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Colonial Cases

Re Bathurst [1858]


Supreme Court of South Australia

Full Court, 7 July 1858

Source: South Australian Advertiser, 12 July 1858


[Before the full Court.]

[In consequence of the great influx of advertisements we are prevented publishing at length the last week's proceedings in this Court as we had prepared for and intended to do; but as they contain some decisions respecting the operation of the new Insolvent Act with reference to its application to cases instituted under the old law, and also with reference to the powers of the Supreme Court over the Court of Insolvency, we think it proper to give at least a brief statement of the principal cases.]



Edward Bathurst, an imprisoned insolvent, came up on a writ of habeas corpus to be heard on his appeal by petition against an order of the Commissioner of Insolvency, under which he was sentenced to six months' imprisonment. This insolvent had been arrested on a warrant under the Summary Jurisdiction Act at the suit of Mr. Futcher, of Rundle-street, and brought up to the Local Court, from which he was discharged, but, being then arrested on a warrant obtained by George White, of King William-street, he declared himself insolvent, and the Official Assignee under the Act became a judgment creditor for 
the whole of his debts. He was again committed on that judgment. On his final examination he was sentenced by the Commissioner to six months' imprisonment, but obtained a second-class certificate. The objections to the appeal raised by Mr. Gwynne for the respondent were at first confined simply and only to one point, viz., that insolvent had not complied with the third clause of the rules constructed on the Insolvent Act, which made it imperative that all appeals should be notifed to the Official Assignee within 21 days after the order, and written in a book kept in the office for that purpose.

The Court was of opinion the appellant should not be prejudiced by such a technical neglect; besides the rules did not prescribe any method of entering the appeals. They did not say whether the Official Assignee was to enter them or the appellants personally.

The next ground of objection was, that the appellant had obtained goods from Mr. Futcher under false pretences.

The Court held this objection bad, as he was imprisoned at the suit of the Official Assignee.

Mr. Gwynne then asked for an order to allow the Commissoner to amend his order, by substituting the name of Mr. Futcher for that of the Official Assignee.

The Court held that although the Supreme Court Act No. 5, 1853, empowered that Court to rescind, alter, and vary an Order of the other Court, it gave it no[?] original power in the matter. That was entirely in the Commissioner. If the name were altered, it would be a fresh order, which they could not make.

The Court then went into the appellant's appeal, contained in his petition that he should be discharged from his illegal imprisonment, and ruled that, as the cause of suit under which he was first arrested arose prior to the passing of the new Act, and as the vesting order alleged[?] he should remain in custody until[?] final hearing, and that, having attended his final hearing, the terms of the adjudication order were fully complied with, he was, therefore, entitled to his discharge. The new Act could have no operation on an order made under the old law.

Discharged accordingly.

Published by Centre for Comparative Law, History and Governance at Macquarie Law School