[AustLII] Supreme Court of New South Wales

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In re Broadbent [1828] NSWSC 14 (6 March 1828)

Last Updated: 12 October 1998

[imprisonment for debt - insolvency]

In re Broadbent

Supreme Court of New South Wales

Trial, 6 March 1828
[1]

Source: Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461

[p. 17]

[In re. Broadbent]

The defendant being in execution in Sydney Gaol[2] at the suit of a creditor who had obtained judgment against his person, and being possessed of a vessel in the harbour of the value of 150 pounds, which he was desirous of having sold for the benefit of his creditors, and which his detaining creditor could not make available in satisfaction of his debt.

Unwin now moved that Broadbent might be brought up under the 22d. section of 4.G.4.C.96 in order to declare his insolvency and have trustees appointed for the collection of his effects and distribution [p. 18] thereof rateably amongst his creditors.[3]

The court however, having regard to the scope and object of the 22nd and 23d sections, as well as the facts of this case thought they had not jurisdiction to interfere and adopt a rule of construction which might be pregnant with difficulties.

Application refused.

[1] From its position in the Select Cases, this is the most likely date of this hearing.

[2] The reference is to imprisonment for debt for non-payment of a judgment, variously known as capias ad satisfaciendum and imprisonment on the final process.

[3] Bankruptcy and insolvency were the two of primary devices in English law for the relief of imprisoned debtors. Those who remained in gaol in New South Wales were entitled to maintenance (or groats) at the expense of their creditors, but not if the creditor were the Crown: In re J. Nowlan, 1828, Dowling, Select Cases, Vol. 1, Archives Office of N.S.W., 2/3461, p. 167.

The insolvency provision on which this case was based was enacted in the colony's constitution, the New South Wales Act (4 Geo. 4 c. 96). It was not repeated in the succeeding imperial legislation, (1828) 9 Geo. 4 c. 83. The British government decided that insolvency, like foreign attachment, was better delegated to the New South Wales Legislative Council: the policy of the new legislation was discussed in Murray to Darling, 31 July 1828, Historical Records of Australia, Series 1, Vol. 14, pp 260f.