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

Hart v. Metcalfe [1840] NSWSupC 86


Supreme Court of New South Wales

Stephen J., 10 November 1840

Source: Sydney Herald, 11 November 1840 [1]

Hart v. Metcalfe. - In this case Mr. W. Hart, Pitt-street, was the detaining creditor, and Mr. Metcalf, the cabinetmaket, was the insolvent; Mr. Windeyer for the opposing creditor, examined the insolvent as to his schedule, and the nature of his transactions with the plaintiff, when his Honor considered that it was his duty to remand the insolvent for a few days.

Willis J., 13 November 1840

Source: Sydney Herald, 14 November 1840

Mr. Metcalf, cabinetmaker, who had been remanded on the preceding Wednesday, in order to enable him to amend his schedule, which had been objected to by his opposing creditor.  Mr. Hart the auctioneer, was again brought up, when it appeared, that he had merely signed a carte blanche schedule, and given it to a young man to fill up.  From the statement made by Mr. Hart's counsel, it appeared that the insolvent had told his opposing creditor that he would never pay him, and would give him all the trouble in his power.  His Honor stated, that it was nothing less than trifling with the court, to put such a schedule on the file as there was not a word of truth in it; and recommended him to make a settlement with Mr. Hart, as there was no excuse for any person who had his health in this colony not being able to pay his lawful debts.  His Honor also informed the insolvent, that it was his intention, whenever he found parties insulting the court by putting false documents on the file and swearing to them, to deal with them in such a way as was most likely to suppress such an infamous practice.  The insolvent stated, that he had no means of paying the debt, amounting to nearly £60.  His Honor said, that it was evident that he could find the means of paying [LINE OMITTED] as liable as ever to pay the debt; under all the circumstances of the case, he should formally remand him for fourteen days, if, in the mean time the insolvent could enter into any arrangement with his opposing creditor, to pay by instalment or otherwise, his discharge would not be opposed; he considered it very bad taste, if not worse, on the part of the insolvent, to twit his creditor in the manner he had done by telling him he had consigned over all his effects, and would never pay him a farthing.  The insolvent said, he though that his son, the commander of a vessel in port, would become security for him during the day.  The opposing creditor said he had no objection to such an arrangement, and if it was done he was willing to forego the expenses of the two appearances; if the arrangement is not entered into in fourteen days, his Honor will entertain the question of costs.

            Counsel for the plaintiff Mr. Windeyer, attorneys Messrs. Chambers and Thurlow; counsel retained for the insolvent Mr. Foster, attorney Mr. Hayward.  The court then closed.


[1]              See also Australian, 12 November 1840, calling it the Insolvent Debtors' Court.

Published by the Division of Law, Macquarie University