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Decisions of the Superior Courts of New South Wales, 1788-1899

Lord v. Palmer [1803] NSWKR 3; [1803] NSWSupC 3

promissory note - priority of claim - deceased estate

Court of Civil Jurisdiction

Atkins J.A., 7 July 1803

Source: Sydney Gazette, 10 July 1803 [1]

This business, when commenced in the month of August last, and has much engrossed the attention of the public, was on this day the 4th instant determined by the court.

The Judge Advocate declared that the court had seriously considered the whole of the evidence that had been adduced on either side; and upon such due and mature deliberation had found a verdict in favour of the plaintiff, for the full sum for which this suit was instituted.

Court of Civil Jurisdiction

Atkins J.A., 7 July 1803

Source: Printed Cases in Indian and Colonial Appeals Heard 1807-1826 (papers in Lord v. Palmer, kept in the office of the Judicial Committee of the Privy Council)

In the Court of Civil Jurisdiction.
Mechan v. Palmer esq., administrator, etc.

On the 16th August, 1802, John Palmer, administrator, did file of record the account of his administration by order of this court, and which the said court, from time to time, had in open court come to a determination as to those accounts; and the court made the following order respecting the same, as follows, viz.

July 7, 1803, the court sat.                   Sydney, New South Wales.

It appearing, by the accounts given into court, that John Stogdell stood indebted to John Palmer esq., the administrator, at the time of his death, in the sum of ¿8229.18.5; that the sale of the effects of the said John Stogdell amounted to ¿4774. 2.7½; and that the said John Palmer esq., has paid ¿1892.1.6 out of the said sum, leaving a balance to the said John Palmer esq., of ¿6337.16.11.

Richard Atkins, William Moore, James Milcham.

Error in the balance, which should be

¿5347.17.3½ instead of ¿6337.16.11.

Richard Atkins, William Moore, James Milcham

 

Source: P.G. King, Letter Book, vol. 4, Legal, Mitchell Library, A2019

[Lord's argument to the Court of Civil Jurisdiction.]

[132] For myself, unacquainted with forms of law and destitute as I am of professional assistance to direct or advise me, I came before you as a plain man, suing for my principal, Mr Hugh Machin, on a plain and simple matter of right...

[136] ... Gentlemen, I have trespassed a good deal on your time and regret most sincerely the occasion, but you will find first, that like my opponent, I have travelled into law cases, obsolete statutes, and the remoter pages of antiquity, to bewilder you with irrelevant points. My cause is the cause of equity and justice. Yours is the province to decide upon it. If I was in the habit of consulting law books, I might possibly discover cases that would support me, but I rest my pretensions on that principle of justice, to which I appeal, and which, I am sure, presides in your breasts, as judges, and men of honor and integrity ...

[Palmer's argument to Governor King sitting in the Court of Appeals, apparently drafted by George Crossley.]

[152] Your Excellency on the opening of this appeal having said your Excellency was not acquainted with law and an opinion having gone out that the law of the province of Pensylvania are the rule of laws in this colony and that if an appeal goes from any decision of your Excellency, your Excellency would require a deposit of hard cash for the prosecution of such appeal with effect.

            Impressed with the greatest confidence in the high estimation your Excellency on all occasions show to act impartially, according to justice and equity as the right of the case may require and your memorialist being fully convinced in his conscience, that if your Excellency should err in giving judgement, such error will arise from a want of a true statement of the case or from a frailty of human nature, which is prone to error and mistake; impressed with full confidence in your Excellency's wisdom, good intentions, integrity and desire to decide in all things according to truth and the right and justice of the case, your memorialist begs leave to suggest to your Excellency:

            First that no law of Pensylvania can have any force in this colony and that the laws of England only are in force, nor can any other laws be put in force here, but by an Act of Parliament of England or by authority of the Crown and there is no Act of Parliament or other legal authority to enforce any other laws to the knowledge of your memorialist relative to this colony. The statute made in the 27th year of his present Majesty c. 36 by which the Court of Criminal Jurisdiction in this colony is authorized to act in criminal cases, in some way different, to the laws of courts of criminal judicature in [153] England, by no way gives any directions as to the civil courts or makes any other regulations in this colony, but as to the mode of prosecuting criminality, so that the common law is left as it at first were by the laws of England and as such the civil courts in this colony are bound to proceed and give judgement according to the laws and statutes of the realm of England. ...

            And your memorialist having given security in terms of the Charter which is that your memorialist will perform such judgement, sentence or decree, as shall be pronounced or finally given upon an appeal, is all the security that can be required by the Court of Appeal in any stage of the appeal, that with respect to the law, give me leave to shew to your Excellency, first the constitutional law of England as to colonies, which applies to this colony, as set out in Blackstone's Commentaries vol. 1, page 107, and the cases of other reporters there referred to, wherein is said that

            "It hath been held (Salk. 411, 666) [ Blankard v. Galdy (1693) 2 Salk. 411, 4 Mod. 222, 87 E.R. 359, 91 E.R. 356; Smith v. Brown (1706) 2 Salk. 666, 91 E.R. 566] that if any uninhabited country be discovered and planted by English subjects, all the English laws then in being, which are the birthright of every subject (2nd Page Wm 75) are immediately then in force" and in page 108 it is said, "With respect to their interior polity, our colonies are property of three sorts, 1st provincial establishments the constitutions of which depend on the respective commissions issued by the Crown to the Governors and the instructions which usually [154] accompany those commissions, and in the authority of which provincial assemblies are constituted with the power of making local ordinances, not repugnant to the laws of England".

            And after reciting various different forms of government which no way relate to the present case, he says, "The form of government in most of them is conceived from that of England, they have a Governor named by the King, who is his representative or deputy, they have courts of justice of their own, from whose decision an appeal lies to the King in Council, here as in England, their general assemblies which are their House of Commons, together with the Council of State, being their upper house with the concurrence of the King or his representative the Governor makes laws suited to their own emergencies, but it is particularly declared by statute (7 & 8 Wm 3, c. 22) that all laws, bye laws, usages and customs which shall be in practice in any of the plantations repugnant to any law, made or to be made in this Kingdom relative to the said plantations shall be utterly void and of none effect." And your memorialist most humbly shews that by statute (12 Car. 2, c. 10, 7 and 8 Wm 3, and 11 and 12 Wm 3, c. 12) by those statutes every Governor of any colony beyond the seas are bound to put the laws in force, and prohibited to act contrary to the laws of the realm or those laws in force within their government.

            That there is not as yet any assembly or authority to make any local law in this colony and therefore the laws of England as before mentioned to be the law of this colony is in force, this being a new discovered country and planted by English subjects and in cases most solemnly argued in the Court of King's Bench the case of Mostyn Governor of Minorca v. Fabricas [(1774) 1 Cowp. 161, 98 E.R. 1021] and shew that the law cannot be changed by any authority but Parliament, is shewn in the case of Campbell v. Hall [ (1774) 1 Cowp. 204, 98 E.R. 1045 (and see 848) ] as there mentioned.

            That by the laws of England, a creditor administrator may retain the goods of the intestate to satisfy his debt.

[Lord's argument to Governor King, sitting in the Court of Appeals.]

[139] ... Your Excellency's dutiful memorialist is well aware that no sophistry that can be extracted from the remote ambiguities of law or that may be fabricated by any of its subtle professors, will for a moment impose upon your Excellency's judgement, or disturb that [140] system of equity and impartiality which has uniformly distinguished your Excellency's adjudications and which your memorialist is found to rely, as his undoubted security for justice...

            [142] ... If this statement to your Excellency is true, what colour can Mr Palmer have for an appeal from such verdict? What will it appear, but as the last desperate effort of a disappointed mind, that would eagerly fly the bewildering subtleties of law, to assist him to counteract the cause of justice? ...

            [177] ... Appellant having filed two papers in this cause subsequent to respondent's memorial, the one on the 18th and the other on the 24th August last and a number of false suggestions, as well as a quantity of irrelevant matter being introduced in such papers, manifestly calculated to mislead your Excellency as supreme judge in the case before you, by pretended quotations or authorities of law and cases said to be adjudged, unsupported by any legitimate document and it is presumed, partially selected, as they might best answer the purposes for which they were produced. Respondent humbly craves leave, on his part, to submit to the consideration of his Excellency in what point of view suggestions ought to be received and taken which are proved in and refer to incontrovertible facts and those which grow out of false premises and receive no other colour of support than what they may temporarily derive from the subtle perplexities and quibbles of law.

            In the laws of England as they were wisely framed for the best of purposes and are happily calculated to protect the properties of every subject, respondent prays the most honest ... defence. It is the gross perversion of them for unworthy purposes, that he trusts will never escape the discernment and the correction of justice. ...

            [179] ... Respondent has observed a remark in the appellant's "Observations by way of argument", that appellant would be in worse situation, than any other creditor, if his claim as administrator was inadmissible. So, respondent submits, he certainly might. The public were deluded by Mr Palmer's having left Mr Stogdell his agent and representative in this colony, they placed a confidence in him under that delusion, and it is to Mr Palmer only that they had to look to answer those debts, which were contracted by Mr Palmer's agent, standing in his shoes, in his absence and trafficking and bartering with merchandize yet the profits of which Stogdell was interested in a certain degree, as the vendor, but Mr Palmer was the merchant and principal.

            This is the law of England, in its pure construction and the law of equity and [180] reason in every sense...
 

Note

[1] This is the first appeal from an Australian colonial court to the Privy Council in London. The appeal was made before the creation of the Judicial Committee of the Privy Council in 1833, and so was heard initially by an Appeals Committee of the Privy Council. That committee recommended a result to the full Privy Council. A colonial Jarndyce v. Jarndyce, this case ran for nine years.

            The case concerned the distribution of assets in an insolvent and intestate deceased estate. It shows in detail how appeals were conducted in the early nineteenth century, first to the Governor sitting as the sole judge of the colony's Court of Appeals, and then to the Privy Council.

Each side was represented in the colonial courts by an agent, both of them former convicts. Simeon Lord, who acted for Hugh Mechan, had no legal training but plenty of business experience. George Crossley acted for the administrator, Palmer. Crossley was a former attorney, and was the best lawyer in the colony. As will be seen, the conflict between Lord and Crossley became a conflict between formal and informal versions of law. Most of Palmer's documents are not signed by Crossley, but the argument is entirely characteristic of him. Both the colonial judges (Atkins J.A. and Governor King) were legal amateurs. All of those who dealt with this case in Sydney seemed to be out of their depths, except, perhaps, Crossley.

In preparing the argument for Palmer to the Court of Appeals, Crossley made the first serious argument in Australia about the reception of English law. Here was the beginning of the terra nullius argument in Australian courts.

Through this and similar cases, a strong argument can be made that Crossley, the most maligned of lawyers, was the founder of the Australian legal profession.

For other primary sources in State Records N.S.W., see Court of Civil Jurisdiction Proceedings, 1788-1814, 2/8147, pp 44-45, and 2/8148, pp 363f.

On the role of Crossley in this litigation, see B. Kercher, "A Convict Conservative: George Crossley and the English Legal Tradition" (1998) 19 Law in Context 17-30 . See also B. Kercher, Debt Seduction and Other Disasters: the Birth of Civil Law in Convict N.S.W., 3-4, 16-17, 80-81; and on appeals procedures, B. Kercher, "Unreported Privy Council Appeals from the Australian Colonies before 1850" (2003) 77 Australian Law Journal 309-316.

Eventually, the dispute was finalised by the Privy Council under the name Lord v. Palmer, 1809. That was the earliest appeal from the Australian colonial courts leading to a final Privy Council decision for which records survive. Lord v. Palmer, 1809 is online.

Published by the Division of Law, Macquarie University