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

In re Massere (1828) NSW Sel Cas (Dowling) 588; [1828] NSWSupC 11

insolvency

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 1 March 1828

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

SELECT CASES

Argued and Determined in

THE

SUPREME COURT

of

NEW SOUTH WALES

VOL. 1

Selected from the Notes of

JAMES DOWLING ESQ.r

One of the Assistant Judges.

[p. 1]

[1828]

[Insolvent  Application by an Insolvent for a certificate of conformity under the 4.G. 4 C.96. S.23. must be verified by the affidavit of the Trustee or other Creditors.]

Supreme Court of New South Wales.

Saturday 1st March 1828.

On this day,

Dowling J. took his seat on the bench, with His Honor Francis Forbes Esq. Chief Justice, and his Honor Mr Justice Stephen.  His Majesty's commission appointing him to the office of a Puisne Judge of this Court, was read by John Stephen Junr. Esquire, the acting Registrar.

In the matter of Massere an Insolvent.[1 ]

Wentworth moved on behalf of the insolvent under the 4.G.4 C.96. Sec.23 for a certificate of conformity under the authority of that section, on an affidavit of the insolvent only, that the major part in number and value of his creditors had given their consent to the proceeding, and setting forth the statement of such consent with the names of the creditors thereunder written.

The Court thought that the certificate ought not to be granted upon the affidavit of the insolvent alone [p. 2] and desired that an affidavit of the Insolvent's Trustees should be produced in confirmation of the fact that the major part of the creditors had given their consent.

The case stood over for that purpose.  1Vol.1.[2 ]

Notes

[1 ] This was apparently the first case heard by Dowling J.  It was the first in both his Select Cases and his notebooks ("Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33).  See also Australian, 5 March 1828.  It may be that theSelect Cases, of which there are nine surviving volumes, were those which Dowling J. was preparing for publication: see his son's J.S. Dowling, Reminiscences of a Colonial Judge, Federation Press, Sydney, 1996, p. 45.

On this case, see also McVitie v. Maziere, 1828.  The Australian called him David Maziere in reporting the sale of his Hunter River estate, Annandale: Australian, 11 January 1828.

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 ] This reference is to the full collection of 248 notebooks of Dowling J.  They are collected in the Archives Office of New South Wales as "Proceedings of the Supreme Court of New South Wales 1828-40", reference 2/3184-396, 2/3400-33.  In this case, the records in the Select Cases are a duplicate of those at 2/3184 pp 1-2.

Published by the Division of Law, Macquarie University