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

In re Bent [1840] NSWSupC 92

imprisonment for debt, insolvency, sham plea

Supreme Court of New South Wales

Stephen J., 23 November 1840

Source: Sydney Herald, 24 November 1840

Mr. A. Bent, who had been incarcerated on account of the non-payment of a bill of which he was the indorser, and from the proceeds of which he had received no benefit, applied for his discharge on the ground that he had no real or personal estate, having filed a schedule containing a true statement of his affairs; he was opposed by his incarcerating creditor, named Malcolm, principally on the ground that when the action for the recovery of the value of the bill referred to was brought, the insolvent filed a sham plea, by which he was put to unnecessary expense.  The insolvent swore that this plea had been put on the file in order to enable the party who had the proceeds of the bill to retire it; that individual being a member of the insolvent's family.  The insolvent also deposed, that he had made every exertion in his power to secure the plaintiff, by sending him early information of the arrival of some cedar forwarded to Sydney for sale by the party who had previously received the proceeds of the bill.

            His Honor was sorry that under all the circumstances of the case, the fact of filing a sham plea had been brought under his notice in Court; he did not think that the insolvent had filed it with any culpable intention, but still he was determined to stop this loop hole, and prevent any debtor from temporising with his creditor, although, in his view of the case, the manner in which this insolvent was pursued by his creditor appeared to be strict, if not severe and harsh.  Yet he could not, even in such favorable circumstances, avoid showing the displeasure of the Court at the filing of sham pleas, and if the opposing creditor insisted he must remand the insolvent, at the same time he did think that the latter had given a fair and honest account of his affairs, and but for the filing of the sham plea would have been entitled to his discharge.

            Mr. Yarnton, for the insolvent, submitted to his Honor, that the plea was filed before the present insolvent act was in force, and which act gives the court the power of punishing for so doing, and therefore it would be an hardship on the insolvent to be punished, and he trusted that the shortest term of imprisonment would meet the just of this case.

            His Honor said he did not mean to say tha[t] any offence was attributable to the present insolvent, but, as the court was determined to check the filing of sham pleas, he should take every means in his power of convincing all who came before him of their inutility; as it was quite enough for creditors to lose their principal, without being also subjected to unnecessary expenses.  His Honor also stated, that by the law of England, every debtor when placed in custody for debt, was liable to be detained until that debt was liquidated; but the law had lately been ameliorated so far, that, if a fair surrender was made, and no vexatious proceedings had taken place before that surrender, then the insolvent might be discharged.

            Mr. Poignand stated that if his Honor was convinced that a fair surrender had been made in the present case, he had no wish to press the matter farther than to secure his client's interests.

            His Honor thought the disclosure had been truly and fairly made, and as far as that went set the matter at rest; as to the filing of the sham plea, he should take time to consider of it - and then ordered the insolvent to retire from the box.  He was afterwards called up and informed, that as the detaining creditor did not carry out his opposition, he was discharged; but had he pressed the filing of the sham plea against him or even given evidence of its being on the record, he should have felt bound to punish him; as it was, he felt happy on account of the number of children who were dependent on the insolvent for subsistence, as well as from what he knew of Mr. Bent's character, to be enabled to discharge him.

Published by the Division of Law, Macquarie University