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

Welsh v. Ximines [1841] NSWSupC 45

insolvency - imprisonment for debt - gambling

Supreme Court of New South Wales

April 1841

Source: Sydney Herald, 10 April 1841

EDWARD WELCH V. HENRY XIMENES. - The insolvent in this case, was in execution[1] for the sum of £143 11s. 9d. balance due upon the purchase of a horse. Mr. George Allen appeared to oppose on the part of the plaintiff, and maintained that the insolvent must be remanded, on the grounds that his schedule was not served in time, but His Honor overruled the objection, for upon referring to the Act, it was there stated, that the plaintiff should have at least three day's notice, and the insolvent had given three days', though not three clear days' notice, as it had always been usual to do; but His Honor remarked, that in every case similar to this, if the schedule was not served three clear days before hearing, upon the application of the plaintiff for further time, he would allow it. To prevent waste of time, His Honor told the insolvent that he was not in a position to take the benefit of the act, for it appeared on the face of his schedule, that his assets amounted to a considerable sum, he had put down £150 for the sale of his commission, £1500 supposed to be in the funds and "expectancy" of £13,000 per annum. Besides, he should have been obliged to have remanded him to amend his schedule, which he had worded in a very loose manner; he ought to have given a more satisfactory and particular statement of his effects, instead of putting down "commission supposed to be sold," "money supposed to be in the funds." Insolvent might argue his case, if he desired, he had no doubt his professional adviser would tell him, that he was not in a situation to take the benefit of the act. His Honor concluded by cautioning the insolvent, "that he had hitherto made it his rule of conduct, and which he would always abide by, that if a gentleman, or any body else, came into this Court to take the benefit of the Act, and before he gave any one that benefit, he should make it his particular enquiry, and it should be proved to his satisfaction, that they had not wilfully squandered away their property, and that they have expended every shilling to pay their creditors." His Honor dismissed his petition, on the ground that the schedule disclosed more assets than the liabilities, and therefore petitioner is not insolvent.

Burton and Stephen, May 1841

Source: Sydney Herald, 22 May 1841

            Before Mr. JUSTICE BURTON and Mr. JUSTICE STEPHEN.

            Welsh v. G. Ximenes, Cohen & Anr. v. Same. - In these cases, which had been heard before Judge Stephen, the insolvent had been remanded, in order that his Honor might have an opportunity of consulting his brother judges on the case; and also to allow time for the parties, if possible, to come to an amicable settlement of the affair. This not having taken place, his Honor read over his notes on the case, embodying the previous examinations of the insolvent, and the arguments thereon.

            After the evidence of the case had been read over by Mr. JUSTICE STEPHEN.

            JUDGE BURTON said he had paid attention to the whole of the case, as it had been gone over by his learned brother Stephen, and had also taken notes of it; and from all that he had heard, he could see nothing in the proceedings which could prevent the insolvent from receiving his discharge. It was evident enough that he was a young man, who, since his arrival in the colony in August last, had been going on, up till the time he was incarcerated, in a course of most reckless and foolish conduct, so much so, that he did not believe that any other person in the colony would have been guilty of it. When he arrived here from England he brought £1,000 with him, a sum which, with prudent management and honest industry, in a few years might have placed him in honourable independence; but instead of this he sets up a course of reckless extravagance, by purchasing race and other horses, embarks in gambling and horse racings, and afterwards sells these horses to pay those bets which he had lost at races. According to the present state of the insolvent laws there were but two grounds on which the insolvent could be prevented from having his discharge:- 1st. It must be shown that he has made a fraudulent representation of his circumstances, in order to induce persons to give him credit beyond his means of paying; or, 2ndly. It must be made out that he has fraudulently squandered his means since the debt had been contracted. With regard to the first of these grounds of opposition, it did not appear that he had made any fraudulent representation of his circumstances. It might be true that he had represented himself as belonging to the 16th Lancers, while in fact he only belonged to the 16th Foot; or it might be that on being enquired of as to the regiment, he may have replied the 16th, which would have applied either to a regiment of Infantry, Lancers, or Dragoons. Besides, it was not shown from the difference of the pay between service in the 16th Foot and that of the 16th Lancers, that such a representation would be calculated to aid a fraud which came within the meaning of the Act. With respect to the second ground of opposition, viz. - that of having fraudulently squandered his means. It was evident that the insolvent had done so. The whole question then before the Court was, had it been done fraudulently. Now it was quite apparent that the insolvent had been a very foolish, indiscreet, extravagant young gentleman, who had squandered his means by gambling, horse-racing, and betting; but then on looking at all the circumstances of the case, it had the appearance of having been from first to last a gambling transaction between the plaintiff and the defendant. The plaintiff was not so pure himself, for it appeared on the face of the proceedings that he had gambled with the defendant. He was, from the very fact of his having made and won bets from the defendant, cognisant of his habits, and of the line of conduct he was pursuing. On looking at the wording of the Act he had to ascertain the meaning of the term fraudulent, there was no doubt but in a moral sense the insolvent had been guilty of a culpable squandering of his means, he was evidently a spendthrift, but then the law does not make spendthrifts criminally culpable for such acts as are alleged against he insolvent. Were the present case that of a tradesman who had a business to attend to, and who instead of attending to it, had gone to gambling-houses, and there squandered the means which ought to have been devoted to paying his workmen for their labour, and his creditors for their property, their case would have assumed a very different appearance, but the case before the Court was one of a very different kind; and, therefore, however culpable the insolvent may be in a moral point of view, he did not think that any ground had been shown which could prevent him from having his discharge, especially as it was in evidence before the Court that he had no means of discharging the debt for which he was in custody. There was one circumstance alluded to in the proceedings, which when it was at first mentioned did strike him as being a very strange one, viz. - that he should leave England with £1000 in his possession, and at the same time that he was indebted to his father so large a sum as £160, without paying him that sum, but leaving him to be subsequently paid by the proceeds of the sale of the insolvent's commission. (The insolvent here explained that he did not receive the £1000 from his father, but from his uncle who had also purchased the commission when he first entered the service.) His Honor continued, that it might be that the £160 which the insolvent owed his father, was not the only money he had squandered belonging to him, it was highly probable that he had been as great a spendthrift in England as he had been since his arrival in this Colony, and the father in order to secure himself had taken the purchase money of the commission as the only part he was likely to recover back, but viewing the conduct of the insolvent and the plaintiff in the present action throughout, he was of opinion that he came within the meaning of the Act.

            JUDGE STEPHEN concurred with Judge Burton in the view he had taken of the case. In reply to a question by the Court, the insolvent said he was willing to draw on his father for £143, being the amount with costs due to the plaintiff, and he had already offered these terms but the plaintiff had refused to accept any other settlement than cash or good bills with unexceptionable endorsements.

            Mr. GODDARD, who appeared for the insolvent, said he had repeatedly offered these terms to the plaintiff's Attorney, Mr. Allen, by whom they had been refused, and therefore he should now advise his client to leave the case in the hands of the Court, as he, Mr. Goddard, was prepared to show, by the examination of the insolvent, that his getting into embarrassed circumstances had been mainly caused by the plaintiff making false bets with him and selling him horses above their marketable value. The insolvent was then order to be disharged.


[1]              That is, imprisoned for debt.

Published by the Division of Law, Macquarie University