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

Ex parte McDermott [1839] NSWSupC 43

insolvency

Supreme Court of New South Wales

Dowling C.J., Willis and Stephen JJ, 29 June 1839

Source: Sydney Herald, 1 July 1839 [1]

 

Exparte McDermott -- Mr. Windeyer applied to the Court under the 10th section of the Insolvent Act, for leave to issue a writ of execution against William Long.  The section enacts, ``that as soon as any such adjudication shall be made for the discharge of any prisoner, pursuant to the provisions of this Act or Ordinance, all and every the estates and effects of such prisoner shall be immediately liable to be taken in execution on any such judgment or judgments, and sold by the Sheriff of the said Court, and the proceeds of such sale shall be paid to, or distributed rateably amongst the creditor or creditors of such prisoner at whose suit he or she shall have been imprisoned or detained in execution * * *  And if such creditor or creditors, as aforesaid, shall not be fully paid and satisfied, as well in respect of any such judgment or judgments as aforesaid, upon which such prisoner shall have been taken or detained in execution, as of all such necessary costs as the Court or Judge shall award; or if at any time after the discharge of such prisoner as aforesaid, it shall appear to the satisfaction of the said Court or Judge that such prisoner is able to satisfy such judgment or judgements, or that he or she is dead, leaving assets, the said Court or Judge may permit execution to be taken out on any such judgment or judgments, for such sums of money as under all the circumstances of the case of the Court or Judge shall order."  The affidavit upon which the application was made, set forth that in the month of June, Henry McDermott on behalf of himself and partners obtained a judgment against William Long for £480 2s. 11d , and that shortly afterwards a writ of capias ad satisfaciendum [2] was issued, under which Mr. Long was lodged in prisoner whence he was discharged under the Insolvent Act on the 5th November.  Since that time Mr. Long has become entitled to considerable property, and is now carrying on business as a merchant under the firm of Alexander Long & Co., the said Alexander Long being out of Sydney, and his name being used for the purpose of concealing William Long's interest in the concern.  The whole of the sum of £480 2s. 11d. is still [du]e, and Mr. McDermott believes that Mr. Long is able to satisfy the judgement, and that he would be able to obtain the amount if permitted by the Court to take out execution.  Mr. Windeyer drew the attention of the Court to the proviso at the end of the clause which enables the Court in case an application is vexatious and frivolous to award such costs against the party as it may think fit.  Rule nisi granted.

Notes

[1]  See also Sydney Gazette, 2 July 1839; Australian, 2 July 1839.  For other insolvency cases, see Sydney Gazette, 2 May 1830.

[2] The writ of arrest for debt on the final process, which initiated imprisonment for non-payment of a judgment debt.

Published by the Division of Law, Macquarie University