Skip to Content

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

In re Coghlan [1847] NSWSupC 33

insolvency, imprisonment for debt, statutory interpretation

Supreme Court of New South Wales

Therry J., November 1847

Source: Sydney Morning Herald, 15 November 1847, in Supreme Court Collection, Vol. 2, pp 27-28



Before His Honor Mr. Justice THERRY.

This was an application by the above named insolvent to be discharged out of gaol, on the ground of his being insolvent, and having filed his schedule.

Mr. Michie supported the application; and Mr. Foster opposed it.

It was admitted in argument, that the insolvent was in custody under a writ of ca. sa. issued against him, for damages and costs recovered in an action for libel against him; and also that he had sequestrated his estate. And the point to be determined was, whether he should remain in custody notwithstanding his sequestration, until he had paid the damages and costs.

The question for argument arose on the construction of the 14th sec. Of the 11th Vic., No. 13, and which is this, "And be it enacted, that from and after the passing of this Act, no law which is now, or may hereafter be in force in the said colony, for the relief of insolvent debtors, or for the abolition of imprisonment for debt, shall extend, or be construed to extend, to effect or discharge from liability any person who shall be indebted for any penalty, damages, or costs, adjudged against him in any proceeding, either civil or criminal, for the printing or publishing of an blasphemous, seditious, or defamatory words or libel."

His HONOR in giving judgment said, the word "effect" in the 14th section of the Act appeared to him an unmeaning word, and he had therefore examined the original draft of the Act in the Registrar-General's Office, and he found that it was a misprint, and the proper sword ought to be "affect." If so, the obvious meaning of the section is, that the debtor in execution is excluded from the relief given by any Act for the relief of insolvent debtors. He further said, that he had consulted with the Chief Justice in the matter, and he agreed in opinion with him, that the only correct reading unavoidably is, as shown in the section, which he had marked in brackets, i.e. the Insolvent Act, is not to discharge from liability, or affect, any libeller; he must therefore remain in gaol. The word "affect" cannot be connected with liability. It would make nonsense to do so, "affect his liability any person" "affect from his liability any person" neither of these would be sense or grammar. The case is unquestionably one of hardship, and it possibly may be, that the framer of the Bill did not contemplate this construction of the clause; but His Honor said, he could not give any other construction to it other than that which the words in his opinion clearly indicated. In dismissing this application, however, he dismissed it without costs, and with leave to Mr. Michie, if he should deem it advisable, to move the full Court in the matter, the latter course His Honor understood to be assented to by counsel on both sides, whatever might be his present decision.

Published by the Division of Law, Macquarie University