[insolvency]

In re Hackett and others

Insolvent Debtors’ Court

Mr Commissioner Moore, 8 May 1839

Source: Tasmanian, 17 May 1839[1]

In the alleged Insolvency of James Hackett.

            At the opening of the Court, Mr. Hackett said, that he appeared before His Honor, not under a notice, which he had received, of a declaration of Insolvency obtained against himself, but out of respect to the Commissioner. He now applied to His Honor, under the 16th section of the Act, to appoint another day for the hearing of the case.

            Mr. Dobson, as solicitor for the Insolvency, said, that he was willing to grant a fortnight.

            Mr. Hackett denied that Mr. Dobson had any authority from the assignees. He (Mr. Hackett,) wished the case to stand postponed for a month - at least, to the 8th or 12th or June, when it was his intention to endeavour to upset the Insolvency, notwithstanding the reports, which had been industriously circulated, to lead to a belief, that he was insolvent. No Insolvency existed, and he should be then prepared to prove it; while, to remove any difficulty, which might exist, he had obtained the consent of the assignee, Captain Swanston, to the postponement till June.

The Commissioner. -The declaration of Insolvency has passed under the Act, and cause must be shewn why delay should take place.

Mr. Hackett said, that he came with the consent of the gentleman representing the creditors, Captain Swanston; and he believed that gentleman would give him no latitude to the injury of the creditors, when he had been consulted upon the framing of that very Act; and that he asked for time being given, he would prove himself quite solvent. As to Mr. Dobson, he could not recognise him.

The Commissioner. - I must recognise Mr. Dobson, as he appears as the Solicitor for the insolvency.

Mr. Dobson. - A fortnight, the time we are willing to give, is sufficiently long for all purposes; I cannot think of going over the term.

Mr. Hackett. - How can going over the term affect an insolvent?

Mr. Moore held a written memorandum from Captain Swanston, but as no day was named, he should appoint that day fortnight.

Mr. Hackett had a good, sufficient, and honest reason, why the time, he required, should be granted; he was also ready to prove the consent of the provisional assignee, Captain Swanston, or, if permitted, would step to the bank, and, if in town, obtain a written memorandum from that gentleman. He waited upon Captain Swanston on Saturday last, when he stated, that he had no objection to his having the time he required; upon his return, he mentioned the circumstance to his attorney, Mr. Sutton, and pointed out the discrepancy between what Captain Swanston stated and the consent, which he (Captain S) had written, when Mr. Sutton overruled the objection, saying, that the former rested solely in the Commissioner to appoint a day. As Captain Swanston had consented to a month, he thought he was entitled to that time.

The Commissioner. - Captain Swanston has named no day in his written consent, and it was served upon me by your own solicitor.

Mr. Hackett. - I could easily obtain his consent for the time required, but we could not dictate as to time.

The Commissioner. - You should have had it here; this is the place and time to show why the delay should take place.

Mr. Dobson. - I consent to this day fortnight, as solicitor for the insolvency.

Mr. Hackett. - I am sure Your Honor has been at all times, willing to lean to the side of the distressed and oppressed. As to Mr. Dobson, he has acted in this case with as much liberality as feeling - he must speak feelingly upon the subject, he was not allowed to see any of his property, to collect any rents, and it was at times doubtful, where he was to obtain food. It was a cruel declaration of insolvency, obtained upon a debt which he did not owe, and he should be able to prove from the words of the Sheriff and Mr. Halcombe, that he was not insolvent.

The Commissioner thought, that, having made such declarations against the Sheriff, and against the gentleman, who had sworn the debt, and obtained the declaration of insolvency, the sooner the case was gone into, to release them from the charges the better.

Mr. Hackett. - I shall appeal to the Court against your decision - thank God there is an appeal!

The Commissioner. - I shall cut the matter short - Mr. Dobson, you may take a rule returnable this day fortnight.

Mr. Hackett. - Till Friday, as far as you have power.

In the Insolvency of Daniel Bunce. - Mr. Cleburne, the provisional assignee to the estate, was now prepared to examine the Insolvent this being the day appointed, but Mr. Bunce was not present.

The Commissioner had nothing before him to shew that he was insolvent, no schedule, no papers, no documents of any kind.

Mr. Cleburne. - The schedule had been filed upon a hearing before the Chief Justice; he wished the matter proceeded in, as the insolvent had threatened to bring an action against him for £1,000, and he (Mr. C.) wished to know, whether he was right or wrong?

The Commissioner. - A special application should be made to Mr. Sorell for the papers. If the insolvent was present, the examination could not be proceeded with, as there were no papers; there should have been also a written notice served upon the insolvent, besides the Gazette or newspaper notices.

Mr. Cleburne. - Would make a written application to Mr. Sorell for the papers, through the Commissioner; he did not think it was the duty of the provisional assignee to serve a notice upon the insolvent. He should let the case work its own cure, he had sold every thing that he could sell, and should not go to any further expense in the case.

The Commissioner directed the case to stand postponed until that day week.

In the Matter of Benjamin Henry an Insolvent - Mr. Dobson, on behalf of all the creditors, consented that further proceedings in the case, should stand postponed for a fortnight.