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

In re Lucas (1828) Sel Cas (Dowling) 602; [1828] NSWSupC 77

insolvency, procedure

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 13 September 1828

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[pp 332-333]

[The Court is bound by the testimony of a person brought up under the 23rd S.49.4.C.96[1 ] as to the state of his affairs and if he appears from that to be insolvent the court will declare him to be insolvent accordingly in the absence of other evidence to the contrary: And where the petitioning creditor makes affidavit of his debt, and the insolvency of his debtor, the court will not subject the creditor to a viva voce examination, but leave him to be prosecuted for perjury if his affidavit be false.]

[p. 332]

In re Lucas Insolvency

Sept 13th 1828

 

On the motion of Poole this person was brought up to be examined touching [p. 333] his estate and effects, pursuant to a notice in the Sydney Gazette for that purpose, in order to a declaration of insolvency.

Lucas states that he had been a Miller at Liverpool and commenced business with out any capital.  He was possessed of two Mills.  Had lost 800£ by the destruction of a Milldam, and 1500£ by the loss of a vessel in which he was interested.  He owed 1200£ with which he had nothing to pay but book debts to that amount many of which were desperate   His present petitioning creditor was one Cameron who had been his assigned servant to whom he was indebted in the sum of 40£ for wages.  He had been credited by Solomon Levy to the amount of 8000£ and had sold him his bills and other effects to this person to secure him.  He had also sold Cattle to other persons, and passed away a Government note paid him on a Contract to grind Wheat.

Mr Wentworth appeared for one set of creditors; Mr Rowe for another and Mr Allen for another who had executions now out against the Defendant.  It was contended that the now petitioning creditor [p. 334] should be sworn and examined as to the validity of his debt.

Poole resisted this on the ground that the petitioning creditor had sworn to the debt, and he was liable to an indictment for perjury if he swore falsely.

Forbes CJ. and Dowling J. were of opinion that the Court was bound by the oath of the petitioning creditor as to the validity of his debt, and by the examination of the insolvent as to his inability to pay 20/s in the pound, in the absence of any proof to the Contrary.

Stephen J that the petitioning creditor ought to be examined viva voce

Lucas declared insolvent, and Messer's Nash and Hutchinson appointed his trustees.[2 ]

Notes

[1 ] The insolvency provision on which this case was based was enacted in the colony's constitution, the New South Wales Act (4 Geo. 4 c. 96).  It was not repeated in the succeeding imperial legislation, (1828) 9 Geo. 4 c. 83.  The British government decided that insolvency, like foreign attachment, was better delegated to the New South Wales Legislative Council: the policy of the new legislation was discussed in Murray to Darling, 31 July 1828, Historical Records of Australia, Series 1, Vol. 14, pp 260f.

[2 ] On insolvency procedure, see also In re Crisp, 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 339: the court allowed an insolvency summons to be based on a writ more than 12 months old.  In another procedure case, the Court appointed a trustee who was not a creditor (In re Murrell & Sandwell, 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 5).  On the role of the Registrar and Chief Clerk of the Court in insolvency matters, see In re Fisher, 29 March 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 33.

Published by the Division of Law, Macquarie University