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

Brown v Dixon (No 1) [1833] NSWSupC 39

warrant of attorney, registration - registration of interests

Supreme Court of New South Wales

Forbes C.J., Dowling and Burton JJ, 1 June 1833

Source: Dowling, Proceedings of the Supreme Court, Vol. 83, State Records of New South Wales, 2/3266

[p. 50] Norton moved for leave to Register a warrant of Attorney given by Deft at Bathurst, dated 31st January last.  No reason was assigned for not registering the warrant within the time limited by the 81st rule, nor did the plf swear to ignorance of the existence of the rule.

Forbes C.J.  We are of opinion that a very strong reason should be given for the omission to register the warrant of Attorney within time.  The object of the rule, was to give notice to the world of the Defts liability to have judgement entered up against him in assumpsit, whereby his property might be swept away.  It was to guard against [p. 51] secret warrants of attorney, & preventing false credit.  If the world knows that a man has, upon reference to the Registrar's office rendered him self liable to have execution issued against his property at any time, they will be cautious in giving him credit.  The object of requiring mortgages to be registered is, that it may be seen how a man's property is incumbered, & preventing his having false credit. - Credit is generally given upon the security of a man's property, or of his aparent [sic] ability to pay.  Now if his incumbrances are known, creditors may be able to guard against fraud, & the temerity of giving a man credit who is really unable to pay.  The rule ordained by this Court respecting the registration of warrants of attorney, is in keeping with the [p. 52] provisions of the legislature regarding the registration of mortgages & the like securities.  It is not merely sufficient to say that it was inconvenient to have the warrant registered in time or that the delay was at the request of the Deft.  Some cogent reason - such as inevitable accident must be assigned.  We laid down this position in similar applications during the last term (Ante p. 46.)

Refused.

Published by the Division of Law, Macquarie University