[imprisonment for debt – capias ad respondendum]

Hackett v. Aherne

Supreme Court of Van Diemen’s Land

In banco, Pedder C.J. and Montagu J., 26 November 1839

Source: Hobart Town Advertiser, 29 November 1839[1]

            In this case the defendant having been arrested on Monday morning upon a writ of capius ad respondem, issued on the order of His Honor Mr. Justice Montagu, at the suit of the Plaintiff, for an alledged debt of £250. The Solicitor General moved for a rule to shew cause why the said defendant should not be discharged from the custody of the Sheriff upon entering a common appearance to the action, and also why the costs should not be paid by the plaintiff. The learned gentleman made the motion upon the affidavits of Aherne himself, supported by these of Mr. Pitcairn and his clerk. Aherne swore that he was not indebted to Hackett a sixpence. That he had, for the last six weeks made public his intention of proceeding to England in the Hindoo and that he was on board the vessel on Monday morning, when arrested. He further swore that in February last he commenced an action against Hackett for the sum of £19 odd on a Bill of Exchange of which he (A’Herne) was the holder and that in September last having obtained judgment and execution, he received from Hackett (through the Sheriff) the sum of £26 3s. 11d. as the principal interest, cost, &c. His affidavit further stated that since that time he had not been engaged in any transactions with Hackett, that he was proceeding to England to settle some family affairs connected with the estate of the late Phillip Connolly, whose sister was deponent’s wife.

The Solicitor General then took the following objections to the form of the affidavit.

1st - That it described Mr. Hackett as being late at Hobart Town instead of setting out his true residence, at or near Brown’s River.

2d. - That the sum was sworn to be due was not sworn to be £250 of ‘British sterling money.’

3d. - That the affidavit alledged the debt was due upon ‘the balance of account, and for monies had and advanced,’ without setting forth that the ‘balance of account was stated and settled between the parties,’ and without stating that the ‘monies,’ were had and received ‘at the Defendant’s request.’

4th. - That the affidavit only set forth that the Plaintiff had ‘good reason’ to believe Defendant was about to leave the colony, whereas the act required ‘sufficient’ reason.

His Honor and the Chief Justice thought this objection invalid, where a Judge’s order had been obtained. If ‘sufficient’ cause of action were shewn to satisfy the Judge, the act would be complied with.

The Solicitor General would not press the point, but had an objection to make to the capias, which was not in accordance with the form presented by the Court. This the learned gentleman contended was fatal, and was about to enter into the merits of the case, when

Mr. Justice Montagu suggested that such a course was irregular and unfair at this stage of the proceedings.

The Solicitor General urged that circumstances would create an exception, and mentioned some cases where the course had been allowed in England; and on laying much stress upon the circumstance of Aherne having publicly made his arrangements for leaving the colony months’ ago, and Mr. Hackett suffering the last moment to arrive before he took any proceedings.

Mr. Justice Montagu observed that Mr. Hackett did apply to him to arrest the Defendant four or five weeks back, but then failed in proof of the intention to leave the colony.

The Solicitor General was not aware of that, and would therefore only particularly beg their Honor’s attention to the affidavit of Aherne, who not only swore that he owes nothing to Hackett; but that he had actually recovered by legal process, the sum of £26 3s. 11d. from him, so recently as September last. Rule granted, to be argued on Friday.

In banco, Pedder C.J. and Montagu J., 29 November 1839

Source: Tasmanian, 6 December 1839

            The rule in this case was made absolute, but without costs.

His Honor Mr. Justice Montagu explained, at some length, why he had granted the order; it was very clear now, that a mistake had been committed, and had the party come to him, he would not hesitate one moment, in a case where a mere form of court was on one side and the liberty of the subject on the other. He hoped this case would operate as a caution to the several professional gentlemen he saw before him, with respect to the particularity of legal proceedings. His Honor would offer no opinion as to the form of the writ, but the capias certainly ought not to have issued; he censured himself greatly for having issued it, and did not from what he had said, wish to any way to palliate his conduct, but regretted extremely that he had signed the capias.