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

In the estate of Pugh [1826] NSWSupC 36

succession - in forma pauperis

Supreme Court of New South Wales

Forbes C.J., 19 June 1826

Source: Sydney Gazette, 21 June 1826

 

At the rising of the Court, on Monday last, Mr. W. H. Moore[1 ]requested His Honor to hear a motion which he had to make in its Ecclesiastical Jurisdiction, in the matter of the goods of one Robert Pugh, deceased.  It appeared that the deceased resided at Richmond, and was possessed of some considerable property when, in the year 1815, he was murdered.  He left a will appointing an executor, and leaving his property to any one of his nephews, or other near relations, of which he had many in England, who should afterwards come to the Colony.  In the year 1821, one Griffiths, a nephew of the deceased, did arrive, and according to the will, took possession of what part of his uncle's property had been given up to him by the executor; but, as there was reason to suppose that the estate had been wasted, the present application was made under the opinion of the Attorney General, to pray the Court to direct the Registrar, by virtue of the 10th clause in the Act 4th Geo. IV.[2 ]to compel the executor to render an account of the estate.  Mr. Moore also observed, that he took a different view of the meaning of the clause from that taken by the Attorney General, and was of opinion the only method of proceeding was by citation, but that the applicant was too poor to be able to institute that process.  He would have advised him to wait until the new rules of practice were established, and then sue in forma pauperis.  His Honor, after hearing the clause of the Act read, stated that he was satisfied it did not apply to cases like the one before the Court.  It was intended to meet a case upon the threshold, and to empower the Registrar to take possession, in order to prevent an estate going to waste, when no claimant appeared; but where an executor was regularly appointed by will, the Registrar had not any power over it, otherwise he would be a sort of general executor over all the wills in the colony.  With regard to the applicant being too poor to proceed in another way, that was a slur upon the Court which it would be His Honor's care to see was totally removed.  "I cannot (said His Honor) think of hearing that justice is to be meted out only according to the means of the suitor, or that a person is to come into a Court of Justice as into a warehouse, and be forced to go out because the commodity is too dear for him.  I say that he Shall have justice, whatever be his means; and if this applicant is too poor to pay for this process, he shall have it gratis.  As to suing in forma pauperis,[3 ]I always thought that an absurd proceeding; compelling a man to swear that he was not worth £5; why, he might be worth £10, and yet not be able to sue.  Let the citation issue in the present case."

This manly and dignified judgment of His Honor requires no comment.  It speaks for itself.  It is such as every Colonist had abundant reason to expect, and will cause the name of Forbes to be remembered and cherished by the latest posterity.

 

Notes

[1 ] Later in the year, Moore became Acting Attorney General in the place of Saxe Bannister.

[2 ]The reference is to s. 10 of (1823) 4 Geo. 4, c. 96, which constituted the Supreme Court of New South Wales as a Court of Ecclesiastical Jurisdiction.  When executors or the next of kin were unable or unwilling to administer a deceased estate, s. 10 empowered the judges of the Court to appoint the Registrar or other officer of the Court to do so.  See also Doe dem. Mills and Douglass v. Robinson, April 1826.

[3 ] In the condition of a poor person.

Published by the Division of Law, Macquarie University