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

McDougall v Mackay (1832) NSW Sel Cas (Dowling) 617; [1832] NSWSupC 27

insolvency, debts in Van Diemen's Land Act - Supreme Court, geographical jurisdiction

Supreme Court of New South Wales

Forbes C.J. and Dowling J., 31 March 1832

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

 

[p. 174] A person coming from V D Land to Sydney in search of employment and having no fixed abode here cannot be discharged under the N.S.W. Insolvency Act in respect of debts contracted in V D L he having no debts in N.S.W.

 

Source: Dowling, Proceedings of the Supreme Court, Vol. 67, Archives Office of New South Wales, 2/3250

 

[p. 135] The Defendant was brought up to obtain his discharge under the Insolvent Debtor's act 10 Geo. 4. No 7. 2d. April 1830.  It appeared from his examination that he had come to this Colony from Van Dieman's Land to seek for employment, & if he succeeded he intended permanently to reside here.  He had contracted several debts in Van Dieman's Land, but owed nothing in this Colony.  Having been here about five weeks, he was arrested for a debt contracted at V.D.L.  It appeared from his Schedule that he had no property or effects to give up for distribution amongst his creditors, all of whom were residents in the other Colony.

C. Moore contended that the Deft did not come within the words or the meaning of the New South Wales Insolvent Debtors act.  First he had no property to give up to his creditors which had been held to be [p. 136] a fatal objection.  In re Maingy.[1 ]  Secondly.  He was not an inhabitant or resident of this Colony, and not within the local operation of the ordinance.  In re Henry, a trader to Olaheite.

F Stephen contra contended that the deft came within the words of the 1st Section as a person ``residing or carrying on business in New South Wales or any place within the dependencies thereof."  Van Diemen's Land was a dependency of New South Wales, & the shortest residence he contended was sufficient for the purpose of entitling the Deft to the benefit of the act.  To the other objection he gave no answer.

The case being tried before me, I reserved it for consideration, & now

Forbes C.J. was of opinion that the deft did not come within the meaning of the act.  In the first place he had [p. 137] no effects to give up, which was a decisive objection the act being passed for the benefit of creditors, & secondly though V.D.L was a dependency of N.S.W for military purposed, it was not so for municipal jurisdiction, in which respect it was wholly independent.

Dowling, J. This act was never meant to apply to a mere vagrant coming from V.D.L in debt, to seek employment here. The words ``residing & carrying on business" - must be understood in their legal sense, applicable, not to birds of passage, but to resiants [sic] or inhabitants having a permanent place of abode, or carry on business, as fixed & settled traders.  This man owes no debts here, & may by his running away from V.D.L - let his creditors there at defiance.

On this ground alone I think [p. 138] he is not within this our local act, which is confined to debts contracted only in this colony.  But the other objection is conclusive.

Remanded.

 

Notes

[1 ] Marginal note in manuscript: "Ante vol. 52 p. 138".

Published by the Division of Law, Macquarie University