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

In re Mackay v David [1832] NSWSupC 52

succession - salvage - Supreme Court, geographical limits on jurisdiction - Supreme Court, jurisdiction of - New Zealand, Supreme Court jurisdiction over

Supreme Court of New South Wales

Forbes C.J., Stephen and Dowling JJ, 20 July 1832

Source: Sydney Herald, 23 July 1832[1 ]

 

In re Mackay v. David. - In this case a citation had been issued, calling upon the next of kin of the deceased, Captain David, to show cause why administration should not be granted to plaintiff, on the following grounds:- Plaintiff some time since purchased the wreck of the ship America, which was lost on the Loo Islands, and fitted out the Calendonia to take a trip to the wreck.  In the mean time Captain David, master of the whaler Nelson, fell in with the wreck, and took from it every thing valuable.  On coming into port he refused to deliver it up, and again proceeded to sea.[2]  Subsequently dying, the vessel was again brought into this port, and the whole of his property, together with part of the wreck of the America, was sold by the Registrar, under an order of the Supreme Court, and who now held the proceeds. - Plaintiff, by Mr. Keith, now claimed to administer as a creditor, no one appearing on behalf of the next of kin.

Mr. Norton, on behalf of the estate, opposed the motion, contending that plaintiff would place the whole proceeds of the estate to his own credit, by which parties in England, to whom the deceased was indebted to a considerable amount, would be seriously injured.

The Court, in giving their decision, observed that deceased was out of their jurisdiction at the time he died; they had no power to grant the application; it was within the jurisdiction of the Prerogative Court of London.  They considered sufficient time had not been given from the time of issuing the citation, the deceased might have made a will, it was probable he had; they would enlarge the citation for twelve months, and order the Registrar to write to the friends of the deceased in England, that they might have an opportunity of appearing.

 

Forbes C.J., Stephen and Dowling JJ, 20 July 1832

Dowling, Proceedings of the Supreme Court, Vol. 72, Archives Office of New South Wales, 2/3255

 

[p. 91] A vessel called the American having been wrecked in Torrens Straights [sic] on a voyage from this colony, the agents of the owner in this colony, sold the wreck as she lay to one Hugh McKay, for the benefit of the underwriters.  Before McKay could possess himself of the wreck, a vessel called the NelsonEdward David master, finding the vessel apparently abandoned in the Straights [sic], the master possessed himself of various portions of stores & apparel, & then proceeded to New Zealand where he died.  The crew afterwards brought the Nelson into the harbour of Port Jackson, with part of the stores of the America on board, & also [p. 92] considerable property belonging to Capt David, who died out of the jurisdiction of this court.  On a former day Mr M'Kay had obtained a citation with a view to obtain letters of administration of the estate & effects of Davy, in the character of creditor, in the absence of any next of kin in the Colony.  A caveat had been entered by a person claiming to be related to Davy, but not as real next of kin, but as such in this Colony.

Norton was heard in support of the Caveat, & Keith for M'Kay.

Per Curium.  There are several points in this case upon which we entertain very considerable doubt & difficulty.  1st. as to jurisdiction.  2d. As to the right of M'Kay to claim administration in the character of creditor & 3d. whether we are authorized in contending that Davy has died intestate.  First as to [p. 93] jurisdiction. - This person does not die within the civil jurisdiction of this court, but at New Zealand.  His effects happen by accident to be brought into Port Jackson, & it may be doubtful whether under such circumstances we have authority to grant administration at all to any person of effects so brought defacto into the territory of New South Wales.  Secondly, can M'Kay be considered as a creditor of Davy?  He might have a claim against him, but unless that was reduced to a debt in preesenti, it appears to us, that at present it is very doubtful whether we could grant him administration in the character of creditor.  But then 3rdly - for anything that appears to the contrary Davy may have made a will, & in such a case we ought to hesitate before we grant administration on the ground of his having died intestate.  Lastly however, a citation in the ordinary [p. 94] way in this country would be very little use, for the notice could not reach the relatives of the deceased time enough to be of any avail.  At all events we should require of M'Kay to give real bonĂ¢ fide security before we granted him administration.  Under all the circumstances, the most we can do, is to grant a fresh citation returnable in 12 months, & in the mean time direct the Registrars to communicate with the relatives & friends of the deceased in England, & use due diligence to find out the next of kin. -  The matter will therefore stand over for 12 months.\

 

Notes

[1 ] See also Sydney Gazette, 24 July 1832.

[2 ] At this stage, the Gazette noted, the plaintiff applied to the Supreme Court to issue its process for an action in trover for the recovery of the property.  This was refused because the defendant was then out of the jurisdiction of the Supreme Court in civil matters.

Published by the Division of Law, Macquarie University