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

Thornton v. Hill [1847] NSWSupC 55

promissory notes, insolvency, pleading

Supreme Court of New South Wales

Full Court, 17 December 1847

Source: Sydney Morning Herald, 18 December 1847, in Supreme Court Collection, Vol. 1, p. 43

BEFORE the full Court.


This was a demurrer to the plaintiff's replication. The declaration was in assumpsit upon two promissory notes, each for £10, of which the plaintiff was indorsee, and the defendant the maker. The defendant pleaded that the plaintiff ought not further to maintain the action, because he says that after the making the promises in the declaration mentioned, and after the commencement of the action, to wit, &c., the plaintiff being an insolvent, &c., his estate was by a certain order of, &c., and bearing the date, &c., ordered to be adjudged to be sequestrated, and was accordingly placed under sequestration in the hands of the then Chief Commissioner of Insolvent Estates, and that, &c., was then appointed Official Assignee of such estate;--- conclusion with a verification. The plaintiff replied to this plea, that after the happening of several matters in the plea set forth, to wit, &c., the said estate of the plaintiff was by a certain order of the said Supreme Court, bearing date, &c., duly released from sequestration, according to the form of the Act of Council in such case made and provided; and the plaintiff says that when the said last mentioned order was made as aforesaid, the causes of action in the declaration formed part of the personal estate of the plaintiff, which had been vested in, &c., as such official assignee; and that the same had not, nor had any part of them, been disposed of by the official assignee, or by any other person, when the last mentioned order was made;--- conclusion with a verification. To this replication a demurrer had been filed, and to-day the following points were made and argued by

Mr. FISHER in support of the demurrer;--- First, that the replication ought to have concluded with a verification by the record, as matter of record had been replied, and it was the only issuable averment that could have been traversed, and if traversed could only have been proved by the production of the record, viz.: the order of the Court to release the estate from sequestration. Secondly, that the replication ought to have set forth the order of release from sequestration, and all the facts upon which it had been granted by the Court, that the Court might see that the provisions of the Act in such case made and provided had been complied with; as power was given to the Court to release an estate from sequestration by virtue of a statutory provision, which declared that under certain circumstances only could any estate be so released,--- citing Christie v. Unwin, 11 A. and E.373, and therefore all those circumstances ought to appear in the replication. Thirdly, that it was not shown by the replication, how, after the happening of the events set forth in the pleadings, the action could be maintained; for the plea at the time pleaded was a bar to the action, and the action having been once barred it is not shown how it was revested or revived in the plaintiff (Swann v. Sutton, 10 A. and E. 623), and that the estate having been released under the Act will not enable a party to continue any action after his estate is so released from sequestration, which action had been commenced before his insolvency. Fourthly, if the Court should be of opinion that an action might be continued under such circumstances, then it was not shown by the replication whether the release took place after the plea was so pleaded; and supposing it took place after plea pleaded, then it was submitted it was impossible for the plaintiffs to have continued the action. [The CHIEF JUSTICE; Then there could have been no such plea in this case as a plea ----.] [sic] But it is not pleaded as such. And, lastly, supposing the action might have been continued under the Act of Council, then it did not appear that the estate was released after the passing of the 10th Vict., No. 11, which Act would be relied upon by the other side as re-vesting in the plaintiffs the right of action after the release granted; and if it were intended to rely upon the provisions of that Act, then it ought to have been so stated and referred by the replication.

Mr. BROADHURST, in support of the replication, contended that the present case was different and distinguishable from Christie and Unwin; for in the present case, the order for release from sequestration relied upon in the replication, is made by a Court acting within its jurisdiction, and it must be presumed to have been made by the Court upon the existence of a necessary state of facts, and until impeached must be held to have been made correctly; and therefore it is not necessary, which the Court must have been made cognizant of at the time the order of release was so granted by the Court. The plea in the action also proves that the matters on which the said order proceeded were within the jurisdiction of the Court; and it was urged, the estate having been so released, it was immaterial whether it was so released after or before the passing of the 10 Vict. No. 14, for it was submitted that the 5th section of the Act, (and which was the one relied on by the plaintiffs, as re-vesting in them the right of a action,) had a retrospective energy. And as to whether the replication ought to have concluded with a verification by the record; it was contended that the order for release from sequestration was not a record, though it might be something in the nature of a record, and therefore it was not necessary to conclude the replication with a verification by the record. [Mr. Justice DICKINSON: Supposing the allegation of this existence of the order had been made amongst a chain of other facts in a plea, the general replication of de injuria would not be a good replication, because the plea would contain a matter of record. Again, suppose issue were joined, traversing the existence of the order, would it not be proved by the production of the record? Besides the 101st section of the 5th Voc., No. 17, compels the Chief Commissioner to record all proceedings relative to insolvency.] At any rate, if the replication be bad for this last reason the plea is bad for the same, the notice had not been given of an intention to take advantage of the objection.

Mr. FISHER replied, contending that the section 101 of the Insolvent Act disposed of the question; there could be no doubt, therefore, that the order for release was a record, and the replication ought to have concluded with the appropriate conclusion. And as to the 5th section of the 10th Vic. No. 14, that only had a prospective energy.

The COURT, after taking some time to consider, decided that there was nothing in the points taken by the demurrer, excepting one, and that point was as to the conclusion of the replication, holding that the order releasing the estate from sequestration was a record, and as such it being alleged in the replication, the replication ought to have concluded with a prout patet per recordum , and a verification by the record, upon the authority of a case reported in 6 Dowl. 659; and that the plea also was bad for the same reason, but its defect had been cured by the pleading over. The Court further held, that it was not necessary to set out in the replication the facts on which the order of release had been granted, for the Court must presume, as it had acted in granting the order of release, on a subject matter within its jurisdiction, that it had so acted properly. And, lastly, it was immaterial whether the release took place before or after the passing of the 10 Vic. 14, as the section which affected this question was retrospective. The demurrer was therefore allowed; leave, however, being granted to the plaintiff to amend, on payment of costs.

Published by the Division of Law, Macquarie University