[contempt of court, attachment – equity – civil procedure – reception of English law, equity procedure]

Sutton v. Reynolds

Supreme Court of Van Diemen’s Land

16 May 1840

Source: Hobart Town Courier, 5 June 1840

            In this case Mr. Boyce moved the Court that the defendant should be discharged forthwith out of the custody of the Sheriff of Van Diemen’s Land, who had taken his body under a writ of attachment sued out by the plaintiff Mr. Sutton for a contempt of the Court, in having neglected to answer a bill in equity filed against the defendant by Mr. Sutton for certain costs alleged to be due to him from the estate of a party deceased. The grounds upon which the learned gentleman founded this application was an alleged irregularity in the proceedings; inasmuch as the writ of attachment, under which the defendant was taken into custody, was not returnable upon any day certain, or at any given time. Mr. Boyce was proceeding with his statement of the facts, when the Chief Justice put it to him, whether this ought not to have been a motion for a rule nisi in the first instance? The learned counsel submitted to His Honor that it ought not in a case such as this; but, on the contrary, that if their Honors were satisfied, as he trusted to be able to show to them, that the proceedings were irregular and the consequent arrest and detention in gaol of the defendant illegal, he was entitled to claim from the Court an order that he should be discharged forthwith. In order to anticipate any objection on the ground of taking the plaintiff by surprise, he stated further, that he had caused notice of the present application to be served upon Mr. Sutton three days previous, in which the objection taken was fully explained.

Mr. Boyce was proceeding to read some affidavits in support of his motion, when Mr. Harrison for the complainant, submitted that they could not be read, inasmuch as they had not been filed.

Mr. Justice Montagu requested Mr. Boyce to read the notice which had been served on the complainant;  which having been done, he observed that it was sufficiently explicit, and that the complainant could not call upon the defendant to file affidavits concerning documents in his own custody, or to which he had access, they being records of the Court. The Court therefore overruled Mr. Harrison’s objection.

After disclaiming all knowledge of the merits of the case so far as regarded the original suit, Mr. Boyce then proceeded to argue that a writ of attachment for contempt for want of an answer, being an order to the Sheriff to apprehend the defendant and to keep him in safe custody until a certain day, and then to bring him before the Court to answer for himself as to his contempt - that the omission of the return-day must be held fatal. After adducing authorities in support of this position, he contended that the error in the writ was not a matter of mere form, but of substance; for the Sheriff might, if he pleased, accept bail for the defendant’s appearance in Court on the day commanded in the writ; but if, as in this writ, there was no day mentioned, the Sheriff would (as in fact he did,) return the writ immediately, upon taking the defendant in custody, and lodge him in gaol, there to remain for an indefinite time; and whatever might be the willingness of the Sheriff to accept bail, or the ability of the defendant to procure it, that privilege was denied to him - as actually had occurred in this instance.

Mr. Harrison brought forward a variety of authorities to prove that the form of the writ was substantially correct, but (as we understood him,) admitted in practice in England; he had not seen any writ of attachment on which a return was not indorsed, if not contained in the body of it.

(Rule granted, with costs of application.)

            Until the passing of the lst William IV, cap. 36, commonly known as Sir Edward Sugden’s Act, and not in force in this colony, a defendant might have been detained in gaol for any period, as long as he did not or could not put in an answer. To obviate the misery that accrued to inoffending persons, whose only crime, in many cases, was having a distant relative who had died rich, and of whom they might never have heard, this act was passed.

            The rules of Equity require for the quieting disputes, that all parties interested, or who may be interested in the matter, should be brought before the Court either as plaintiffs or defendants, that all their claims may be disposed of at once, so as to prevent another suit being brought about the same matter. In compliance with this rule, if a banker should bequeath a million of money, and certain of his next of kin should apply to the Court of Chancery, or be made defendants in a suit, his remotest relations, suppose his second-cousin, the grave-digger’s helper, would be made a party to the suit, and might, for want of an answer, have been brought up from his healthy avocation to be immured for life in prison - and that too, as a matter of course, by merely applying for the writ to the proper officer, and no one ever the wiser.

            The above act provides for the discharge out of custody of persons in contempt in all cases where the plaintiff neglects to bring up the defendant before the Court within certain times mentioned; and provides for the cases of lunatics and persons unable to pay costs, and gives general powers to discharge in cases not provided for, and even to discharge compulsorily so far as regards the contempt, and enabling the defendant to take the benefit of the Insolvent Debtors’ Act for the costs of the contempt.

            After explaining the highly beneficial objects of this Act, it will be needless for us to point out the propriety of adopting it in this colony. If we are burthened with the evils of Chancery, we ought at least to have every act introduced here tending in any degree to lighten the load of grief which it too often entails on those whose fate or disposition may involve them in such proceedings.