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

Smith v Mellish (1831) NSW Sel Cas (Dowling) 612; [1831] NSWSupC 23


Supreme Court of New South Wales

Hearing, 1831[1 ]

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

[p. 58] [Where a defendant has been declared insolvent, since the commencement of an action against him, the Court will not compel the Plaintiff to go on with his action.]

Smith v Mellish

This was an application to stay the proceedings on the ground that after action commenced the Defendant had been duly declared and Insolvent debtor.

S. Stephen opposed the motion on the ground that the Plaintiff was bound to proceed, for non constat if he would be nonsuited and then the Defendants Attorney would be entitled to his costs.

Keith cited Waples v [p. 59] Mahony where it was held that the Defendant being declared Insolvent the Court would not force the Plaintiff on to the trial of his action.

The Court thought that a sound decision and made the rule.



[1 ] From its position in the Select Cases, it is likely that this hearing was held between March and June 1831.

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