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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] (continued)

Continued from part one

In the Privy Council[3]

Palmer

v

Lord, Attorney of Mechan } Cross Appeal

R 31st July 1807

26 Aug. 1807

Refd.

Neeld & Fladgate

Norfolf Street

Milne & Parry Old Jewry

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

Between

            John Palmer Administrator of John Stogdell deceased ... Appellant

and

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

            To the King's most excellent Majesty in Council

            The humble 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 the said John Palmer the present Appellant 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 limited 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 eleventh day of August at an adjourned sitting of the said Court the said Simeon Lord on behalf of the said Hugh Mechan claimed of the said John Palmer the Appellant as the Administrator of the said John Stogdell the sum of three hundred and ten Pounds 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 the said John Palmer the Appellant with not having duly administered the effects of the said John Stogdell as his Administrator.

That the said John Palmer the Appellant also delivered into Court a Paper replicatory to the above mentioned Rule And on the sixteenth day of August following exhibited to the Court an Inventory and Declaration as to the Estate and Effects of the said John Stogdell.

That on the sixteenth day of August 1802 and on diverse 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 the said John Palmer as the Administrator thereof and the charge made by the said Simeon Lord against the said John Palmer 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 produced exhibited proved and read by and on behalf of the said John Palmer.

That on the fourth 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 the said John Palmer the Appellant thereupon gave Notice of his intention to appeal and on the eleventh day of July 1803 delivered in to his Excellency Philip Gidley King his Appeal and the reason for such Appeal And the said Simeon Lord the Respondent in the said Appeal on the twelfth day of August 1803 also delivered in to his Excellency his Memorial by way of Answer to the said Appeal.

That his Excellency the said Philip Gidley King thereupon took the same into Consideration and administered and caused to be administered Interrogatories for the examination of 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 the said John Palmer the Appellant in the sum of £8229..18..5 and decreed that the said John Palmer should retain in his hands the remaining Assets therein called Equitable Assets of the said John Stogdell amounting to£3302..13..11½ as well as all future Assets until January 1st. 1804 being twelve 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 Payments either Party to sue or be sued for proving their Debts and Claims respectively before that time expired And on the said first day of January 1804 after deducting the funeral Expences and Costs in the Civil Court and Court of Appeal to proceed to make a just division of the said Assets 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 first January 1804.

That all future Assets 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 John Palmer the Appellant having been advised that he was aggrieved by so much of the said Decree of the 2d October 1803 as directs that so much of the said sum of £3302..13..11½ as will remain after deducting the ffuneral [sic] Expences and Costs in the Civil Suit and Court of Appeal to be divided in proportion to their Claims between his Majesty the Appellant and the said Hugh Mechan and such Creditors who should prove their respective demands as in such decree is mentioned and all future Assets to be applied to the same use And that Judgment ought to have been given generally for him reserving any question as to Assets quando accident or that it ought to have been declared that the said John Palmer the Appellant is entitled to retain the Assets of the said John Stogdell in satisfaction of his Debt against all other Creditors in equal degree and the Governor of New South Wales having refused the said John Palmer leave to appeal he presented his Petition to your Majesty in Council who by Order dated the 26th. day of November 1806 were pleased with the advice of your Privy Council to approve thereof and did order that the said John Palmer be permitted and allowed to enter and prosecute his Appeal from so much of the said decree of the Court of Appeal in New South Wales of the seventh 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 the said John Palmer and the said Hugh Mechan and such Creditors who shall prove their respective demands as in such Decree mentioned and all future Assets to be applied to the said use upon giving the Security therein mentioned.  And the said John Palmer the Appellant has given the Security required in & by such Order

He therefore humbly appeals against so much of the said Decree of the seventh 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 Suit and Court of Appeal to be divided in proportion to their Claims between his Majesty the Appellant and the said Hugh Mechan and such Creditors who shall prove their respective demands as in such Decree mentioned and all future Assets to be applied to the said use and humbly prays that Judgment may be given generally for the said John Palmer reserving any question as to Assets quando accident Or that it may be declared that the said John Palmer as Administrator of the said John Stogdell is in the first place entitled to retain the Assets of the said John Stogdell possessed or which may be possessed by him in satisfaction of his said Debt of £8229..18..5 before all other Creditors in the same degree until his said Debt be satisfied And that this Appeal may come on to be heard together with that of the said Simeon Lord as the Attorney of the said Hugh Mechan or that the Appellant may have such other relief in the premises as to your Majesty in your special Grace and Favor may seem meet

And the Appellant shall ever pray &c.

 

New South Wales[4]

Simeon Lord atty. Of Hugh Mechan}  Petition of Appeals

agst.

John Palmer Esqr

R 19th Augt. 1805

12th. March 1806

Refd. to Committee

Milne & Parry

Old Jewry Appellt.

Nield & Fladgate Respdt.

Norfolk Street Strand

In a Court of Civil Judicature in New South Wales held by Virtue of a Precept under the Hand and Seal of his Excellency Philip Giddy [sic] King Captain General and Governor in Chief in and over his Majesty's Territory of New South Wales and its Dependencies &c. &c.

Between           {Mr. Simeon Lord, Attorney for Hugh Mechan absent from } Plaintiff

the Colony ...

and

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

To the King's Most excellent Majesty in Council-

            The Humble Petition and Appeal of the above named Plaintiff on behalf of the above named Hugh Mechan,

Sheweth,

            That on or about the third day of August 1802 Simeon Lord the Petitioner above named as the Attorney of Hugh Mechan above named obtained a Rule for Jno. Palmer Esqr. above named the Administrator of 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 limited 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 an Account of the Sales of the Estate and Effects of the Said John Stogdell to the payment of the Debts of the deceased-

            That on the 11th day of August at an adjourned Sitting of the said Court your Petitioner on behalf of the above named Hugh Machan [sic] claimed of the said John Palmer as the Administrator of the late John Stogdell the Sum of £310 & upwards for so much Money due to the said Hugh Mechan from the said John Stogdell deceased on sundry Notes of hand & acceptances of the said John Stogdell which were produced to and exhibited & read and delivered to the said Court and also charged the said John Palmer with a devastavit of the Effects of the said Jno. Stogdell as his Administrator.

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

            That on the said 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 your Petioner [sic] and in support of the Claim of the said Hugh Mechan against the Estate and Effects of the said John Stogdell deceased and the said John Palmer as the Administrator thereof and the Charge made by your Petitioner against the said John Palmer 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 & on behalf of the said John Palmer in opposition to such claim & charge-

            That on the 4th. day of July 1803 a Verdict was given by the said Court for your Petitioner in the full sum of £306..19.2 with Costs.

            That the said Jno. Palmer thereupon gave Notice of his Intention to appeal and on the 11th. day of July 1803 the said John Palmer delivered in to his Excellency the said Philip Giddy King his Appeal and the reason for such appeal and your Petitioner 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 the said Appeal-

            That his Excellency the said Philip Giddy King thereupon took the same into Consideration & administered & caused to be administered Interrogatories for the examination of other Witnesses and also examined divers other Witnesses as to the subject matter of the said Verdict and the Administration of the Estate & Effects of the said John Stogdell and on the 7th. day of Octr. 1803 made his award & decree - thereupon whereby after reciting various Circumstances relating the Claim of your Petitioner and also of other Persons against the Estate and Effects of the said John Stogdell & against the said Jno. Palmer as the Adminstrator thereof and his Opinion thereon did award, and decree that the said Appellant Administrator shod. retain in his hand the remaining equitable assets amounting to £3302..13.11½ as well as all future Assets until January 1st 1804 being 12 weeks from the said Date - To advertise 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 1st of January 1804 after deducting the funeral Expences and Costs in the Civil Court and Court of Appeal - to proceed to make a just Division of the said Assets proportionate to the several respective Claims amounting between the King Appellant Respondent and such Creditors who might prove their respective Claims before the 1st January 1804-

That all future Assets shod. be applied to the same use and in the same manner & from on the last Day of every Quarter until no more Assets shod. remain to be divided as before-

And in default whereof Execution on the Appellants Administration Estate to issue-

That the said Award & Decree is as your Petioner [sic] advised and humbly conceives erroneous and very injurious to the said Hugh Mechan for whom your Petitioners Petition's [sic] & was not warranted by law in as much as your Petitioner having as he has been advised & humbly conceives established the Debt of the said Jno. Stogdell deceased to the said Hugh Mechan and also that the said John Palmer the Administrator of the said John Stogdell wasted the Estate and Effects of the sd. John Stogdell and having recovered a Verdict thereupon for the Amount of such debt ought not to have been deprived of the benefit of such Verdict as against the said Jno Palmer and left to any proportionate distribution of the Effects of the deceased John Stogdell but that under such Verdict of the Estate and Effects of the deceased John Stogdell were not sufficient to satisfy such Verdict your Petitioner wod. have been entitled to have recovered the amount of such Verdict and to have had Execution against the proper Goods and Chattels of the said John Palmer-

Your Petitioner therefore most humbly prays that your Majesty will be graciously pleased to take the same into your Royal Consideration and appoint a Day for hearing thereof with Summons as usual for the said Jno. Palmer the respondent  to attend the same and that the said Award and Decree of his Excellency the said Philip Giddy King of the 7th. October 1803 may at least so far as the same affects the Claim and Verdict of your Petitioner on behalf of the said Hugh Mechan be reversed waived annulled and set aside and that the Cause may be remitted back to the Court of the said Territory of New South Wales in order that your Petitioner may for and on behalf of the sd. Hugh Mechan have the benefit of such Verdict against the said John Palmer and that your Petitioner may for and on behalf of the said Hugh Mechan have such further relief in the Premises as to your Majesty in your Wisdom shall seem meet.

            And your Petitioner shall every pray.

 

Source: PRO PC2/179 Council Register 1 Dec. 1808 to 28 Feb. 1809, p. 424

At the Court at the Queen's Palace the 6th. of February 1809.  Present The King's Most Excellent Majesty.  Lord Chancellor.  Lord President. Lord Privy Seal. Duke of Montrose. Earl of Winchelsea.  Earl Mr. Edgcumbe. Earl of Liverpool. Viscount Castlereagh. Lord Mulgrave. Lord Arden. Sir John Nicholl.

[p. 427, 6 February 1809]

New South Wales

Order approving Committee Report on Appeal and Cross-Appeal, between Simeon Lord and Jno. Palmer

            Whereas there was this day read at the Board a Report from the Right Honourable the Lords of the Committee of Council for hearing Appeals from the plantations &c. dated the 2d. of this Instant, in the Words following vizt.

            Memdum

Here the Committee Report on the Appeal and Cross-Appeal between Simeon Lord and John Palmer from New South Wales, was inserted at lenghh [sic] as Vide Entered Page

            His Majesty having taken the said Report into Consideration, was pleased by and with the Advice of His Privy Council --- to approve thereof, and to order, as it is hereby ordered, that the same be duly and punctually complied with and carried into Execution, whereof the Governor, Lieutenant Governor, or Commander in Chief in New South Wales, and all other Persons whom it may concern, are to take Notice, and govern themselves accordingly.

 

Source: PRO PC2/179 Council Register 1 Dec. 1808 to 28 Feb. 1809,  p. 390, 2 February 1809

At the Council Chamber Whitehall

the 2nd. February 1809

Present

Master of the Rolls.

Sir Evan Nepean, Bart.

Mr. Dundas.

[pp 400-404:]

            Your Majesty having been pleased by your Order in Council of the 12th. of March 1806, to refer unto this Committee the humble Petition and Appeal of Simeon Lord, Attorney of Hugh Mechan against John Palmer Esquire Administrator of John Stogdell deceased, from the Territory of New South Wales; setting forth, that on or about the 3d. Day of August 1802 Simeon Lord the Appellant above named as the Attorney of Hugh Mechan above named obtained a Rule for John Palmer Esquire above named the Administrator of 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 limited 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 Deceased - That on the 11th. Day of August at an adjourned sitting of the said Court the Appellant on behalf of the above named Hugh Mechan claimed of the said John Palmer as the Administrator of the late 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, which were produced to and exhibited and read and delivered to the said Court, and also charged the said John Palmer with a devastavit of the Effects of the said John Stogdell as his Administrator. - That the said John Palmer also delivered into Court a Paper replicatory to the abovementioned Rule and on the 16th. Day of August following, exhibited to the Court an Inventory and Declaration as to the Estate and Effects of the said John Stogdell; That on the said 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 Appellant and in support of the Claim of the said Hugh Mechan, against the Estate and Effects of the said John Stogdell deceased, and the said John Palmer as the Administrator thereof, and the Charge made by the Appellant against the said John Palmer 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 the said John Palmer in Opposition to such Claim and Charge, That on the 4th. Day of July 1803 a Verdict was given by the said Court for the Appellant in the full Sum of £306..19..2 with Costs. - That the said John Palmer thereupon gave Notice of his Intention to appeal and on the 11th. Day of July 1803 the said John Palmer delivered in to his Excellency the said Philip Giddy [sic] King his Appeal and the Reason for such Appeal and the Appellant the Respondent in the said Appeal on the 12th. Day of August 1803 also delivered into his said Excellency his Memorial by way of Answer to the said Appeal. - That his Excellency the said Philip Giddy King thereupon took the same into Consideration and administered and caused to be administered Interrogatories for the Examination of 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 and on the 7th. Day of October 1803 made his Award and Decree thereupon whereby after reciting various Circumstances relating to the Claim of the Appellant and also of other Persons against the Estate and Effects of the said John Stogdell and against the said John Palmer as the Administrator thereof and his Opinion thereon he did award and decree that the said Appellants Administrator should retain in his Hands the remaining Equitable Assets amounting to £3302..13.11½ as well as all future Assets until January 1st. 1804 being Twelve Weeks from the said Date; To advertise 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 1st. January 1804 after deducting the Funeral Expences and Costs in the Civil Court and Court of Appeal to proceed to make a just Division of the said Assets proportionate to the several respective Claims amounting between the King Appellants Respondent and such Creditors who might prove their respective Claims before the 1st. January 1804. - That all future Assets should remain to be divided as before and in default whereof Execution on the Appellant's Administration Estate to issue - That the said Award and Decree is as the Appellant is advised and humbly conceives erroneous and very injurious to the said Hugh Mechan for whom the Appellant petitions and was not warranted by Law in as much as the Appellant having as he has been advised and humbly conceives established the Debt of the said John Stogdell deceased to the said Hugh Mechan and also that the said John Palmer the Administrator of the said John Stogdell had wasted the Estate and Effects of the said John Stogdell and having recovered a Verdict thereupon for the Amount of such Debt ought not to have been deprived of the benefit of such Verdict as against the said John Palmer and left to any proportionate distribution of the Effects of the deceased John Stogdell but that under such Verdict if the Estate and Effects of the deceased John Stogdell were not sufficient to satisfy such Verdict the Appellant would have been entitled to have recovered the Amount of such Verdict and to have had Execution against the proper Goods and Chattels of the said John Palmer; And the Appellant humbly prays that the said Award and Decree of the 7th. of October 1803, at least so far as the same Effects the Claim and Verdict of the Appellant on behalf of the said Hugh Mechan may be reversed, waved, [sic] annulled and set aside, and that the Cause may be remitted back to the Court of the said Territory of New South Wales in order that the Appellant may for and on behalf of the said Hugh Mechan have the benefit of such Verdict against the said John Palmer or for other relief in the premises; and your Majesty having been pleased by Your Order in Council of the 26th. of August 1807 to refer unto this Committee the humble Petition and Cross Appeal of the said John Palmer as Administrator of John Stogdell deceased against the said Mr. Simeon Lord as Attorney for Hugh Mechan absent from the Colony 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 Funeral Expences Costs in the Civil Suit and Court of Appeal to be divided in proportion to their Claims between Your Majesty the Appellant John Palmer and the said Hugh Mechan and such Creditors who shall prove their respective Demands as in such Decree mentioned and all future Assets to be applied to the said use humbly praying that Judgement may be given generally for the said John Palmer reserving any Question as to Assets quando accident; or that it may be declared that the said John Palmer as Administrator of the said John Stogdell is in the first place entitled to retain the Assets of the said John Stogdell possessed or which may be possessed by him in Satisfaction of his said Debt of £8.229..18..5 before all other Creditors in the same Degree until his said Debt be satisfied and that the said Appeal of the said John Palmer may come on to be heard together with that of the said Simeon Lord as the Attorney of the said Hugh Mechan or for other Relief in the premises, the Lords of the Committee in obedience to your Majesty's said Orders of Reference have taken the said Petitions of Appeal and Cross Appeal into Consideration and having heard Counsel on both sides thereupon; Their Lordships do agree humbly to report as their Opinion to your Majesty that inasmuch as John Palmer the Respondent in the original and Appellant in Cross Appeal, had no claim to the Administration except as a Creditor of the Intestate, the Civil Court of Judicature might and ought when it granted Administration to him in that Character to have imposed upon him the Condition of distributing the Assets rateably among all the Creditors in equal Degree, and that therefore the Judgment or Decree of the Governor of New South Wales of the 7th. of October 1803 directing such rateable Distribution should be affirmed, and as the time limited for making such Distribution is now elapsed that it should be referred to the Civil Court of Judicature to fix some other reasonable period for that purpose.

 

Source: PRO PC2/171 Council Register 1 Aug. 1806 to 30 Dec. 1806, p. 423, 22 November 1806

At the Council Chamber Whitehall

The 22 of November 1806

By a Committee of the Lords of His Majesty's Most Honourable Privy Council for hearing Appeals from the Plantations

Present

Lord President

Sir Joseph Banks Bart.

Sir John Anstruther Bart.

[pp 425-429] New South Wales

Committee Report for permitting John Palmer to appeal against Simeon Lord

Your Majesty having been pleased by Your Order in Council of the 15th. of October last to refer unto this Committee the humble Petition of John Palmer Administrator of John Stogdell deceased, Setting forth, That in the Month of August 1802 Mr. Simeon Lord as Attorney for Hugh Mechan obtained a Rule for the 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 limited 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 the 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 the Petitioner with not having duly administered the Effects of the said John Stogdell as his Administrator  That the Petitioner also delivered into Court a paper replicatory to the above mentioned Rule and on the 16th. August following the Petitioner exhibited to the Court and [sic] 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 the Petitioner as the Administrator thereof, and the Charge made by the said Simeon Lord against the 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 the Petitioner - That on the 4th. day of July 1803 a Judgement was given by the said Court for the said Simeon Lord in the full Sum of £306..19..3 with Costs - That the Petitioner thereupon gave Notice of his Intention to Appeal and on the 11th. Day of July 1803 the Petitioner delivered to His Excellency Philip 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 the said Appeal - That His Excellency the said Philip Gidley King thereupon took the same into Consideration and administered and caused to be administered Interrogatories for the Examination of 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 on the 7th. 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 the Petitioner in the Sum of £8229..18..5 and decreed that the Petitioner should retain in his hands the remaining Assets therein called equitable Assets of the said John Stogdell amounting to £3302..13..11½ as well as all future Assets until January 1st. 1804 being 12 Weeks from the said Date to advertise 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 of January 1804 after deducting the funeral expences and Costs in the Civil Court and Court of Appeal to proceed to make a just Division of the said Assets proportionate to the several respective Claims amounting between the King the Petitioner Respondent and such Creditors who might prove their respective claims before the 1st. January 1804 - That all future Assets 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 the Petitioner also on the 19th. Day of October 1803 and within the Time limited 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 Judgement 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 Your Majesty Your Heirs and Successors in Council which Appeal from the Judgement of the Superior Court was to be interposed within 14 Days after the Judgement 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 the 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 Provisions of the said Letters Patent and the 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 the Petitioner to prosecute his Appeal before Your Majesty in Council with effect - And that such Proceedings might be examined by Persons appointed by the 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 18th. Instant when the Judge Advocate certified he 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 the 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 the Petitioner is advised and humbly submits that His Excellency the Governor was mistaken in refusing the Petitioner leave to Appeal respecting the Matters aforesaid, and therefore the Petitioner humbly prays that he many be allowed 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 Funeral Expences Costs in the Civil Trial and Court of Appeal to be divided in proportion to their Claims between Your Majesty the Petitioner and the said Hugh Mechan and such Creditors who shall prove their respective demands as in such Decree mentioned and all future Assets to be applied to the said Use; The Lords of the Committee in Obedience to Your Majesty's said Order of Reference, this Day took the said Petition into Consideration, and having been attended by Counsel for the Petitioner thereupon, Their Lordships do agree humbly to report as their Opinion to Your Majesty That it may be advisable for Your Majesty to permit and allow the Petitioner to enter and prosecute an Appeal from so much of the said Decree of the 17th. Day of October 1803, as directs so much of the said Sum of £3,302..13..11½ as will remain after deducting the Funeral Expences, Costs in Civil Trial and Court of Appeal to be divided in proportion to their Claims between Your Majesty, the Petitioner and the said Hugh Mechan and such Creditors who shall prove their respective Demands as in such Decree mentioned and all future Assets to be applied to the said Use, upon Security being given here in the Sum of One Hundred Pounds to prosecute the said Appeal to Effect within the Space of One Year and a Day from the Date of Your Majesty's Order in Council allowing the said Appeal and to stand to and abide such Determination as Your Majesty in Council shall think fit to make and award in the said Cause and to pay such Costs as shall be awarded by Your Majesty in Council in case the said Appeal shall be dismissed; And Their Lordships further agree to report that the Petitioner or his Agent should be permitted to take from the proper Officers of the Court, Copies, properly authenticated, of all Records and Proceedings which they may be advised are necessary to be laid before Your Majesty in Council in Support of his said Appeal upon payment of the Usual Fees for the same; And that in the mean Time all Proceedings against the Petitioner on account of the said Decree should be stayed. -

[p. 441:] At the Court at the Queen's Palace

the 26th November 1806

Present

The King's Most Excellent Majesty

Arch-Bishop of Canterbury                   Lord Grenville

Earl of Moira                                        Lord St. Helens

Earl Spencer                                         Mr. Grenville

Viscount Howick                                  Sir John Borlase Warren Bart.

Lork Henry Petty

[p. 446:]

New South Wales

Order allowing John Palmer

to Appeal against Simeon

Lord. -

            Whereas there was this Day read at the Board, a Report from the Right Honourable the Lords of the Committee of Council for hearing Appeals from the Plantations &c. dated the 22nd. of this Instant in the Words following vizt.

Memdum - "Here the Committee Report for allowing John Palmer to Appeal against Simeon Lord from New South Wales, was inserted at length - as Vide entered Page" -

            His Majesty having taken the said Report into Consideration, is pleased, by and with the advice of the Privy Council, to approve thereof and to Order, as it is hereby Ordered, That the said John Palmer be permitted and allowed to enter and prosecute his Appeal --- from so much of the said Decree of the Court of Appeal --- in New South Wales 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 Funeral Expences, Costs in the Civil Trial and Court of Appeal to be divided in proportion to their Claims between His Majesty, the Petitioner, and the said Hugh Mechan and such Creditors who shall prove their respective Demands as in such Decree mentioned, and all future Assets to be applied to the said Use upon Security being given here in the Sum of One Hundred Pounds to prosecute the said Appeal to Effect within the Space of One Year and a Day from the Date of His Majesty's Order in Council allowing the said Appeal, and to stand to and abide such Determination as His Majesty in Council shall think fit to make and award in the said Cause, and to pay such Costs as shall be awarded by His Majesty in Council, in case the said Appeal shall be dismissed; And His Majesty is hereby further pleased to Order that the said John Palmer, or his Agent be permitted to take from the proper Officers of the Court, Copies, properly authenticated, of all Records and Proceedings which they may be advised are necessary to be laid before Your Majesty in Council in Support of his said Appeal upon payment of the Usual Fees for the same; and that in the mean Time all Proceedings against the Petitioner on Account of the said Decree should be stayed; Whereof the Governor, Lieutenant Governor or Commander in Chief in New South Wales, and all other Persons whom it may concern, are to take Notice and govern themselves accordingly - and This Day     entered into the Security required by the Above Order.

Source: Sydney Gazette, 23 February 1811
 

NOTICE to the Creditors of JOHN STOGDELL, deceased. - Whereas on the 7th day of October, 1803, the later Governor KING made a Decree in a Matter of an Appeal against the Verdict of the Court of Civil Jurisdiction, in which Hugh Machan, Esq. Simeon Lord, Esq. his Attorney, was Plaintiff; and John Palmer, Esq. Administrator of John Stogdell, deceased, Defendant, by which Decree the said Governor declared, that the Debts proved and allowed of the same Decree were, a a [sic] Debt to the King of £388 13s; a Debt to the said John Palmer, the Administrator, of £8229 15s. 5d; and a Debt to the said Simeon Lord, Attorney of Hugh Machan, of £306 19s. 3d. and did decree that the Administrator should retain in his hands the remaining equitable Assets, amounting to £3302 13s. 11½, until a Day therein mentioned 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 their Debts and Claims; and that after deducting the general Expences, Costs in the Civil Court and Court of Appeal, out of £3302 13s. 11½ in hand, to proceed to make a just division of the said Assets, proportionate to the several respective Claims amount between the King, the said John Palmer, Administrator; Simeon Lord, and such Creditors who proved their respective Claims before the 1st of January, 1804. - And the said Simeon Lord, Esq. Attorney of Hugh Machan, having appealed against that Decree of the said Governor to His Majesty in Council, by a decretal Order of His Majesty, made at the Court of the Queen's Palace, the 6th of Feb. 1809, it is set forth that the Lords in Council, in obedience to His Majesty's Order of Reference having taken the Petition of Appeal and Cross-appeal into consideration; and having heard Counsel on both sides, their Lordships did agree humbly to report as their opinion to His Majesty, that inasmuch as the said John Palmer, the Respondent in the original, and the Appellant in the Cross-appeal, had no claim to the Administration, except as a Creditor to the Intestate, the Court of Civil Jurisdiction might and ought, when it granted Administration to him in that character, to have imposed upon him the Condition of distributing the Assets ratable among all the Creditors in equal degree; and that therefore the Judgment or Decree of the Governor of New South Wales, of the 7th of Oct. 1803, directing such ratable Distribution should be affirmed; and as the time limited for making such distribution was then elapsed, that it should be referred to the Court of Civil Jurisdiction to fix some other seasonable [sic] Period for that purpose. - His Majesty having taken the said Report into consideration, was pleased by and with the advice of His Privy Council to approve thereof, and to order as it is thereby ordered,

That in April, 1810, the said John Palmer did present his Petition to the Governor in Chief of this Territory, paying His Excellency to give directions to the Civil Court to carry the said Order of His Majesty in Council into Effect; and on the 4th day of February, 1811, the Court of Civil Jurisdiction was pleased to order an Advertisement to be duly published in the Sydney Gazette, that all Creditors on the Estate do make their Claims good on or before the 1st day of April next; on which day the said Court, after deducting the Funeral Expences and Costs paid by the Administrator in the Civil Court and Courts of Appeal, and all other Costs and Expences as directed by the said Decree, they would proceed to order a true Dividend of the remaining Assets between the King, the said John Palmer the Administrator, and the said Simeon Lord, Attorney of Hugh Machan, and such Creditors who prove their respective Claims before the said 1st day of April, 1811; And those Persons who shall neglect to come in and make their Claims good before the same day, will be excluded the benefit of the said Dividend; of which all Persons are to take Notice.

                        signed               GEO. CROSSLEY, Agent for J. 
                                                PALMER, Esq. the Adminstrator
Feb. 20, 1811.
 

 

Notes

[3]          This is Palmer's cross appeal, beginning with the outside wrapper.

[4]          This is the appeal by Lord, beginning with the outside wrapper.

 

Published by the Division of Law, Macquarie University