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

Melville v. Smith [1838] NSWSupC 11

insolvency, distinguished from bankruptcy

Supreme Court of New South Wales

Dowling C.J., Burton and Willis JJ, 24 February 1838

Source: Sydney Herald, 16 February, 1838[ 1]

Saturday. - In Banco - Before the three Judges.

Melville v. Smith - In this case a rule had been obtained calling on the plaintiff to shew cause why the proceedings in this case should not be stayed, the debt sued for having been due before the defendant was declared insolvent in the year 1831.  After Mr. Stephen had been heard the Court discharged the rule, being of opinion that under the Insolvent Act although they could protect the person of the defendant from being taken in execution they could not protect his goods.  Mr. Justice Burton said that it was certainly monstrous that after a defendant had been declared insolvent and delivered over all his goods to trustees for the benefit of the creditors, and the trustees may have neglected their duty in not collecting all the debts, that whenever the defendant by his industry acquires a little property he may be harrassed by any of his creditors who choose to bring an action against him, but under the old insolvent act such is the law.



[ 1]For a letter from the judges on an insolvent debtors and imprisonment for debt bill, see Sydney Gazette, 3 July 1838.

Published by the Division of Law, Macquarie University