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

Jones v. Raye [1841] NSWSupC 52


Supreme Court of New South Wales

Stephen J., June 1841

Source: Sydney Herald, 19 June 1841


            BEFORE Mr. Justice STEPHEN.

            Jones v. Raye. The insolvent in this case was Mr. Bolter Raye, a settler who was in the habit of residing occasionally at his stations in the vicinity of Yass, Gunderoo, and Queenbeyan. The opposing creditor was Mr. David Jones, of theManchester warehouse corner of George-street and Barracks Lane. It appeared that the insolvent had contracted a debt of between £200 and £300 to the plaintiff, principally for slops; also that after the same were supplied and before the action was brought, that the insolvent was subjected to the loss of several thousand pounds in consequence of his sheep being seized with cattarrh and his not yet having receiving the returns of his shipments of wool.

            From the examination of the insolvent by Mr. Foster for the plaintiff, it was made apparent that he had been in the practice of keeping stores at his different stations where slops and other necessaries were sold to the persons employed on the respective establishments, and that in consequence of the losses which the insolvent had been subjected to he felt himself necessitated to make an assignment of the whole of his property to Mr. Gore, merchant, Sydney, for the sum of £5000, which had been advanced to the insolvent in money, goods, and securities, of which the insolvent's books contained the details.

            Mr. FOSTER, for the plaintiff, contended that the insolvent ought to be remanded, as independent of his having failed to insert the whole of his property in the schedule particularly fifty-two bales of wool, he had executed the deed of assignmentso lately that it was impossible for his Honor to decide that it was a bona fide act on the part of the insolvent. He also contended that the insolvent's connection with Mrs. Jackson was of such a nature as to warrant the Court in remanding him until the plaintiff was furnished with a statement of the transactions between them.

            After Mr. FOSTER had closed his address, His Honor said that the only pointon which he felt any difficulty, was, as to the non-production of the insolvent's books, which in his opinion was imperative, according to one of the clauses of the new Act.

            Mr. BROADHURST who appeared for the insolvent, was of opinion that as there had been no books mentioned by his client in his examination, the plaintiff had no right to call for their being produced. With respect to the defendant's transactions with the widow Jackson, he thought that was not before the Court, as there was no evidence to show that he had ever acted in any other capacity than as her agent; besides, when the insolvent had proved, that part of the slops had gone from his store to the widow Jackson's, he had also deposed that she was one of his creditors to the amount of £2000 and upwards.

            HIS HONOR considered that there was no ground for remanding the insolvent for fraud, or any thing at all impeaching his character; but at the same time, as the Act had not been complied with, thought that it was his duty to remand the insolvent until the books had been produced; but while he did so, he saw nothing in the Act which could prevent the insolvent from given security that they would be produced, and if that was done he might be forthwith discharged. The defendant informed the Court that he could not have the books in Sydney sooner than three weeks, and that he considered it a hard case that he should be kept in custody during such a long period. It was ultimately arranged that, should the plaintiff be satisfied, the defendant might be discharged.

Published by the Division of Law, Macquarie University