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

McElhone v. Doyle [1847] NSWSupC 43

enforcement in equity, imprisonment for debt, abolition

Supreme Court of New South Wales

May 1847

Source: Sydney Morning Herald, 5 May 1847, in Supreme Court Collection, Vol. 1, p. 111

The following judgment was pronounced:-

In this case the question that no arises is, whether the writ of subpoena, which has issued for the payment of the costs of one of the defendants, O'Hara, has issued regularly. And if it be not actually taken away it must be recognised as the usual and established mode, both here and in England, of enforcing the payment of costs. Here, by our rules, the writ of execution is done away with, and as a substitute for it, for the purpose of compelling obedience to any order or decree of the Court, in its equitable jurisdiction, on the party being served with a copy of the order or decree, he shall be held bound to do the act, the decree or order injoins. It is further provided by our rules, that a party prosecuting such order or decree, shall at the expiration of the time limited to do some act, be entitled to an attachment, except the act required to be done be to pay money, which I take to mean money only, or costs only, or money with costs. If the defendant, therefore, sought to enforce the payment of these costs under the decree or order, the service of which has been substituted for a writ of execution, it is manifest he would not be entitled to an attachment, the decree or order being for the payment of money. But he has proceeded, not by writ of execution, which our rules have taken away, but by subpoena, which is not taken away, either here or in England. As the subpoena then remains, the attachment consequent upon it, remains also. The attachment disallowed by our rules for a disobedience to a decree or order for the payment of money, is an attachment issuing upon the service of a decree or order, which was put in the place of an execution, and has nothing to do with any case, except where the writ of execution formerly issued. It may have been, and, indeed, I am so satisfied that it was an inadvertent omission not to do away with attachment consequent on a subpoena for costs, as well as on attachment upon a decree or order to pay money, that I have represented the case to the Judges, and obtained their concurrence in passing a rule which will in future prevent the inconsistency and injustice of a party being prohibited from the use of a writ of attachment upon a decree or order for the payment of costs; and yet being permitted the use of it in a subpoena for the payment of them. To permit and uphold such a practice would be to abolish personal arrest by one process, and to sanction and support it by another. The continuance of the subpoena for costs in England is no reason for its continuance here; for there, arrest for debt is not, as it is here, abolished. Moreover, it is manifest from the 26th section of the 7th Victoria, No. 9, by which arrest or imprisonment is abolished on any execution issuing out of any Court of Equity, it is to accident or inadvertence rather than design, that the arrest, which is brought about by an attachment, issuing on a subpoena for costs, was not then abolished also. However, though we cannot by an ex post facto law affect a past or a pending case in Court, and therefore this application will be entitled to bear date on the day on which it as made; yet, for the future, the rule now promulgated will prevent the recurrence of such an anomaly as that of prohibiting arrest for costs by one process of the Court, and permitting and upholding it by another.


Published by the Division of Law, Macquarie University