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

McDermott v. McDermott [1840] NSWSupC 98

insolvency, gambling, imprisonment for debt, gambling debts, enforcement of

Supreme Court of New South Wales

Stephen J., 18 December 1840

Source: Sydney Herald, 19 December 1840

McDermott v. McDermott. - In this case the insolvent was Mr. John McDermott, late publican in the Forbes Hotel, corner of King and York-streets, while the opposing creditor was Mr. Henry McDermott, of the firm of McDermott and Dixon.  It appeared that the insolvent had been incarcerated by the plaintiff, for the sum of £159 19s. 9d., being the amount due him for goods sold and delivered to him while acting as landlord of the Forbes Hotel.  From the insolvent's schedule, it appeared that since the present action had been brought, he had passed money and property &c. through his hands to the amount of upwards of £1,100, most of which was still due him, and one half of the whole sum, was out in sums to three individuals; one of these three items was for the board, lodging, and attendance on a Mr. Aspinall, who was attended by two servants, had a couple of horses, and eleven dogs; the charge for boarding, lodging, and atttending[sic] on these was £297, which Mr Aspinall had neglected to settle before leaving the Colony.  The opposing creditor informed the Court, that he had no wish to detain the Insolvent provided he would disclose where the furniture was which had been removed from that place after the Insolvent had disposed of his lease of the premises.  The Insolvent stated that he did not know where it was placed, he had caused it to be placed in a store, but since then it had been removed, and he did not know where it was now, but it was not his as it belonged to his wife, being her property before he married her; he had also before that ceremony took place executed a deed of settlement, securing the furniture and the rest of her property to herself.  During the examination of the Insolvent, His Honor remarked that he thought a proper punishment for the manner in which he had conducted his business, would have been to have had him whipped; at the same time he thought as the Insolvent had shown that his wife was possessed of ample means to pay his opposing creditor, the best plan for him to pursue was, to disclose where it was, and allow the latter at his peril to touch it; as it was the Insolvent was remanded till Tuesday, in order to enable him to investigate where the wife's property was concealed, also to enable him to amend his schedule as to the money he had received from his wife, as well as to afford the opposing creditor time to produce witnesses to prove that the Insolvent's wife had the means of settling his claim, and to show where the property was concealed.

Stephen J., 22 December 1840

Source: Sydney Herald, 23 December 1840

MCDERMOTT v. MCDERMOTT. - In this case Mr. G. R. Nichols examined the insolvent, when he deposed as follows: - I did not make any enquiry at any person about the furniture; it was removed when I leased the Forbes Hotel to Martin the present landlord; the furniture was put into Newsham's stores by my orders after the present action was brought; the deed was executed before the marriage; I think the whole was removed from Forbes Hotel in October; I got the key of the store after the furniture was placed in it; I gave it to my wife, and about three weeks ago Mr. Barton told me that the things were removed; my wife visited me about three weeks ago in Carter's Barracks; she has been sick since then; I have seen Barton frequently since I have been in custody; it was about his own business; Thomas Howell the trustee under the deed of settlement, took possession by looking over the things in the Forbes Hotel; there was about £70 worth of furniture sold by my wife's orders; the money was expended in paying my debts I never bought any bank shares, nor of any public company; my wife has not bought any, nor have any trustees bought any for either her or me; the good will, fixtures, &c., of the Forbes Hotel, were sold to Thomas Martin for £175, for which I took Martin's bills and paid them over to Mr. S. Lyons in order to clear up a debt which was due to him; I have not lost any money by gambling since this action was brought; I bet on horse racing in April last, at Parramatta, and then I did not lose any thing, although, many persons thought I did.  I bet one hundred pounds on that race, when Browster, since dead, came to me and told me I would lose my money , on which he said if I would lend him £180, he would get me my money back, which he did; I paid the whole £280 away in order to clear my debts; it was my own horse I bet on; it has since been sold by the Sheriff; I have not played cards since I went to prisoner but last night, when I played a hand for fun; I had a watch which I gave to Mrs. McDermott; I never won a watch nor lost a shilling by cards; I have not had any thing in gaol but a glass of wine, which was bad Cape at seven pence per bottle; I had no plate; whatsoever property I had of that description, was settled on my wife before her marriage; I never heard that Browster, the sporting blacksmith, was dead; I am aware that dead men tell no tales; I did not lose above £4 10s. by the race as it was so managed that although I betted to the amount of £100, I got back my money.

            Mr. Charles Roberts, deposed, I reside in Castlereagh-street, Sydney, I keep race-horses; I recollect the race at Parramatta in the early part of the year; the insolvent challenged me to run his gig horse against mine for £100, the race was run, and he lost it, I got my £100 by a cheque on the Bank.  The insolvent told me he lost about £300 by that race; the sporting blacksmith told me he had gained about £45 by betting on my horse, and that the insolvent was a partner with him in that gain; I think the date of the cheque will fix when the race came off.

            Mr. George Bruce Barton, I am lodging at Vercoe's Temperance Coffee-room, I know the Insolvent and his wife; and assisted her in moving some furniture to Mr. Dalgarno's; I had visited him frequently in gaol, and told him that part of the furniture had been removed from Nesham's; I did not tell him where the things were removed to; I took goods to Bollard's at the bottom of Brickfield-hill; there was spirits, wines, &c., complete rubbish; I sold them to the landlord of the Woolpack; I gave the proceeds to Mrs. McDermott, the whole produced about £20; I thought the goods were the property of Mrs. McDermott, persuades to get a settlement made before her marriage.

            Mrs. McDermott deposed, I had some goods at Dalgarno's store, I believe they are there now; I never caused them to be removed from that place; I got several pounds from Mr. Barton; I claim all that is my right, whether property or expectancy as my own; Mr. Howell, never took any possession of the 25 head of Cattle named in the settlement; I claim them as mine, but I do not know where they are as they have been tossed about from one to another, they may have been lost; the plate has been disposed of by my husband; I don't know  who bought it, the watches are all sold and the proceeds have been expended. - Cross-examined Mr. Henry McDermott, knew of our marriage and told me that Mr. McDermott was a relative of his, and advised me to marry him; he also said that was a mere trifle that John McDermott was due him. - Re-examined.  Henry McDermott never told me that John McDermott was a crown prisoner nor did he ever advise me not to marry him.

            Mr. Broadhurst for the insolvent submitted, that at the time when the debt was contracted his client was labouring under a legal disability. 

            His Honor said he had carefully avoided giving any opinion on the case and would not have allowed the examination to have been carried so far as it had been but for the purpose of getting a full disclosure, and now when it had been made he left it to the plaintiff to decide whether he would proceed to levy on the goods, which had been traced to the store of Mr. Dalgarno.  He also enquired of the plaintiff's counsel (Mr. G. R. Nichols) what he wished to be done in the case.  Mr. Nichols submitted that he had brought forward ample evidence of the insolvent having squandered away his means, and also of his having been guilty of gambling since the action was brought, and therefore he felt himself justified in calling on the court to award such punishment as it might deem necessary.  His Honor said that he did not see anything in the evidence, that would warrant him in dealing with the insolvent for gambling, as to a wager about horse racing, he thought that provided it was a fair race, the sum won was recoverable like any other debt provided the race was a fair one.

            Mr. Nichols said that he differed in opinion from his Honor, as no money lost or won by racing or any other king of gambling was recoverable at common law.

            Mr. Thurlow of the firm of Chambers and Thurlow, as amicus curios, informed Mr. Nichols and the court, that he had maintained an action for a wager in the Supreme Court.

            His Honor informed the insolvent that he was still liable to pay the debt, and then discharged him.  The Court then adjourned.

Published by the Division of Law, Macquarie University