 |
|
 |
|
|
|
|
|
|
||||
|
Decisions of the Superior Courts of New South Wales, 1788-1899 |
|||||||||
|
Published by the Division of Law Macquarie University |
|||||||||
|
|||||||||
|
|
 |
|
|
|
||||||||||||||||||||||||||||||||||||||||||||||||
|
|
|
[imprisonment for debt, voluntary escape - capias ad satisfaciendum - fieri facias - sheriff's liability, escaped debtor - debt recovery] Tomkins v. McQuoid Supreme Court of New South Wales Dowling A.C.J., 6 October 1836 Source: Sydney Gazette, 11 October 1836
Tomkins v. McQuoid. - This was an action for debt, brought under a statute of Richard II. The pleas were numerous. The facts were simply as follows; Tomkins and wife, had occasion to bring several actions against Dr. Charles Smith M. D. the first an action of assumpsit, to recover the sum of £80, the second one that of tresspass, wherein damages were laid at £534, and the third for libel. In the last case a fi fa for £204 was obtained, but returned, nulla bona, ca sa, was afterwards issued. It was now contended that the defendant, (the Sheriff) had suffered Smith to escape; plaintiff now only went upon the latter case; as it appeared, that, when the ca sa was issued, Smith was in custody of the Sheriff upon another suit. The defence set up was, that the endorsement to the writ was irregular, counsel for plaintiff contended that, the sheriff could not put in his return as evidence in favor of himself, as otherwise no action whatever could be maintained against the Sheriff, as he had the power of making any return he might think proper; evidence however was allowed to be gone into, as to such fact. But they failed notwithstanding to shew that plaintiff had received any money, upon the libel case, from the Sheriff; when plaintiffs case had been gone through, the Attorney General on the part of defendant submitted, that, the issuing of the writ was set out in the declaration, as being dated 1833; whereas the evidence went to show that it had been issued in 1834, and further that no proof had been put in of any arrest having taken place. The Judge said he would take a note of the objection. The Attorney General then went on to state the case for the defendant, during which he took occasion to observe, that, no one court in the colony was in existance, which had not heard of the case ``Tomkins v. Smith" and he added it would appear, their sole object was to rnin each other, after speaking at considerable length, he declined calling any witnesses. The learned Judge in suming up the case to the Assessors, laid it down as clear law, that if a debtor was in custody of one creditor, and the Sheriff at the same time held another writ, at the suit of another, and he allowed him to go at large, it was a clear case of escape, and that he (the Sheriff) was bound to pay the consequence. If he had shown that he was excused by any of those priviliges, his situation as a public officer in doing so, he was bound in law to tell them (the Assessors), that defendant was clearly bound to pay the amount claimed. The Assessors returned a verdict upon the debt for one shilling, which of course carried the amount of damages sought for , together with costs.
Dowling A.C.J., and Burton and Kinchela JJ, 4 March 1837 Source: Sydney Herald, 6 March 1837[1]
Thompkins v. Macquoid. - In this case a verdict had been returned against the defendant, for allowing a person taken in execution for £240, to escape from his custody. After the trial it was contended that a levy to the amount of £224 had been made, so that, in fact, the sum of £16 only was due, and the plaintiff now wanted to take out execution for the amount of the verdict, but the Chief Clerk would not issue the process unless the plaintiff made an affidavit of the exact amount due to him. The Court said that the plaintiff was entitled to take out execution for what sum he pleased, but if he took out execution for more than was due, the Court would take care, if the Sheriff brought the case before them, that he was not damnified.
Dowling A.C.J., and Burton and Kinchela JJ, 10 April 1837 Source: Sydney Herald, 13 April 1837[2]
In this case a rule had been obtained, calling on the plaintiff to show cause why the sum endorsed on the writ of execution should not be reduced from £261 to £35. The Acting Chief Justice delivered the judgment of the Court. This was an action of debt brought against the Sheriff for suffering the escape of one Charles Smith, whom he had in execution at the suit of the plaintiff. At the trial a verdict was returned for the plaintiff, who sued out a writ for £261. The present motion was made under the fifty-fourth rule of the Court, which says, that in all cases of this description the plaintiff shall endorse on the writ the sum that is actually and bona fide due. In the present case the measure of the Sheriff's liability, could only be what Charles Smith was originally liable to, and as a rule had been obtained by Smith previously to his being arrested, calling on the plaintiff to show cause why the judgment in his case should not be reduced to £16, to which the plaintiff made no reply, the Court looked upon that as being the sum that was actually due, and therefore they ordered that the sum to be endorsed on the writ should be only £16 and the costs of suit, the costs of the present application to be set off against the costs of the action. Rule made absolute.
Notes [1] See also Sydney Gazette, 7 and 30 March 1837; Sydney Herald, 30 March 1837. |
|
|||||
|