongfully committed, he had been illegally imprisoned since the 4th of July last, and, therefore, whatever might have been his offence, he should be discharged. It was a fit case for an example, and whatever might be the consequences, as regarded the party in the case, for the sake of principle, he should be discharged, for if warrants were to be amended at any time great danger would ensure, because no warrant would then be ever properly drawn. As to the court taking judicial knowledge of the nature and of the cause of the imprisonment, the court ought to have no knowledge of the matter, for the imprisonment did not appear to be the act of the Supreme Court but of Mr. Hutchinson. If the Court was to presume any thing, it would presume that this was not the act of the Supreme Court, all of whose acts should be presumed to have been regular; more-over, how could the court know that this same party was ever before the court at any former time; how could the court say that this was the party who had been before it, where for any thing that appeared to the contrary, the prisoner might only bear the same name with, or might be the twin-brother of the party who had really been before the Court. In the case of Jane New, who had been tried and convicted in the Court, it was decided that the Court could take no judicial notice of her conviction, therefore the Court could take no judicial notice of the prisoner's conviction, if he had been convicted; and he should be discharge according to the exigency of the writ of habeas corpus. After some deliberation,
Mr. Justice BURTON said, that he was of opinion that the cases cited by the learned counsel for the prisoner were clearly distinguishable from the prisoner's case, because those cases referred to commitments by magistrates who were bound to make their commitments in writing under a seal, whereas the commitment of a court of Record need not be in writing; and this distinction was laid down in 1st Lord Hale, and in 1st Salkeld, page 348. In the prisoner's case it was returned that he was imprisoned by an order of the Supreme Court, and therefore the Court was bound to hold that he was duly imprisoned by the Court, for if the prisoner were imprisoned by an order of the Supreme Court, the fact of that order having been irregularly set out in the return to the writ, was no ground for directing the prisoner's discharge. If the order for the imprisonment were erroneous, the prisoner should resort to a writ of error, or to something analogous to that proceeding; for as long as it was stated, on the return, that he was in custody under an order of the Supreme Court, the Judges would be bound to presume that he was legally in custody, until that order were set aside, because the order might be perfectly valid, though the clerk might have informally prepared it. If the Sheriff or gaoler heard an order from a Judge to take a party into custody, it was his duty to execute that order without requiring any further authority, for the order of a Judge did not require to be in writing. If the order were imperfect or expressed no lawful cause of imprisonment, then an imprisonment under such an order would be illegal; but to entitle a party to be discharged from custody, who was in custody under the order of a judge, that order should be first set aside, for it was to be presumed that a Judge would not make an order without cause. If the prisoner was an insolvent debtor, then he was in lawful custody, in execution without any other or further warrant, and as the return expressed that he was in custody under an order of the Supreme Court, he should be remanded to that custody.
Mr. WINDEYER enquired how the order could be obtained or brought before the Court, as there was no certiorari into the Supreme Court, and no writ of error from it.
Mr. Justice BURTON said, that the order or an office copy of it should be taken out, and that the prisoner should proceed to set aside the order by some method analogous to the writ of error.
Mr. WINDEYER moved for an office-copy of the order, which was granted, and the Court adjourned.

Published by the Division of Law, Macquarie University