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

Gould v. James [1837] NSWSupC 33

trover, succession, ecclesiastical jurisdiction, will, attestation

Supreme Court of New South Wales

Burton J., 23 June 1837

Source: Sydney Herald, 26 June 1837

Gould v. James. - This was an action of trover, brought to recover the value of certain cattle; damages laid at £50.  The plaintiff is the widow of a man named Gould, who died at Parramatta, in the course of the last year, leaving his property by a will, dated 20th August, to his wife.  By a will dated 3d August, the property was left to the defendant, but the person who drew the will signed it ``Goulding" instead of Gould, to which Gould put his mark.  Both parties applied at the Supreme Court for probate of the will, which was granted, so that the defendant is executor to one of the wills.  As soon as the evidence of Mr. Gurner, on this head, had been taken, Mr. Foster, for the defendant, suggested to the Court that it was not worth while going any further in the case, as it was evident that it was solely a matter for an Ecclesiastical Court, as it was laid down that so long as a probate to a will remained unrepealed, it cannot be impeached in a temporal Court.  Mr. Justice Burton concurred with Mr. Foster, that the probate clothed the defendant, and that as executor he could not hold wrongful possession of property, and suggested that the fairest mode would be to withdraw an assessor, but as the defendant refused to consent, His Honor directed a non-suit to be entered.

Counsel for the plaintiff, Mr. Therry; for defendant, Mr. Foster.

Published by the Division of Law, Macquarie University