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

Vowles v Gough (1830) NSW Sel Cas (Dowling) 467; [1830] NSWSupC 50

insolvency, imprisonment for debt

Supreme Court of New South Wales

Dowling J., 4 July 1830

Source: Dowling, Select Cases, Archives Office of New South Wales, 2/3466[1 ]

[p. 3]

[An insolvent debtor having conformed to a declaration of insolvency was arrested on a Ca. sa.[2 ] in vacation for a debt mentioned in his schedule. Held [p.4] that a single Judge at Chambers might order him to be discharged out of Custody.][3 ]

[p.3]Saturday July  24th 1830

Coram Dowling J at Chambers

Vowels v Gough

The Defendant in this case had been duly declared insolvent last term; Trustees had been appointed and he had conformed to the directions of the Court, since then he had been arrested on a Ca Sa for a debt contracted by to the declaration of Insolvency, and which had been inserted in his Schedule [p.4] £53..17..1.

Dr Wardell now applied to have the Defendant discharged out of custody.

S. Stephen contended that assuming the facts to be true, still this was a case in which a single Judge at chambers had not any jurisdiction to make an order.

Dowling J.  It is sworn that the defendant has conformed to the orders of the Court, and that he has actually declared insolvent.  Under such circumstances I think a single judge at chambers may order his discharge.  If he had not conformed to the order of the Court, the proper course for the Plaintiff should have been to apply for an order to a judge in chambers to arrest him until he did conform.  I think the Plaintiff was not entitled to arrest him without such an order after [p.5] he had been declared insolvent and thereby entitled to protection from arrest.

Defendant to be discharged.

 

Notes

[1 ] On insolvency procedure, see also Anonymous, Dowling, Select Cases, Vol. 2, Archives Office of N.S.W., 2/3462, p. 320.

[2 ] Capias ad satisfaciendum, the writ of arrest for non-payment of a judgment debt; also known as imprisonment on the final process.

[3 ] The relevant legislation at this date was (1830) 11 Geo. 4 No. 7.  See also Australian, 18 June 1830, reporting that several imprisoned debtors had appeared to prove their insolvencies.  That is, they were using the insolvency law as they would have done in England, as a means of discharging themselves from prison: see B. Kercher, "The Transformation of Imprisonment for Debt in England, 1828 to 1838", (1984) 2 Australian Journal of Law and Society 60.  The 1830 Act contained both bankruptcy and insolvency provisions.  The former allowed discharge from past debts, while the latter allowed only release from debtors' prison and not from the debts.  On the legislative history of this Act, see James v. Raine, 1830.

In 1830, the Supreme Court also decided that "Until a debtor be actually declared insolvent by the Court he is not protected from arrest during the vacation upon a debt contracted previously to insolvency" (Holt v. Walker, Dowling, Select Cases, Archives Office of New South Wales, 2/3466, p. 5).  It made a similar point in 1830 in In re Wigley, which was in the same volume at p. 322: "After proceedings towards a declaration of Insolvency the Insolvent is not entitled to protection from arrest until he is actually declared insolvent."  For reference to other insolvency cases in 1830, see James v. Raine, 1830.

This was not the only method of obtaining a release from debtors' prison.  In 1830, another debtor, John Cullen, was found to be insane, and recommended to be transferred from the gaol to the Lunatic Asylum.  He was transferred even though the medical opinion was "that Cullen is not a fit object for admission" to the Asylum" because his disease had "more resemblance to Idiotism than to Mania": Chief Justices' Letter Book, 1824-1835, Archives Office of New South Wales, 4/6651, pp 257, 259.  Also in 1830, Thomas Riley was tried and acquitted for stealing, discharged from gaol, immediately taken in execution (imprisoned for debt) by order of the Court of Requests and then rescued by a mob: Australian, 25 May 1830.  For an action by an imprisoned debtor against the sheriff, see Raine v. McQuoid, Australian, 25 June 1830.

Published by the Division of Law, Macquarie University