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

Campbell v. McArthur and Oxley [1820] NSWKR 12; [1820] NSWSupC 12

equity - succession, intestacy

Supreme Court
Field J., September 1820
Source: Sydney Gazette, 9 September 1820 [1]

In this suit in equity, Mr. Moore for the Plaintiff moved for the production of certain papers of the late Mr. Blackcell, by the Defendant Oxley his administrator. Mr. McArthur appeared in person, by reason of the bad health of his Solicitor and did not object to the production of the papers, but contended that as Mr. Moore had had access to those papers before him, in company with the Plaintiff himself and his friends Mr. Dickson and Mr. R.L. Murray, he should first account for the emptiness of two envelopes, which the Defendants had discovered among the said papers, indorsed in Mr. Blaxcell's hand writing, "Capt. Campbell's private accounts with G. Blaxcell," and "Sir John Jamison's Accounts." It appeared that Mr Moore had been employed as the Defendant Oxley's Proctor in procuring his Letters of Administration to Mr. Blaxcell's Estate, and was his Solicitor in all other matters except this suit, and in those capacities was entrusted by the Defendant Oxley during his last absence at Van Diemen's Land to obtain the Intestate's papers of Mr. Garling who had possession of the room in the house of Mr. Howe, the Printer, in which the papers had been deposited ever since the absconding of Mr. Blaxcell in 1817. But Mr. Justice Field severely censured Mr. Moore, concerned as he was in this suit, for going near the uncounted papers of a person so implicated in the matters of it as the late Mr. Blackcell, still more for taking his Client in the cause and his friends into this room. The affidavit of Mr. Moore stated, that upon discovering the parcel of papers labelled "Capt. Campbell's private accounts with G. Blaxcell," he put it into his pocket without the Plaintiff or Mr. Dickson observing the same, in order to prevent any solicitor as to the Plaintiff being allowed even to inspect it, but that on looking into it at home, he found it contained only a washing bill and a list of orders for small sums of money drawn by the Plaintiff on Mr. Blaxcell. This paper was wholly unimportant to the present suit; and the Court remarks that this wrapper, which was composed of a narrow piece of paper pinned round, was much too capacious for the papers produced as its only contents, and could not have been safely conveyed into a pocket in that state. Unimportant as these papers were, however, Mr. Moore swore that he continued to keep them concealed from the Plaintiff and his friends, whom he had suffered to inspect all the other papers in the room at Mr. Howe's, and a trunk full which he brought home to his office: nor did Mr. Moore (as he swore, from forgetfulness) upon the Defendant Oxley's return to this settlement, include them in the trunk which he sent to Mr. Oxley's house, nor deliver them up to him until a week after he was applied to, by Mr. McArthur's Solicitor, upon the discovery of the empty wrappers. As for that which was labelled "Sir John Jamison," Mr. Moore's affidavit denying having ever seen it before; but the affidavit of both the Defendants (admitted to be true by that of Mr. Murray himself) stated that Mr. Murray had publicly boasted of being able to produce proofs that would overturn the settlement which had been made between Sir J. Jamison and Mr Blaxcell. Under these circumstances, the case was adjourned from Tuesday till Friday last for Mr. Murray to produce these proofs, and leave the Court to judge what connection they might have with any of the matters of this suit; and also for Mr Garling's articled clerk to depose to which access had been had to the Intestate's papers, while they were in his custody.
On Friday the Court not being satisfied with Mr. Murray's further affidavit, and Mr. Garling's Clerk refusing to make any, it was referred to the Judge, acting as Master of the Court, to inspect all the papers of the Intestate, and to enquire what had become of such as appeared to be missing, and to compel by subpoena the attendance of witnesses to be privately examined either by the Master, and to report to the Court upon such examinations.
Mr Justice Field dwelt at great length and commented with great severity upon the above facts of this most auspicious case; and said it was of vital importance to the whole property of the Colony to prevent the unauthorised meddling with papers and effects of deceased persons. Against the simulation of documents there were many safeguards; but against the suppression of them there could be hardly any providentially there wrappers had escaped the cunning of the destroyer and were "trumpet tongued" against their "taking off" of their most important contents. If they were yet above ground, the Judge demanded his determination to drag them to light.

Note

[1] The Governor confirmed the judgment of the Supreme Court. See Minute Books (Court of Appeals), 16 June 1817-20 April 1824, State Records N.S.W., 4/6604 at 55, and see 71, 75-76.

Published by the Division of Law, Macquarie University