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

Peek v. Hooper [1841] NSWSupC 76

insolvency - felony attaint, judicial attitude to - imprisonment for debt

Supreme Court of New South Wales

Stephen J., 23 July 1841

Source: Sydney Herald, 26 July 1841




The insolvent in this case had been several times remanded to amend his schedule and to allow inquiry to be made after some witnesses for the plaintiff. He was again brought up on his petition, when he stated that he attributed his insolvency principally to his having taken an unprofitable lease of a farm from a Mr. Holmes, on which he had expended upwards of £400, and had since then considered it most advantageous to get clear of the lease by returning it to the proprietor, who he thought had favoured him by taking it back and allowing him £16. The insolvent also deposed that his own farm of about two hundred acres, at Bankstown, had cost him £1040 as the purchase money; besides, he had since then expended upwards of £400 on it for improvements, and had subsequently mortgaged it for £700, but he had an offer of upwards of £100 for the title-deeds over and above the sum for which it was mortgaged, Mr.THURLOW who appeared for the plaintiff contended that as the insolvent had in his presence promised to pay his client in a week from the time they met in his office, and instead of doing so had squandered his means by presenting a horse and cart to a woman he was living with, he should be remanded, especially as had he also thrown up the lease to Holmes under circumstances which had at least the appearance of a fraud. Another reason why the insolvent ought to be remanded was that in a case brought against him by a person named Kennett, he had pleaded convict attaint, in order to avoid payment. His Honor said that with regard to the filing of this plea, however much it was censurable, yet as the law had allowed him to file it, he should not punish him for that; he also considered that the new facts of the case which had been brought out in regard to his conduct to Mr. Peek was highly improper, and this was, in his opinion, highly aggravated by his placing a kept woman in a position superior to that which it would be possible for a married woman to occupy. He felt it his duty to make these remarks as it was the duty of the Court to protect honest creditors, as well as punish debtors who, as in the present case, squandered their means, and at the same time deceived their creditors by getting them to act mercifully towards them, and afterwards making over their property to others who had claims of a more questionable character. In the present case, the only mitigating circumstance,was that the insolvent had subsequently apologised to Mr. Kennett, for having put the plea of convict attaint on the file. He also took into consideration that the insolvent had already been remanded three several times, and therefore the punishment which the Court should award, in the present case, would be much more lenient than it would otherwise have been, particularly as the insolvent's appearance and his time of life were such as led the Court to believe that the remarks which had been made would produce a salutary effect upon him. He was then ordered to be placed in custody of the Sheriff, in the common gaol, for fourteen days.

Published by the Division of Law, Macquarie University