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

In re Doyle [1839] NSWSupC 37

insolvency - imprisonment for debt, abolition of

Supreme Court of New South Wales

Stephen J., 25 May 1839

Source: Sydney Gazette, 28 May 1839[1] 

Henry Doyle, late of King-street, tailor, applied for his discharge. He was opposed by Mr. Rogers on behalf of Mr. Moses Brown, of George-street. The opposition was on this ground, that the insolvent had not inserted in his schedule certain goods that he was in the expectancy of receiving from England, and that he had fraudulently altered the date of a receipt of some goods sold by him. From the evidence it appeared that about two years since the insolvent had received from his father, who at that time was alive and resided in England, a promise of a present of certain goods, the value of which was not specified. Since the promise was made the father died, but Doyle said he expected his aunt would carry out his father's intentions. In his application to his creditors, the insolvent had mentioned his expectancy. His Honor was of opinion that the matter did not come under the meaning of goods in expectancy. The application of Doyle was then opposed by Mr. Thurlow on behalf of Mr. Appleton, on the ground that the alteration of the date of the receipt was done with a view of defrauding his creditors. It appeared that a sale of furniture had been made by Doyle to a Mr. Grove, subsequent to the commencement of the action, and that the date of the receipt given in consequence had been put back. Mr. Justice Stephen was clearly of opinion that the erasure of the date was fraudulent, but he was not so clear on the point that it was done with the view of defrauding the creditors. He said the insolvent from what had appeared of him in Court was a very stupid man, and altogether unfit to conduct a business. He ordered him to be remanded for a fortnight, with the view of enabling him to amend his schedule.

 

Notes

[1]  See also Australian, 28 May 1839.

See also Sydney Gazette, 21 May 1839, arguing that imprisonment for debt on the mesne process should be abolished except where the debtor was about to abscond from the colony.  That is, all actions with this exception, should be commenced by summons.  The newspaper noted that a similar law had been passed in England recently. 

Until these reforms, actions for all but very small debts were commenced by the arrest and imprisonment of the defendant.  The newspaper was no doubt referring to (1838) 1 & 2 Vic. c. 110.  See B. Kercher, ``The Transformation of Imprisonment for Debt in England, 1828 to 1838" (1984) 2 Australian Journal of Law and Society 60.

Published by the Division of Law, Macquarie University