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

Peek v. Guist [1841] NSWSupC 97


Supreme Court of New South Wales

October 1841

Source: Sydney Herald, 5 October 1841


The plaintiffs in this action were the firm of Peek & Co., and a Mr. Leon, and the defendant George Guist, storekeeper and saddler, Richmond. The amount due to the plaintiffs was £200 12s. Mr. Thurlow of the firm of Chambers and Thurlow, examined the insolvent for the plaintiffs as to the facts stated in his schedule, from which it appeared that he had been upwards f seven years in business; his debts and liabilities amounted in all to about £1900, while his property which had been sold off by the trustees for the general benefit of his creditors had already realised £1296 2s. ¼d independent of which, there was upwards of £400 in book debts in the trust deed, the whole of those who had not had signed expressed their willingness to do so except the plainti[i]ffs. With respect to the filing the sham plea in the present action, the insolvent did so in order to get the deed of assignment executed so as to prevent any one of his creditors from coming in and seeping away the whole of the property from the others, while in his opinion all had an equal claim; but as soon as the deed of assignment was executed he directed his solicitor to give a re[t]raxit.

            Mr. J. H. WARD, from Mr. Staple's office, appeared to support the insolvent, and informed his Honor, that the plaintiffs were the only creditors who refused executing the deed of Assignment, although it was principally by their instituting and persisting in the present action that his client was compelled to declare himself insolvent, and that too at a time when his property even when sold by auction without reserve, realized upwards of thirteen shillings in the pound.

            His HONOR examined the insolvent as to the cause of his failure, which Mr. Guist attributed to his having largely embarked in discounting, which by reason of the pressing times became less profitable, and that at the same time it became more difficult for him to obtain the aid of discounts, the plaintiffs pressed their action, by which he was compelled to declare himself insolvent in order to let all his creditors come in equally.

            His HONOR suggested to Mr. Thurlow whether he would not be best promoting the interests of his clients by advising them to go in with the other creditors, as it was evident that Mr. Guist had made a full surrender and had no more to give up; besides, the estate had already realized an unusually large amount, so that they might, along with the others, receive upwards of thirteen shillings in the pound.

            Mr. THURLOW stated that he had no intention of opposing farther, and he had only done so in order to arrive at some facts for the satisfaction of his clients, who were prepared to go in with the other creditors now that these had been ascertained.

            The Court, previous to discharging the insolvent, expressed a wish that every insolvent who came before it would behave as well as Mr. Guist had done, as the manner in which his schedule was drawn up was highly creditable to him, as well as the manner in which he had acted, so as to promote the interest of all his creditors without preference, and his Honor was sorry that in doing this act of justice it had become necessary for him to appear before the Court.  He was then discharged.

Published by the Division of Law, Macquarie University