[AustLII] Supreme Court of New South Wales

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In re Hazard [1828] NSWSC 60 (19 August 1828)

Last Updated: 12 October 1998

[insolvency - imprisonment for debt - Court of Requests - supervision of inferior courts]

In re Hazard

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 19 August 1828

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

[p. 326]

[A declaration of Insolvency in the Supreme Court, operates as a stay of proceedings in the Court of requests for debts contracted prior to the declaration of insolvency.]

In re Gregory Hazard

On the examination of this person, he was declared to be insolvent, and Messers Levy and Chaffey were appointed his Trustees.[1]

Unwin for the Insolvent.

Rowe for the Creditors.

On the 21 June last this person had been declared insolvent and Trustees appointed to collect all his effects, since then and pending the proceedings in insolvency, some of his smaller creditors had sued him in the Court of Requests for debts contracted before the declaration of his insolvency, and he was now in [p. 327] execution[2] upon Judgment against him in the Requests.

Dr Wardell now moved that he be discharged on the ground that he was free from personal restraint pending the proceedings in this court, and he likened the case to Bankruptcy in England.

Forbes CJ. Stephen J. and Dowling declared their opinion to be that the order of this Court that the insolvent should be free from personal restraint until the proceedings of this Court should be determined protected his person from arrest in respect of debts contracted before the declaration of his insolvency.[3] The Court of requests ought to have taken notice of this proceeding from the [sic] which an inferior Court owes to a superior, especially as it was known below that the prisoner had been declared insolvent. We therefore ordered Hazard to be discharged out of Custody.

[1] 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.

[2] This means that he was imprisoned for non-payment of his Court of Requests judgment.

[3] Bankruptcy and insolvency were the two 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.

One problem faced by imprisoned debtors was that conditions for debtors in the gaol at the bottom of George Street (on the site of the present Regent Hotel) were found by a Grand Jury in 1828 to be "very lamentable. One of them, who had been very respectable, assured the Inquest that almost every new debtor undergoes a considerable degree of cold and sickness, when first imprisoned, until he gets accustomed to the damp and stench of water, which, oozing through the wall next to the rocks, runs freely through the sitting room of the unfortunate inmates ... The violence done to the moral feelings and habits of the debtors, by their being perfectly exposed to the language and society of the malefactors, who are necessarily permitted to take the air in the same yard is a still more deplorable consideration." Quotation from C.H. Currey, Chapters on the Legal History of New South Wales, doctoral thesis, University of Sydney, 1929, pp 385-386. Debtors were soon moved to a new debtors' prison, called Carter's Barracks: see B. Kercher, An Unruly Child: a History of Law in Australia, Allen and Unwin, Sydney, 1995, p. 114.