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

Insolvency Rules [1840] NSWSupC 87


Supreme Court of New South Wales

Stephen J., 14 November 1840

Source: Sydney Herald, 16 November 1840

During the progress of the business his Honor remarked that he was glad to see one of the gentlemen connected with the Press present, and expressed a hope that he would give publicity to the rules and forms which it was indispensible that every insolvent applying for his discharge must comply with.  In compliance with his Honor's suggestion we have appended the following abstract of the Insolvent laws, and a copy of the forms, for the benefit of all concerned.

Proceedings under the Insolvent Act.

1.  The insolvent must carefully prepare a schedule in the form prescribed.  He must fill up the several blanks in this with great accuracy.  Any material error, or omission, in this respect, will subject him to be remanded.

2.  He must make at least two copies of such schedule.  These should be carefully examined and compared by some competent person, by whom they must afterwards be served, as under mentioned.

3.  He must file the original schedule in the Supreme Court office, where he will obtain a rule for his being brought up.  If his detaining creditor reside at any considerable distance, or there be more than one detaining creditor, the insolvent may apply (when he files such schedule) that service on such creditor or creditors be dispensed with.

4.  One of the said copies, with a copy of the rule, must be forthwith served on the plaintiff's attorney; such service must afterwards be proved on oath.  A copy of the rule must be served, also, on the gaoler.

5.  Unless service on the creditor shall, on the application abovementioned, have beendispensed with, the insolvent must cause a copy of the rule and schedule to be also served on such creditor.

6.  All papers, deeds, account books, or other writings, relating to the insolvent's property must be filed with the schedule.

7.  The schedule and copies must be written in a plain legible hand, and the insolvent must be cautious as to the contents; for he will be required to swear that they are true.  He must insert in his schedule every description of property whatever (whether in possession or only in expectancy), to which his creditor can, by possibility, have recourse for satisfaction of his debt.

8.  The person who serves the copies should appear in Court on the day of hearing, that he may prove when they were served and how.  They should be served four days before the hearing, at the least.

9.  If the attendance of any witnesses be required, either for or against the insolvent, a judge's order may be obtained for such attendance.

10.  From the time of filing the schedule all the insolvent's property and effects, of whatsoever kind, rest in the detaining creditor or creditors, subject to the orders of the court or presiding judge.  The insolvent must come prepared, however, not only to account for all his present effects and property, but also for any that he may, have disposed of or made away with.

11.  If, on the hearing, it shall appear that the insolvent has fraudulently destroyed, or withheld any book or writing, or made any false entries in any of his books, orconcealed any debt, or fraudulently made away with or made over any of his property, he is liable to be imprisoned for (not exceeding) three years.

12.  If he shall have contracted any debt fraudulently, or by any false pretence, or without having a reasonable expectation of being able to pay, he is liable to be imprisoned for (not exceeding) two years.

13.  If he shall have culpably squandered his means, or put his creditor to anyunjustifiable expense, he is liable to imprisonment for (not exceeding) one year.

14.  If the insolvent have really not means wherewith to maintain himself, he may apply (under the 6th Geo. IV., No. 8) for an order for a weekly allowance, which the detaining creditor may be compelled to pay him.

Form of affidavit of service.

In the Supreme Court of New South Wales.

In the application of _________, confined in the

debtor's gaol in execution at the suit

of ______

______of_____maketh oath and saith that on ______ the ______ instant he served a true copy of the annexed rule in this case, and also a true copy of the insolvent's schedule, upon Mr.______the plaintiff's attorney, by leaving such copies at his office in ____street, and shewing him at the same time the said original said rule.  And this deponent on the same day served a copy of the said rule upon the keeper of the debtor's prison.  This deponent further says that on ______ the ______instant he served a true copy of the rule and schedule respectively on the above named plaintiff by _______

Sworn in open Court this ________ day of ________18   .

Rule of Court.

In the Supreme Court of New South Wales.

In the matter of the application of ______,

now confined in the debtor's gaol in Sydney,

in execution at the suit of _____

seeking the benefit of the act passed

for the relief of insolvent debtors.

Upon reading the schedule of the above named debtor, this day filed, it is ordered that the matter of this application be heard in this honourable Court, at the Court house in King-street, in Sydney aforesaid, on ______next the ______instant, at ten o'clock in the forenoon.  And it is ordered that the keeper of the said debtors' gaol do bring up the body of the said ______at the time and place aforesaid, to be then and there examined touching such schedule.

Published by the Division of Law, Macquarie University