[equity, procedure – Montagu J., not busy – succession, insolvent estate – debt recovery, enforcement against land]

In re Simpson, deceased

Supreme Court of Van Diemen’s Land

Pedder C.J. and Montagu J., 6 August 1839

Source: Tasmanian, 9 August 1839[1]

In Equity. - In the matter of Thomas Cookson, deceased, Mr. Harrison, on the part of the executors, Messrs. Williams and Gilles, moved that the prayer of the bill by the executors might be acceded to by the Court. The bill set forth that the executors had paid away, in discharge of debts upon the estate, all the personal estate; there still, however, remained Mr. Isaac Sherwin as a creditor to the amount of £527 0s. 4d., besides others. That the executors could neither sell nor lease the real estate, which was let much under its value, besides being encumbered by mortgage. The prayer of the bill therefore was, that the Court, under the Colonial enactment, would direct the sale of the real estate, for the liquidation of the simple contract, and especially debts upon the estate, and that the widow and children might be made parties to the sale; and that a receiver be appointed, and a guardian to the children, if there should be any surplus.

Mr. Horne, on behalf of the estate, would not oppose the application; they would rather desire to have the assistance of the Court. He thought the most reasonable course would be to allow the decree to proceed.

Chief Justice. - This was an application for a decree of the Court, to make the real estate liable for the payment of simple contract debts, the personal property being exhausted, and the application was founded upon an act of this Colony, making the real estate liable, the same as the personal, for the payment of simple contract debts. It was the first case of the sort that he come before him. The only question was the effect of the act to make the real property liable for simple contract debts, and whether the act was sufficient to grant the application sought. He should wish to consider the point.

Judge Montagu had no doubt as to the effect of the act, the intent of which was to pay out of the personal estate in the first instance, and if that was not sufficient, then the real estate was to be made liable; it was but just and equitable, and he thought the equity and justice of such cases required it; the Act of Parliament was intended to meet such a case as this. He had no doubt upon the case, but as the Chief Justice wished time to consider the point, they would deliver their judgment at a future sitting. He wished to know whether they pressed that part of the prayer for the appointment of guardians.

Mr. Hone[sic] would abandon that portion of the application, as he could make it afterwards if necessary, at a small expense.

            Judge Montagu. - The Judges can never justly decide in these cases. The prayer of the bill in every case should be directed to the master, an officer that was not attached to the Court. To whom are the prayers of these bills now directed? Perhaps to me, in Chambers, where I have time fully to consider all the points of the case, and is it likely, that after such a decree, deliberately and carefully penned, I should come here and stultify my own deliberate act? It is not very likely. It is very different to a case at nisi prius, where a Judge is called upon at a moment to decide upon important points of law, for which no man is prepared in every case. It is not only the mischief actually done, but the further mischief which must arise from the time of the Court being occupied in wading through accounts which could be done by any accountant or officer of the Court. I do not complain of my own time being so occupied, for I should be happy to sit every day in the year, in addition to the little I have already to do, if it would promote the ends of justice. We have had more chancery cases this year than for the seven years preceding, and I understand from Mr. Horne, that we are likely to have many more. I shall always protest in every case, and every such decree is working injustice if the Judges of the Court are to act as masters. I call the attention of the Attorney General to the urgent necessity of a master being appointed, which has become so great that something must be done, and you will, perhaps, represent it in the proper quarter.

Chief Justice. - Not the Attorney General, he is not an officer of this Court. The representation would be better if made by the Judge.

Attorney General. - Although not an officer of this Court, I should not be doing my duty when I heard learned Judges say, that manifest injustice was done, without I represented it to the Government.

It being finally agreed that the Judge should communicate with the Government upon the matter, the Court rose.

In banco, Pedder C.J. and Montagu J., 16 August 1839

Source: Hobart Town Advertiser, 23 August 1839 [2]

In re the Estate of the late T.C. Simpson

            An order was granted for the purpose of enabling the executors to raise money upon the real estate; but no guardians were to be appointed unless it appeared there was any surplus.