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

Ferris v. Kingsbury [1841] NSWSupC 87


Supreme Court of New South Wales

September 1841

Source: Sydney Herald, 9 September 1841


This defendant had been several time before the court, and had been lately remanded to amend his schedule, to produce his books, and to allow time for Mrs. Frazer, a material witness, to be brought from Singleton.

            Mr. THURLOW, who appeared for the plaintiff, Ferris, examined the insolvent at great length, as to several large sums mentioned in his schedule as having been paid away by him since the commencement of the action, and elicited from him that he had subscribed £50 towards the erection of a Church, and had paid the same in labour and materials, also that he had paid £20 to the Wesleyan schoolmaster, for which sum he had received contributions and that he had paid £8 8s. to the Rev. Mr. Hetherington, the Presbyterian Minister, being the amount of three-quarters school-fees, with the amount due for books, &c., on account of the boy Crampton, whose mother was dead, and whose father, by losing his ticket-of-leave, had been turned into Government. The insolvent was Crampton's Guardian, and for his support received the rent of Lumley's Public-house, £100 per annum. This boy was about ten years of age, and had a number of cattle which the insolvent had the management of. He denied every having kept Mrs. Frazer, on the contrary, he was a lodger of her's, and she rented one of the insolvent's houses, which had since the commencement of this action been sold under execution by the Sheriff. He also admitted that since the action had been brought that he had paid away about £1260, a considerable portion of which had been to parties who had not sued him, but he denied having resisted the plaintiff Ferris's claim for £26. Mr. Thurlow submitted to his Honor that the defendant had squandered away his means, and ought therefore to be punished in the manner pointedout by the insolvent law of the Colony.

            His HONOR remarked that it was a very suspicious circumstance that the insolvent should have paid away so large a sum as £1260, and part of it to parties who were not suing him, while he could not find £26 to pay the plaintiff. It was all very well for parties to subscribe to the building of churches and schools when they could do so without injuring those who had claims upon them; but it was not acting honestly to do so while they had debts to pay. He should remand the insolvent to the same custody in which he then was for one month, at the end of which period he would be discharged. He did so in the exercise of that discretion which the law vested in him. With respect to the present insolvent law he regarded it as a blot on the commercial character of the Colony, it was unconstitutional in some points and he was surprised that it had been continued among our Colonial statutes after the remarks which his Excellency had made on it in Council two years ago. There were some parts which he felt the utmost repugnance in carrying into execution, particularly those respecting punishing the insolvent for what he might honestly disclose against himself, while under examination by the party who placed him in custody. The insolvent was then remanded for one month, and ordered to be discharged at the end of that period.

            Mrs. Frazer, who had been compelled by a subpoena to attend the Court in the above case, applied to his Honor to have her expenses in coming from Singleton allowed when his Honor informed her that he had nothing to do in the matter, the only plan for her to pursue was to demand from the party at whose instance the subpoena for her attendance had been issued.

Published by the Division of Law, Macquarie University