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

Lyons v. Girard [1841] NSWSupC 109


Supreme Court of New South Wales

August 1841

Source: Sydney Herald, 23 August 1841

In this case the insolvent was opposed by Mr. MANNING, who, by a lengthened examination elicited the following facts from the defendant. He had been in the colony between eighteen and nineteen years, and had been in business during about sixteen years of that period; he was insolvent about ten years ago; after being then discharged, he paid every creditor in full, within eighteen months of the time when he was discharged: he still carried on business after that settlement, when all his creditors trusted him; about eight years ago the insolvent purchased the land on which he subsequently erected the mills which go by his name, he gave about £2,000 for that property; he subsequently obtained a loan of £4,000 from the Bank of Australia, and after that he purchased several other grants; the premises on which the mill stands were granted to his wife in August or September last, but he continued to build on it till about November; the property was always considered as belonging to the insolvent; the action on which he was in custody was brought in August last, but he did not then consider himself as being insolvent; when the deed of grant, in order to make good his title to the said land, was applied for, he believed the Attorney General recommended that the same should be made to trustees, but the Commissioners subsequently issued the deed of grant in his wife's name; he had executed a deed of assignment to trustees for the general benefit of his creditors, which deed he believed to be lost; he had been counselled by his legal advisers, to advise his wife not to execute any such deed, but the insolvent had advised her to sign such a deed; in November last the property was sold, and Mrs. Girard joined in the conveyance on condition that she was allowed £8,000 out of the purchase money; in July, such was the state of the insolvent's affairs, that he could then have paid his creditors 21s. if not 23s. in the pound, and even in October he could have done the same, provided the mill and premises were regarded as his; when the grant was applied for in Mrs. Girard's name, the insolvent did not approve of it, but finding that without he consented to this arrangement that no deed could be issued, he afterwards sanctioned the proceeding; it was not by the insolvent's advice that Mrs. Girard was to receive £8,000 for executing the deed of assignment; she consented to sign away the land provided she was allowed to retain £8000 of it, and she also agreed by the deed of assignment to give up £6,000 of that sum, to be applied to paying the insolvent's creditors, provided they would give him six years to pay them in full; the trust-deed was executed by one-third of the whole number of the insolvent's creditors, the total amount of whose claims amounted to two-thirds of all the debts due by him. In September last he paid the plaintiff £600, which was a part of his claim against the insolvent, but since then Lyons has brought five actions against the defendant, which were very expensive; the insolvent filed sham pleas to these actions in order to gain time, that he might sell his property to pay his creditors in full; he did not know who told his wife that she was entitled to the land and could make her terms with the creditors; it was his opinion that she had done so to protect the interests of their children, who to save expenses had been sent to the bush, where they have remained every since; the insolvent might have spoken to his wife respecting her rights, but he had no wish to keep the property from his creditors; he had advertised the mill property for sale; he did not then know that he could have obtained a grant made out to trustees for the payment of his creditors; if his creditors had not pressed and sued him as they had done, he was of opinion that he could have paid them all in full before this time; after the assignment deed was prepared, the insolvent told his wife to take it to Mr. Norton's; from that time he never saw it; her brother-in-law was an adviser of hers; he swore that he did not know where it was, that he had no reason to believe, nor did he believe, that the deed of assignment was destroyed, he thought that it was detained by some of the creditors in order to have it set aside; in his opinion, his wife's own good sense and judgment told her that she was entitled to the land; she knew what the insolvent owed; he thought she intended with the £8,000 to pay his debts, but at the same time, when the grant was issued in her name, I[t] gave her the power of doing as she pleased; it did not occur to the insolvent that after the deed had been issued in his wife's name that he could turn it to the benefit of his children, and it was not until the property was sold, in order to give a valid title to the purchasers' that Mr.Norton suggested [that the grant should be made out] in her name, and if it had been intimated to the insolvent that instead of its being granted to his wife, the same should have been made to trustees for the benefit of the creditors, he would have applied for it to have been so drawn up as he felt convinced that by its being so his creditors might have been paid in full within six years; at the same time, had the property been sold at once, the whole would have been sacrificed at probably one-fourth of its present value; his property if sold then would have paid his debts, but have left nothing to himself, as the market value of the property would just have met the insolvent's debts; it was by his advice that his wife was to give up the £6,000 for the benefit of his creditors, and it was his opinion that she would not have given up the £8,000 to pay his creditors, even if had asked her to do so; at the same time, it was not by his desire that she refused to do so, and before the conveyance to the Flour Company she made the offer of her own accord to give up £6,000 for his creditors provided they would allow six years to make a final settlement; he was living in the rules, the times he allowed was not at the suggestion of the insolvent, but so far as he knew, her own suggestion, he thought that he had since heard that she at first asked ten and not six years. In September last he paid £600 to Lyons, and £400 to Captain Dacre; he could not pay any more just then. The Insolvent's ledger was badly kept, and he had no cash book; he had done very little business since September, nor did he recollect of any large sum paid since then or about September; the cattle then bought were from Mr. Johnstone, and the insolvent did not pay for them. The insolvent owed about £12,000 in all, and he had sold about £5,000 worth of other property, besides those adverted to, and of which the proceeds were employed in paying the insolvent's debts. The promissory note on which the plaintiff had sued him in the present action, was for £52, being the price of some sugar for one of his vessels, and when that note was given, he had no intention of selling his property. The bills due by the insolvent to Mr. Jones, were given before August, and were for the balance of Mr. Hayes' running account of eighteen months. By the deed of assignment the whole of the property was to remain in the possession of the insolvent. He was of opinion the deed of assignment was signed by both the trustees, and since it had been lost, he had declared his willingness to sign another; the insolvent had ultimately persuaded his wife to give up the £6,000, and in doing so, he was influenced by Mr. Ryan, one of his creditors, who pointed out, that, if the terms were acceded to, he would be able to pay his creditors in full within six years, and he thought Mr. Ryan had signed the deed, but if he had not signed it, then two-thirds of the whole claims of the creditors had not been signed for, as Mr. Ryan was a creditor for £1,800. He had heard from Capt. Dacre, that Ryan had since then issued execution against the property. About three weeks ago, the insolvent gave Ryan a warrant of attorney, and another was also given to Capt. Dacre. He had not spoken to Ryan for six years, but through Mrs. Girard. Ryan had in that period frequently assisted the insolvent, and as an instance of his having done so, the insolvent mentioned that Ryan had mortgaged some houses to raise money to aid him; and if he took into account the liabilities which Ryan was under for him, he thought his claims were not les than £3,400. It also appeared that on the 1st December, £8,000 was received for the sale of the mill property, that on the 7th December, he mortgaged some property, which was not, however, carried into effect till about the beginning of February, just before the assignment was made for the benefit of the insolvent's creditors.

            Mr. HUSTLER, who appeared for the insolvent, examined him on the following points, viz.: that the Government had objected to the grant being made out in his own name, nor did he know that Mr. Norton had afterwards asked it to be made out in his wife's name by the insolvent's approval. When insolvent went to the Colonial Secretary for the grant, he was told he could not have it without her consent, or her order; he did not know where the deed of assignment was, but he suspected the plaintiff had it, as he had never seen it since Mrs. Girand took it to try to get the plaintiff to sign it. The insolvent had been trying to get out of business without becoming insolvent. - He did know that he had pleaded in the present action - it was left to his attorneys: all the insolvent wanted was, time to settle with his creditors in full, and it was at his request that Mrs. Girard gave up the £6,000 to effectuate the arrangement, and since February last Ryan had paid at least £1000 for the insolvent.

            In the cross-examination it was admitted that part of Mr. Fattorini's bills went to defray the expenses of the brig, and the rest was applied to carry on the insolvent's concerns for the general benefit of his creditors.

            After Mr. MANNING had replied on the evidence given by the insolvent.

            Mr. HUSILER addressed the court on his behalf, and insisted that there was nothing in the conduct of the insolvent which brought him under the meaning of the 7th clause of the act, which was the only one on which the plaintiff insisted to have him remanded on.

            The case was then adjourned till the following day (Saturday) to enable his honor time to look over the correspondence with the Colonial Secretary, as well as to examine Messrs. Norton and Ryan, which was done on Saturday at great length, when his honor stated that he was clearly of opinion that no trick, contrivance or fraud was established against the insolvent, and that although he had during the progress of the case expressed an opinion that in fairness to the rest of the creditors, Mrs. Girard's claims should be postponed, yet that matter was not at present before the court and he therefore ordered the insolvent to be discharged, previous to which Mr. Platt was appointed assignee.

            Counsel for the plaintiff, Mr. W. M. Manning; for the defendant, Mr. Hustler and Mr. Goddard.

September 1841

Source: Sydney Herald, 25 September 1841


Mr. GODDARD applied to the court for the discharge of the defendant out of the custody of the sheriff by writ of supersedeas, on the ground that the plaintiff had not proceeded to charge him in execution within one month after the signing of final judgment. The defendant had been arrested under the act for the abolition of imprisonment upon mesne process, and the plaintiff after signing final judgment had issued writs of fieri facias against the defendant's chattels returnable in three months. Mr. Goddard relied, in support of the application, upon the 85th and 87th colonial rules of he court, and Mr. Want, for the plaintiff, argued that according to the strict terms of the rules of court, they were not applicable to the case before the court. In reply, it was insisted for the defendant, that the case came within the meaning and spirit of rules cited, and that he had been treated with unnecessary harshness and severity by his detaining creditor. His Honor said that he should give his decision on Monday next, and if he possibly could discharge the defendant under the rules cited, he should certainly, under all the circumstances of the case, do so.



Mr. Goddard made similar applications in these actions, which will be decided by His Honor's judgment in the preceding case.

September 1841

Source: Sydney Herald, 28 September 1841


This was an application by Mr. Samuel Lyons, a creditor of the defendant Girard, for a similar purpose with that in the preceding paragraph. Mr. Manning supported the application on the grounds, that the summons was not in the form prescribed by the rule of Court, as it did not mention the hour when his client was to appear, besides the summons had been signed by his Honor, instead of by the Chief Clerk, as required by the present practice.

            His HONOR said, that the reason why he had signed the summons was, that the Chief Clerk was unable from indisposition to attend his office, but he was of opinion that any summons signed by a Judge was valid, and could not be objected to, because it was signed by him instead of the Chief Clerk. But as the summons did not specify the hour when the defendant to the application was to appear, he should not at present comply with the application, which was discharged; at the same time a fresh summons was directed to be taken out.


13 November 1841

Source: Sydney Herald, 15 November 1841




THIS was an application by Mr. Windeyer to set aside a Judge's order which had been obtained for setting aside a judgment on a warrant of attorney, on the ground that no affidavit of the sum due, had been previously made by the plaintiff.

            The application was opposed by the Solicitor General and Mr. Broadhurst, on the ground that the matter had already been disposed of, and that the applicant had been too tardy in coming to the Court.

            Mr. WINDEYER contended that his learned friends could not avail themselves of the above objections, the writ of execution having been returnable before the above-mentioned order was obtained. The affidavits in the case were very long, but containing no matter of the least public interest, we do not feel it necessary to set forth any part of their contents.

            It was suggested from the bench, that it [LINE OMITTED] failing, their Honors deferred their decision until Saturday, to give the parties some further opportunity of coming to an arrangement, which would be more likely to secure due justice to all parties, than deciding on the strict law of the case, on the present occasion.

November 1841

Source: Sydney Herald, 22 November 1841


The Court having previously deferred judgments in this case, to give the parties an opportunity of coming to an amicable adjustment; the CHIEF JUSTICE now enquired whether any such adjustment had been agreed to, and being answered in the negative, his HONOR said that the case would stand further postponed until the 1st day of next term, that if possible some amicable compromise might effected.

Published by the Division of Law, Macquarie University