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

In re Quigley and son (1831) NSW Sel Cas (Dowling) 818; [1831] NSWSupC 81

insolvency, partnership - partnership, insolvency

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, [1 ] 19 November 1831

Source: Dowling, Select Cases, Archives Office of N.S.W., 2/3466[2 ]

[p. 124] [Where a partnership trading concern becomes insolvent and one partner is abroad the firm may be declared insolvent Quoad N.S.W. partnership transactions]

November 19 1831

In re James Quigly & Son

The persons named had carried on trade in Copartnership in Sydney.  The father resided in Ireland and the son carried on business on his Fathers own account & the Firm becoming insolvent the son only was declared insolvent under the Colonial act.

Wentworth now moved to amend the declaration of Insolvency against father and son in respect of partnership transactions in [p. 125] NSW.

The Court seeing no reason to the contrary ordered the declaration of insolvency to be amended as against the firm quoad partnership transactions in this Country.



[1 ] All three judges sat on this day in R. v. Toole, 1831, and are likely to have done so on this case as well.

[2 ] On insolvency, see also Cohen v. Hart, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 64, which has the following summary by Dowling J.: ``Where three persons sued in the character of Trustees of an insolvent, and it appeared that one only had signed the appointment;  Held that collateral evidence could not be resorted to show that the creditors had also agreed amongst themselves that the other two Plaintiffs should be Trustees.  The appointment of Trustees stands on the same footing as an Assignment to assignees in Bankruptcy."

See also Paul v. Hyam, 1831, Dowling, Select Cases, Archives Office of N.S.W., 2/3466, p. 79, which begins with the following summary: ``Where the Assessors try an Issue of Insolvency are not satisfied by the Insolvents Schedule that he is unable to pay 20s/ in the pound he cannot be declared insolvent."

A colonial Act was passed in 1830 to deal with insolvency, but was found to be inadequate after two years.  In April 1832, it was replaced by 2 Wm 4 No. 11 which was a conventional insolvency Act.  Under it, an imprisoned debtor could be released from gaol on giving up all of her or his property to the creditors and engaging to pay the whole of the debt should he or she subsequently obtain sufficient property to do so.  See Bourke to Goderich, 19 March 1832,Historical Records of Australia, Series 1, Vol. 16, p. 566; and for the statute, see Sydney Gazette, 29 March 1832; Australian, 6 April 1832.

Published by the Division of Law, Macquarie University