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Unreported Judicial Decisions of the Privy Council, on Appeal from the Australian Colonies before 1850

Lord, attorney of Mechan v. Palmer, administrator of estate of Stogdell [1809]

appeals - succession - insolvency - deceased estate, insolvent - bill of exchange

Appeal Committee of the Privy Council, 1809

Appeal from New South Wales

Unreported[1]

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

Simeon Lord, Attorney for Hugh Mechan, absent from the Colony, Appellant and John Palmer, Esq. Administrator of John Stogdell, deceased, respondent. And cross appeal with parties reversed.

IN THE PRIVY COUNCIL

From the Supreme Court of Judicature

in New South Wales

Between Mr. SIMEON LORD, Attorney for HUGH MECHAN, absent from the Colony,... Appellant,

AND

JOHN PALMER, Esq. Administrator of JOHN STOGDELL, deceased, ... Respondent.

And by Cross Appeal,

Between the said JOHN PALMER, ... Appellant,

AND

SIMEON LORD, Attorney for the said HUGH MECHAN, ... Respondent.

The CASE of the said JOHN PALMER, the DEFENDANT in the ORIGINAL SUIT.

The Respondent, John Palmer, Esq. who was Commissary-General at New South Wales in the Year 1796, returned to London for a time, with the Leave of Governor Hunter, and left the Management of his Affairs in his Absence to the above-named John Stogdell, whom he had employed as an Agent.  Mr. Palmer left under the care of Stogdell, amongst other Things, a considerable Quantity of Goods for Sale, and gave him a Power of Attorney to receive Debts, and entrusted him with some Papers signed by Mr. Palmer, on which to draw Bills of Exchange.

            Mr. Palmer returned to New South Wales in November 1800, and found Stogdell in the Management of his Affairs, who promised to render him an Account; but in the Month of March, 1801, Stogdell was accidentally drowned, before he had rendered any Account; and Mr. Palmer has been unable to find any regular Account of the whole of 
Stogdell's Dealings as his Agent; but from an Account in Stogdell's own Hand-writing, of the Goods and Effects left under his Care, and from other Memorandums which Mr. Palmer was enabled to trace into his Hands, as is hereafter more particularly stated, Mr. Palmer was enabled to ascertain that Stogdell was indebted to him in considerably more than Eight Thousand Pounds.

            Stogdell had, during Mr. Palmer's Absence, purchased Farms and Stock in his own Name, and bought and sold Goods on his own Account, and had by that Means become possessed of considerable Property, and had contracted other Debts; but Mr. Palmer's Debt was considerably more than Double that of all the other Creditors put together (excluding the Mortgage Debt to Mr. Campbell, after-mentioned); and Stogdell having died Intestate, Mr. Palmer applied for, and obtained Letters of Administration of his Effects; and the present Suit originates in a Claim of Simeon Lord, as the Attorney of Hugh Mechan, against Mr. Palmer, as the Administrator of John Stogdell, for a Debt of 306l.19s. 3d. due from Stogdell to Mechan.

            As the principal Question in this case seems to be, Whether an Administrator in New South Wales has a Right to retain his own Debts in preference to Creditors in equal Degree, or is bound to distribute the Assets equally amongst all Creditors, and as it will elucidate the Nature of the Proceedings in this Cause, which is the First Appeal from the Colony, it may not be improper to state the following Clauses from the Letters Patent, dated the 2d Day of April, in the Twenty-seventh Year of the Reign of his present Majesty, constituting the Courts of this Colony.

            "And Our further Will and Pleasure is, and We do by these Presents for Us, Our Heirs, and Successors, direct, ordain, and appoint, that upon Complaint to be made in Writing to the said Court, by any Person or Persons, against any other Person or Persons residing or being within the said Place, of any Cause of Suit, the said Court shall or may issue Warrants under the Hand and Seal of the said Judge Advocate for the Time being, to be directed to the Provost Marshal, or such other Officer as shall be appointed by Our Governor to execute the Process thereof; which Warrant shall contain shortly the Substance of the Complaint, and shall either command such Officer to summon the Defendants to appear, or, in case the Value of the Demand be Ten Pounds or upwards, of which Oath shall first be made, command him to bring his, her or their Body or Bodies, or take Bail for his or their Bodies' appearance before the said Court, at a certain Time and Place therein to be named, to answer to the said Complaint, and to find sufficient Security for his, her, or their Performance of such Judgment, Sentence, or Decree, as shall be pronounced thereupon, or finally given upon an Appeal.  And upon Appearance or Non-appearance, or Return by the Officers, that the Defendant or Defendants cannot be found, We do hereby for Us, Our Heirs, and Successors, ordain, decree, and authorize the said Court to proceed to the Examination of the Matter and Cause of such Complaint, and upon due Proof made thereof, either upon the Oath or Oaths of any Witness or Witnesses, in Writing to be by him, her, or them subscribed for which Purpose,

            "We do by these Presents empower and require the said Court to administer an Oath to such Witnesses as shall be produced by either Party, Plaintiff or Defendant, or by the voluntary Confession of such Party, Defendant, or Defendants, to give Judgment and Sentence according to Justice and Right.

            "And if either Party shall find himself or themselves aggrieved by any Judgment or Decree to be given or pronounced by the said Court, Our Will and Pleasure is, that she or they shall and may appeal to the Governor of the Eastern Coast of New South Wales and the Parts adjacent; or in case of his Death, or Absence, to the Lieutenant-Governor for the Time being; whom We do hereby empower and authorize to hear and determine the same, and to issue Process of Summons to answer Our Appeal, and the like Process of Execution as the said Court is hereby directed and empowered to issue.

            "And if either Party shall find himself, her, or themselves aggrieved by the Judgment or Determination of the said Governor, in case where the Debt or Thing in Demand shall exceed the Value of Three Hundred Pounds, and otherwise, Our Will and Pleasure also is, that such Party so aggrieved may appeal to Us, Our Heirs, and Successors, in Council.

            "And We do further will and ordain, that no Appeal shall be admitted from the Judgment of the said Court, unless the same shall be interposed with Eight Days after the said Judgment, nor from the Judge of the Superior Court, unless the same shall be interposed within Fourteen Days after the Judgment of such Superior Court."

            The Complaint in this Cause, preferred in the Civil Court constituted by the Letters Patent, is annexed, Appendix, No. I. and by it Mr. Palmer is called on to shew Cause why he has not produced his Account, as Administrator of John Stogdell, according to the Tenor of his Bond; and why he has not applied the Monies he has received.  Mr. Palmer's Answer, Appendix No. II. is, that no Blame is to be imputed to an Adminstrator until he is duly summoned to produce his Accounts, and makes Default; that he had already exhibited an Account on the 27thJuly, 1801, and that he had fully administered the Effects of the Deceased come to his Hands, and was a considerable Loser.  In Answer to this, and as a Supplement to his former Complaint, Mr. Lord exhibits the Complaint in the Appendix, No. III.

            The Account alluded to as having been exhibited, is an Account which Mr. Palmer alleges he exhibited in a Proceeding instituted by Mr. Balmain, another Creditor of Stogdell's; it is however denied by the Plaintiff, that he exhibited any such Account.  The Fact, however, seems immaterial to this Cause, as the Court, by Order dated 10th August, 1802, decided, that no Administrator need render an Account on Oath, until peremptorily required by the Civil Court; and ordered Mr. Palmer to render an Inventory; and Mr. Mechan has not appealed from this Order.  This is an Answer to the First Part of Mr. Lord's Second Complaint.

            Mr. Palmer accordingly exhibited an Inventory of the Effects of the Intestate Stogdell possessed by him, and what the same produced, amounting to 4774l. 2s. 0¼d.; to which he also added Two small Sums received from Thomas Bray and Thomas Upton, and the Value of an old Whale Boat and Cask of Tallow remaining unsold, amounting to 21l. 6d. making the whole Produce 4795l. 3s. 1¼d. from which he claimed to deduct 477l. 8s. 3d. for Commission, leaving a Balance of 4317l. 14s. 10¼d.  A Copy of his 
Discharge, which he gave in, is set forth in the Appendix, No. IV. and the Particulars of the Debt of 8553l. 11s. 5d. therein claimed by Mr. Palmer against Stogdell's Estate, is also set forth in the Appendix, No. V. but which is reduced to 8229l. 18s. 5d. by certain Sums which he admits to allow in Account to Stogdell.

            These Accounts so delivered in, Mr. Mechan, by his Attorney, proceeded to impeach; but from the Expressions in some Part of these Proceedings, it appears that it was urged in particular, that Stogdell had in all Things acted as the Agent or Partner of Mr. Palmer, and not for himself.  But this appears to have been, and would have been, a ground to make Mr. Palmer liable personally, and not as Administrator, for Stogdell's Acts, unsupported with any sufficient Evidence.  But the Demand was against Mr. Palmer as the Administrator of Stogdell, not in his own Right; and the whole Cause proceeds on that Idea.  And if this Fact could have been established, then all the Property in question was the Property of Mr. Palmer, either as the surviving Partner, or as the Principal; and the whole Proceedings are Proceedings for passing the Accounts of Mr. Palmer as Administrator only, that it seems unnecessary to dwell on this Point.

            Mr. Mechan's Objection to Mr. Palmer's Accounts must be divided into Two Parts; First, to Mr. Palmer's Receipts; Secondly, to his Discharge.

            The principal Objections to his Receipts are, that he did not sell the Property in the most advantageous manner; for that he ought to gave given longer Credit, and required a less Deposit.  But it is conceived that an Administrator has no Power thus to speculate with the Property of his Intestate; and though much Evidence is given upon this Subject, it is impossible to ascertain any specific Loss that the Estate has sustained from this Mode of selling.  There is also much general Evidence, to shew that some Stock on the Premises was used by Mr. Palmer after Stogdell's Death.  The only accurate Statement on this Subject appears to be in Governor King's Decree, who, after charging Mr. Palmer with the amount of Debts received after the Account rendered, makes Mr. Palmer's Receipts, as Administrator, amount in the whole to 5405l. 12s. 9d. from which he allows 238l. 14s. 1d. to be deducted for Commission.  And there should also be deducted a further Sum of 27l. 16s. 10d. for Monies expended, and Expences of Probate, which will leave a Balance of 5239l. 11s. 10d. for the Amount of Stogdell's Effects applicable to pay his Debts.

            In respect of Mr. Palmer's Discharge, the following is Mr. Palmer's Statement of the Evidence he gave; and the Resolutions of the Court upon the Subject, taken from his Memorial presented to Governor King in support of his Appeal:- "Your Memorialist, under the Directions of the Court below, proceeded by Evidence to substantiated and prove the said Account of Monies due, and upon the said 22d November aforesaid, your Memorialist, in proof of One Article of the said Paper so filed, amounting to the Sum of 4340l. 10s. 6d. and in order legally to establish such Debt by proof in the said Cause, your Memorialist duly proved and produced to the said Court a Book, in the Hand-writing of the said John Stogdell, containing the Quantity, Quality, and the Price of certain Articles, and other Sums of Money received by the said John Stogdell, for or on Account of your Memorialist, and with which he debited himself in the Month of September 1796; and with which Proof of that Item of 4340l. 10s. 6d. the Court declared they were satisfied, as may appear by the Record of the Proceedings, or Acts of the Court, set forth on the 22d Day of November, 1802.  And by them it also appears, that an Article of 1202l. 11s. 10d. for Cash and Goods by Mr. Williamson delivered Stogdell, and debited to your Memorialist, and by him paid, was then under Consideration, and which the Court afterwards allowed.  And an article of 26 Barrels of Tar, charged 91l. proved by William Guy, was also under Consideration; and which the said Court also allowed; and another Article of 10l. paid Henry Revill, was proved by the said Revill's Receipt; and another Article of 60l. 12s. 6d. paid Frances Newcombe, the Mother of the Intestate, is proved by her Receipt; and another Article of 27l. 7s. Bills remitted the 13th October 1796, and proved by your Memorialist's Letters inclosing them to, and found in the Papers of Stogdell, and a Bill dated the 22d Day of November, 1796, purporting to be drawn by your Memorialist, and approved by John Stogdell, for 500l. is proved to be filled up by John Stogdell, on a Blank left by your Memorialist, and paid by him to John White, and by your Memorialist paid in England; and 724l. 19s. 7d. paid by David Bevan to the said John Stogdell, is proved by the said David Bevan; and 442l. charged to be paid by James Ruse to the said John Stogdell, on your Memorialist's Account, is proved by the Affidavit of the said James Ruse; and an Article of 121l. 15s. 6d. paid by James Squires on your Memorialist's Account, is proved on the Oath of the said James Squires; and 120l. Cash paid by Samuel Wheeler to the said John Stogdell on your Memorialist's Account, is proved by the said Samuel Wheeler's Affidavit; and the Sum of 30l. Cash paid by Richard Hawes to the said John Stogdell, on Account of your Memorialist, is proved by the said Richard Hawes; and the Payment of 123l. paid by Thomas Raby to the said John Stogdell on your Memorialist's Account, is proved by the Affidavit of the said Thomas Raby; and all the other Items in the said Account, composing the said Sum of 8553l. 11s. 5d. were duly proved to the Satisfaction of the Court; from which the Court deducted a Credit of 323l. 10s.; and by the said recited Acts of the Court, allowed your Memorialist's Debt at 8229l. 18s. 5d. aforesaid."

            It seems unnecessary to go into the Particulars of all these Items, for on the 22d of November the Court declared it to be satisfied with the Proof, as far as it went; and it states as a Fact, that Mr. Palmer paid the 500l. on the Bill filled up and negotiated by Stogdell; and it admits the Charge of 724l. 17s. 7d. received by Stogdell from Bevan, being the Produce of Goods by the Ship Walker, Captain Michell; and Ruse's Account 442l.; which Sums alone amount to 6007l. 10s. 1d. and are more than all the Assets Mr. Palmer had received, even before Mr. Campbell's Mortgage Deed is deducted.  And the only Question on Mr. Williamson's Account seems to have been, whether Stogdell's Estate should be charged to Palmer for 1202l. 11s. 10d. alleged to have been received from Williamson; or should have an Allowance of 8l. 12s. an Error, and 152l. 7s. 6d. alleged to have been paid by Stogdell to Williamson. - This would make the Balance due to Mr. Palmer from the Estate of Stogdell upwards of 7000l.

            It seems equally clear, that Mr. Palmer's Property paid in the first Instance the Mortgage Debt to Mr. Campbell, of 1864l. 4s. 8d. mentioned in his Discharge; and that he was entitled to demand the other Sums he claims against the Estate of Mr. Stogdell; but it seems unnecessary to enter into a minute Examination of these Claims, the chief Question being, How the Effects are to be applied?

            The Civil Court, nevertheless, on the 4th of July, 1803, pronounced generally a Verdict for the Plaintiff for the Sum of 306l. 19s. 3d. with Costs of Suit.

            The Court, however, met on the 7th Day of July, 1803, and made an Order, a Copy of which, and of the Certificate of the Judge Advocate, is set forth in the Appendix, No. V. acknowledging this Debt due from Stogdell, to be paid 8229l. 18s. 5d.; that the Effects of Stogdell amounted to 4774l. 2s. 7½d.; that Mr. Palmer had paid 1892l. 1s. 6d.; and that the Balance due to Mr. Palmer therefore was 6337l. 16s. 11d.  It is, however, necessary to state, that this Document was not annexed to the Copy of the Proceedings laid before the Governor, in the Appeal of which Mr. Palmer complained; and an Application having been made by the Governor to the Judge Advocate, who required the above Proceedings on the Subject; the Answer was, he did not consider it as forming any Part of the Proceedings in the Cause. - See prepared Interrogatories and Letter to the Governor, signed by the Judges of the Civil Court, dated 9th September, 1803.

            Mr. Palmer considered this Judgment as a Judgment only against future Assets, after he should have retained his Debt; and in that Point of View he had no Objection to it; but soon found that it was the Meaning of the Verdict to charge him with the Debt and Costs in the first Instance, and he thereupon appealed to His Excellency the Governor against such Judgment; and the Appeal came onto be heard before the Governor on the 16th Day of October, 1803.  This Decree is stated in the Appendix, No. VI. the material Part of it is as follows:

            "I am also of Opinion, that the Assets remaining in the Administrator's Hands, and what he may hereafter receive, should, by Virtue of my Decree in Equity, be deemed equitable Assets, which are as follows, with the Exception of Errors, viz.:

                                                                                                            £.         s.          d.

            "Bill of Sales exhibited to the Civil Court, August 16, 1802, 4774          2          7½

            "Debts due and acknowledged to be received since August

                        the 16th ...                                                                   299      12        4½

            "Debts paid, and omitted in Inventory or Bills of Sales as

                        above, including Stock used by the Appellant

                        Administrator ...                                                           179      10        3

            "Paid by Stogdell to Williamson, on Account of Palmer,

                        not credited to Stogdell's Estate ...                               152      7          6

                                                                                                            --------------------

                                                                                                            £5405 12         9

            "Deduct Specialty paid to Mr. Campbell ...      £1864 4 8

            "Five per Cent. allowed for Commission ...         238 14 1

                                                                                    ------------

                                                                                                            2102    18        9½

                                                                                                            ---------------------

            "Total of equitable Assets now in the Administrator's

                        Hands, Oct. 7, 1803 ...                                                £3302  13        11½

                                                                                                            ---------------------

                        "That the Debts proved and allowed which are of the same Degree,

                                    are as follow:

                                                                                                            £          s.          d.

            "Debt to the King ...                                                                388      13        0

            "Ditto to Appellant, ...                                                  8229    18        5

            "Ditto to the Respondent, ...                                                     306      19        3

            "I do hereby Award and Decree, that the Appellant Administrator do retain in his Hands the remaining equitable Assets, amounting to 3302l. 13s. 11½d. as well as all future Assets, until January the 1st, 1804, being 12 Weeks from this Date, to advertise all Creditors to the Estate to make their Claims good, and all Persons indebted thereto to make Payment, either Party to sue or be sued for proving those Debts and Claims respectively before that Time expires.

            "And on the 1st January, 1804, after deducting the Funeral Expences, [sic] Costs in the Civil Court and Court of Appeal, to proceed and make a just Division of the said Assets, proportional to the several respective Claims Amounts between the King, Appellant, Respondent, and such Creditors who proved their respective Claims before the 1st January, 1804.

            "And all future Assets to be applied to the same Use, and in the same Manner and Form, on the last Day of every Quarter, until no more Assets remain to be divided as above."

            From this Decree the said Hugh Mechan, by Simeon Lord his Attorney, has appealed, insisting that he has recovered a Verdict, to the Benefit of which he is entitled.

            That Mr. Palmer conceived himself aggrieved by so much of the said Decree as directed the Assets of John Stogdell to be equally divided amongst his Creditors, and thereby deprived him of the Benefit of retaining his Debt as Administrator, also applied to the Governor for Leave to appeal; but the Governor being of Opinion that two Appeals would not lie in the same Cause, refused to grant the same; but His Majesty has been pleased to allow Mr. Palmer to appeal from so much of such Decree as aforesaid; and he submits that it ought to be declared that he is, as Administrator of the said John Stogdell, entitled to retain the said Sum of 3302l. 13s. 11½d.and also any other Sums of Money he may receive as Assets of the said John Stogdell, in discharge of the Debt so due and owing to him from the Estate of the said John Stogdell; and that such Assets only as he shall receive in future (after such his Debt shall be paid and satisfied) ought to be divided amongst the other Creditors of the Intestate; and that with such Variation the said Decree of the said Governor may be allowed.

REASONS

For reversing the Decree of His Excellency the Governor, so far as the same is complained of by the Appellant, Mr. Palmer.

That the Court instituted by Virtue of His Majesty's Letters Patent, is bound to administer Justice according to the Laws of England, no other Laws having been ever given or enacted for such Colony; and by these Laws, whether administered in a Court of Law or Equity, an Administrator is entitled to retain his own Debt, in preference of the other Creditors of the Intestate.

REASONS

For allowing the Decree of His Excellency the Governor, so far as Reverses the Judgment of the Court of Civil Jurisdiction.

I.                    For the Reason above given, Mr. Palmer has a Right to retain his own Debt in preference to the other Creditors.

II.                 That in case he is allowed to retain his own Debt in preference to other Creditors, the Judgment of the Court of Civil Jurisdiction is clearly contrary to the Evidence laid before them; and the Result of the Decisions of such Court upon the different Items of the Accounts before them.

III.               That the Judgment of such Court cannot, according to the true Construction of His Majesty's Letters Patent, be considered as the Verdict of a Jury conclusive upon a Point of Fact, but is open to Revision of the Conclusions both in Law and Fact, upon an Appeal.

IV.              That if such Court had, in any instance of Civil Proceedings, the conclusive Power of a Jury in determining upon a Fact, the Proceedings in this Cause shew that they have acted not as a Jury, but in the Nature of a Court of Equity, by calling on the Administrator to produce his Accounts, and in taking the Accounts of the Effects of an Intestate; and therefore ought to proceed according to the Usage of such Court, by ordering a general Distribution; otherwise an Administrator may be harassed by a Multiplicity of Suits, in which contradictory Judgments may be given, as has happened in this Case, if Mr. Palmer rightly understands the Proceedings at the Suit of Mr. Balmain.

V.                 That unless Mr. Mechan can sustain the general Principle, that the Judgment of the Court of Civil Jurisdiction, like the Verdict of a Jury, is not to be examined by any Court, he cannot be admitted to impeach the Decree of the Governor, he not having stated any specific Objections to the same: That on the Argument of this Case, it must be taken that the Account stated between Mr. Palmer and the Estate of John Stogdell, is in all respects correct in point of Fact, and that that the only Matter for the Opinion of the Court is, Whether the Court of Appeal has pronounced a proper Judgment upon such admitted Account?

A.     PIGGOTT.

JOHN BELL.

------

Printed by B. M'Millan

Bow Street, Covent Garden.

IN THE PRIVY COUNCIL[2]

Appeal from New South Wales

      LORD, Attorney of Mechan,    Appellant.

      PALMER, ...                           Respondent.

                  Et ¿ Contra.

                  -----

The CASE of the said JOHN PALMER, the Defendant

in the Original Suit.

                  ----

NEELD & FLADGATE

NORFOLK-STREET.


 

APPENDIX.

----

NO. I.

Rule to shew Cause, exhibited before the Civil Court, 10th August, 1802,
To the Honourable Court of Civil Judicature now Sitting.

 

            SIMEON LORD, as Attorney of Hugh Mechan, prays this Honourable Court to grant a Rule for John Palmer, Esquire, the Administrator of John Stogdell, deceased, to appear in Court, to shew Cause why he has not produced his Accounts with the deceased John Stogdell within the time limited by Law, pursuant to the Tenor of his Bond, and why he has not applied the Monies he received upwards of Fourteen Months since, on account of Sales of the Estates and Effects of the said John Stogdell, to the Payment of the Debts of the Deceased.

S. Lord.

---

NO. II.
Mr. Palmer's Answer Replicatory to the above Rule, exhibited before the Court, 11th August, 1802.
 

            With respect to the Day mentioned in the Bond, that is a nominal Thing, because until the Administrator is duly summoned to produce his Account at a Day prefixed by the Court, and he makes Default, no Blame can be imputed for a Neglect of exhibiting an Account, and of that Neglect, the Court only are proper Judges.

            In the present Case, the Administrator has exhibited an Account on the 27th  July, 1801, by which he has fully administered the Effects, and the Applications of the Money received is therein fully accounted for.  The Administrator contends and insists, that he has fully administered all the Goods of the Deceased, come to his Hands, and he is a very considerable Loser, and in advance for the Estate.

John Palmer.

---

NO. III.

            Simeon Lord submits to the Consideration of the Court, how far it was necessary for him to go into the Examination of Accounts, or of any Papers now produced; as he had, with others, entered a Protest against the Proceedings of Mr. Palmer, as Administrator, in disposing of the Effects of the Deceased: and a Period of Eighteen Months had elapsed and no Dividend had been made; but rather, whether he was not, under those Circumstances, entitled to his Money from the Administrator.

            Whether, as Mr. Palmer has confirmed several of the Deceased's Acts since his arrival in this Country, and since he left Stogdell his Agent, he ought not, both in Law and Equity, to be accountable for all?

S. Lord

---

NO. IV.

                                                            £          s.          d.         £          s.          d.

The net Proceeds of Effects sold                                                          

by Auction are ...                                                                                             4296    14        4

1801. 1801. August 23, Cash received

of Thomas Bray ...                      5          10        6

Value of an old Whale Boat,
two pair of old Wheels without
Irons, a Cask of Tallow, being the
same as mentioned to remain 
unsold in the Account delivered
into Court on the 27th July, and

valued at ...                              12        0          0

1802. 1802. April, By Cash of Thomas
Upton upon a Note for ten
Bushels of Wheat, after
Carriage deducted, produced          3          10        0

                                                   -------------------

                                                                                        21        0          6

                                                                                       -------------------

        The whole Produce of Effects 
        come to the Hands of said John Palmer,                               £4217  14        10

The said John Palmer, the Administrator, 
hath paid, retained, and distributed in course 
of Administration, the following Sums, that 
is to say,
A Debt due to the said John Palmer by the
said John Stogdell at the Time of his Death,
the Particulars of which are contained in a 
Schedule and Account delivered to Court, 
and allowed, the 27th July, 1801, and filed
amongst the Court Papers, amounting to ..                                      8553    11        5

The said John Stogdell, on the 9th of
March, 1797, paid an Order for, ...                  £23 13 0
 

Also for Work at Walloomoolloo, ...                100 0 0

Also due at the Time of Death of the
said John Stogdell, for Five Years'
Wages, at 40l. per Year, ...                              200 0 0
 

                                                                        --------------     323    13        0

                                                                                                --------------------

                                                                                                8229    18        5

The said John Palmer has paid to redeem Effects in 
Mortgage to Robert Campbell, ...                                            1864 4 8
Paid Expences of Funeral to James 
Bloodworth, ...                                                   £4 4 0

Ditto to James Sommerville, ...                               5 0 0

Ditto to Simeon Lord, ...                                      10 13 10

Ditto to Richard Atkins, Esquire, for 
Administration and Proof of Claims, &c. ...             8 0 0
 

                                                                        -----------------   27    16        10

                                                                                                ---------------------

The whole of the Administrator's Disbursement, ...                               10121  19        11

                                                                                                            ---------------------

Due from the Estate of John Stogdell to John Palmer, Esquire, ...          £5804  5          1

                                                                                                            ---------------------

---

NO. V.
In the Court of Civil Jurisdiction.
MECHAN v. PALMER, Esquire, Administrator, &c.
 

            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, Esquire, the Administrator, at the Time of his Death, in the Sum of 8229l. 18s. 5d.; that the Sale of the Effects of the said John Stogdell amounted to 4774l. 2s. 7½d.; and that the said John Palmer, Esquire, has paid 1892l. 1s. 6d. out of the said Sum, leaving a Balance to the said John Palmer, Esquire, of 6337l. 16s. 11d.

RICHARD ATKINS,
WM. MOORE,
JAS. MILCHAM.
 

 

Error in the Balance, which should be

5347l. 17s. 3½d. instead of 6337l. 16s., 11d.

                                    RICHARD ATKINS,

                                    Wm. Moore,

                                    Jas. Milcham.

            I Richard Atkins, Esquire, Judge Advocate of the Territory of New South Wales, do certify, that the above is a true Copy from the Record of the Act of Court, filed of Record, and remaining in my Office, signed by the above-named Persons, being all the then Members of the Court of Civil Jurisdiction held in and for this Territory.  Witness my Hand,

RICHARD ATKINS, J.A.

---

Printed by B. M'Millan,
Bow Street, Covent Garden.
 


 

Source: PRO PC 1/3672C

Before the King's Most Excellent Majesty in Council.

Palmer

ats

Lord Atty

Of Mechan} Petition for leave of Appeal

R 15th July 1806

15th Octr. 1806

Refd. To Committee

22nd. Novr. 1806

Reported to be allowed

26th Novr. 1806

order appd.

Neeld & Fladgate

Milner & Parry

Norfolk Street[3]

In a Court of Civil Judicature in New South Wales held by virtue of a Precept under the hand and Seal of His Excellency Phillip [sic] Gidley King Captain General and Governor in Chief in and over His Majesty's Territory of New South Wales and its Dependencies &c. &c.

Betwen

Mr. Simeon Lord Attorney for Hugh Mechan absent from the Colony} Plaintiff

and

John Palmer Administrator of John Stogdell deceased...} Defendant

            To the King's most excellent Majesty in Council

            The humble Petition and Appeal of the said John Palmer

Sheweth

            That in the Month of August 1802 the said Simeon Lord as the Attorney of Hugh Mechan obtained a rule for your Petitioner as the Administrator of the said John Stogdell deceased to appear in Court to shew Cause why he had not produced his Accounts with the deceased John Stogdell within the time limitted [sic] by Law pursuant to the tenor of his Bond and why he had not applied the monies he had received upwards of fourteen months before on account of the sales of the Estate and Effects of the said John Stogdell to the payment of the Debts of the said deceased.

            That on the 11th. day of August at an adjourned sitting of the said Court the said Simeon Lord on behalf of the said Hugh Mechan claimed of your Petitioner as the Administrator of the said John Stogdell the sum of £310.. and upwards for so much money due to the said Hugh Mechan from the said John Stogdell deceased on sundry Notes of hand and acceptances of the said John Stogdell and also charged your Petitioner with not having duly administered the Effects of the said John Stogdell as his Administrator.

            That your Petitioner also delivered into Court a paper replicatory to the above mentioned rule and on the 16th. day of August following your Petitioner exhibited to the Court an Inventory and declaration as to the Estate and Effects of the said John Stogdell.

            That on the 16th. day of August 1802 and on divers subsequent days Witnesses were examined and Books and papers produced exhibited proved and read by and on behalf of the said Simeon Lord and in support of the Claim of the said Hugh Mechan against the Estate and Effects of the said John Stogdell deceased and your Petitioner as the Administrator thereof and the charge made by the said Simeon Lord against your Petitioner as to his Management of the Estate and Effects of the said John Stogdell as such Administrator and Witnesses were also examined and Books and papers were produced exhibited proved and read by and on behalf of your Petitioner.

            That on the 4th. day of July 1803 a Judgment was given by the said Court for the said Simeon Lord in the full sum of £306..19..3 with Costs.

            That your Petitioner thereupon gave notice of his intention to appeal and on the 11th. day of July 1803 your Petitioner delivered to his Excellency Phillip Gidley King his Appeal and the reason for such Appeal and the said Simeon Lord the Respondent in the said Appeal on the 12th. day of August 1803 also delivered in to his said Excellency his Memorial by way of Answer to said Appeal.

            That his Excellency the said Phillip Gidley King thereupon took the same into Consideration and administered and caused to be administered Interrogatorys [sic] for the examination of the other Witnesses and also examined divers other Witnesses as to the subject matter of the said Verdict and the Administration of the Estate and Effects of the said John Stogdell deceased and on the seventh day of October 1803 made his Decree thereupon whereby after reciting various matters he found amongst other things.. that the said John Stogdell was at his death indebted to your Petitioner in the sum of £8229..18..5 and decreed that your Petitioner should retain in his Hands the remaining Assetts [sic] therein called Equitable Assetts of the said John Stogdell amounting to £3302..13.11½ as well as all future Assetts until January 1st. 1804 being 12 weeks from the said date to advertize all Creditors to the said Estate to make their Claims good and all persons indebted thereto to make payment either party to sue or be sued for proving their Debts and Claims respectively before that time expired and on the said 1st. day January 1804 after deducting the ffuneral expences and costs in the Civil Court and Court of Appeal to proceed to make a just division of the said Assetts proportionate to the several respective Claims amounting between the King the said Appellant respondent and such Creditors who might prove their respective Claims before the 1st. January 1804.  That all future Assetts should be applied to the same use and in the same manner and form on the last day of every Quarter until no more assets should remain to be divided as before.

            That the said Simeon Lord as the Attorney of the said Hugh Mechan appealed from the said Decree insisting on the benefit of his said Judgment.

            That your Petitioner also on the 19th. day of October 1803 and within the time limitted for presenting such Appeal by the Letters patent hereinafter mentioned presented his Petition to his Excellency the Governor thereby stating that by the Letters patent constituting the said Court bearing date the 2nd. day of April in the twenty seventh year of your Majesty's reign it was ordained that if either party found himself aggrieved by the Judgment or determination of the Governor on hearing any Appeal when the thing in demand exceeded the value of £300.- and not otherwise such aggrieved party might Appeal to his Majesty his Heirs and Successors in Council which Appeal from the Judgment of the superior Court was to be interposed within 14 days after the Judgment of such Court and that for matters in Law and otherwise arising upon the determination of his Excellency the Governor so given on hearing the said Appeal and for other Causes and reasons your Petitioner found himself aggrieved by the Judgment or determination given by the Court on the hearing of the said Appeal and did appeal from such determination to your Majesty in Council pursuant to the provision of the said Letters patent and your Petitioner thereby prayed to have true Copies of all and every the proceedings of the said Courts of Civil Jurisdiction and Court of Appeal together with a true Copy of such his Appeal and other the proceedings in the Cause and Cause of Appeal to enable your Petitioner to prosecute his Appeal before your Majesty in Council with effect.

            And that such proceedings might be examined by persons appointed by your Petitioner with such Records of the respective Courts and attested by and under the Seal of the Colony in due form.

            That his Excellency the Governor referred to the Judge Advocate to be informed how far the said Petition could be complied with being in possession of an Appeal from the said Simeon Lord dated the 12th. instant when the Judge Advocate did not think there could be two Appeals whereupon his Excellency refused the same.

            That the Appeal of the said Simeon Lord as the Attorney of the said Hugh Mechan has been brought over and will come on to be heard in its due course but your Petitioner is advised that he is aggrieved by the said Decree inasmuch as he is not allowed to retain the money received by him as Administrator in discharge of the said Debt due to him from the said John Stogdell his Intestate and that full Justice cannot be done in this matter unless he is allowed to appeal from such Decree.

            That your Petitioner is advised and humbly submits that his Excellency the Governor was mistaken in refusing your Petitioner leave to Appeal respecting the matters aforesaid.

            Your Petitioner [??] to be allowed leave to appeal to your Majesty in Council against so much of the said Decree of the 7th. day of October 1803 as directs so much of the said sum of£3302..13..11½ as will remain after deducting the ffuneral expences Costs in the Civil Trial and Court of Appeal to be divided in proportion to their Claims between his Majesty your Petitioner and the said Hugh Mechan and such Creditors who shall prove their respective demands as in such Decree mentioned and all future Assetts to be applied to the said use and that it may be declared that your Petitioner as Administrator of the said John Stogdell is in the first place entitled to retain such Assetts in satisfaction of his said debt of £8229..18..5 and that for such purpose your Petitioner may be allowed such Copy of the proceedings in the Cause as was by his said Petition to his Excellency prayed in case the same shall be necessary and that such his Appeal may come on to be hear together with that of the said Simeon Lord as the Attorney of the said Hugh Mechan or that your Petitioner may have such other relief in the premises as to your Majesty in your special grace and favor may seem meet.

            And your Petitioner shall ever pray &c.

Continued

Notes

[1]          This is the first appeal from an Australian colonial court in which the appeal committee then the full Privy Council rendered a decision.  For the N.S.W. litigation, see Lord v. Palmer, 1803.

          On the role of the convict attorney George Crossley in this litigation, see Bruce Kercher, "A Convict Conservative: George Crossley and the English Legal Tradition" (1998) 19 Law in Context 17-30. Crossley acted for Palmer and behind him, the estate. Like Crossley, Simeon Lord, who acted for Mechan or Machin, was an emancipated convict. Crossley had legal training however, and the conflict between him and the untrained agent Lord became a conflict between formal and informal versions of law.

          This case is recorded in the Appeal Book 1781-1819 (held in the office of the Judicial Committee of the Privy Council) as follows:

(1805)

New South Wales

Mr. Simeon Lord (atty. for Hugh Mechan) v John Palmer Esq. Admt. of John Stogdell decd

(Received) 19 August

(Referred to committee) 12 March 1806

Milne and Parry Old Jewry

Nield & Fladgate Norfolk Street.

The same volume continues

(1806)

New South Wales

John Palmer v Simeon Lord

(Received)

15 July 1806

Neeld & Fladgate

Milne & Parry Old Jewry

(Remarks) Petition for leave to appeal

[Under Enquiries, the same Appeal Book recorded the following:]

New South Wales

Simeon Lord v John Palmer Esqr admor

Milne & Parry 15 Old Jewry for appt

Nield & Fladgate for respt. 17 Setpr 1804

[2]          The following is on the back of the preceding document.

[3]          The preceding was the outer page.  The following is inside that page.

 

Published by the Division of Law, Macquarie University