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

McVitie v. Maziere (1828) Sel Cas (Dowling) 589; [1828] NSWSupC 20

insolvency, warrant of attorney

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 22 March 1828

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

[p. 27]


[T.McVitie v C.Maziere][1 ]

In this case judgement had been entered up against the Defendant upon a warrant of Attorney given by him to the Plaintiff, with a stay of execution thereon, until a certain future day.  Before the time had arrived for taking out execution the Defendant was [p. 28] declared insolvent, and his estate and effects became vested in trustees for equal distribution among his creditors under the New South Wales act 4. G.  4. C. 96. S. 22.  Since then the defendant has obtained his certificate under the 22d. section.  The 4. G. 4. C. 96. S. 22. recites that, "it is expedient to make provision for an equal distribution of the effects of insolvent Debtors in New South Wales &c. among their creditors", and then points out the mode of proceeding to be adopted for carrying such object into effect.  And sec.23. enacts, that a certificate granted in the manner therein printed out "may be pleaded, and shall be a bar to all suits and complaints for debts and contracts for payment of money, and entered into by the insolvent prior to the time of his, her or their, being declared insolvent."

Upon a case reserved by His Honor the Chief Justice Forbes, for the opinion of this Court, the question is, "Whether in this instance the Insolvent Maziere is protected by his certificate against an execution not executed before the declaration of his insolvency; the judgment, however, [p. 29] on which execution is sought to be taken out, having been entered up before his insolvency.

Looking to the obvious scope and object of the provisions in the New South Wales act, relating to insolvent debtors, contained, first, in the recitals to the 22d. section; and second, to the power of granting certificates in the 23d. section, it appears to me upon the best consideration, I have been able to give the question, that we are at liberty to resort by analogy to the construction given in several decided cases to the English Bankrupt law, and consequently that if this insolvent were now in execution, the Court would be authorized in discharging him out of Custody.

The policy of the English Bankrupt, and insolvent laws, has been to render the estate and effects of the debtor available for the payment of his debts by an equal distribution among his creditors, and at the same time to free the debtor from personal restraint.

Where no fraud is alleged to vitiate a [p.30] certificate under the bankrupt laws, the Court will on summary motion discharge a party out of Custody if in execution before the allowance of his certificate.

See Hartwell v Vere, 2. W. Bl. 1307.- Moore 357.

Darley v Brown 8. Price 607.

Buxton v Mardin 1 T.R.

Bromby v Goodere 1 Atk. 77.

Graham v Barton 2 Stra.1196.1 Wils. 41.

Lister v Mundell 1 B.&P. 427.

Cullen v Meyrick 1 T.R. 361.

The Insolvent laws to be construed liberally and equitably in favour of the insolvent.

Young v. Diego Aimes 2 Burr. 901.

Morley v Vaughan  4 Burr. 2525.

Forbes, C.J. and Stephen, J. concurred with me[2 ] in my view of the case, and we resolved that the Insolvent Maziere is protected by the certificate which has passed the seal of the Court, and ordered,

Per. Cur.Execution not to be taken out per. cur. against him.[3 ]

see notes Vol.2.p.61.[4 ]


[1 ] The plaintiff was Managing Director of the Bank of Australia: see R. v. Lees, November 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 refers to Dowling J., the author of the notebooks on which this case report is based.

[3 ] See also In re Massere, 1828.

[4 ] 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 Vol. 2, 2/3185 pp 61-64, with only minor grammatical differences between the two.

Published by the Division of Law, Macquarie University