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

In re Passmore [1847] NSWSupC 38


Supreme Court of New South Wales

Stephen C.J., Dickinson and Therry JJ, May 1847

Source: Sydney Morning Herald, 20 May 1847, in Supreme Court Collection, Vol. 1, p. 115

Before the full Court.


Henry Armitage, as the agent acting under a power of attorney for the Messrs. Armitage, creditors of Passmore, and now carrying on business in partnership in England, had sought before a single Judge to make Passmore an insolvent, by way of compulsory sequestration, The Judge (His Honor Mr. Justice Dickinson) had made the usual order nisi, under the 13th section of the Act, sequestrating the estate in the hands of the Commissioner until the same should be finally adjudged sequestrated by the full Court. The estate was subsequently, under the 26th section of the Act, upon a supposed consent thereto, finally adjudged sequestrated. The insolvent afterwards moved, in the full Court, the discharge of the order for final adjudging sequestration, on the ground that no consent was given thereto. And the Court did accordingly reverse the final order for placing the estate under sequestration, leaving, however, the original order nisi as it was before; and upon an application on behalf of the creditors that it would save expense, the order nisi was enlarged until to-day. The creditors were judgment creditors, and the insolvent disputed that he refused to satisfy the judgment, or that he had said he was possessed of no property wherewith to satisfy the same.

Mr. Michie appeared for the creditors, and Mr. Windeyer for the insolvent.

Mr. Brown, the Sheriff's bailiff, proved that when asked to satisfy the judgment, Passmore said he had neither money nor property. The writ of fi. fa. was produced, which was endorsed with the above answer, given by the insolvent.

Mr. WINDEYER objected; first, that the word sentence used in the 5th section of the Act, must mean only the amount included in the sum, made up of the judgment for the amount of the verdict and costs, but not the costs of the fi, fa, and the whole sum including this item had been asked. Secondly, that the creditors themselves did not make the necessary oath of debt; but it was made by their agent, and this was not cured by the 6th section of the last Act. And, thirdly, that seeking to make a man insolvent by a voluntary sequestration, was not an act contemplated by the power of attorney under which the agent acted.

His Honor the CHIEF JUSTICE, in delivering the judgment of the Court, said, that there was ample evidence before the Court, that the insolvent had been required to satisfy the judgment, and had not done so. That the 6th section of the late Act was drawn to meet the objection now made to the proof of a debt by an agent; and, lastly, that the words 'duly qualified' must apply to a person who is duly authorised to get in debts, and though the power of attorney may not specifically empower one to make another sequestrate, yet the language of a power of attorney authorising the collection of a debt will warrant this construction.

The estate finally adjudged sequestrated.

Published by the Division of Law, Macquarie University