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

In re McKeon [1841] NSWSupC 3

insolvency - Carter's Barracks - imprisonment for debt

Supreme Court of New South Wales
Stephen J., 8 January 1841
Source: Sydney Herald, 9 January 1841


Friday. - Before Mr. Justice Stephen.
Humphrey McKeon, an insolvent confined in Carters' Barracks, applied for his discharge.
It appeared from the evidence of the insolvent (who was examined by Mr. G. J. Rogers) that he is a journeyman butcher and was formerly in the employment of Messrs. Rust and Co. who discharged him on account of his drunkenness. That he afterwards brought an action against Rust and Co. for breach of agreement, Messrs. Chambers and Thurlow having brought the action without any money; "no purchase no pay." The action was brought and a verdict returned for the defendant, it having been sworn that he was often drunk; he had paid his own attorney no money on account of the action, and before it was brought told Mr. Thurlow he had no money; he was confined in gaol for not paying the plaintiff's costs, and since he has been there has received no money except what his wife has earned by washing.
Mr. Rogers submitted that the applicant was not entitled to his discharge, as, in brining the action after he had been discharged for drunkenness, he must have known that he stood no chance of success, and consequently came within the clause which says, no person shall be discharged who has incurred a debt which he had no prospect of paying; besides which, he had evidently put his creditor to unneccessary and unjustifiable expense.
His Honor said that he did not think the case came within either of the clauses cited by Mr. Rogers; the defendant could not be said to have incurred a debt in the plaintiff's costs; and putting a creditor to unjustifiable expense means, by filing false pleas, so as to drive the action over the term, or, in some instances, even by forcing him to bring an action at all. If he had the power he certainly would have punished the insolvent for it was clearly proved that he had been discharged on account of his drunkenness and dissipation; and he had no right, after that, to bring any action and put Rust and Co. to expense and annoyance.
Mr. Rogers suggested, that, as the character of an officer of the court had been reflected on, it would be proper to remand the insolvent, in order to enable that gentleman to set himself right.
His Honor said, he did not think the character of Messrs. Chambers and Thurlow had been reflected on: insolvent told them that he had not been drunk, and they charitably enabled him to prosecute his righteous cause; there was no room to impute undue motives to them whatever.
Insolvent discharged. Court adjourned.

Published by the Division of Law, Macquarie University