 |
|
 |
|
|
||||||||||||||||||||||||||||||||||||||||||||
|
|
|
[insolvency] Supreme Court of August 1841 Source: Sydney Herald, In this case the insolvent was opposed by Mr. Manning,
who, by a lengthened examination elicited the following facts from
the defendant. He had been in the colony between eighteen and nineteen
years, and had been in business during about sixteen years of that
period; he was insolvent about ten years ago; after being then discharged,
he paid every creditor in full, within eighteen months of the time
when he was discharged: he still carried on business after that
settlement, when all his creditors trusted him; about eight years
ago the insolvent purchased the land on which he subsequently erected
the mills which go by his name, he gave about £2,000 for that property;
he subsequently obtained a loan of £4,000 from the Bank of Australia,
and after that he purchased several other grants; the premises on
which the mill stands were granted to his wife in August or September
last, but he continued to build on it till about November; the property
was always considered as belonging to the insolvent; the action
on which he was in custody was brought in August last, but he did
not then consider himself as being insolvent; when the deed of grant,
in order to make good his title to the said land, was applied for,
he believed the Attorney General recommended that the same should
be made to trustees, but the Commissioners subsequently issued the
deed of grant in his wife’s name; he had executed a deed of assignment
to trustees for the general benefit of his creditors, which deed
he believed to be lost; he had been counselled by his legal advisers,
to advise his wife not to execute any such deed, but the insolvent
had advised her to sign such a deed; in November last the property
was sold, and Mrs. Girard joined in the conveyance on condition
that she was allowed £8,000 out of the purchase money; in July,
such was the state of the insolvent’s affairs, that he could then
have paid his creditors 21s. if not 23s.
in the pound, and even in October he could have done the same, provided
the mill and premises were regarded as his; when the grant was applied
for in Mrs. Girard’s name, the insolvent did not approve of it,
but finding that without he consented to this arrangement that no
deed could be issued, he afterwards sanctioned the proceeding; it
was not by the insolvent’s advice that Mrs. Girard was to receive
£8,000 for executing the deed of assignment; she consented to sign
away the land provided she was allowed to retain £8000 of it, and
she also agreed by the deed of assignment to give up £6,000 of that
sum, to be applied to paying the insolvent’s creditors, provided
they would give him six years to pay them in full; the trust-deed
was executed by one-third of the whole number of the insolvent’s
creditors, the total amount of whose claims amounted to two-thirds
of all the debts due by him. In September last he paid the plaintiff
£600, which was a part of his claim against the insolvent, but since
then Lyons has brought five actions against the defendant, which
were very expensive; the insolvent filed sham pleas to these actions
in order to gain time, that he might sell his property to pay his
creditors in full; he did not know who told his wife that she was
entitled to the land and could make her terms with the creditors;
it was his opinion that she had done so to protect the interests
of their children, who to save expenses had been sent to the bush,
where they have remained every since; the insolvent might have spoken
to his wife respecting her rights, but he had no wish to keep the
property from his creditors; he had advertised the mill property
for sale; he did not then know that he could have obtained a grant
made out to trustees for the payment of his creditors; if his creditors
had not pressed and sued him as they had done, he was of opinion
that he could have paid them all in full before this time; after
the assignment deed was prepared, the insolvent told his wife to
take it to Mr. Norton’s; from that time he never saw it; her brother-in-law
was an adviser of hers; he swore that he did not know where it was,
that he had no reason to believe, nor did he believe, that the deed
of assignment was destroyed, he thought that it was detained by
some of the creditors in order to have it set aside; in his opinion,
his wife’s own good sense and judgment told her that she was entitled
to the land; she knew what the insolvent owed; he thought she intended
with the £8,000 to pay his debts, but at the same time, when the
grant was issued in her name, I[t] gave her the power of doing as
she pleased; it did not occur to the insolvent that after the deed
had been issued in his wife’s name that he could turn it to the
benefit of his children, and it was not until the property was sold,
in order to give a valid title to the purchasers’ that Mr.Norton
suggested [that the grant should be made out] in her name, and if
it had been intimated to the insolvent that instead of its being
granted to his wife, the same should have been made to trustees
for the benefit of the creditors, he would have applied for it to
have been so drawn up as he felt convinced that by its being so
his creditors might have been paid in full within six years; at
the same time, had the property been sold at once, the whole would
have been sacrificed at probably one-fourth of its present value;
his property if sold then would have paid his debts, but have left
nothing to himself, as the market value of the property would just
have met the insolvent’s debts; it was by his advice that his wife
was to give up the £6,000 for the benefit of his creditors, and
it was his opinion that she would not have given up the £8,000 to
pay his creditors, even if had asked her to do so; at the same time,
it was not by his desire that she refused to do so, and before the
conveyance to the Flour Company she made the offer of her own accord
to give up £6,000 for his creditors provided they would allow six
years to make a final settlement; he was living in the rules, the
times he allowed was not at the suggestion of the insolvent, but
so far as he knew, her own suggestion, he thought that he had since
heard that she at first asked ten and not six years. In September
last he paid £600 to Mr. Hustler, who appeared for the insolvent, examined him on the following points, viz.: that the Government had objected to the grant being made out in his own name, nor did he know that Mr. Norton had afterwards asked it to be made out in his wife’s name by the insolvent’s approval. When insolvent went to the Colonial Secretary for the grant, he was told he could not have it without her consent, or her order; he did not know where the deed of assignment was, but he suspected the plaintiff had it, as he had never seen it since Mrs. Girand took it to try to get the plaintiff to sign it. The insolvent had been trying to get out of business without becoming insolvent. – He did know that he had pleaded in the present action – it was left to his attorneys: all the insolvent wanted was, time to settle with his creditors in full, and it was at his request that Mrs. Girard gave up the £6,000 to effectuate the arrangement, and since February last Ryan had paid at least £1000 for the insolvent. In the cross-examination it was admitted that part of Mr. Fattorini’s bills went to defray the expenses of the brig, and the rest was applied to carry on the insolvent’s concerns for the general benefit of his creditors. After Mr. Manning had replied on the evidence given by the insolvent. Mr. Husiler addressed the court on his behalf, and insisted that there was nothing in the conduct of the insolvent which brought him under the meaning of the 7th clause of the act, which was the only one on which the plaintiff insisted to have him remanded on. The case was then adjourned till the following day (Saturday) to enable his honor time to look over the correspondence with the Colonial Secretary, as well as to examine Messrs. Norton and Ryan, which was done on Saturday at great length, when his honor stated that he was clearly of opinion that no trick, contrivance or fraud was established against the insolvent, and that although he had during the progress of the case expressed an opinion that in fairness to the rest of the creditors, Mrs. Girard’s claims should be postponed, yet that matter was not at present before the court and he therefore ordered the insolvent to be discharged, previous to which Mr. Platt was appointed assignee. Counsel for the plaintiff, Mr. W. M. Manning; for the defendant, Mr. Hustler and Mr. Goddard. September 1841 Source: Sydney Herald, 25 September 1841 LYONS V. GIRARD. Mr. Goddard applied to the court for the discharge of the defendant out of the custody of the sheriff by writ of supersedeas, on the ground that the plaintiff had not proceeded to charge him in execution within one month after the signing of final judgment. The defendant had been arrested under the act for the abolition of imprisonment upon mesne process, and the plaintiff after signing final judgment had issued writs of fieri facias against the defendant’s chattels returnable in three months. Mr. Goddard relied, in support of the application, upon the 85th and 87th colonial rules of he court, and Mr. Want, for the plaintiff, argued that according to the strict terms of the rules of court, they were not applicable to the case before the court. In reply, it was insisted for the defendant, that the case came within the meaning and spirit of rules cited, and that he had been treated with unnecessary harshness and severity by his detaining creditor. His Honor said that he should give his decision on Monday next, and if he possibly could discharge the defendant under the rules cited, he should certainly, under all the circumstances of the case, do so. SAME v. SAME. SAME v. SAME. Mr. Goddard made similar applications in these actions, which will be decided by His Honor’s judgment in the preceding case. September 1841 Source: Sydney Herald, 28 September 1841 EX PARTE LYONS IN RYAN V. GIRARD. This was an application by Mr. Samuel Lyons, a creditor of the defendant Girard, for a similar purpose with that in the preceding paragraph. Mr. Manning supported the application on the grounds, that the summons was not in the form prescribed by the rule of Court, as it did not mention the hour when his client was to appear, besides the summons had been signed by his Honor, instead of by the Chief Clerk, as required by the present practice. His Honor said, that the reason why he had signed the summons was, that the Chief Clerk was unable from indisposition to attend his office, but he was of opinion that any summons signed by a Judge was valid, and could not be objected to, because it was signed by him instead of the Chief Clerk. But as the summons did not specify the hour when the defendant to the application was to appear, he should not at present comply with the application, which was discharged; at the same time a fresh summons was directed to be taken out.
13 November 1841 Source: Sydney Herald, 15 November 1841 Saturday, November 13. EXPARTE LYONS, IN A CAUSE OF THOMAS RYAN V. FRANCIS GIRARD. This was an application by Mr. Windeyer to set aside a Judge’s order which had been obtained for setting aside a judgment on a warrant of attorney, on the ground that no affidavit of the sum due, had been previously made by the plaintiff. The application was opposed by the Solicitor General and Mr. Broadhurst, on the ground that the matter had already been disposed of, and that the applicant had been too tardy in coming to the Court. Mr. Windeyer contended that his learned friends could not avail themselves of the above objections, the writ of execution having been returnable before the above-mentioned order was obtained. The affidavits in the case were very long, but containing no matter of the least public interest, we do not feel it necessary to set forth any part of their contents. It was suggested from the bench, that it [LINE OMITTED] failing, their Honors deferred their decision until Saturday, to give the parties some further opportunity of coming to an arrangement, which would be more likely to secure due justice to all parties, than deciding on the strict law of the case, on the present occasion. November 1841 Source: Sydney Herald, 22 November 1841 RYAN V. GIRARD. The Court having previously deferred judgments in this case, to give the parties an opportunity of coming to an amicable adjustment; the Chief Justice now enquired whether any such adjustment had been agreed to, and being answered in the negative, his Honor said that the case would stand further postponed until the 1st day of next term, that if possible some amicable compromise might effected. |
|
|||||
|