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

Nathan v. Legg [1841] NSWSupC 49

imprisonment for debt, pre-judgment

Supreme Court of New South Wales

Burton and Stephen JJ, 22 May 1841

Source: Sydney Herald, 26 May 1841[1]

            SITTINGS in Banco, before Mr. JUSTICE BURTON, and Mr. JUSTICE STEPHEN.


            In this case an affidavit had been made by the plaintiff, stating that in Sept. last he had shipped 12 cases of goods on board the defendant's ship the York, then in the Thames bound for Port Phillip and Sydney; that of these cases ten had been delivered, that two of them were yet undelivered, that the plaintiff had applied to the defendant since the arrival of the ship at Sydney for the delivery of those cases, and had tendered him the freight for the same - that the defendant had referred the plaintiff to his agents Messrs. Dunlop and Co., to whom the plaintiff paid the freight, but that the defendant would not deliver the said cases - that the same contained goods worth £100, and that an advertisement had been published in a Sydney newspaper, stating that the ship would shortly sail for Calcutta, and that therefore the plaintiff believed that the defendant was about to remove himself out of the jurisdiction of the Court. Upon this affidavit the defendant had been held to bail by Mr. Justice Stephen on the 26th of April last, under the 3rd of Victoria No. 15, having given the Sheriff a bail bond, he was then discharged from custody, and on the 30th of April he, on the ground of the insufficiency of the affidavit, obtained an order from Mr. Justice Stephen that the bail bond should be delivered up to be cancelled upon the first day of the term, unless the court should then otherwise order.  The plaintiff now sought that this order should be discharged.

            Mr. FOSTER and Mr. BROADHURST for the plaintiff. This order is extra judicial; 5th sec. 3rd Victoria, No. 15, under which alone it could have been made,does not warrant such an order, inasmuch as that section only gives a power to discharge the party out of custody. The judge having acted judicially in holding the party to bail his order cannot now be set aside without the statement of some new fact; the judge is now to be satisfied that he had not been satisfied; the defendant could only obtain a favor from the Court; that an affidavit negativing some material fact in the plaintiff's affidavit, or shewing that the defendant could not have been arrested in such an action; the Court will not now enter upon the sufficiency of the affidavit; greater precision was required under the old law; the plaintiff's affidavit is sufficient for its purpose and in substance a prima facia case has been made out, and until the defendant rebuts it he cannot obtain any favor; at all events the Court have power to receive a further affidavit from the plaintiff, if they think one necessary. 2nd East, 453, Arch. Prac. Edit. 1835, pp. 109.

            Mr. WINDEYER for the defendant: the authorities cited by the other side do not apply; they refer to the old law of arrest, which in England is now regulated by the 1st and 2nd Vic., c. 110, and from the 6th sec. of this Act, the 5th sec. of the 3rd Vic., No. 15, is taken; the 3rd Vic., No. 15, does not take any power from the Court; it is only cumulative. Under the English Act the defendant may object to the sufficiency of the affidavit, and therefore he may object to its sufficiency under the local Act; all objections to the sufficiency of the affidavit may be entertained by the Court or by a judge. Arrest on mesne process is now the exception not the rule; the Court has great discretionary power over parties holding others to bail, and thus the affidavit was sufficient on a cursory glance in the first instance, and though the judge wished to have the question argued now, the affidavit is manifestly defective; for the affidavit does not state that the plaintiff has sustained any damage; it does not shew a debt and the particulars of it; it does not take the quantity, quality, and value of the goods so as to enable the judge to see that a real loss has been sustained; it does not shew that the defendant intended to escape and satisfactory grounds of the plaintiff's belief in the escape. No supplemental affidavit on the part of the plaintiff can now be received. Arch. Prac. Edit. 1840, pp. 463, 481-6, 502.

            Mr. Justice STEPHEN. - In England, the party must shew a probable cause:here, he must shew cause satisfactory to the Judge.

            Mr. WINDEYER. - Arrest is much stricter against the plaintiff here than inEngland.

            Mr. Justice BURTON. - It is clear that the local Act was intended to protect the debtor, and not to entrust the creditor with unlimited power. Everything in the affidavit should be stated with certainty, under this Act, which could be required under the old law of arrest. Facts should be stated with certainty and precision, and principles should be clearly ascertained which may be applicable to all cases. The 5th section of 3rd Vic. No. 15, provides that the defendant may apply for his dischargeat any time after his arrest; but it has been argued that the party must apply to the Court before giving a bail bond, and that the only power in the Court is to discharge the party from custody, instead of delivering up the bail bond to be cancelled, and it has been said, that in the civil cause, by giving the bail bond, a party is discharged from custody; but although this may be true, of, and applicable to the 3rd Victoria, No. 15, in consequence of the omission in it of any express provision given the Court a power of cancelling the bail bond; yet the Court is not crippled by this Act, for it still retains its power under the former law, and under that law, if the party were improperly arrested, the Court would discharge him. The Court will examine the affidavit, and see that the cause of action is certainly stated. This is an action for non delivery of certain cases, and it should appear from the affidavit what the cases contain; the particulars of the goods should be stated; besides, there is no sufficient statement that the party is about to remove out of the jurisdiction of the Court, the advertisement is not sufficient for it is not stated by whom it was inserted, or that it was inserted by or with the cognizance of the defendant; it is merely argumentative, whereas, it should shew satisfactory grounds for the plaintiff's belief that the defendant intended to abscond: it is insufficient, and the defendant ought not to have been arrested upon it. Therefore let the bail bond be delivered up to be cancelled; but, as this is a novel and important question, let it be without costs.


[1]              See also Australian, 1 June 1841.


Published by the Division of Law, Macquarie University