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

Sherwin v. Green [1841] NSWSupC 115

insolvency - imprisonment for debt

Supreme Court of New South Wales

Burton J., 1 December 1841

Source: Sydney Herald, 2 December 1841


WEDNESDAY. - Before Mr. Justice BURTON.

            The defendant in this case had been remanded by Mr. Justice Stephen on Saturday last, on the ground that he had no affidavit of service, he had now complied with the order of the court, and had also served a copy of the rule on the gaoler, as he had been directed to do by the court. When being sworn to his schedule, he deposed that he had been living in the rules since the 12th of last month, when he was taken into custody for about £27, the amount of the plaintiff's claim, which had been originally only £17, the other £10 being the plaintiff's expenses. Having some business in the Sheriff's office, he went there on the day when he was taken in execution. Mr. Prouttold him that he had just received a writ against him, and detained him till he obtained satisfactory bail. Since then he had gone voluntarily to the debtor's prisoner for the purpose of pointing out the gaoler to the man he had employed to serve the rule on the keeper.

            Mr. YARNTON, who appeared for the plaintiff, submitted that the insolvent was not in a condition to be discharged, as it was necessary by the Act that before an insolvent living in the rules could claim his discharge that he should, after being taken into custody, be at least some time in gaol.

            His HONOR overruled the objection, on the ground that the insolvent was in custody.

            Mr. YARNTON then submitted to the Court that the insolvent must be remanded, as he had been in the habit of living extravagantly and giving champagne suppers.

            The insolvent denied these assertions on oath, as he never had purchased any champagne since he came to the colony. The only liquor of that description which had been in his house was a case which a friend of his, since dead, had presented to Mrs. Green.

            His HONOR inquired if the insolvent had no means of arranging to pay the amount by instalments, but he had no means of fulfilling any such engag[e]ment.  He was willing to give a warrant of attorney to pay the whole as soon as he was able, but Mr. Yarnton had no authority from his client to make any such arrangement. He called the attention of his Honor to the list of wearing apparel, &c., which the insolvent had filed with his schedule, to the amount of £33, whereas, by the law he was not entitled to retain more than £20 worth.

            Insolvent expressed his willingness to give up the excess; and having consented that the plaintiff should be appointed trustee, and also given his consent, that should the verdict be in his favour in a cause about a verandah, that the plaintiff should be paid out of the proceeds, his Honor immediately ordered him to be discharged.

            Before he left the Court Mr. Green tendered his watch as part of the surplus property in his schedule; but his Honor suggested to Mr. Yarnton that it was a pity to take it from him at present, as it was necessary to him in the prosecution of his calling, and it was probable that some of his friends might pay the value of it for him; besides, as the property had passed to his client as trustee, the watch was secured to his client as trustee, the watch was secured to his client should he insist on its being sold.

            Mr. YARNTON acted on his Honor's suggestion, and allowed the watch for the present to remain in Mr. Green's hands.

Published by the Division of Law, Macquarie University