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

Russell v. Neilson [1842] NSWSupC 54

insolvency - imprisonment for debt

Supreme Court of New South Wales

Stephen J., 14 January 1842

Source: Sydney Herald, 15 January 1842

            The insolvent in this case had been discharged on the 21st of May last, when he made an assignment for the general benefit of all his creditors, but had since then been sued by different individuals for other debts than those for which he was in custody at that time when the deed was executed, the present plaintiffs accepted this assignment for about £400, being the amount against Neilson personally. They had since sued him for another debt due to them by a brewing company, composed of the defendant and two others named Anderson and Schooler, on the ground that the orders had been given to them by the defendant Neilson, who was also a partner in the firm. In this case they had ultimately obtained judgment against Neilson and Anderson, but before they could execute the writ on the latter he had contrived to leave the Colony by a vessel for the Islands, whither it appeared Neilson was about to follow him, when his bail surrendered him and having been since then in custody of the Sheriff, he now applied to the Court to be discharged, he having since his previous discharge acquired no property.

            Mr. Smith opposed the discharge of the insolvent on the ground that he had not filed a new schedule, which he contended ought to have been done as he was prepared to prove that since his last discharge the insolvent, in strict language, had been acquiring property by carrying on business as an agent for the aforesaid brewing concern, he had also been practising as a medical man. Besides he had reason to believe that when a horse belonging to the insolvent's estate, after having been in the hands of the Sheriff for sale, was stolen off in the night, together with a quantity of drugs from the cellar of the insolvent, that both these acts were done either by the insolvent or his orders, and if so, his client was entitled to an account of the drugs or their proceeds.

The Insolvent denied on oath that the drugs were his, they having been purchased at a sale by his brother; with regard to the horse, he denied having taken it with the view of defrauding his estate of its value, and to show that this was not his intention, it had been returned and sold by the Sheriff. The insolvent denied having acquired any property since his last discharge, since then he had kept no books, nor had he any receipts to show how he had disposed of what money he had received. He knew nothing at all about the drugs.

His Honor informed the insolvent that he had done very far wrong in attempting to leave the Colony while actions for debt were pending against him, as if he had done so, his bail would have had to pay the amount and costs sued for, the only thing he could now do was to remain in gaol until the plaintiffs had obtained full judgments against him, and if they made any unnecessary delay in doing this, he could easily compel them to do so.

With regard to the filing of a new schedule, although the plaintiff in ordinary cases was not entitled to have a new schedule from an insolvent who had been once discharged, yet in cases where doubts were entertained as to the acquisition of property between the first discharge and the filing of a petition for a second discharge, the court certainly had the power to order the applicant to furnish his new opposing creditor with a general statement of what money and property had passed through his hands, since the last discharge. The law did not expect a man to do impossibilities, but he could form a near estimate of what money had been received, and show how it was disposed of. The further hearing of this case was then adjourned till Monday, when the plaintiffs are to be prepared to examine the insolvent on this statement, and also to have such witnesses in attendance as they may deem necessary.

Published by the Division of Law, Macquarie University