Philip Gidley King correspondence with Judge Advocate reports of appeals, etc. 1800-1806
A 2019
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N.S.W. – Governor Letter Book, 4 Legal 1800-1806
Correspondence with Judge Advocate, Reports of Appeals, etc
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George the Third by the Grace of God, King of Great Britain France and Ireland, Defender of the Faith & c – To all to whom these Presents shall come Greeting.
Whereas by Virtue of an Act of Parliament passed in the Twenty fourth Year of Our Reign, We have judged fit by and with the Advice of our Privy Council, by Two several Orders bearing Date respectively on the Sixth Day of December, One Thousand Seven Hundred and Eighty six to declare and Appoint the Place to which certain Offenders should be Transported for the Time or Terms in their several Sentences mentioned to be the Eastern Coast of New South Wales, or some one or other of the Islands Adjacent. And whereas we find it necessary that a Colony and Civil Government should be Established in the Place to which such Convicts shall be Transported, and that sufficient Provision should be made for the recovery of Debts, and determining of private causes, between Party and Party in the place aforesaid, &c taking the same into Our Royal Consideration and being desirous that justice may be Administered to all our Subjects, have of Our especial Grace, certain knowledge and meer motion, thought fit to grant, ordain, direct, and appoint, and by these Presents do for Us, our Heirs and Successors Will Grant, Ordain, Direct, and Appoint, that there shall be within the place aforesaid, a Court to be called the Court of Civil Jurisdiction, and that such Court shall consist of the Judge Advocate for the time being, together withTwo fit and proper Persons inhabiting the said [Note in margin: Civil Jurisdiction place to be appointed from time to time by Our Governor, or in Case of his Death or Absence, by our Lieutenant Governor for the time being or of any two of them (whereof the Judge Advocate to be one); to which Court We do hereby give full Power and Authority, to hold Plea of, and to hear and determine in a summary way, all Pleas concerning Lands, Houses, Tenements, and Hereditaments , and all manner of Interest therein; and all Please of Debt, Account or other Contracts, Trespasses, and all manner of other Personal Please whatsoever. And We do further Will, Ordain, and Grant to the said Court full Power and Authority, to grant Probates of Will and Administration of the Personal Estates of Intestates dying within the Place or Settlement aforesaid. And our further Will and Pleasure is, and We do by the 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 a Warrant in writing under the Seal of the said Judge Advocate for the time being, to be directed to the Provost Marshall 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 Defendant or Defendants
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ants 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 Appearance, before the said Court at a certain time, or place therein to be named to answer to the said Complaint, and to find sufficient security for his, her, or their performance of such Judgement, Sentence, or Decree shall be pronounced thereupon, or finally given upon an Appeal; and upon appearance, Arrest or Non appearance, or return, by the Officer that the Defendant, or Defendants, cannot be found, We do hereby for Us, Our Heirs and Successors, Ordain, Direct, and Authorise the said Court to proceed to the Examination of the Matter, and cause of such Complaint, and upon due Proof being 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 Defendant or Defendants , to give Judgement and Sentence, according to Justice and Right, and to Award and Issue out a Warrant, or Warrants of Execution, under the Hand and Seal of the said Judge Advocate for the time being for levying the Duty adjudged or decreed to the Party, or Parties Complainant, together with Costs of Suit upon the Goods and Chattels of such Defendant, or Defendants, and to cause Sale to be made of the said Goods and Chattels, rendering to the Party the Overplus if any be, and for want of sufficient Distress, We do hereby for Us, Our Heirs and Successors give full Power and Authority to the said Court to imprison the Defendant, or Defendants, until satisfaction be made by him, or them, to the Plaintiff, or Plaintiffs, of the duty decreed together with the Costs, and in Case Judgement shall be given for the Defendant, or Defendants, We do hereby likewise give full Power and Authority to the said Court to Award Costs to such Defendant, or Defendants, and to Issue the like Process of Execution for the same, as in Cases where Costs are Awarded to any Plaintiff, or Plaintiffs, and if either Party shall find him or themselves aggrieved by any Judgement or Decree to be given or pronounced by the said Court, Our Will and Pleasure is, that He, 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 Decease 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 Sum-mons to Answer to such Appeal, and the like Process of Execution as the said Court is hereby directed and empowered to Issue, and is either Party shall find him, her, or themselves Aggrieved by the Judgement or Determination of the said Governor in any Case where the Debt or thing in Demand, shall exceed the value of Three Hundred Pounds and not 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 Judgement of the said Court, unless the same shall be introduced within Eight Days after the said Judgement nor
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nor from the Judgement of the superior Court, unless the same shall be interposed within Fourteen Days after the Judgement of such superior Court, and further that the said Court may proceed in a summary way, by foreign attachment of Goods, Debts, and Effects of Debtors, in the hands or Possession of other Persons, residing in the place aforesaid. And We further Will and Ordain, that at all Complainants at whose Suit any Persons shall be imprisoned shall make an allowance to each of such Dependants after such rate for every Day, so long as such Defendants shall be kept in Prison, as the said Court shall direct, and in default of Payment thereof for One Week, such Person shall be discharged out of Prison, and such a discharge out of Prison, shall be a discharge of the Debt, unless the Complainant shall before any new proceeding against such Defendants Pay, or tender to them, all the Arrears of such Allowance, from the time of the last payment to the time of such new proceeding. Provided always that such Defendants do make Oath before the Judge Advocate to his satisfaction that he hath not any Estate, or Effects, sufficient to maintain himself with necessaries in the Prison, otherwise that such allowance be not made to him. And whereas it is necessary that a Court of Criminal Jurisdiction should also be Established [Note in margin: Criminal Jurisdiction] within the Colony or Settlement aforesaid, with Authority to proceed in a more summary way than is used with in this Realm, according to the known and established laws thereof. And whereas by an Act of Parliament passed in the present Year of Our Reign, it is enacted that His Majesty may by His Commission under the Great Seal authorize the Person to be appointed Governor or the Lieutenant Governor in the Absence of the Governor, of such Place as afore-said, to convene from time to time, as occasion may require, a Court of Judicature, for the Trial and Punishment of all such Outrages, and Misbehaviours, as if Committed within this Realm, would be deemed and taken according to the Law of this Realm to be Treason or Misprision thereof, Felony or Misdemeanour, which Court shall consist of the Judge Advocate to be appointed and for such place, together with Six Officers of His Majesty’s Forces by Sea or Land, which Court shall proceed to try such Offences by calling such Offenders respectively before that Court and causing the Charge against him, her, or them, respectively to be read over, which Charge shall always be reduced into writing, and shall be exhibited to the said Court, by the Judge Advocate, and by examining Witnesses upon Oath, to be Administered by such Court, as well for as against such Offenders respectively, and afterwards adjudging by the Opinion of the Major part of the Persons composing such Court, that the Part accused is or is not (as the Case shall appear to them) guilty of the Charge, and by pronouncing Judgement therein (as upon a Conviction by Verdict) of Death if the Offence be Capital, or of such Corporal Punishment not extending to Capital Punishment, as to the said Court shall seem meet,
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meet, and in Cases not Capital, by pronouncing judgement of such Corporal Punishment not extending to Life or Limb, as to the said Court shall meet, And that the Provost Marshall or their Officer to be for that purpose appointed by such Governor or Lieutenant Governor shall cause due Execution of such Judgement to be had and made under and according to the Warrant of such Governor or Lieutenant Governor in the Absence of the Governor, under his hand and Seal and not otherwise. Provided always that Execution shall not be had or done on any Capital Convict or Convicts unless Five Persons present in such Court shall concur in adjudging him, her, or them so accused and tried as aforesaid, to be respectively Guilty, until the Proceedings shall have been Transmitted to His Majesty and by him approved. And that the said Court shall be a Court of Record and shall have all such Powers as by the Laws of England are incident and belonging to a Court of Record. Now know Ye, that We upon full Consideration of the Premises and of Our Especial Grace certain knowledge and meer motion have thought fit to grant, direct, and appoint, and by these Presents We do accordingly for Us, Our Heirs and Successors, Grant, Direct, Ordain, and Appoint, that these shall be within the Settlement and Colony aforesaid, a Court which shall be called the Court of Criminal Jurisdiction, and We do hereby Create, Direct, and Constitute the said Court of Criminal Jurisdiction to be a Court of Record, and that our said Court of Criminal Jurisdiction, shall have all such Powers as are incident to a Court of Record by the Laws of that part of Our Kingdom of Great Britain called England. And We further Will, Ordain, and Appoint that the said Court of Criminal Jurisdiction shall consist of Our Judge Advocate for the time being, together with such Six Officers of Our Sea and Land Service as Our Governor or in Case of his Death or absence Our Lieutenant Governor shall by Precept issued under His Hand and Seal, convene from time to time for that purpose, and that the said Court of Criminal Jurisdiction shall have Power to enquire of, hear, determine and Punish all Treason or Misprisions thereof Murders, Felonies, Forgeries, Perjuries, Trespasses and Other Crimes whatsoever committed in the Place or places aforesaid such Punishment so to be inflicted being according to the Laws of that part of Our Kingdom of Great Britain called England, as nearly as may be considering and allowing for the Circumstances and situation of the Place and Settlement aforesaid and the Inhabitants thereof. And it is Our further Will and Pleasure, that our said Court of Criminal Jurisdiction, shall proceed to try all Offenders by calling them respectively before such Court and causing the Charge or Charges against him, her, or them respectively, when reduced into writing, and exhibited by Our Judge Advocate to be read over to such Offender or Offenders respectively and by examining Witnesses upon Oath to be Administered by the said Court of Criminal Jurisdiction, as well for as against such Offenders respectively, and that the said Court shall adjudge by the opinion of the major
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major part of the Persons composing the same as aforesaid that the Party accused is Guilty or Not Guilty of the Charge so exhibited as aforesaid, and if adjudged Guilty that the Court shall proceed to pronounce judgement of Death, if the Offence be Capital, in like manner as if the Prisoner had been found Guilty by Verdict of a Jury in that part of Our Kingdom of Great Britain called England or by pronouncing Judgement of such Capital Punishment, not extending to Capital Punishment as to the said Court or the Major part of the Persons composing the same, shall seem meet, and in Cases not Capital by the Law of aforesaid, by pronouncing Judgement of such Corporal Punishment not extending to Life or Limb, as the said Court, or the major part of the Persons composing the same shall seem meet. And it is Our further Will and pleasure, and We do hereby Ordain, Direct, and Appoint that Our Provost Marshall or such other Officer as shall be appointed for that purpose by Our Governor, or in Case of his Death or Absence, by Our Lieutenant Governor for the time being, shall cause due Execution to be had and made of such Judgement as aforesaid according to the Warrant of Our Governor, or in his Absence of Our Lieutenant Governor for the time being under their Hands and Seals respectively, and not otherwise. And We do hereby Ordain and Direct that Execution of any Judgement of Death shall not be had or done, on any Offender or Offenders, unless Fiver Persons present sitting in Judgement in Our said Court of Criminal Jurisdiction shall concur in adjudging such Offender or Offenders, so accused and tried as aforesaid, to re respectively Guilty, until the proceedings in the Trial of such Offender or Offenders shall have been transmitted to Us, Our Heirs, or Successors, and Our, or Their Pleasure shall have been signified thereupon and that Execution be not done in any Capital Case whatever without the Consent of Our said Governor, or in the Case of his Death or Absence, of Our Lieutenant Governor, and in Case Execution shall be suspended that the said Governor, or Lieutenant Governor shall apply to Us, Our Heirs, and Successors, or Their direction therein. And Our further Will and Pleasure is that all and every the Members of Our said Court of Civil Jurisdiction respectively shall before they proceed to sit in Judgement, severally make Oath well and truly to try the several issues brought before them, and to give true Judgement according to the Evidence; and that all and every the Members of Our said Court of Criminal Jurisdiction shall in like manner make Oath to make true deliverance between Us, Our Heirs, and Successors, and the several Prisoners who shall by them be Tried, and to give a true Judgement according to the Evidence. And We do hereby give full Power and Authority to Our Judge Advocate for the time being to Administer such Oaths to the respective Members of Our said several Courts. And further know Ye, that We for preserving the Peace, of Our said Settlement and the Islands thereunto adjacent, of Our Especial Grace, certain Knowledge and meer Motion, have granted, Ordained, Directed and Appointed, and by these Presents do grant Ordain, Direct, and Appoint, that Our present, and all Our future Governor’s and
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and Lieutenant Governor’s and Our Judge Advocate for the time being, shall be Justices of the Peace within the said Place or Settlement, and that all and every such Justice and Justices of the Peace, shall have the same Power to keep the Peace, Arrest, take Bail, bind to good Behaviour, suppress and Punish Riots, and to do all other matters and things with respect to the Inhabitants residing or being in the Place and Settlement aforesaid, as Justices of the Peace have within that part of Great Britain called England within their respective Jurisdictions. And these Our Letters Patent or the Enrollment or Exemplification thereof, shall be as well unto the said Courts respectively as unto all and every other Person or Persons whomsoever, a sufficient Warrant and Discharge from time to time for all and whatever they shall do or Execute, in pursuance of Our Royal Will and Pleasure herein before declared. And lastly Our Will and Pleasure is, and We do hereby declare, that this Our Charter, shall be, and remain in force, only and until We shall be pleased to revoke and determine the same.
In Witness whereof We have caused these Our Letters to be made Patent. Witness Ourself at Westminster, the Second day o April, in the Twenty seventh Year of Our Reign.
By Wit of Privy Seal
Yorke.
L.S.
Geo III accession 1760
[add] 27
1787
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20th June 1800
Sir
I had the honor of receiving your Letter of the 25th Inst. Stating that the Public Service at Parramatta, is in future to be Carried on by the Revd Mr. Marsden alone I shall Sir in Obedience of Such Orders decline giving any Further Directions respecting it.
I shall Sir, with your Approbation Continue to Act as a Magistrate for the District of Parramatta And permit me to Assure you that my best Endeavours shall not be Wanting to Merit your Approbation.
I am Sir &c. &c. &c
Signed Richd Atkins.
Lieut Govr King &c. &c. &c
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Parramatta 15th Decem 1800
Sir,
Mr Dore the Late Judge Advocate, being now resigned to his Mother Earth I hope Your Excellency will not think it an Impropriety without early Stating that about the Year 1795 An Order Came out from the Secretary of State appointing me to do the Duty of Judge Advocate during the Absence of Captain Collins. In the Year 1796 on that Gentlemans leaving the Colony I took on me the Office by the Order of the then Governor. How I performed the Duties, it does not become me to Say, but from a late Trial, Andans Complimented (as I hope) having reached Your Excellency on that Subject, with some other [indecipherable] , it may fairly be concluded that the Public were Satisfied. My Education had not been what is Called a Legal One, but a Classical One, with some Reading of Law and a Right regard to Equity were the Grounds on which my proceedings were built. Under those Circumstances, I am induced to hope your Excellency will [indecipherable] me to the Official Duties of that Office, you may rest Assured every exertion on my part shall be Used to Merit your Approbation.
I Remain &c
(Signed) Richd Atkins
His Excellency Governr King &c, &c, &c
17th December 1800
Sir
I was duly favoured with yours of Yesterday Informing me that having heretofore Acted as Judge Advocate, it pointed me out as a proper Person to take the Duties of that Office Vacant by the Death of Mr Dore.
I beg Sir, You will Communicate to His Excellency the high Sense I feel for this his favoured & Opinion of my past Services in that Situation, And as I again Accept it, with Gratitude from his hands. I am of Course bound to Receive it in such time as he may think proper to dictate.
I will not Deny that I have often been guilty of Intemperance, but I now pledge myself to His Excellency that no Cause of Censure on that head shall reach me in future, but permit me to Say that had the foibles of others, been as nearly watched as mine had been. I should not be the only one to whom that Crime might be imputed.
I shall have the honor of Waiting on His Excellency the first Opportunity that Offers by Water
And Remain &c, &c, &c
(Signed) Richd Atkins
Willm Balmain Esq
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To His Excellency Philip Gidley King Esq
&c, &c, &c
The Memorial of Daniel Cubitt and Richard Cheers.
Most Humbly Sheweth,
That your Excellencys Memorialists are Indorsers of a Sett of Bill of Exchange drawn by George Crossley on Mr Anthony Scholl Merchant in London for £200 being part of the Consideration Money paid by said Crossley to Your Memorialist Cheer for the Purchase of his House and Premises at Sydney.
That the said Sett of Bills are Returned to this Country protested for Nonpayment and are in the hands of William Balmain Esq who pressed your Memorialist for Payment, as the Indorsers, which they are at present unable to do, without having recourse to the said George Crossly in Order to attach his Effects which your Memorialists are advised can only be done by the Sanction of a Civil Court.
May it therefore please Your Excellency forthwith to Assemble a Civil Court, in order to afford your Memorialist who are Honest Tradesmen, Industrious Tradesmen with Families dependant on them for Support, such Redress in the premises as un-to Law doth Appertain.
And Your Excellencys grateful Memorialists will ever pray &c, &c, &c
Unto His Excellency Philip Gidley King Esquire &c, &c, &c
The Petition of Robert Campbell of Calcutta, Merchant at present residing at Sydney in the Territory aforesaid.
Humbly Sheweth,
That on his Arrival here in February last, George Crossley applied to purchase part of the Bark Hunters Cargo from Bengal And at the same time produced a Bond letter of Credit said to be granted by Anthony Soholl of London Esquire Merchant bearing that the said George Crossley and Anna Maria Crossley his wife had Conveyed to him the Sum of Six Thousand Five Hundred Pounds Sterling being monies due to them and Standing in the Books of the Bank of England in their Name and for which he the said Anthony Soholl bound and Obliged himself to pay his other drafts to the extent of that sum, provided the same was given for Merchandizes in Consequence of which the said George Crossley purchased from your Petitioner sundry Articles Amounting to One Thousand Six Hundred and Ninety One Pounds, as the Fourth Sett of Bills granted to the Same and herewith produced will testify.
That your Petitioner has reason to Suspect and Good Cause to believe that the said Bills will not be honoured, being drawn on a fictitious credit and as it Consists
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Consists with his knowledge that several others were granted in a Similar Manner particularly to Captain Reid and the Officers of the Ship Friendship of London he humbly craves that Your Excellency will prevent the said George Crossley or Anna Maria Crossley from Embezzling their Effects by Appointing such Persons as you may think expedient to Inventory whatever property is now in the Premises possessed by them And to dispose thereof for the benefit of all those so Unfortunately defraud-ed And who may hereafter Substantiate their Claims according to Justice.
(signed) Robert Campbell
Sydney 21st Novemr 1800
12th Jany 1801
Sir
I enclose for your Excellencys Consideration the Resolution of the Majority of the Members of the Civil Court held this Day at Parramatta and a it operated on the Writs now Returnable, I have to request your Excellencys further Direction on that subject.
I remain &c
(Signed) Richd Atkins. J. A.
His Excelly. Gov. King. &c, &c, &c
Sir
As many Writs are Returnable on Monday next, I wish to be favoured with your Excellencys Directions how far Wheat and Stock are to be Considered as legal tenders. During the time I acted as Judge Advocate, I considered it as such, Mr Dore was of a different Opinion and would not admit it at the Court. The General tender will be Wheat and Stock And indeed I do not at present see any other mode of Payment within the Reach of the Settler as Bills are very Scarce And of Current Cash there is none. Under these Circumstance I am Inclined to admit Wheat and Stock at a fair Valuation as payment, but your Excellencys Decision will Determine mine.
It appears that the Order for holding the Civil Court was not very generally known, in Consequence many Persons who had business there did not attend. On Monday many Writs will be Applied for And I do not see how thy can be refused, but they must be made Returnable at a Short Date. I mention this to your Excellency under the Idea that the Gentlemen Sitting with me may Object to the Granting them. As I have some Reason to think they will. May I request your Excellencys Sentiments on this Subject.
I remain &c
(Signed) Richd Atkins
His Excelly Govr King &c, &c, &c
Extract from the Proceedings of the Civil Court of Judicature held by Adjournment this 12th Day of January 1801.
"The Judge Advocate produced an Order Dated the 7th of January
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January 1801 of which the Following is a Copy.
G. O.
"It is to be understood that Wheat and all kinds of Live Stock is a legal tender for all Debts Contracted in this Colony, provided the price Sued for does not exceed that given by Government, when furnished from Settled or other private Cultivators."
The Court having taken into Consideration the above Order, think it necessary that the Governor should be Respectfully Acquainted that they Understand the Order to Apply only to Debts which may be Contracted hereafter and not to those Contracted prior to the Date of said Order.
("Signed")]
John Mc Arthur.
C Grimes.
"A True Copy". ("Signed") Richd Atkins.
January 12th 1801
Sir,
In Answer to Yours of this Date I must Observe that the General Order of the 7th Inst. Which you quote and which the Court of Civil Judicature now Sitting Under- stand to apply more particularly to Debts Contracted since the Date of the Order – But I must on very mature Consideration, Consider it equally to apply in those Instances where the Debtor had no other means whatever to Satisfy the Creditor than by paying him in Wheat or Stock the produce of his Industry and bring the only Marketable Commodity the generality of the Inhabitants can procure
If the Debtor had given his Note of hand and the Creditor produced a bill Conformable to the Regulations on that behalf, And the Payment specified is to be taken in Money Specie or good Bills must be Given, if in the Debtors possession, But if not, Wheat or Live Stock appear to be a legal tender in discharge of Debts from the Date of the Order, for the Reason I have already given.
I have the Honor &c
("Signed") Philip Gidley King
Richd Atkins Esqr.
Judge Advocate
January 13th, 1801
I am to acknowledge your Excellencys letter of 12th Inst., which I Received on the 13th in the Evening And the next Morning I communicated it to the Court. I feel, myself bound to Obey all Orders of Your Excellency And I hope we shall be able to proceed with tolerable Unanimity but whatever may occur (and something unpleasant has already happened which I will Communicate when I have the honor of Seeing Your Excellency) no altercation or difference of Opinion Carried on with Warmth shall take place. Fifty Eight Writs have been Issued Since the 12th Inst, so that your Excellency may suppose I am well employed.
I remain &c
(Signed) Richd. Atkins
His Excelly Govr. King &c, &c, &c,
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14th Feby, 1801
Your Excellency having Ordered my Opinion "How far the Bankrupt Laws of England Can be made Applicable to the Inhabitants of this Colony". I take the liberty of Stating, that Considering it as a matter requiring mature Deliberation, I hope that you will indulge me with a few days before I communicate my Ideas on that Subject.
I Remain You.
Richd Atkins J. A.
His Excelly. Gov. King &c, &c, &c
21st Feby 1801
In Answer to your Excellencys Question "How far the Bankrupt laws can be made Applicable to the Inhabitants of this Colony" I beg to State that in a General point of View, all laws now in force in England may be, under local Regulations, admissible in its Colonies, but the laws in question "Statutes of Bankruptcy" are themselves local and do not extend to Acts done in foreign Conn-tries or other domains in Great Britain" Comp 398. So that your Excellency perceived the Interference of the Legislature is a absolutely necessary to Establish it here And the Patent appeared to preclude every Idea that it was is Intention to extend Laws, so very Complicated to this Colony, when it expressly directed all our Proceedings to be done in a Summary Way And to Apply it to Cases of Insolvency) it Directed that when the "Debtor is in Confinement and had no means of Subsistence, that an Allowance shall "be made him by his Creditor, and in Default the Debtor be for ever Released from "that Debt and Discharged". This is the only Regulation in Action pointed out in the Patent, Our Guide in all Judicial Proceedings And it is Certain the more Simple our Dispensations of Law are, the more it will Conform to and meet its Sense and Intention – Permit me further to Observe that if our Traders from its Increase and Consequence requires Regulations more Extensive that what had hitherto been adopted, there are modes far less intricate than the Bankrupt Laws at hand such as Deeds of Assignment in Trust for Creditors, Orders of Compensation &c., &c. I am well aware that these are not Compulsive Acts, but we must in Some Degree rely on the Good Sense of the Creditor which will Clearly point out their Interest to Agree to such Deeds and Acts, when they are Offered bona fide by his Debtor. They will Operate as effectually , attain the Desired end, and will be as Concise in their Course And less expensive to the Estate.
The Bankrupt Laws appear to me to be distinct Code for the Regulation of Trade and replaced under the immediate jurisdiction of the Chancellor who appoints Commissioners etc, etc, And who have an Office for that particular branch of the Law. , Your Excellency is aware that there is here neither a Chancellor or Commissioner for the Creditor to Apply to.
There are many other Good and Cogent Reasons which might be brought in Aid and Support of my Opinion which as " That under all its Circumstances the Bankrupt Laws, at present at least, are inadmissible in this Colony". Which Opinion is submitted to your Excellencys Consideration by,
Your Excellencys &c.
Richd Atkins J. A
His Excelly Govr. King &c, &c, &c
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22 February 1801
In answer to a letter from Mr Smyth to the Governor is which he Expressed a Wish to take advantage of the Bankrupt Laws the Governor Desires he may be informed that it is the Opinion of the Judge Advocate in which he Concurs that the Bankrupt Laws do not extend to any of the Colonies, You are therefore to Remand My Smyth to Gaol and there him safely keep unless he be Set at large by Desire of his Creditors.
I have the Honor &c.
("Signed") Philip Gidley King
Richd. Atkins Esqr.
Judge Advocate
Sydney 6th May 1801
From the Inclemency of the Weather, which will naturally retard the Cropping of the Grounds, more particularly at the Hawkesbury, I submit it to your Excellencys Con-sideration how far it may be judicious to postpone the Civil Court for some Short time longer – The greater part of the business lies at the Hawkesbury and it may perhaps defeat your Excellencys good intention to wards that part of the Country by adhering to the 23rd Inst the Day appointed. But as I am Informed your propose Visiting that Settlement, you will be better enabled to judge how far this suggestion may meet your Approbation.
I think it my Duty to Inform you that the Whole of the Butter on board the American was Yesterday Sold. One half to the Military and the other half to Simeon Lord. It does not become me to make any Remarks on a Subject that rests so particularly with your Excellency.
I remain &c.
("Signed") Richd Atkins J. A.
His Excelly Gov. King &c, &c, &c
Augt 1st 1803 Parramatta
Sir
There is a very bad custom prevailing in the Civil Courts which is of Considerable Injury to the Public Work. I have often mentioned it to the Governor, but it has not been put a stop to, I think it proper to Mention it now, till lately Prisoners were allowed to be Arrested and put in Goal for Debt, a Custom Contrary to all Law, this with some Difficulty was prohibited – Prisoners are still allowed to Sue for Debt, tho not to be Sued, Criminals or Prisoners are Deprived of the advantage of the Civil Law in this respect, they Can neither Sue nor be Sued for Debt as they are supposed to possess no Property. I mention this Circumstance because a Number of Government Servants are called away from their different Employments to attend the Civil Court in Consequence of Writs and Summonses being granted to them by the Civil Court – The present Court does no more that what had always been done by Former Courts – I point it out as an Evil, which should be prevented for many Reasons which might be mentioned.
I Remain Sir,
Samuel Marsden
Governor King.
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APPEAL of Thomas Whittle versus John Turnbull
July 21st, 1801
Before the Civil Court
present
The Judge Advocate
Thomas Laycock
James Thompson
Turnbull v Whittle
On a [indecipherable) for £17.0.0 the amount of 143 Packs of Cards, Sold by Pltf to the Acsd at 2/6 per Pack.
The Plaintiff being sworn Deposeth that he Sold to the Defendant the abovementioned Cards as 2/6 a Pack and that the Same were Delivered at the Hands of the Defendant, where they remained for some Days and there afterwards returned by the Deftd. Son and left at Simeon Lords Warehouse.
Confirmed by the testimony of Simeon Lord as to the Contract and by Stevenson his Clerk as to the Entry and Delivery of the Articles
The Deft admitted the Contract, but said he saw the Cards at the time he made the Purchase and alleged as a Reason for resisting the Payment that some Bills he tendered (being Bills of Individuals) were refused by the Pltf in payment for some Spirits – No other Circumstances being offered in defence of the Suit
Verdict for Plaintiff £17 and Costs.
The Deft gave Notice of Appeal to His Excellency the Governor.
County of Cumberland & to Wit. July 15 1801
Unto His Excellency &c, &c, &c,
The Humble Appeal of Thomas Whittle Serjt of the New South Wales Corps
Against
The Action of Mr John Turnbull.
Most Respectfully Setteth Forth
That some Months ago, being in the Warehouse of Mr Turnbull an Offer was made to the Appellant of Several Packs of Playing Cards And enquiring of Mr Turnbull what Number he had was informed about forty or fifty Packs he insured to be a good quality – the Appellant in Consequence Offered 2/6 per Pack for that Number – soon thereafter Mr Turnbull the Respondent sent a large Quantity of Cards to the House of the Appellant exceeding 143 Packs, the Appellant on examining the Cards found they were of most Inferior Quality – What the Respondent acknowledged to have paid at the Cape of Good Hope One Shilling per Pack for, yet Consainkinsly Charged 2/6 per Pack for here – nearly 150per Cent on prime Cost, this is in direct Violation of Your Excellency Order of last October, to which the Appellant begs leave to Advert – The Appellant finding that the Cards were so inferior a Quality and far exceeding the Number he Agreed to purchase, he instantly returned them and ware
[Page 16]
ware Received by Respondent into his Warehouse, his first Reason for so doing is already of signed and Secondly recollecting that it was Contrary to your Excellencys Order to Vend Cards or anything tending to Gambling. Mr Turnbull the Respondent not satisfied with his own Property being returned, instructed an Action against the Appellant before the Civil Court now Sitting 20 July 1801 ware a Verdict was given in his favour Ordering the to pay £17 which Order the Appellant Concluded to be Informed and Illegal and therefore Appeals to your Excellency, to revise the Case, reverse the Peace and allow the Appellant Cost of Suit as well as the Cost of Appeal and having exceeding the Centage Prescribed by your Excellency, the Appellant prays that the Order Issued on that head may be enforced And the Respondent to withdraw his Action paying Cost, It is questionable if the Respondent is Authorised to land such an Article without the Permission of your Excellency far less to Vend them at such an Extravagant rate and so Diametrically Opposite to your Wishes.
May it therefore please Your Excellency to Consider the Case of the Appellant , revise the whole Business as appeared suitable to your Excellencys pleasure and to View the quality of Cards a pack of which is herewith produced. And with all possibility humily the Appellant prays, According to Justice &c
(signed) Thomas Whittle
Cumberland N. S. Wales to Wit.
Appeal Whittle v Turnbull;
William Balmain Esqr Naval Officer maketh Oath that the Entry of the Cards of the brig Margaret is as per Book now produced true to the best of his knowledge and belief and in which no Entry of the Cards in question on this Cause is there-in Specified.
("Signed") William Balmaine
Sworn before me this 8th Aug 1801
("Signed") John Harris J. P.
Turnbull agt Whittle
John Turnbull the Plaintiff in this Cause Maketh Oath that the Cards in Dispute, were purchased by the Deponent at the Cape of Good Hope at the rate of ten pence per Pack And paid for Accordingly at the price therefore to the Party from whom this Deponent purchased and Received them.
("Signed") John Turnbull
Sworn before me this 7th Aug 1801
("Signed") Richd Atkins J. A.
[Page 17]
New South Wales, Cumberland to Wit –
By Philip Gidley King &c, &c, &c.
Whereas the Patent for Establishing the Court of Civil Jurisdiction in this Colony expresses "That if either of the Parties engaged in a Suit at Law do find themselves Aggrieved at the Decision of Such Court, that they are authorized to appeal to the Governor(whose award shall be final) in any Sum not exceeding Three Hundred Pounds". An Appeal having this Day been brought before me, by
Serjeant Thomas Whittle Appellant
agt
John Turnbull Respondent
When after admitting John Turnbull the Respondent and truly and Impartially hearing and Weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the Parties in this Case – it Appeared –
That the Respondent Sold the Defendant 143 Packs of Cards at 2/6 each Pack which had been proved by Simeon Lord And his Clerk as to the Entry and Delivery That the Appellant resisted the payment of the Amount and Value and Frivoland practice, in Consequence of the Civil Court gave a Verdict for the Respondent in the Sum of £17 with Costs, And Whittle having appealed to me, from the Decision of Such Court, Stating that he had never seen the Cards, till delivered at his House, when he found they were of an inferior kind, to what the Respondent assured him they were, And that the Charge of 2/6 each Pack was150 per Centum more than the Prime Cost &c And it Appearing on the First hearing of this Cause in Appeal by the Oath of the Respondent that he purchased the Cards for 10d a Pack at the Cape of Good Hope And by the Oath of William Balmain Esqr late Naval Officer, it appeared that these Cards were never entered by the Respondent agreeable to my Orders and the Port Orders, which he was furnished with on his Arrival, I AM OF OPINION that although the Appellant ought to have paid a part of the Sum of £17 awarded by the Civil Court, had the Cards been Entered with the rest of the Margaretts Cargo And Allowed to be landed; Yet from the Circumstance of such Extravagant Centage being Demanded ie. 200 per Cent whereas my permission was only for 100 per Cent on the Margaretts Invoice, and the Cards not being entered with the Rest of the Cargo (in which Case I most Certainly should have forbid their being landed) I do therefore Reverse the Sentence of the Civil Court in this Cause And direct the said Cards to be Confiscated and burnt before the County Jail by the Public Executioner, as a Nuisance imported Clandestinely into the Colony
Given &c this 12th Augt 1801
("Signed") Philip Gidley King
[Page 18]
New South Wales
Cumberland
To Wit –
By His Excellency Philip Gidley King Esquire Captain General & Governor in Chief in and over His Majesty’s Territory of New South Wales and its Dependencies &c &c &c
Whereas the Patent for Establishing the Court of Civil Jurisdiction in this Colony, expresses "That if either of the Parties engaged in a Suit at Law do find themselves Aggrieved at the Decision of such Court, that they are Authorized to Appeal to the Governor (whose award shall be Final) in any Sum not exceeding Three Hundred Pounds." An Appeal having this Day been brought before me, by
The Revd. Samuel Marsden – Appellant
against
John Kenny, Convict Respondent
When after admitting John Kenny the Respondent, and truly and impartially hearing and weighing the Evidence & Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause, – it appeared that the Civil Court by mistake, in not knowing John Kenny to be a convict, granted him, a Rule of Court to obtain payment on a promissory note, indorsed by the Appellant. Instead it appeared that Mr. Balmain received the note in question, on seeing Mr. Marsdens name on the back of it – The Appellant resisted the payment of the note vz for £23, which was payable to order, as it was 5 years after date, before it was presented to him, and that his convict servant had passed it to the Respondent without his (the Appellants) knowledge; had further, that after hearing the Evidence of Witnesses before this Cause the Civil Court was unanimously of opinion, that the note for £23 drawn by Richard Ridge & payable to the Revd Mr. Marsden or order, was negotiable & therefore Mr. Marsden he having indorsed it, is liable to the payment of it – [indecipherable] the Reverend Mr Marsden appealed to me when after hearing the evidence for & against, & every thing the Appellant & Respondent had to advance, It appeared by the Evidence on oath of Richard Ridge that payment was made by him soon after the note became due of the value of the
[Page 19]
said note as stated in his affidavit adding that he made application to Mr. Marsden for the note of hand (after he Ridge had discharged it) who referred him to his Convict Servant Gorman, who told him in the presence of Anthony Rope that he acknowledged to have received the full amount of the Note, but that he had left it with Mr Kenny, and that such note should never come against Ridge, who also adds, that the Note was indorsed by Mr Marsden prior to his Ridges paying any part of it: And the Reverend Appellant Having declared that he gave the note in question to his Convict Servant at the Hawkesbury to get payment from Ridge [indecipherable] these also And that he did not give that note to Gorman for any consideration whatever, And that he (the Appellant never received payment for the Note at that time or since
From all which, I am of Opinion, that however liable the Appellant is to pay the amount of that Note, it appearing with his indorsement, & the Statute of Limitation being Six Years instead of Five: Yet the Allusion appearing so manifest from the Evidence of Ridge & the other Circumstances together with the Infamous Character of Gormans: Do therefore, award the Said Note, to be cancelled and to loose its Current value
Given under my Hand and Seal at Sydney this 30th day of August 1801
Philip Gidley King
[Page 20]
Sydney Aug 1st 1801
Sir
I trust your Excellency will see no Impropriety in my taking the liberty to Ask for a Copy of the Decision your Excellency was pleased to make in the Appeal which Came before you in the Cause of myself and Whittle, And I beg leave further to observe that I wish this merely for the Satisfaction of the Parties in England for whom I am Concerned
I am &
("Signed") John Turnbull
His Excelly Govr King &c, &c, &c
Augt 16th 1801
Sir
In Answer to Yours to the Governor of Yesterday he Ordered me to inform you that he gives no Copies of his Decisions in Appeal; But if it will be of any Satisfaction to the Parties in England for whom you are Concerned you can inform them that the Cards in Question were brought into the Colony and landed by you in a Clandestine Manner Contrary to every existing Order, Regulation and the Policy of the Colony and your not Entering them Subjects you to the Penalties of the Manifest Act, inclusive of forfeiture of your Bond of Two Hundred Pounds
I am Sir &c,
("Signed") W. N. Chapman Secy.
Mr John Turnbull
5th Augt 1801
I Received John Kennys Memorial with your Excellencys Order thereon. In a Cause Kenny v Bowman Deft. Pleased his Inability to Pay Plainf until the Ensuing Harvest, the Court took some pains to persuade Kenny to Accept the Offer which he at last did after much hesitation, Two other Causes of his were brought before the Court and Verdict given in his favour, with which he was perfectly Satisfied; Your Excellency will Recollect that an Order of Governor Hunter is still in Existence and in full force, which States that no Convict shall sue for any debt at a Civil Court and that the Person of a Convict Cannot be attached, but that his property is attachable, Kenny was informed of this at the last Civil Court in Consequence he made Debts to Mastr Kearns who took out Writs and Recovered the Debts due to Kenny. We were wrong in granting Writs to Kenny, but it did not at the time Occur to us he was a Convict for Life, It is to be lamented that Whilst myself and Coleagues are doing our best Endeavours to render Justice to all Descriptions of Persons Rich or Poor, Bond or Free, that we are to be Subject to the Animadversions and Misrepresentations of such a Man and Kenny and I have to Request that unless he can prove his Assertions as Stated in his Memorial to your Excellency, that he may be punished for daring to assert falsehoods against the Court and thereby deceive your Excellency. The Enclosed I received Yesterday Evening and gave for answer that I should lay it before your Excellency and any directions I might receive respecting it should be Communicated to the Writer. I shall wait on your Excellency before the Court Opens and Remain &c
("Signed") Richd Atkins J. A.
His Excelly Govr King &c, &c, &c
[Page 21]
APPEAL of Alexr Robertson vers Henry Kable
Civil Court
22d. Feby 1802
Henry Kable appeared before the Court and Deposed that he purchased of Mr Robertson Chief Mate of the Margaret Brig. Eleven Pigs at 6d per pound alive, which he therefore Considered his Property and prayed might be delivered to him – Mr Robertson did not deny that such a Contract had taken Place, between Kable and Henry Hacking on the Night the Margaret Came into the Cove but said he had since understood it to be Contrary to the Port Orders and moreover that Captain Buyers objected to the Pigs being delivered the next Day, as the Market Price, he alledged, was not given for the Pigs – it further appeared that Kable had sent on board Provisions for the Pigs the following day at the Instance of Mr Robertson.
The Court are of the Opinion that the Trans-action on the part of Kable was fair and therefore Established the Contract.
Notice of Appeal to His Excelly from Mr Robertson
Robertson – Appellant
Kable – Respondent
Cause of Appeal to His Excellency The Governor from the Decision of the Civil Court.
Because Appellant was hurried into Inadvertently into a Contract which was directly Contrary to the Port Orders, And which if he had fulfilled would have Subjected him to a very heavy penalty.
Because he can prove that the Agent Employed in making the Contract on the part of Respondent Declared he would seize the Pigs immediately on their being landed And it will therefore appear the Bargain was made with a premeditated and fraudulent View to Injure and to Impose upon Appellant.
Because Appellant before he Confirmed the Contract desired Respondent to Come on board the Transport And look at the Pigs which Certainly Implied or gave Room for an Opening for either Party to Recede from A Contract which under such Circumstances was not perfect.
Because Appellant never, as has been stated sent for any Provisions for the Pigs as Kables Pigs, but to Kable as an Indifferent person having no Interest in the Pigs and meaning to Pay him for what he sent.
Because it was Kables Duty as the Chief Constable and a person long Resident in this Country, instead if Conniving, a violation of which he knew to be the Port Orders, but Which Appellant was Ignorant to have
[Page 22]
have him from an Act that was likely to Subject Appellant to the Governors Displeasure and other material Inconveniences
("Signed") A. Robertson
Sydney 20th Feby 1802
Sydney 19th Feby 1802
Sir
In Conformity to our Agreement of last Night I was induced this Morning to Send my Son, who Acts as myself for the Pigs, I should have attended my-self, but Business otherwise required my attention – But the Accounts I have Received seemed to be very Unpleasant Concerning the Pigs, but I would wish to know from you the particulars as I imagine you to be too much of the Gentleman to attempt to take advantage or Run from Agreement as the Pigs I Consider my Property and have Answered your repeated Orders on Account of the Pigs And for the Difference of Money it is Payable at any time when you think it Convenient of Calling or Sending (by writing) this Morning also I sent According to your Desire [indecipherable] Bushells of Siftings for their Support prior to the Union Flag being hoisted An Answer when it will Suit of your letting me have them as I wish it to be Such as will give me no further trouble.
Your Most Obedt.
("Signed") Henry Kable
New South Wales, Cumberland to Wit.
By His Excellency &c, &c, &c,
Whereas &c, &c, &c,
Alexander Robertson – Appellant
Against
Henry Kable – Respondent
When after truly and impartially hearing and Weighing the Evidence of Such Witnesses or Documents as were brought forward by the parties in this Cause it appeared That on the Evening the Margaret Anchored in the Cove that the Respondt and Appellt in defiance of the Regulations of the Colony bargained for a Quantity of Pigs at least 16 hours before the Admission Flag was hoisted and that the Contract for the Pigs was in every other Respect fair on the part of the Appellt; I am therefore of Opinion that the Plea set forth by the Appellant respecting the Price a-greed for, not being the Market Price is futile, nor could the Appellt. Be ignorant of the Port Orders at the time he made the Contract, as this is not the first time of the Margaret being here, I do therefore confirm the Decree of the Civil Court and moreover fine Henry Kable in the Sum of £10 Sterling for the Use of the Orphans, he having as Chief Constable broke through the Port Orders and Regulations of the Colony which it was his Duty to Enforce.
Given the 3d Day of March 1802
("Signed") Philip Gidley King
[Page 23]
APPEAL of William Baker vers. John Kenny
Civil Court, 2d March 1802
Before the Judge Advocate
The Revd Mr Marsden
Ensign & Adjt Minchin
John Kenny
agt
William Baker
£61.16.0 on two Notes of hand.
The Notes Established by Evidences.
Verdict for Plainf £60 & Costs
Deft Charged in Execution.
Notice of Appeal.
Civil Court 4th March
As a Matter brought before the Court by Memorial at the Instance of McCarty praying for Relief in a transaction between himself Egan and Baker, respecting the Sale of a Horse to Baker, which had before been Assigned by Egan, the Court direct that the Notes Received as the Consideration for the Horse should be given up to William Baker And the Horse restored to McCarty (Vide the Suit the 2d Inst Kenny v Baker) and from the Nature in which Kenny as the holder of the Notes is implicated in this Business the Court is of Opinion that Kennys Control appears in an Iniquitous and Fraudulent light and highly deserving of Censure.
The Matter Sealed to the Satisfaction of all Parties and Dismissed.
Appeal Withdrawn.
3d March 1802
Unto His Excellency &c, &c, &c
The Appeal of William Baker Settler at the Hawkesbury
Most Respectfully Sets forth
That an action was Commenced against him by John Kenny to Recover the Sum of Sixty One Pounds, Sixteen Shillings and Sixpence upon and by Virtue of a Note of Hand granted by Appellant to Bryan Egan, alledging it to be the balance or remaining Sum due to the said Bryan Egan, for a Horse purchased from him by the Appellant, whereas the true balance is £60 only.
[Note in margin: 1 March 1802] The Cause Came on before the Civil Court now Sitting And Parties being heard Viva Voce, a Verdict was given against the Appellant Ordering him to pay the full Sum of £60 Claimed. This Verdict Considered Illegal and Unjust, Illegal
Because the Promissary Note expressed Wheat at the farm of Mr Grimes at the Hawkesbury as payment and which payment was ready provisions to the Commencement of any Action And a tender thereof made to the Respond-ant; And that it was ready, Thomas Smyth Esqr Provost Marshall will prove to your Excellency
[Page 24]
Excellency, who saw a Considerable quantity in the Hands of the Appellant, when he was Served with the Mandate of the Court and he now was to possess at least Six Hundred Bushells of Wheat Exclusively.
The Provost Marshall gave this in Declaration at the Court spontaneously, But the Respondent from a [indecipherable] Conviction of the Appellants Circumstances, Insisted on immediate Payment Or going to Prison, regardless of the Expressive terms of the Appellants Note. And the Respondt from Motives best known to himself, absolutely refused to accept or take Wheat as agreed for Or to allow the Appellant time to Send it to Sydney by any Boats, but as his Note expressed payment at the Hawkesbury in Wheat he Concluded with due Submission that such payment might be taken there.
That the Verdict is Unjust will appear to your Excellency when informed what the Horse sold to the Appellt is now claimed by James McCarty under an Assignment for Fifty Pounds and such Assignment was made previous to the Engagement of the Appellant, the Bryan Egan the Person then professing the Horse and who Sold it to the Appellt keeping him wholly in the Dark as to such Assignment and Sold him as his own Property free from all Incumbrances.
It is a misfortune truly to be lamented that the depravity of Individuals would compell the Honest And Candid part of mankind to trouble your Excellency, but under all the Circumstances of this Case the Appellt himself hoped that the fraudulent Conduct of Bryan Egan will Fall under your Excellencys Observation, who at the time he sold the Horse to the Appellt carried on the Trade in an Extensive Manner; And although the Appellt is ready to honor his Note, he Considers it highly necessary to pay it under the Direction of your Excellency, because James McCarthy Claimed to Horse by Virtue of an Assignment, duly entered into on the 6th July 1801. And the Appellt is Credibly Informed, that by a prior Assignment to that last Recited, George Salter also Claimed the Horse in Question, And further that the present holder of the Note has given no Value for it, and only prosecuted with a View to Serve Bryan Egan, because Bryan Egan is found upon the Colonial Books to be under Sentence of Conviction. But
The Appellt has no wish to avail himself of any Chicanery practiced by Bryan Egan or John Kenny, his Agreement with the former he is perfectly ready and Willing to Perform, in so much as, he is directed by your Excellency so to do And that by your Decree, he is indemnified by against any future Claims.
For the purpose of Confirming the Allegations of the Appellt he Intended to call as Evidence James McCarty and George Salter in so far as related to the different Assignments and the Provost Marshall with Mr Thomas Rickaby to prove that the Wheat is ready to be paid in exoneration of the above Note, as to your Excellency may Seem meet to Direct Or Appoint.
The Appellt Complained of Oppression from John Kenny the present holder of the Note, upon the Grounds already Stated And that he persevered in such Oppression Contrary to the Direction of the Honorable Court, before whom the Cause was tried; And from that Oppression as well as the Various Assignments granted by Bryan
[Page 25]
Bryan Egan on the Said Horse the Appellt craves relief.
The Appellt begs leave to Represent that Bryan Egan Indorsed his Note to Kable without Value and if he Succseds in Recovering Payment (being now Emancipated) which Bryan Egan is not, the latter will avail himself of being a Prisoner and Refuse the Payment of all Debts. That this Conduct is Sanctioned by Kenny admits of no doubt, But it is such Conduct, as your Excellency, who is well known to be the fountain of Mercy and Spirit of Justice will not Countenance.
With all possible humility the Appellt begs leave to Approach your Excellency ardently praying that James McCarty, George Salter, Mr Thomas Smyth and Mr Thomas Rickaby may be examined on the facts already stated and the Appellt under the Security he has now given to Prosecute will pay the full amount of his Note According to his Agreement And as your Excellency may think proper to Direct.
And your Excellencys Appellant
Most respectfully prays
("Signed") William Baker
By His Excellency &c, &c, &c,
New South Wales Cumberland to Wit.
Whereas &c, &c, &c,
William Baker – Appellant
Against
John Kenny – Respondent
When after truly and Impartially hearing and Weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause. It appeared "That Respondent [Note in margin: March 2 1802]commenced an Action before the Civil Court now Sitting for the recovery of £61.16.0 in two Notes of hand which being Established by Evidence a Verdict was given for Respondt £60 and Costs, Appellt Charged in Execution [Note in margin: March 4th] when Appellt gave Notice of Appeal – But Two Days after a Memorial was given into the Civil Court at the Instance of McCarty, praying for re-lief is a transaction between himself, Egan and Baker respecting the Sale of a Horse to Baker which had before been Assigned by Egan the Court directed that the Notes received as the Consideration for the Horse should be given up to William Baker And the Horse restored to McCarty, And from the Nature in which Kenny, as the holder of the Notes is implicated in this Business, the Court were of Opinion that Kennys Conduct appeared in an iniquitous and fraudulent light And highly deserving of Censure – But the matter was settled to the Satisfaction of all the Parties and (Dismissed – Yet as the Appeal was given in not withdraw by Memorial, Appellt appeared to [Note in margin: April 10th] prosecute the Appeal. At the first hearing of Appeals – after having Considered the Verdict
[Page 26]
Verdict and Opinion of the Civil Court. I am fully of Opinion that its Decisions are just and Equitable and do therefore Confirm both the Verdict and Opinion with this proviso, that Baker is indemnified by the Provost Marshall against any future Claims for the Horse, which appears to have been Assigned to different Persons previous to the Sale to Appellant – And as the Conduct of the Respondent Appears to be of the most iniquitous and fraudulent kind, I do Award that he Pays to Appellant the Sum of One Guinea for each Day that he has been drawn from his private Concerns to attend this appeal.
Given &c, this 17th Day of April 1802
("Signed") Philip Gidley King
To The Judge Advocate &c, &c, &c
APPEAL of Richard John Robinson vers John Nicholls
Civil Court 2d March 1802
Present The Judge Advocate
The Revd Mr Marsden
Ensign & Adjt Minchin
John Nicholls
agt
Richd John Robinson
£41.17.6 – On a Contract for the hire of a Horse at 2/6 per Day by Written Agreement And a former Unsatisfied balance due from Defendt.
The Agreement established by Evidence
No Defence.
Verdict for the Plainf £41.17.6 Deft Charged in Execution.
Extracted from the Minutes.
To His Excellency &c, &c, &c,
APPEAL. – Richd John Robinson v John Nicholls
Most Respectfully Sheweth,
That your Appellant purchased a Horse and Cart of John Nicholls at Prospect for which he was by Agreement to Pay £75 by Weekly Payments, but shortly after your Appellant paid the said John Nicholls Twenty Pounds, on which he expressed his satisfaction, declaring that he should Consider the Agreement Null and Void and that your Appellant might suit his own Convenience to pay the Rest.
That your Appellants Wife (Ann Robinson) tendered the Remainder of the £75 down to the said John Nicholls in Crossleys Bills, which he refused to take, although they were Negotiable, but this as well as other things in Appellt. Favour she was not allowed to Speak of in Court.
That your Appellt finding it out of his Power, to pay him in any other Way, as soon as he Could Wish, he therefore Returned the Horse and Cart to the said John Nicholls, who sold the Same for £50, which with the £20 before paid, made the Sum of £70, being within £5 of the Price agreed for. Notwithstanding which he had Sued your Appellant
[Page 27]
Appellant upon the Original Agreement, which he had before Declared should be Null and Void
That your Appellant had got a Book Debt against the said John Nicholss, making up such Deficiency of £5, which he can Clearly prove trusting therefore to Your Excellencys Impartial Judgement and determination, he Humbly Implores such Redress as in your Wisdom the Case may seem to merit.
6th March 1802
And your Appellt in Duty bound will ever Pray &c,
(Signed) Richd John Robinson
Whereas an Agreement is now Entered into this 13th Day of December 1800, Between John Nicholls of Prospect in the one part, and Richard John Robinson Baker of Parramatta in the other part. Whereas the said John Nicholls had Entered into an Agreement to Pay for the said Richard John Robinson the Sum of Seventy Five Pounds Sterling in Six Months, and the said Richard John Robinson in Order to Secure the said John Nicholls, does by these Presents, Agree in Case the Said Money is not payed by the Time before mentioned he the said Richard John Robinson is to return the said Horse and Cart and Harness to the said John Nicholls, who will put the same up to Public Auction And in Case of any Deficiency after the Sale the said Richard John Robinson is to pay the deficiency to the said John Nicholls half a Crown day from the date of this Agreement.
In Witness whereof the said Parties have Set their hands.
Dated this thirteenth Day of Decemr. 1800
Witness
("Signed") William Evans
("Signed")
Richard John Robinson
John (his mark) Nicholls
Regist. 6th March 1802
("Signed") M. Robinson
Parramatta Decr 19th 1800
Six Months after Date I Promised to Pay to John Nicholls on Order the Sum of Seventy Five Pounds Sterling Value Received.
£75.0.0
Witness ("Signed") James Partridge.
("Signed") Richard John Robinson
New South Wales, Cumberland to Wit.
By His Excellency. &c, &c, &c,
Richard John Robinson – Appellant
Agt
John Nicholls – Respondent
When after truly and Impartially hearing and Weighing the Evidence
[Page 28]
Evidence and Testimony of such Witnesses or Documents as were brought [indecipherable]and by the parties in this Cause it appeared that the Respondent Entered an Action against the Appellant before the present Civil Court for the Recovery of £41:17.6 on a Contract in which Agreement being Established by Evidence and the Appellt. Offering no defence the Court gave a verdict for Respondent for the Sum Sued for and the Appllt. to be Charged in Execution from which Decision the Appellt. Appeals – Stating that he Purchased [indecipherable] Horse and Cart of Respondt. For which he was to Pay him £75 by Weekly payments, that soon after he paid£20 of the Purchase Money with which Respondt. Appeared Satisfied And that Appellt.’s Wife tendered the Remainder which Respondt. Refused – The Appellt. Finding he could not pay the Remainder as soon as he Wished he returned the Horse and Cart which Respondt sold by Auction for £50 which with the £20 paid Came within £5 of the Purchase money which Appellt. Says Respondent owed him, to Substantiate all which no other proof is offered than the Assertion of Appellt. And his Wife.
On the other hand Respondt produced a Regular Agreement Witnessed and Registered by which Appellt. Binds himself down to Pay the Purchase Money i.e. £75 as stated in an Agreement and Note of hand in Six Months time from the Date of said Agreement and note of hand as security agrees to Return the Horse, cart &c to Respondent to Sell by Auction if Appellt. did not fulfil the Agreement within the Six Months. The Deficiency in Price to be made Good to Respondt. By Appellt. Who was also in that Case to pay half a Crown a Day for the Use of the Horse, it also appeared that it was not till upwards of Nine Months after the Agreement was dated that the Appllt. Could not fulfil the Agreement and Discharge the Debt, that Respondent Insisted on the Horse being sold by Auction According to the agreement which Appellant Consented to, I am therefore of Opinion that the Agreement was regularly made and a fair transaction on the part of the Respondent and that the Appellant neglecting to fulfil the terms of the Agreement and to take up his note of hand, has [indecipherable] been Charged in Execution by the Civil Court the Verdict of Which I Confirm and award Payment thereof.
Given &c this 17th Day of April 1802
("Signed") Philip Gidley King
To the Judge Advocate
APPEAL of William Evans vers. James Larra
Civil Court 2d. March 1802
Present the Judge ADVOCATE
The Revd. Mr Marsden
Ensign and Adjut. Minchin.
James Larra
agt.
William Evans
£16 and Upwards
This action was brought on a Book Debt which was established by the Production of the
Day Book to Satisfaction of the Court and a Note of hand – Defendant denied having Received some of the Articles, but as it appeared that the Defendt.
[Page 29]
Defendant has been in the habit of Sending his Children, Servants and others to the Plaintiff Occasionally for Spirits and other Articles – the Court find a Verdict for the Plaintiff.
£16.0.0 and Costs
Extracted from the Minutes
6th. March 1802
Unto His Excellency & & &
The Appeal of William Evans
Most Respectfully Sets Forth
[Note in margin: £ s d 16.7.4 ½ ] That an Action was Commenced against the Appellt. By James Larra who keeps a Grog Shop at Parramatta to Recover the Sum of Sixteen Pounds Seven Shillings and Fourpence halfpenny alledged to be due for Sprits and the Cause being heard before the Civil Court now Sitting, a Verdict was given against the Appellant for the above amount – Which Verdict the Appellant considers Illegal and Unfair. Because
The Appellt. Contracted no part of such Account nor had he any Dealings with the Respondent since the 16th of May 1801. Save and except One Pint and a Gill of Rum with the Horse hire Amounting in the Whole to the Sum of Two Pounds Six Shillings and threepence And which Sum the Appellt. Is ready to Pay – and Illegal Because the Appellant can prove that Extortion and Imposition is the Grand Characteristic of the Respondent And that by the practice of Imposition and Extortion the Respondent lives And it is a practice which no Christian would Follow.
The Appellant with all possible humility begs leave to Approach your Excellency and adduce as proof in Support of his Allegation Mr. William Baker Mr. John Brennan Mr. John Bennett and various others as to Extortion
And under the Circumstances of this Case the Appellt. Craves with One Submission that Your Excellency will Condescend to Revise the Proceedings of the Civil Court, Reverse the Order and Allow the Applicant all Costs of Suit.
And most Ardently prays
("Signed") William Evans
New South Wales
Cumberland
to Wit –
By His Excellency & & &
Whereas & & &
William Evans Appellant
agt.
James Larra Respondent
When after truly and Impartially hearing and Weighing the Evidence and Testimony of such Witnesses Or Documents as were brought forward
[Page 30]
New South Wales
Cumberland
To wit
By His Excellency Philip Gidley King Esqr
Captain General and Governor in Chief and over His Majesty’s Territory of New South Wales & its Dependencies & & &
Whereas the Patent for Establishing the Court of Civil Jurisdiction in this Colony, expresses, "That if either of the Parties engaged in a Suit at Law, do find themselves Aggrieved at the Decision of such Court, that they are Authorized to Appeal to the Governor (whose Award shall be Final,) in and Sum not exceeding Three Hundred Pounds" – An Appeal having this Day been brought before me, by
Mr. Borthwick Appellant
against
Mr. Chapman Respondent
When after truly and impartially hearing and weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause, it appeared that the Respondent entered an Action against the Apellant for damages sustained by being deprived of his Boat by the Appellant insisting on taking it from him when it was freighted with goods of Mr Cox’s, and the Court taking into Consideration the whole of the Circumstances attached to this transaction & which came out in Evidence, namely the Considerable quantity of Goods on board the Boat belonging to Mr Cox & for which the Respondent was responsible, and the loss the Respondent sustained by being deprived of four days of his Freight find for the Respondent a Verdict of £6 and costs, from which Verdict Appellant appeals. As it appears in an
[Page 31]
Affidavit that as neither Respondent or Appellant registered the Agreement agreable to the Orders of this Government, that no notice ought to have been taken by the Civil Court of this Cause I do therefore award that as Appellant has got possession of [indecipherable] Boat he was charged with the care of, that the Verdict of the Civil Court be annulled, but the Costs of that Court as well as the fees of the Court of Appeals be paid equally between the parties.
Given under my hand
& Seal at Govt House
this Nineteenth April
1802
Philip Gidley King
To the Judge Advocate
Provost Marshall
of His Majesty’s
Territory of NewSWales
& all others whom it may concern
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[Note: digital image a2731032 corresponds to page 29 of the original]
Forward by the Parties in this cause – It appeared that the Respondent brought an Action before the present Civil Court against the Appellt for the sum of £16 Sterling and Upwards which appeared so Satisfactory to the Members of that Court from the Evidence of Respondents Day Book and other presumptive Evidence that they found a Verdict for £16 Costs for the Respondent
The Appellt. having by his Memorial Grounded this Appeal in his own Denial of the Debt, Unsupported by any proof to do away the Circumstantial Evidence of the Book Debt and the other presumptive proofs adduced; And having had Recourse to Accusing the Respondent of Extortion and Imposition, which instead of proving by the Witnesses he Calld to prove that Charge, they uniformly Deny any Knowledge of Extortion and Imposition being practiced by the Respondent; which is further confirmed by the Prices Charged the Appellt. by Larra – In consequence of all which I am of Opinion that this Appeal is Groundless, Vexatious and Malicious: I do therefore Confirm the Verdict of the Civil Court and Award the Appellant to pay the Respondent One Guineas for each Day that he has been taken from his home and his Business to attend this Appeal and Two Guineas to Mr. John Brennan, who has been so Unnecessarily taken from his Concerns at Hawkesbury to Attend this Appeal at Sydney – together with all other Fees of Court
Given this 17th Day of April 1802.
("Signed") Philip Gidley King (LG)
To the Judge Advocate
& & ;&
APPEAL of Thomas Biggars vers. Thomas Smyth
Civil Court
Augt. 30th 1802
Biggars
at the Suit of
Mr. Thos. Smyth
For Damages to the Amount of £200.
Defamation
Mr. Thomas Smyth, P Marshall, being Sworn Deposed.
That the Defendant Accused him publickly, before a Full Bench of Magistrates that he had Detained a Bond on Recognizance from him for a Gallon of Rum.
The Defendt. admits that Charge.
Mr, Smyth further went to State to the Court that the said Thomas Biggars publickly Accused him at the Same time with having tampered with Mary Gilbert a Servant and a Witness for Esther Julian, and Called Mary Gilbert, who being Sworn
Question by Mr. Smyth to this Witness
Didn’t Biggars publickly say before a Bench of Magistrates that I Called you over to my House, prior to your Appearance there, to put Words into your Mouth to Swear falsely against him.
Ansr.
Yes! he Did.
The Defendt. produced a Paper No. 2 in his Defence.
The Court Cleared to Deliberate on an Instance which had Occurred of Mr. Smyths having treated the Court Disrespectfully by Swearing in Court and Calling Biggars a Scoundrel – they therefore
[Page 33]
therefore Fined Mr Smyth £5 and proceeded.
The Court having Called a Constable (Lewis) who was in Waiting at the time at the Judge Advocates Office, when a Gallon of Rum was Voluntarily Offered by Biggars, if some Soap which had been Obtained from him by Richard John Robinson was Recovered – Biggars Admitted he had Offered a Gallon of Rum for the Soaps being recovered, to be presented to the Constables.
The Gallon of Rum was promised by Biggars and had been directed to be given to the Constables at Parramatta for their trouble, but which Rum never had been Rendered or Given by Biggars.
Michael Robinson being Called by Mr. Smyth and Sworn asked the following Questions.
Questn. When the Bond in question was Applied for by Biggars was any mention made of Spirits being Demanded.
Ansr. Nothing of the kind And I positively Swear that the Bond was not out or Expired at the time it was applied for but that I gave it to Mr Smyth to be Delivered up to Biggars when it was out Unconditionly.
Quesn. by Thos. Biggars. Were you present when I demanded the Bond from Mr. Smyth after it was out.
Ansr. I was not
Quesn. Did you not yourself Demand a Gallon of Rum from me when I applied for that Bond Or on paying a Gallon of Rum to Mr Smyth was not that Bond to be Delivered to me.
Ansr. I never Demanded a Gallon of Rum of You.
The Court Cleared and being Reopened are of Opinion that the Action for Defamation was Established and therefore find a Verdict for the Plainf. £30 and Costs
("Signed") Richd. Atkins J. A.
Notice of Appeal to the Governor
No. 2
20th Augt.
1802
The Defence of Thomas Biggars on the Prosen. of Mr. Thos Smyth before Richd. Atkins Esqr. & & &
Gentlemen,
If I am brought here on the Charge of having Declared that Mr. Smyth retained my Bond until he received a Gallon of Rum, I will save the Court the unnecessary trouble of any further investigation by again admitting that I said so And by so doing, only repeated his Own Words of Which I have made Oath and transmitted it to His Excellency, the Governor.
If Mr Robinson is Called in Support of this prosecution I must certainly Object to his being Admitted as Evidence, because he was the first who Suggested to Mr. Smyth that a Gallon of Rum was due on Delivering the Bond & Mr Smyth in Consequence took the Bond apealing his Demand shortly Afterwards near to or opposite the Goal And therefore that this Ought and Should fall to the Ground.
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Ground And my full costs Awarded.
("Signed") Thomas Biggers.
Cumberland
To Wit.
Thomas Biggers maketh oath and Sayeth that on or about the 3d. Day of August Instant, this Deponent went to the Office of the Judge Advocate to draw the Bond that he and his Sureties had interest into for keeping the Peace towards Esther Julian when Mr Thos. Smyth the provost Marshall was present And the Judge Advocate’s Clerk observed that the term was not Expired until the 5th. And at that period on the Bail Bond being Delivered a Gallon of Rum was Due and Desired Mr Smyth to take the Bond into his possession until the Rum was paid, which he Accordingly did. And the Deponent met Mr. Opposite the Goal some few Days afterwards, where he Demanded the bond and was Answered that the Rum had not been paid And when it was the bond would be given up. Yet the Deponent has not Received it, nor did he Complain of its Detention until he was reluctantly Called before the Lieutenant Governor and a Bench of Magistrates in a Cause particularly Stated Accompanying this Affidavit where he Mentioned the Cause of Mr. Smyths detaining it.
("Signed" Thomas Biggers
Sworn before me at Sydney
this 25th Augt. 1802
("Signed") J. Harris J. P. (a True Copy)
Unto His Excellency & & &
The Humble Appeal of Thomas Biggers
Most Respectfully Sets Forth,
That he was this Day 30th August 1802, Indicted and Accused at the Instance of Mr Thos. Smyth, Provost Marshall and Stood Trial for having asserted that Mr Smyth the Respondent, Retained in his Possession the Bail bond given by the Appellant and his Sureties for Keeping the Peace towards Mrs. Esther Julian and untill he the Appellant paid to the Respondent One Gallon of Rum wheren he Stated his Damages at Two Hundred pounds Sterling – And parties being heard Viva Voce a Verdict was awarded against the Appellant for Fifty pounds and Damages. –
The Appellant with all possible humility beg leave to approach your Excellency and represent that on Sunday the 29th. Augt. at Or about 3 OClock in the Afternoon of that Day, the Appellant on his Way to Sydney was met by Patrick Cleary and Edward Quin the followers of the Respondent who Read the Mandate (as Cleary said) of the Judge Advocate, Signed by the Provost Marshall Commanding the Appearance of the Appellant before the Civil Court that Day on the above prosecution – And which Summons the Appellant Duly attended to.
The Appellant Craves permission to Observe that his Obedience to Summons Served on the Sacred Day of God, proceeded from his Respect to a Court formed by your Excellencys
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Excellencys Authority And the laws of this Colony, as his only Study is to Obey; yet he presumes that any prosecution followed by Virtue of such Service or Command to Stand Trial, is Illegal, Unconstitutional and Illfounded And Contrary to every principal of Law, Justice and Equity And that for Such Reasons the Verdict and the Whole proceedings of the Court, had in this Cause ought and should be Set aside, And made Null and Void, without entering into the Further Merits of the Cause as with most obviously appear to your Excellency, and Revisal of the Business of this Day without Adverting to Law, precedents, Or the Statutes in Such causes made and provided.
If the Appellant had been Guilty of Murder, Felony, Outlawed or Searched after by an Escape Warrant, no Doubt in Such Case the Conservatns of the Peace would be justified in his Imprisonment but in every Civil Action and Similar to the Applicant (not even held to Bail) he humbly Contends as already Stated that the Whole of the Proceedings are illegal, Irregular and totally informal, with the Imputation of Cruelty and Oppression to a Man who has a large family, supported by Strenuous and Endeavours And the most irreproachable Rectitude of Conduct, Indefatigable with pursuit of all that Concerns his Employer.
The Evidence in Support of this Prosecution was Mr. Michael Robinson Clerk to the Judge Advocate, who positively Declared, that the Subject of paying a Gallon of Rum, was never Introduced in his presence, but as he was not always present with Mr Smyth nor at his Subsequently Demanding this fee, it is hoped that a Conviction on One Simple Evidence will have little Weight with your Excellency And that the Act of Parliament requiring two Witnesses to Substantiate a Charge will be laid before you – but proof as to the Assertion of the Appellant was Unnecessary having Admitted the Charge as will appear by his Defence, a Copy of which I lodged herewith.
The Appellant Strongly Objected to the Evidence of Mr Robinson, because that he was the first who Suggested such a fee being Due and Consequently Considered him as Party Concerned, but his Objection was Over-ruled And the Result is as Stated; But the Appellant in the Moments of his Repose feels happy, because his pillow whispers to him Consolation, And he [indecipherable] his breast with Safety saying I am Innocent , any Assertion is first; I am the injured person – And his Consolation is still greater, when the happy and Wise Laws of England afford him the Opportunity of laying his Case before Your Excellency, who is the Father of Mercy and Spring of Justice and who will redress his grievance And he begs leave to Say that, no Consideration how ever great, would induce him to Depart from the truth on any Representation exhibited to your Excellency And at the Moment when Called before the most aweful tribunal of God, he will Declare the Contents of his Affidavit laid before you to be true, genuine and just of which a Copy is herewith lodged.
The Appellant begs leave to Remark the Conduct of the Respondent in Conducting his prosecution And that he behaved with that Indecency that which Insulted the Delicate Easy Justice And the Respectable Members Composing the Court for which he was fined
[Page 36]
fined £5 and his Violent Conduct in every Stage will no doubt be laid before you from which it may be partly Inferred how ready he is to [indecipherable] and presents with Vengeance in a Groundless Cause.
As Cleary and Quin will inevitably be called before Your Excellency when this business Is under revisal, they no doubt will then produce their Authority to Compel the appearances of Appellant and [indecipherable] summonsed on Sunday a day so highly revered by our Laws Modern and Ancient and Law, Farther Instructions from the Respondent in the present will justify their and his conduct. – and how far the Respondent as an Officer of that Court is justified of authorised to sign mandated, causing appearances in his own name, rests with your Excellency to determine. - The Appellant with the utmost deference begs permission to remark that although the action on which this conviction was grounded was confirmed to the only charge of retaining his Bond until a Gallon of Rum was paid that in strict [indecipherable] he ought to be allowed a proof to substantiate that the respondent is in the habit of Intoxicating himself and that thereby and therefrom arises a presumptive, if not a positive proof of his being guilty of demanding [indecipherable] to indulge his inclinations.
The Appellant begs leave to present that the Verdict of the Civil Court, the Citation given to [indecipherable] that Court is illegal, irregular and informal and hereby appeals therefrom and from every part thereof, praying that Your Excellency will revise the whole of the proceedings - Reverse the decree of the Court and allow to the Appellant full costs of Suit under and by virtue of the Several Reasons herein before stated
And the Appellant Most Ardently and Respectfully prays
(signed) Thomas Biggers
New South Wales
Court of Appeal
before the Governor
Sep 3rd 1802
Thos Biggars Appllt.
Vs
Thos Smyth Provost Marshall Respondt
Quesn to Lieut. Governor Paterson
The Court Opened and the parties present, the Appeal of Thomas Biggers against a verdict if Civil Court of Judicature on the 30th ultimo in an action for defamation was read. When the Appellant called on Lieut. Governor Wm Paterson who being sworn deposed in answer to the following Question Viz
Quesn to Lieut. Govr. Paterson
Stat to the Court what Michael Robinson (Clerk to the Judge Advocate and Magistrates) said before the bench on Monday the 30th Augt last respecting the demand of a gallon of Rum as a fee for delivering up my Bail Bond
Answer - Michael Robinson declared that it was he (Mr Robinson) who said the Appellant could not obtain his bail bond unless he (appellant) gave a gallon of rum and said the Bail Bond was in possession of the Respondent
The above question put to Jno. Harris Esq who answered being sworn
Michael Robinson declared that it was not the Respondent but that he (Mr Robinson) had demanded the Gallon of Rum and expressed himself in a Laughing way
Appellant
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Appellant asked by the Court if he can adduce any other proof than that contained in the proceedings of the Civil Court that Respondent demanded the Gallon of Rum
Answered No. Person being present but Respondent he has no other proof than his affidavit.
Appellant’s affidavit read in Court, Michael Robinson called by Respondent and Sworn
Question - When the Bond in question was applied for by Appellant, was any mention made of Spirits being demanded
Ansr - Nothing of the kind and I positively swear that the Bond was not [indecipherable] or expired at the time at the time it was applied for, but that [indecipherable] Respondent to be delivered up to Appellant when it was [indecipherable] unconditionally
Question by Appellt to Mr Robinson
Were you present when I demanded the Bond from the Respondent after it was out?
Ansr - I was not
Question 2 - Did you not for yourself demand a Gallon of Rum from me when I applied for the Bond or on paying a Gallon of Rum to Respondent, was not that Bond to be delivered to me?
Answer - I never demanded a Gallon of Rum of you
Question 3 - Was it not improper, you as the Judge Advocate’s Clerk delivering up my Bail Bond to Respondent and what was your reason for doing it?
Ansr - Appellant previously applied to Respondent for his Bond and came with him to the Office to demand it. I therefore gave it to Respondent as it wanted only two days of being expired supposing Respondent would deliver it.
James Lewis Constable called by Respondent and sworn being asked
Question - When the Bond in question was applied for by Appellant was any mention made of spirits being demanded?
Ansr - He heard something respecting soap some time ago, but heard nothing of the Bail Bond
Michl. Robinson, being again called and questioned by the Governor, still on oath
Question - Was you officiating as Clerk to the Judge Advocate in Appellant’s Complaint of Respondents having retained his Bail Bond before the Magistrates on Monday 24th Augt?
Ansr - I was
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Ansr - I was
Question 2 - Did you make any observations during that sitting respecting Respondent’s detention of Appellant’s Bail Bond until he (appellant) had given Respondent a Gallon of Rum?
Ansr - I do not recollect
Question 3 - Did you not say that it was not Respondent but that it was you (Mr Robinson) that demanded the Gallon of Rum without which he (appellant) could not obtain his Bail Bond
Ansr - I swear I did not say so
Adjourned to Saturday 11th inst at 10 O Clock
Saturday Sepr 11th 1802
Judge Advocate on Oath asked the same questions as the Lieut. Governor and John Harris Esq
Answers - I heard Michael Robinson say it was him that demanded of Appellant a Gallon of Rum and not Respondent – but I did not hear him say that it was for the purpose delivering up the Bail Bond
Quesn from M. Robinson to Judge Advocate - Please to refer to what transaction I alluded when I mentioned the Gallon of Rum
Ansr - Some time ago Appellant came to me when I was in the Office and informed me that Richard John Robinson or some of his family had asked him the price of a case of soap And that they had during his absence come to his (Appellant’s) House and taken the soap away. that he had never sold it to them and that he wished some steps might be taken to recover the soap from them and that if he could recover it he would give a Gallon of Rum – I told Appellant that I would give an order to deliver the case of soap up to him – Appellant since informed me he had got the case of soap but whether he had paid the Gallon of Rum to any person I cannot take upon myself to say for I heard no more about it
Quesn by the Court - Did you authorise Michael Robinson to make a demand for a Gallon of Rum for the recovery of the soap?
Ansr - I did not
Quesn 2 - By virtue of the Oath you have taken and your situation as Judge Advocate of this Colony did you conceive that Michael Robinson in making the assertion alluded to the Gallon of Rum for the soap?
Ansr - I did
Quesn 3 - Did he express himself to that purpose when he made the assertion?
Ansr - He did not
Quest by the Court to Lieut. Govr. Paterson - You have already deposed that at the bench of Magistrates at which you presided on the 20th August last Michael Robinson
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Robinson stated that it was him and not the Respondent who demanded the Gallon of Rum before the bail Bond would be given up. Did you conceive that Michael Robinson could have any other meaning than what you deposed he asserted as a consideration for delivering up the Bail Bond?
Ansr - I could only conceive that was his meaning, so much so, that it struck me forcibly. I noticed it immediately after.
Quesn by M. Robinson - Did you sit nearer to me than Mr Atkins did?
Ansr - Mr Atkins was on my right hand and Robinson sitting next to him.
Mr Harris deposes in answer to the first question put to Lieut Govr Paterson this day
Ansr - I could have no other idea of what his (Michael Robinsons) meaning was than what his words conveyed, which I have deposed to
("signed") Philip Gidley King
Government House Sydney Sepr 11th 1802
A messenger being sent to Parramatta for the Rev Mr Marsden and Wm. Cox Esq. The Judge Advocate will direct two constables to be placed one at the Black Wattle and the other at the Wharf to desire those gentlemen to go immediately to his (the Judge Advocate’s) house When he will get their answers on oath in the presence of Michael Robinson to the following questions
1st - At the Bench of Magistrates of which you was one on the 24th last month (August) did you hear Michael Robinson making assertions respecting the demand of a Gallon of Rum as a fee for delivering up a Bail Bond – If you did what was the assertion?
2nd - Did you then hear Michl Robinson say anything about a Gallon of Rum being due from Mr Biggars for the recovery of some soap or do you suppose from his manner or conversation during your sitting that he made any such allusion?
Answer - Biggars accused Mr Smyth of having demanded from him a Gallon of Spirits for some Bond, Mr Smyth denied it. Michael Robinson said it was not Mr Smyth but it was me.
Quesd by Michl Robinson
Did you hear me utter any other word than those above stated?
Ansr - My first answer contained Mr Robinsons own words.
Ansr - I do not recollect anything about soap being mentioned
(signed) Samuel Marsden
Sworn before me this 14 Septemr 1802
(signed) Richd Atkins J.A.
Robinson may ask any questions he pleases of these gentlemen.
("signed") Philip Gidley King
[Page 40]
New South Wales
County of Cumberland
Court of Appeal before his Excellency the Governor
September 11th 1802
Michael Robinson alias Michael Massey Robinson you stand convicted before me by the evidence on oath of His Honor Lieutenant Governor William Paterson and John Harris Esq. a Magistrate of having asserted (when officiating as Clerk to a full Bench of [margin entry "Augt 24th, 1802"] Magistrates) that it was you and not the provost Marshall who demanded the Gallon of Rum as a fee for giving up the Bail Bond Thomas Biggars was under to keep the Peace [margin entry "Aug 30th 1802"]towards Esther Julian; and you positively have sworn before the Civil Court on the action of Smyth against Biggars, that no demand whatever was made either by the Provost Marshall or you of a Gallon of Rum as a fee for delivering up the Bond – which assertion you have repudiated on Oath in this appeal.
Your presuming to give up a Bail Bond, on any pretence, which was in the Judge Advocates custody and ought to have been given up by him alone, Your delivering it to the Provost Marshall to give the appearance before the time was expired, whereby the Judge Advocate would have become liable for any intermediate breach of the Peace; Your having made the assertion (stated already) before the Bench of magistrates (and sworn by two of the members) when exercising an Official Duty intimately connected with the administration of justice and evidently to the detriment of the Appellant in the appeal now pending; Your having denied that assertion on Oath before the Court of Civil Judicature on the suit of the Respondent against the Appellant and when confronted with the above Magistrates at the hearing of this pending Appeal, are the most convincing proof of your having deliberately and wilfully committed the Crime of Perjury in the face of this Court to pervert the due administration of Justice.
I do therefore as judge of this Court and by Virtue of the Statute on that behalf Sentence you, Michael Robinson alias Michael Massey Robinson to Seven years Transportation and hard labour on Norfolk Island and at the Expiration of that time to abide by the Conditions on which you received a Conditional Emancipation from the late Governor Hunter dated Eighth day of June 1790.
Given under my Hand this 11th Sepr 1802
("signed") Philip Gidley King
By His Excellency &c, &c, &c
New South Wales Cumberland To Wit
Whereas &c, &c, &c
Thomas Biggars Appellant against Thomas Smyth Respondent
When after truly and Impartially hearing and Weighing the Evidence and Testimony of such Witnesses and Documents as were brought forward by the Parties in this Cause – it Appeared that Appellant was Indicted and Accused before the Civil Court now sitting
[Page 41]
now Sitting on the 30 Augt. last by the Respondent for asserting before a Bench of Magistrates on the 24 Augt. last that he (the Respondent) retained in his possession the Bail Bond given by the Appellant and his Surities for keeping the Peace towards Mrs Esther Julian And until he the Appellant paid to the Respondent One Gallon of Rum wherein he stated his damages at £200 Sterling – a Verdict was awarded against the Appellant for £ 50 pounds as Damages, from which verdict he appeals.
It also appears from the Evidence produced on the Charge before the Civil Court on the single Evidence of Michael Robinson, Clerk to the judge Advocate that no demand whatever was made of a Gallon of Rum either by the Respondent as Provost Marshall or himself as Clerk to the Judge Advocate And as his Hon…Lieut. Governor Paterson and John Harris Esq. being produced as Evidence on Oath by the Appellant deposed before me and pending this Augt. 24 Appeal in that Michael Robinson while Officiating as Clerk to a Bench of Magistrates of which they were Members declared that it was not the Provost Marshall but himself who had demanded the Gallon of Rum as a Fee for giving up the Bail Bond and that he (the Appellant) would not have it, until that fee was paid. And the said Michael Robinson being Called in and Sworn before me and Confronted with the above Magistrates swear "That he never did say so"; From the Respect due to the Veracity of His Honor the Lieut. Governor and the other Magistrate John Harris Esq; I cannot hesitate Considering the Evidence of Michael Robinson as an act of Wilful Perjury in the face of this Court, That Consideration and the Impropriety of his (Michael Robinsons) presuming to deliver up a Bail Bond which was in the custody of the Judge Advocate and could be given up by him alone confirmed me in the opinion of his being forsworn. I do therefore Award that the Verdict of the Civil Court in this Cause be reversed and that the respondent to pay the full costs of Suit and Legal fees attending this Action and Appeal.
Given to this 11th September 1802
("signed") Philip Gidley King - L.S.
To the Judge Advocate Provost Marshall &c &c &c
APPEAL of Brooks vers. Jamison
New South Wales
Brooks at the Suit of Jamison
The Defendant in this Cause Appeals to His Excellency the Governor in Chief of this Territory from the Verdict of the Civil Court which adjudged to the Plainf. £1000 and costs on the 8th day of this instant September
First - Because there is an Existing Law which expressly directs that Actions of this Description must be brought against all the part owners who make but one Master – And therefore this verdict is Contrary to Law
Secondly - Because Mr Jamison was restricted to Two Tons of goods on board the Atlas and that Two Tons have been safely Delivered in this Port, And as no freight was paid for what exceeded those Two tons the owners cannot be liable for Damages
[Page 42]
damages to that which they desire no benefit from the carriage of, as in such case the plaintiff became his own Insurer, at all risks And it has been proved that it was specifically understood by the Plaintiff that if the defendant accommodated him with receiving more goods on board than the Two Tons, he was put up with any Inconvenience occasioned thereby.
Thirdly - Because the Plaintiff had not made it appear that any neglect on the part of the Defendt. Occasioned any of the damage he complained of, but on the contrary it had been proved by all of the Defendt. Officers that the Defendt. gave directions from time to time to take every possible care of the Plaints. Goods and by being removed into the hold they were secured from the Melancholy Disaster which happened on board when the Round House was carried away
Fourthly - Because it has been proved that the Plaintf. was in the habit of opening his Trunks and Bales at Rio for the purpose of exposing his Goods to Sale to Trade and if he had induced to ever so great an amount, the policy from that circumstance alone would have been forfeited
Fifthly - Because no part of the loose Property (the cheeses, Sugar, Crockery Ware, etc) was given into the Defendt. care or into the care of any of his officers nor does it appear to have been enclosed in any manner for security, but seemingly left in a careless manner to form a kind of pretence for this part of the Charge.
Sixthly - Because the Plaintf. Two days before the dispute happened had agreed with Captain Betts of the Hercules for a passage with him to this port – Consequently his apprehension of Personal Safety could not influence him at a time when no [indecipherable] has broke out. Or to the Defends knowledge subsisted. The Defendt. is deprived of Captain Betts’ evidence to establish this fact, but his officer can speak to the occurrence connected with it.
Seventhly - Because the Plaintf. by coming on board in a state of intoxication & behaving to Defendt. in a rude and illiberal manner he did, First gave the grounds for Defendt. to ascertain an unfavourable opinion of him, as he would be justified in doing of any man who discovered such a Gross Depravity of heart and Indecency of manners: the disrespect therefore which the Plainf. has brought on himself as a private individual the Defendt. knowing him only as Mr Jamison, according to the directions from the transport board which attached no official mark to his name or character.
Eighthly - Because the water casks were stowed by Government fore and aft in the hold and there was no other part of the hold where Mr Jamison’s goods could be stowed nor were the Plaintfs the only goods that were stored there - The Defendt. had several of his own in the same place and there were some of the Governor’s and Lieut. Governor’s there also.
Ninthly - Because it had been proved, that a Considerable part of those goods came on board in wet and stormy weather when they were exposed to and as liable to receive damage and as afterwards – And because no Survey (which the Defendt. Submits to the Governor it was the Plaintfs. duty to call) was made or the goods within [indecipherable] after they were landed – This survey should have been held by Respectable Persons, whose report would have been Accredited - and in that event the articles damaged should have been sold for the benefit of the underwriters if the same had been insured and if not the Plaintf. was his own insurer and all risk attached to him only.
Defendant
[Page 43]
Defendant therefore begs His Excellency the Governor will examine into the grounds of these allegations and grant him such relief by reversing the verdict or otherwise as in His Excellency’s wisdom may seem meet.
("signed") Richd. Brooks.
Ship Atlas
Sept. 13th 1803
New South Wales
Cumberland
To Wit
By His Excellency &c &c &c
Whereas &c &c &c
Mr Richard Brooks Appellant
Against
Mr Thomas Jamieson Respondent
When after truly and impartially hearing and weighing the evidence and testimony of such witnesses & documents as were brought forward by the parties in this case it appeared that respondent’s baggage and other property was received on board the Atlas by Appellant’s orders that the owners are responsible for any damage that may befall them during the passage and as the Charter Party was made in London by the Transport Board so damages must be those and by that Board received and how far Respondent is liable to pay freight on the overplus of Two Tons ordered him by the Transport Board must depend on the Commissioners and owners of the ship.
It also appears from the very improper treatment Respondent received on the passage from the Appellant his Officers and Others, that the Respondent was compelled to leave the Atlas at Rio de Janeiro and agree for a passage in the Hercules Transport, whereby he was put to a considerable extra expense I do therefore award that the Appellant pay the Respondent the sum of £30 Sterling and interest at 5 per cent being the passage money Respondent paid for his passage in the Hercules from Rio de Janeiro to this port together with the full costs of suit.
Given &c this 22nd Septemr. 1802
("signed") Philip Gidley King
To the Judge Advocate and Provost Marshall &c &c &c
Appeal of John Jamison Esqr. Vsus. William Cox Esqr.
March 24th 1803
The Court sat at 12 at Noon
John Jamison Esqr.
vs.
William Cox Esqr.
On a Rule to show cause why Mr Cox obtained sundry bills and securities to the amount of £592.13.2 the property of Mr Jamison
Mr Cox
[Page 44]
Mr Cox appears and says that he took and received notes and orders as he was usually in the habit of doing and that he therefore cancelled them and held himself responsible for the amount.
Mr Jamison produced Mr Cox’s receipt for such orders and securities making himself accountable for the amount on the departure of the Buffalo and contends that, as it was not a Negotiable Security and therefore differed from the Circumstances of a Note of hand, those Orders and Bills should be surrendered up to him for which purpose he makes this application to the Court. Mr Jamison also contended that Mr Cox was not authorised to dispose of the Bills or orders either directly or indirectly having given him no Negotiable Security for the same.
Mr Cox stated that when those Bills and Orders were given to him, he considered them Bona Fide, as his property otherwise Mr Jamison would not have given them up to him and received the acknowledgement he did from him.
Mr Jamison rejoined with observing that what Mr Cox might consider them, he is not bound to comply with.
The Court having Cleared and Reopened, is of Opinion that Mr Cox should return those Bills and Orders Amounting to £592.13s.2d to Mr Jamison. – If he is not able to return them Mr Jamison is at liberty to have his Remedy at Law, But if Mr Cox has them in his possession he is to return them forthwith to Mr Jamison as the Order of Court in this [indecipherable]
("signed") Richd. Atkins J.A.
[margin note Notice of Appeal to His Excellency
William Cox Appellant
Thomas Jamison Respondent
Appellant having judged it expedient to Appeal from the decision of the Court of Civil Jurisdiction of this territory made in the matter brought before the Civil Court at the Instance of Mr Thomas Jamison on Thursday last the 24th of this Instant March, Appellant begs leave to state to His Excellency the Governor before whom that Appeal now lies pursuant to the Charter of this Colony the grounds upon which he finds himself aggrieved in the Remedies.
And First - Because the tenor of every document that exists in Commercial transactions can only be judged of and decided upon by its constructive meaning and relative interpretation and the paper Mr Jamison produced before the Court was to all intents and purposes an Accountable Receipt, Appellant therein and thereby promising to Account with Mr Jamison for a particular sum at a particular period.
Second - Because Mr Jamison himself declared to the Court that he expected a Sett of Bills on England from Appellant on the departure of the Buffalo – hence it was evident that he Or-
Ders
[Page 45]
Orders and Securities he left with Appellant, were given to him in Exchange for an Undertaking to furnish that Sett of Bills
Third - Because this was a Contract which Virtually changed the Orders and Securities in question from those given to Appellant at the time, to a different consolidating security expectant and Receivable at a subsequent period.
Fourth - Because after Mr Jamison had possessed himself of that Accountable receipt, if any of the Bills or Securities had turned out bad, either by Appellants neglect in not presenting them in time or not passing them regularly to the Accounts of the several parties who subscribed them, or from any other circumstance or cause - Mr Jamison would have availed himself of Appellants Accountable receipt and the loss if any, by such defalcation would have attached solely to Appellant, who had by his receipt promised to be accountable to Mr Jamison for that specific sum.
Fifth - Because after Appellant became possessed of these orders it was consistent with his mode of business to carry the amount to the Account of the respective parties concerned and of course to cancel those orders which were longer Negotiable - and unless Appellant did so, from what fund was he to be able to furnish the Sett of Bills, Mr
Jamison expected agreeable to the tenor of his Accountable receipt.
Sixth - Because although it had unfortunately turned out by that sort of accident to which all Commercial negotiations are liable, that Appellant is unable at present to perform the undertaking which by the Order in question he promised to do. Yet as it cannot be supposed that these orders and securities are in the State they were in at the Appellant received them - and as Mr Jamison certainly never did expect them to be returned to him, having in contemplation the receipt of a different Security in Exchange hereafter - Appellant trusts that the decision of the Civil Court will in this instance and, for these reasons be reversed
("signed") William Cox
Parramatta
31st March 1803
Sydney April 1st 1803
His Excellency
The Prevailing Embarrasment in Mr Cox’s pecuniary concerns and the pending measures for the arrangement of his affairs with his Several Creditors rendered in me injustice to my Individual Interests, to State to you my [indecipherable] claim on the above Gentleman; Conceiving from the mode in which he became responsible to me in the sum hereafter mentioned, my demand can be by no means classed with those who have Received an Account of Valuable Considerations, Notes of Hand or other kind of Negotiable Indemnity, the Cause alluded to is simply this. In December last I deposited in the hands of Wm. Cox Esq, Paymaster of the New South Wales Corps, Bills to the amount of £592.13.2 taking only a plain acknowledgement on the part of Mr Cox of his having received of me the above amount and Assurance of settling for the same on the departure of the Buffalo - herefrom. By the foregoing it must I presume be evident that I can by no means be denominated a Creditor of Mr Cox for money lent or otherwise, and that I can
Consequently
[Page 46]
consequently claim to be refunded the Actual Bills deposited in his care. Any effort on the part of Mr Cox to withhold from me a property simply deposited with him as a trust or to convert the same otherwise than to my use must be construed a fraud to all intents and purposes.
I have the honor to remain
Your Excellencys
Most Obedt.
Humble servant
("signed") Thomas Jamison
[margin] To His Excellency Govr. King
&c &c &c
New South Wales
Cumberland
To Wit
By His Excellency &c &c &c
Whereas &c &c &c
Mr William Cox Appellant
Against
Mr Thomas Jamison Respondent
When after truly and impartially hearing and weighing the evidence and testimony of such witnesses or documents as were brought forward by the parties in this cause, It appears that Mr Thos. Jamison the Respondent became possessed of Bills and orders to the amount of £592.13.2 drawn by different persons on Wm. Cox the Appellant Pay Master of the New South Wales Corps. That he lodged the said Bills and Orders in Mr Cox’s hands on a written acknowledgement promising to pay the amount in a certain time, In consequence of Mr. Coxs embarrasments in his affairs, Respondent demanded the Return of his Bills and Orders to enable him to claim the different sums from those he held them of. When it appeared that Mr Cox having changed those sums to the credit of the persons who had given the Bills to respondent, he was no longer able to comply with respondents demand to return the Bills and orders and the Appellant saying he is unable at present to perform the Promise contained in the Note of Acknowledgement given by him to respondent, who conceived himself injured thereby instituted an action at the Civil Court of [indecipherable] held the 24th ultimo which gave a verdict for Respondent, namely, " that Appellant should return the Bills and Orders to respondent - If not able to Return them Respondent is at liberty to have his remedy at Law, but if Appellant has them he is to return them forthwith to Mr Jamison".
From this verdict Mr. Cox appealed and having maturely considered the Reasons offered for that appeal as well as the Respondents answers thereto I am of opinion that there could be no doubt in either Appellant or respondents mind at the time the Bills and orders were delivered of the obligation Appellant was under to Respondent and equivalent in money or good bills for the amount [indecipherable] to Appellants care by Respondent and for which the latter has received no other Value than the Note of Acknowledgement promising to pay the Amount at a Certain period which it now appears Appellant says he is unable to perform altho he has placed the Respondents entire property in those Bills to the Credit of the Drawers without rendering Respondent any return whatever.
I do therefore
[Page 47]
confirm the Verdict of the Civil Court given in that behalf.
Given this 2nd day of April 1803
Signed Philip Gidley King [L.S.]
[margin note] To the Judge Advocate
&c &c &c
APPEAL of William Stewart Ver. William Baker
Baker to answer Stewart Rule
Rule granted for William Baker to show cause why he should not be accountable to William Stewart, Master of the George Sloop for a considerable quantity of damaged maize, which he alledges Baker shipped in a clandestine manner on board the said George, Consigned to Robt. Campbell Esq Mercht. at Sydney. Viz 319 bushells
The plaintiff in support of his Rule, calls William Charles who being sworn says he recollects Baker bringing some Corn on Board the George in the evening, that on its being objected to being an improper time, Baker remonstrated hard to have it received - that Mr Stewart was present and permitted it to be Received on Board - At the bottom of one of the Boats in which it was brought, the Corn was observed to be wet, which induced Mr Stewart to take more of it - that the next day it appeared to be rotten - that every care was taken of what was received on Board - that he believes all the other grain was good that was received, but cannot speak positively
Quesn. By [indecipherable] Baker - What time was it when my boat came along side.
Ansd. - It was before Sun Sett – he had some way to go to fetch the measure
The Plaintf. Called John Gould who being sworn, says he recollects Baker bringing some grain on board, late in the evening - that the man who was stowing the hold found fault with it who spoke to Baker - that Baker remonstrated very hard to have it recd. - that Mr Stewart said it was very late to receive it And Baker said he did not wish to take it back again with him - that a good deal of Corn had been taken into the Sloop - that he heard Mr Stewart refuse to take it when he found it was wet - and Baker consented to take it back with him and it was returned into the Boat accordingly from out of the Measure - that every possible care was taken of the grain in the sloop and [indecipherable] that every possible care was taken of the grain in the Sloop and saith that the other grain which had been recd in the sloop was good.
William Mellon Called and Sworn, Saith that when Baker brought the corn he told him that it was bad and would spoil the cargo that Baker said he was no judge of the corn - that it appeared to be damaged - that
Mr Stewart
[Page 48]
Stewart was present and Recd. the Corn after what this witness had said.
Ques by Plainf. - Do you recollect Baker coming on board late in the evening with 3 Boats loaded with grain
A - Yes
Q - And that Baker remonstrated to have [indecipherable] very hard
A - Yes
Q - And that towards the bottom of one of the boats the grain was observed to be wet
A - Yes
Q - Was it not instantly refused
A - Yes and you would not take any more of it
Q - And the next day did it not appear to be rotten
A - Yes it did
Q - Did Baker not tell me that he would be Accountable for any Damage that was sustained by it
A - Yes, that any damage his corn does
Q - Was not all the other corn that was on board good
A - All that came from every one else, was good storeable grain
Q - Was not any every care taken of it
A - Yes - I sat up night and day to attend it
Q - Did not Baker tell you, two days afterwards to go along - that he had the pull upon Mr Stewart, for he had got his receipt.
A - Yes
Q - Did not Baker say he would not, like the other Settlers keep the corn in his loft tumbling about.
A - Yes, he did.
Baker here remarks that he wished to pay Mr Campbell his debt.
Jonas Archer called by Deft Baker who being sworn and asked as to the quality of some of the grain, says it was not such grain has he would have Recd. Himself.
Rule dismissed - The loss to be sustained by Mr Stewart, who ought not to have received the grain in the condition it appeared to be.
[margin note] Notice of Appeal By Mr Stewart.
We whose Names are hereunto Subscribed; have at the request of John Palmer Esq. and Mr William Stewart Master of the Sloop George went on board the said Sloop and Examined the bags of Maize and found it damaged as not to be fit for Mens Use by reason of bad grain being intermixed with it, altho it appears to Us that the best care has been taken of it on board to prevent it and we do also further Declare the said Maize in our Opinion to be Worth no more than Two Shillings Sterling per Bushell at the present Store House price of Good Grain.
Given
[Page 49]
Given under our hand at Sydney
This 15th Day of July 1802.
(Signed) James Badgery, Matt. X his mark Kearnes, Isaac Nicholls
William Stewart - Appellant
William Baker – Respondent
William Stewart Master of the Sloop George, having Appealed from the Decision of the Civil Court made on Friday last the 25th Inst. in a [indecipherable] at Issue before the said Court, begs leave to State to His Excellency the Governor, To whom such Appeals is made, the Grounds upon which it is founded - Namely –
First - Because by the Clandestine Manner in which Baker brought his Grain alongside the George at Hawkesbury at an Unseasonable hour in the Evening and remonstrated so hard to have it Received on board, he had in Contemplation a fixed design to take Advantage of the bad Quality of his Grain to the prejudice of the rest of the Cargo.
Secondly - Because the said William Baker afterwards willingly said he had got a pull upon the Appellant, meaning that as he had Obtained a Receipt for the Grain he should avail himself of every Advantage therefrom.
Thirdly - Because any Act of fraudulent Complexion done with a View to take undue Advantage, precluded the Party in the First Instance from any Relief at Law.
Fourthly - Because [indecipherable] was Established by Evidence that all the Grain, which had been previously received on Board from every other person was good Storable Grain.
Fifthly - Because Wm. Baker when he was told a day or two afterwards that his Grain was Bad said he would Undertake to Indemnify the Owners from any Damage the cargo might Sustain thereby.
Sixthly - Because Appellant has Sustained a Considerable loss by Means of Bakers Grain being put on board insomuch that a Survey held on the Same by three persons Competent Judges, it was Declared to be Worth no more than 2/- per Bushell, and has been at a great Expence to take it on Shore and be stored as also a great loss for Wastage before Disposed off.
Seventhly - That the said Sloop was in Consequence of the before mentioned Grain Detained at Sydney Cove, Fourteen Days and prevented from proceeding to the Southward that length of time.
Wherefore and in Consideration of its having been proved by the evidence of Jonas Archer, whom Wm Baker Called himself on the Trial, that the Grain was not Storable when he saw it on his premises - Appellant humbly hopes His Excellency will reverse the Decision of the Civil Court.
Sydney 31st March 1803
("Signed") Will’m. Stewart.
[Page 50]
New South Wales Cumberland to Wit.
By His Excellency &c &c &c
Whereas &c &c &c
William Stewart – Appellant
Against
William Baker – Defendant
When after truly and Impartially hearing and Weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the parties in this Case, It Appeared that the Circumstances attending the transaction between William Stewart and William Baker which Occasioned a Process before the Civil Court of Judicature in which was given for the Respondent are so Well Established by the said Respondent, insomuch that the Grain was Received before Sunsett and notwithstanding the Observation of One of the Witnesses that it was not fit to be put Among the other Grain , and the Appellant Received it, and gave Respondent a Receipt which made Appellant Accountable for the Delivery of it, as well as the rest of the Cargo in good Condition – I do therefore Confirm the Verdict of the Civil Court in this Vexatious suit and moreover fine the Appellant to make good the Respondent’s travelling Charges & Expences from Hawkesbury to Parramatta or Sydney at the Rate of One pound Sterling for each Day that he had lost in attending this Appeal together with the Costs of Civil Court and Court of Appeal.
In Witness whereof I have hereunto Set my hand and Seal at Sydney New South Wales this 12th Day of July 1803.
("Signed") Philip Gidley King [indecipherable]
[margin note] To the Judge Advocate
Prov’st. Marshall &c &c &c
[This paragraph to the end of the page is crossed out with two diagonal lines.]
APPEAL of John Palmer Admin. For John Stogdell Vers Simeon Lord agent for Hry Machin.
New South Wales
Proceedings of a Court of Civil Judicature held by Virtue of a precept under the Hand and Seal of His Excellency Philip Gidley King &c &c &c
Present
The Judge Advocate
Lieut. Wm. Moore Mr Wm. Mitcham.
The Receipt being Read and the Court duly Sworn
Adjourned until this day Week at 10
[Page 51]
APPEAL of John Palmer Adminr. to John Stogdell. Vers Simeon Lord Agt. for Hugh Machin
July 21st 1801.
Palmer Esq.
Adm’t. of John Stogdell Dec’d.
Agt.
Balmain Esq.
Agent &c
for £170.17.9 Due to the Plaintiff as Agent to the Concerns of a prize.
The Defendt. States to the Court that the Affairs of the Decd. were in so Confused a State, that he had not had time to arrange his Accounts to Ascertain to what Extent to what Extent the Debt and Credits of the Deceased would go.
Quesn 1st - The Plainf. wished the Defendt. to produce any Papers, either of agreement or otherwise, between him and the Deceased, that might have a tendency to [indecipherable] the Subject of the present Controversy.
Quesn 2d - The Plaintiff desired to know whether the Deft. has Exhibited any Account upon Oath of the Debt due from the Deceasd. to the Deft., presuming that the other Creditors have pursuant to the Public Notice given by the Deft. rendered their Accounts respectively upon Oath.
Quesn 3d – He also desired to know to what Amount the Deposit of £25 per Cent produced from the Effects of the Deceased, according to the Conditions of Sale Comes to, and as the Conditions of Sale limited the Payment of the Whole Sum for which such Effects were sold, to One Month, The Plainf required a Statement of all the Monies received on that Account…………
Ques 4th – The Plainf desired to know if there were or are any Claims on the Estate, that are entitled to a priority, what they are and how the Monies received have been Applied And what the ballance now in hand is, from which the Plainf required to be paid the Whole of his Claim Or a proportionate Dividend thereof according to the said Ballance.
To the 1st Question – The Deft having produced a letter of Attorney marked X And an Agreement marked Z between him and the Decd John Stogdell – which were publicly read in Court, after which the Cleared to deliberate and being Reopened are of Opinion from the perusal of such Papers, that no Partnership whatever subsisted between the Deft and the Decd John Stogdell.
The Plainf thereupon desired to know if any other Paper is in the Possession of the Deft to prove any [indecipherable]between him and the Deceased John Stogdell.
The Deft. answered "there is not…."
To the 2d Question. The Deft answered he had not yet had time from the Complicated State of the Deceasd papers to Arrange the Accounts for the Purpose.
To the 3d Question. The Deft answered that the Multiplicity of Public Business he has of late been engaged in had prevented him from Arranging the Accounts – not expecting to have been called upon at so early a Period for a Matter of such weighty concern.
The Plainf wishes to be Satisfied in Case it appears to be more than a Month since the Effects were sold by Auction. Why, as those amounts might have been kept by a Clerk, the same could not have been prepared and produced particularly as the payment is stipulated to be made within a Month from the Sale by
Auction
Page 52]
Auction and a Deposit of £25 from Court was expressly Directed to be made at the time of sale
The Deft. says he will be prepared with an answer to this latter question on Monday next when he will produce to the Court the Accounts of Sale and as far as he is able, will also render his own accounts Dr. and Cr. with the Deceasd?
On the 4th Inst the Deft refers for Directions to the Court, who are competent to decide as to the Priority of Claims and to the Court the Deft will produce a Statement of those Claims he is in possession of in order to have their judgement thereupon
Richd. Atkins
Thos. Laycock
(signed) Jams. Thomson
27 July 1801
Palmer Esq
Agt
Balmain Esq
The Deft produced to the Court his Account with the Estate of the late John Stogdell
Deceasd. Agreeable to his answers to the last question put to him in the 21st Inst in Court to which account he deposed on oath and by which it appeared that the Estate of the Deceased stood indebted to him in £8062.11.11 (errors excepted). The Deft also produced accounts of Sale by which it appeared that the Effects sold by Auction amounted to £4754.2.6 1/2, to this paper he also deposed on oath
Here the Plaintiff wished to know why, as to the Accounts are now produced and admitting that the Court should on seeing the proper instrument, allow that Mr Campbell’s debt is entitled to a Priority, the Plainf should not receive the amount of his demand from the Effects now in Defts hands
The Deft says he does not find himself at present competent to judge of the priority of Claims and therefore declined any other answer to this question.
The Plaintiff therefore wished the court to decide as to the priority of Claims so far as they been made on the Estate
The instrument from the estate of the late John Stogdell to Robt. Campbell Esq being now produced under the hand and seal of the said John Stogdell for the sum of £ 1750 and interest _ the Court is of opinion that the same has a priority of Claim on the effects of John Stogdell Deceasd
The Plainf wished the Court to Consider and decide whether as Mr Palmers name is [indecipherable] in the instrument in question Mr Palmer is not thereby liable to be responsible for the Sum thereby Charged on part of it
The Court taking into Consideration their former Decision that the late John Stogdell was no Partner with the said John Palmer Esq is of opinion that Mr Palmer is not liable or responsible therefrom.
The Plainf wished the Court to ask Mr Palmer whether Previous to the death of John Stogdell, he did not hold himself responsible to Mr Campbell for the payment of the sum charged in the instrument produced, and if he did, whether he is not therefore liable to pay it from his own Estate.
The Deft answered, neither by word or deed, to the best of his re-
collection
[Page 53]
Copy
Sydney 2 Novr. 1799
Twelve months after date I promise to pay Mr Hugh Machin or order the sum of Two Hundred and Twenty Seven Pounds Seven shillings and sixpence
[margin note]£227.7.6
John Stogdell
Indorsed Hugh Machin
Sworn before me the 3rd April 1801
Richd. Atkins J.A.
Copy
Sydney 10th Sepr 1800
Six months after the date I promise to pay Mark Clements or Bearer the sum of Fifty Pounds Sterling value received
[margin note] £ 50 Sterling
John Stogdell
Sworn to the Ballance due on the this note
To be Thirty seven pounds sterling 13 May 1801
Richd Atkins J.A.
Copy
Sepr 10 1800
Sir
Six months after date please to pay to Geo. Thomson or Bearer
One hundred six bushels & half of wheat at the Hawkesbury and place the same to the Account of your humble servant
John Goss
Accepted John Stogdell
[margin note] To Mr John Stogdell
Hawkesbury
227.7.6
57.-.-
42.12.0
£306.19.16
sworn before me this 3d April 1801
Richd Atkins J.A.
A true copy ("signed") Richd Atkins J.A.
New South Wales
Proceedings of a Court of Civil Jurisdiction held by virtue of a Precept under the Hand & Seal of His Excellency Philip Gidley King Esquire
Present
The Judge Advocate
Lieut. Wm. Moore - Mr Jams. Mileham
The Precept being read and the Court duly sworn
Adjourned until this day week at 10 A.M.
("Signed")
Richd Atkins
Willm Moore
Jams Mileham
(signed)
Friday Augt. 10h 1802
The Court sat
Present - The judge Advocate
Lieut. Moore
Mr Mileham
Simeon Lord
[Page 54]
Simeon Lord as Attorney for Hugh Machin presented to the Court the Rule Annexed
(No. ) for John Palmer Esq to show cause why he has not produced the Accounts with the late John Stogdell Deceasd. And other matters therein specified
Mr Palmers attendance at the Orphans House being indispensable the Court adjourn to tomorrow morning at 10 O’clock
August 11th 1802
Before - the Judge Advocate
Lieut. Moore
Mr Mileham
The Court sat
Simeon Lord as Attorney of Hugh Machin claims of John Palmer Esq, the Admr of the late Jno. Stogdell the sum of £10 and upwards on [indecipherable] Notes produced and sworn to (vide copies No ) Several Papers (copies of which are hereto annexed) containing a Memorial to the Governor and sundry reasons exhibited by way of protest against Mr Palmers proceeding to the Sale by Auction of Stogdells effects being read to the Court Simeon Lord, submitted to the Court the following questions for their considerations (see papers annexed and exhibited to the Court No )
Mr Palmer delivered into Court a Paper (Marked No ) replicatory to the Rule granted yesterday.
The Court being cleared to deliberate on Simeon Lord’s questions as submitted to them are of opinion in the first instance, that no Administrator need render an Account on oath until peremptorily required by the Civil Court, the time for which is indefinite until Requisition is peremptorily made And the Court is of opinion that unless and until Simeon Lord on behalf of himself and the other Creditors, can prove the Estate had sustained any Injury by the Admors proceeding to Sale of the Effects contrary to the Tenor of their Protest, that they can go into no further investigation of that part of his question.
The Court direct that Mr Palmer do prepare and render and Inventory of all of the Effects of the late John Stogdell Deceasd. at the time of his Death and furnish the same, attested on oath to the Court on Monday next at 10 of the clock to which day the Court is adjourned
("signed")
Richd. Atkins
Wm Moore
Jams. Mileham
Augt 16th 1802
The Court sat
Mr Palmer exhibited to the Court the inventory and declaration (No 3) Subscribed by him And hereto annexed and deposed to the true statement and contents thereof.
Simeon Lord submitted to the Court the propriety of his asking Mr Palmer the following question, namely "at what time after Stogdells decease was that inventory taken."
The Court
[Page 55]
Court is of Opinion as Mr Palmer had sworn to the Inventory that how as not necessitated to Answer this Question.
Mr Lord then proceeded to prove by Evidence that the Estate of the Deceasd was injured by the Sale.
Henry Kable being sworn, Was asked the following Questions.
Quest 1st – You attended the Sale of the late Stogdells Effects.
Ansd – I did. One Day
Quesn 2d – Did you Understand the Conditions of the Sale.
Ansd – I Did generally.
Quesn 3d – Understanding as you did the Conditions of that Sale and that the Money was required to be paid within One Month and a Deposit of £25 per Cent Did not this circumstance prevent you from becoming a Purchaser of Many Articles And of Course of bidding to a Considerable Advance.
Ansd – I certainly should bid higher.
Quesn 4th – Did it prevent you from attending any other days than the One.
Ansd – Yes! I would not attend any more.
Quesn 5th – If longer time had been given for Payment, would not you have been induced to have bid higher for Many Articles?
Ansd – Yes.
John Sparrow, Called and Sworn, is asked the same Questions
In Question 1st – he Answers – He did.
2d – he Answers – Perfectly.
3d – he Answers – It retarded him in Bidding, but he cannot say whether he should have Purchased or not.
4th – he Answers – He cannot Say.
5th – he Answers – Very likely I should.
Quesn. 6th – Knowing some part of Stogdells Concerns Did you not Conceive that if his Property had been made the Most of, that it would have paid 20s/in the Pound.
Ansd – I Suppose that it would.
Question by Mr Palmer to his Witness.
What reason have you to suppose that Stogdells would have paid 20s/in the Pound.
Ansd – From the great Purchases that Stogdell was repeatedly making and the great Advantage he had in getting Vent for them.
Quesn 2d – Have you any knowledge of the Manner in which Stogdell conducted his Concerns.
Ansd – Not generally or [indecipherable]
Isaac Nicholls being Called and Sworn, is asked the same Questions
To Question
[Page 56]
To Question 1st he Answers. – He did.
2d – he Answers. –
Mr Palmer here Objected to this Witness. as he was eventually interested in the Issue.
The Court were of the same Opinion.
Samuel Foster, Called and Refused for the same Reasons.
James Larra – the Same.
Thomas Randall, is called, Sworn and asked the same Questions
To Question 1st – he Answers – Yes
2nd – he Answers – Yes
3d – he Answers – He Supposes he might had it not been for the Conditions of the Sale, as he was short of Money at the time.
4th – No.
5th – He Cannot say.
Serjt. Whittle – Rejected for the Reasons that Nicholl’s’s Evidence was Refused.
Serjt. Packer – Called and Sworn
Quesn – Was you directly or Indirectly at any time after Stogdells Death paid any Valuable Consideration, in part of any Debt due to you, on Note or otherwise on the account of John Stogdell.
Ansd – He was not – nor was his Wife to his knowledge.
Robert Campbell Esqr. being Called and Sworn
Quesn. By S. Lord
Whether previous to the Sale, You and Mr Palmer had any Conversation respecting any lots that might be put up to be purchased by you for him Or anything to that Effect.
Ansr. – There was no Agreement and as it was a Public Sale, I Conceived I was at liberty to do what I pleased especially as there was a Mortgage Debt due to me from the Deceased of near £2000.
Ques. 2d – Are you now in possession of the Whole that you was the purchaser of that time.
Ansd. – No.
Quesn. 3d – Did not Mr Palmer, in the life time of Mr Stogdell, acknowledge the Deed and agree to satisfy you for the Sum Secured.
Ansd – No.
Quesn 4th – Did you Or Did you not come to the Judge Advocate Office and Ask Mr Palmer whether he would Confirm that Deed or Not.
Ansd. – No.
On Account
[Page 57]
On Account of their being Several Witnesses about at the Hawkesbury, the Plainfs. Begged to Continue his Questions on their Arrival at Sydney. The Court adjourned till Thursday at Ten O’Clock
S. Lord prayed to the Court to direct Copies of the Instrument to Robt Campbell Esq – of Mr Palmers letter of Attorney and Agreement the Court deliberated on the propriety of this Request – of the Sales Account and Inventory, the Court directed Copies to be furnished him –
("Signed")
Richd Atkins.
Jams. Mileham
Wm. Moore.
Lord Attorney of Machin agt Palmer Esqr. Adminr. Of Stogdell Deceasd.
Mr Palmer addressed the Court and requested their Opinion of his Situation as Adminr. Whether and Adminr. does or does not stand equally in the shoes of the Deceased and therefore whether if Stogdell had been alive, he would not have been Warranted in Disposing of his Property and Effects, whenever he pleased, without the Control of any Creditor.
The Court admitted that an Adminr. Could as he was the Immediate Representative of the Deceasd.
James Oran Called by Lord and Sworn is Asked, Whether an Inventory produced is his hand Writing.
Ansr. – He says that it is
Quesn 2d – Did you not Copy it from the Account Sales.
Ansr. – Yes
Quesn 3d. – Did you ever see any other Inventory in any other Persons hand Writing.
Ansr. – Yes! He has.
(Quesn by the Court) – Is this Inventory now produced, a Correct Copy of the Original Inventory.
Ansd. – It is to the best of my Judgement.
Mr William Baker, Called and Sworn
Objected to his Testimony, being interested in the Event of this Suit.
Thos. Rickaby Called and Sworn, is asked the same Questions as on the 16th Inst.
To Ques 1st. – he Answers – Yes
" 2nd – he Answers – Yes
" 3d – I believe it was a time when Money was Universally Scarce in the Colony.
" – he Answers! It was Scarce with him.
[Page 58]
Quesn 4th – If a Reasonable time (Say 6. 8 or 10 months) had been allowed (And which the Circumstances of the Colony would have Warranted) Would you not have bid higher for many Articles at the Sale.
Ansr. – Yes! He would.
Quesn 5th – Could you have found Security, if Credit had been given for any Articles that Might have suited you. Ansr. Yes as far as £200.
Quesn 6th – By whom was the Principal part of the Property purchased at the Hawkesbury {indecipherable]
Ansr. – By Mr Campbell.
Being asked by the Court, how he knows that Mr Campbell was the Purchaser – he Says he was at the Sale and heard Mr Campbell bid for them.
Quesn. 7th – Did you hear any Person say that they would have given more for the Stacks of Wheat if it had not been for the Conditions.
Ansr. – He believes Jonas Archer said so – but will not be positive.
Quesn. 8th – For whom did you suppose those Stacks of Wheat were Purchased
Ansr. – I suppose they were purchased for Mr Palmer.
Quesn. 9th – Would you have Purchased at the Sale, if a longer time had been given for the Payment.
Ansr. – Yes, he would.
(Quesn by the Court) – Did you make any proposition to Mr Palmer to give time for Payment or Security.
Quesn. By Mr Palmer to S. Lord, Sworn,
Did you at any time prior to the Sale come forward to me and say that the time limited for the Payment of the Purchase Money, was any Objection to the Sale?
Ansr. – I am not positive, but I think I did personally. But I wrote jointly with the other Creditors to you, to protest against the Sale.
The Papers produced and Read Vizt. Letter to Mr Palmer, has Answer to Mr Balmain – Memorial to the Governor – His Excellys. reply declining to Interfere - Protest against the Sale Reasons against the Sale, accompanying the Protest.
Jonas Archer, Called and Sworn, is asked the same Questions, as were put to Thomas Rickaby.
Quesn 1st – he Answers – Yes
2d. – he Answers – Yes
4th – he Answers – Yes, a good deal more for the Stacks that were Sold.
Quesn. By Lord
Was there anything else of Mr Sogdells property that you would have bid for.
Ansr. – Yes! He wished to have bought the 6 farms that lay all together.
Question.
[Page 59]
Quesn. – Say how far you would have bid for those farms.
Ansr. – As far as One Thousand pounds & it would have been good Security for the Payment.
Quesn. – Did you inform any other Person, except me that it was your Intention to purchase those farms.
Ansr. – Yes! I told Sergt Bradley I would – Mr Grimes said they would be Sold for little or Nothing And I said they should not – Mr Grimes said there would be four bidders.
Question by Mr Palmer
Did you come forward to ask me for time on good Security to make any Purchases.
Ansr. I did not, thinking of the Conditions of the Advertisement Unnecessary.
(Quesn by the Court) Did you Suppose the Conditions of the Sale Disadvantageous to the Estate.
Ansr. – To be sure I did.
Question by Mr Palmer
If the Wheat had been kept in the Stacks for 6 or 8 months would it not have been materially injured.
Ansr. – I think it would have been the Worse for it.
John Benn – Called by S. Lord and Sworn
Ques 1st – (as before) – He Answers – He Recollects it.
2nd – He Answers – He Did
3rd – Did those Conditions prevent you from bidding for any Articles.
Ansr. – I had no money and therefore was prevented from attending the Sale.
(Quesn. By the Court) Had there been 6.8. or 10 Months time given would you not have bid on some Articles.
Ansr. – I Would! If any Articles had Suited me and I knew I could pay it at the time.
Quesn. by Mr Palmer
If that Wheat had been kept in the Stacks for 6 Months would it not have been materially injured.
Ansr. – That it Certainly would.
Quesn. – Did you see any of the Stacks.
Ansr. - I saw it in a very bad State.
(Quesn. By S. Lord) If that Wheat had been threshed out immediately, would it not have met with a ready Market and for what wouldn’t have Sold per Bushell.
Ansr. – From 8 to 15s/ per Bushell. According as people might have Wanted it.
Quesn. – Do you know of any other Person giving more than 10s/ per Bushl. For Wheat about that time.
Ansr. – I know that 15s/ per Bush was given by Capn Tennant at that time.
Samuel
[Page 60]
Samuel Thorley Called and Sworn.
Quesn 1st. – prior to Mr Palmers Arrival in this Country, do you recollect Mr Stogdells purchasing any Bed Furniture and other Articles from Captn. Raven.
Ansr. – No farther than from his own Word, which want to Say that he had purchased such things from Captn. Raven.
Quesn. 2nd. – Did you alter any part of that furniture into any other Shape or for any other purpose, after the Arrival of Mr Palmer in this Colony.
Ansr. – Yes! I did by the joint Order of Mr Palmer and Mr Stogdell.
Quesn. 3d. – Were any other Articles of Furniture altered after Mr Palmers Arrival.
Ansr. – I have made new Furniture for Mr Palmer and altered others by Order of Mr. and Mrs. Palmer.
Question to Mr. Palmer by S. Lord.
Mr Palmer Sworn.
Quesn 1st. – Where was the Necessity of limiting the Payment to so short a time, when no dividend had been made or talked of.
Ansr. – I acted to the best of my judgement for the good of the Concern.
Quesn 2d. – Who but yourself had been benefited by the Receipt of the Money then why could not 12 Months have been given, as well as One for the Public Accommodation and the Interest of the Creditors.
Ansr. – The Public could not have been benefited as the Effects in Question of Stogdells were assigned over to MR Campbell for a Considerable Debt Namely £1864.4.0 & would inevitably have been Sold in a very short period and the Crediy at large would have been suffered from that debt bearing Interest at 10 per Cent.
Quesn. 3d. – Would not the Cattle and other Effects (Independent of the Wheat Stakes and Estates) have been sufficient to have discharged that debt to Mr Campbell.
Ansr. – I cannot say as it is impossible to ascertain what the Cattle he would have fetched at the Sale as it would depend on the Bidders.
Quesn. 4th. – Did not the Cattle and other Effects fetch more than to that Amount after the Estates had been Sold.
Ansr. – I do not Recollect.
Quesn. 5th. – Why had not Walloomooloo been Sold and how have you Separated the Interest of that Concern from the last, since it will appear that Money and Goods which are now Unsatisfied in this Colony have been Appropriated to the Improvements of Walloomooloo.
Ansr. – I object to Answer this Question.
Charles Grimes Esqr. Called and Sworn.
Quesn. – Since Mr Stogdells Death had not Mr Palmer Confirmed the Contract for your late farm, made by Mr Stogdell in his lifetime And whom did you receive your Purchase Money from.
Ansr. – I Entered into a Contract with Mr Palmer prior to Stogdells Death, Independent of Stogdell altogether And Mr Palmer of course confirmed it.
Quesn. – Did Mr Stogdell prior to Mr Palmers Arrival in this Country make any Contract for that Farm for Mr. Palmer.
Ansr. – The Contract was this. Stogdell Observed that he thought it an eligible
farm
[Page 61]
Farm for Mr Palmer – And on Mr Palmers arrival if Mr P. did not chose to ratify the Bargain, that he Stogdell would have the Farm himself and pay for it – But Mr Palmer approved of it and bought it.
The Court adjourned to next Wednesday to Receive the Evidence of Lieut Hobby, who had been Subpeona’d by S. Lord.
("Signed")
Richd. Atkins
Jams. Mileham.
Wm. Moore.
Augt 25th. 1802
The Court Sat
Lord Attorney of Machin
v.
Palmer Esq. Adminr.
Lieut Hobby Called and Sworn – is asked the same Questions as were put to the other Witnesses.
Quesn –
To No. 1. – He Answers – Part of the Time
To No. 2. – He Answers – He Understood, immediate Payment or Payment within a Month was expected – but from hearsay.
To Quesn. 4. – He Answers – If he had had Money by him at that time he should have bid higher Or if he had been Sure of being provided by the time.
Quesn. 5th – Did you hear of any persons at the Sale say that if time had been given they would have bid higher.
He Answers. – He heard Mr Marsden say he would have higher for a part of the Articles, if more time had been allowed, and he mentioned he would have speculated in the Stacks, if he had had Money.
Quesn. 6th. – By whom were the greatest part of the Valuables purchased at the Hawkesbury
Ansr. – I believe by Mr Campbell.
Quesn 7th. – For whom do you suppose they were Purchased.
Ansr. – I know nothing to the Contrary but that they were purchased by Mr. Campbell.
Quesn. 8th. – Did you hear a general Conversation at the Sale that it was of no use to bid at the Sale as Mr Campbell was determined to purchase the Whole of the Articles.
Ansr. – I heard a Conversation to that Effect.
Quesn. 9th. – Did you understand that it was rumoured amongst the People, that on Account of the Conditions of the Sale, that no Persons could purchase except Mr Campbell or Mr. Palmer.
Ansr. – I recollect a murmer amongst the People , that in Consequence of the Shortness of time, it was out of the Power of any One to purchase except Mr. Campbell
Quesn. By Mr Palmer. – Was it the Want of Money or Was it time that prevented you
From
[Page 62]
from Purchasing.
Ansr. – I had no Money to lay out in Wheat at that time, but if Six Months had been granted, I should probably have bid for a Stack or Two of the Wheat.
Quesn. 2d. – In What State was the Wheat at that time.
Ansr. – It appeared to me, to be in a very bad State
Quesn. 3d. – Do you Conceive that if that Wheat had been kept 6 or 8 Months longer in Stack, that there would have been very little of it good for anything.
Ansr. – It would have been infinitely worse than it was then.
Quesn. 4th. – Do you remember a quantity of Vermin being in the Stack.
Ansr. – I do.
Quesn. 5th. – Do you recollect eating any of the Bread that was made from that Wheat at the time.
Ansr. – I Recollect Mr Bennett sanding for me and showing me Some of the Bread And it was very bad.
Question by the Court What was the price of Wheat at that time.
Ansr. – The Governors price was 8s/, but I apprehend that Individuals were paying more.
Quesn. 2nd. – Was there a Scarcity of Wheat at the time three Stacks were Sold.
Ansr. – There was very soon after.
Quesn. 3d. – Would you have given 8’/ a Bushl for that Wheat at that time
Ansr. – Not by the Measure
Quesn. By Lord to Lieut. Hobby
Generally speaking of that Wheat altogether, would it in 2 Months after, have fetched 12s/ a Bushl.
I gave 12s/ a Bushl. For Wheat 2 Months after.
Here Simeon Lord presented to the Court a Paper Marked No. 4.
The Court adjourned the Conn. Of this Business to Tomorrow Week.
Sept 2d. 1802 Court Sat
Simeon Lord appeard and produced a Paper Marked (No 5)
Lord v Palmer Esqr. Admr.
Mr Palmer appeard and produced a Paper marked (No 5.6) replicatory to the Paper produced and filed at the last Sitting of the Court, which was Read.
Mr Lord Submitted to the Consideration of the Court, whether since Mr Palmer had suffered the late John Stogdell to Establish a false Credit on his Name, that he ought not to be Answerable for the Whole of the Claims on the Estate. – As it was established by a former Court at Parramatta that Stogdell was the representative of Mr. Palmer.
Adjourned the Considern of this Business to deliberate.
("Signed")
Richd Atkins
Wm. Moore
Jams. Mileham
[Page 63]
Sepr 8th. 1802
The Court Sat
Lord
v.
Palmer Esqr
Admr.
The Court took into Consideration the Rule produced by Lord at the last Sitting (No 5) for a proper Person to be Appointed to examine the Accts of all the Parties
Mr Palmer [indecipherable] fixing on any Person, leaving to the Court to Nominate any Person they pleased – whose Order he Observed he must Obey.
The Court Cleared and being reopened Signified their determination to Investigate the Accts. themselves And for that purpose adjourned the further Consideration of this Business till Tuesday next.
("Signed")
Richd. Atkins.
Wm. Moore.
Jams. Mileham.
Sept 14th. 1802
The Court met pursuant to Adjournment
Present
The Judge Advocate.
Lieut Moore.
Mr. J. Mileham
The Court proceeded to the Investigation of the Accts of the Defendt.
[margin note] (No 3.)
No 1 Sale by Auction £932.17.0
2 – Do - £1059.10.0
3 – Do - £633.7.0
4 – Do - £69.16.0
5 – Do - £150.12.0
6 – Do - £1259.19.0
7 – Do - £110.0.5 ¼
8 – Do - £262.5.6
9 – Do - £295.15.0
£4774.2.7 ¼
Expense of Sales by Auction and Commission amounting to £477.8.3
Simeon Lord Objected to saying that prior to the Sale, he offered to Sell the Articles by Auction at 2 ½ per Cent And Mr. Palmer saying that he could get it done for £20. which would be a saving to the Estate. This Acct. of £477.8.3 arises from the Expences attending the Sale and 10per Cent Commissn. which Mr Palmer claimed from Precedent .
The Court being cleared top deliberate, are of opinion, that Mr. Palmer must
Bring
[Page 64]
bring proof of such precedent. And Mr S Lord to bring proof that he made the offer of selling Stogdell the property at 2 ½ per Cent.
Mr Palmer admits that S Lord did make an offer of selling by Auction the property of J Stogdell at 2½ per Cent.
Mr Thomas Laycock, being Sworn deposed that he was one of the Admin. to the late Guy Hamilton Master of the Sydney Cove with Mr Balmain and that he Received 10 per Cent Commission on the Sales, that said Guy Hamilton had executed a Will before his Death. That S. Lord as Auctioneer Received 5 per Cent, after all his Guy Hamiltons Debts were paid, about £3500 was remitted to India. That Mr Campbell [indecipherable] at the paying 10 per Cent for Commissn.
Quesn. By S. Lord – Did Guy Hamiltons Effects pay 20/- in the Pound
Ansr. – They did.
Quesn. By S. Lord to Mr Palmer – what is the reason you did not employ me as Auctioneer in the Sale of Stogdells Effects?
Ansr. – To save the 2½ per Cent.
The Court Adjourned until Tomorrow.
15th September.
("Signed")
Rich. Atkins
Jams. Mileham
Wm Moore
Sept. 15th 1802
The Court met pursuant to Adjournt.
£4774.2.7½
No 10 5.10.6
No 11 12.0.0 Objected to by S. Lord.
No 12 3.10.0
£4795.3.1½
Robert Campbell Esq. being duly Sworn, Says that he paid Mr Laycock And Mr Balmain as Executors to the Will of the late Guy Hamilton Master of the Sydney Cove 10 per Cent as Commissn. for their Trouble as Execurs. which they Charged on the said Effects which he Conceived to be too high a Charge; The Execurs. retained the Money in their hands until the 10 per Cent was paid.
Quest. By Mr Lord – Did you ever put any Goods in my hands for Sale and if you did, did you not think me Answerable for the Amount of the Sale, even if I had not Recd. the Value from the Purchasers.
Ansr. – I did think you Answerable.
Quest. – Did I ever Charge more than 5 per Cent.
Ansr. – No More than 5 per Cent.
Mr Lord Objected to No 11
Josh. Garland
[Page 65]
Josh Garland being Sworn Says, that he Was bye at the time an old Boat lying at Mr Palmers was Valued by Jne. Butler a Shipwright Deceased and the said Boat was Valued at 15/- the Value of the Nails; The Boat was Burnt. The Tallow was 6d per pound.
[Margin note] No. 13
A Debt Due to John Palmer Esq. from J Stogdell amounting to £8553.11.5 Mr S. Lord objects to.
No.15 - Mr Lord likewise Objects to.
.. 16 Do.
.. 21 Do.
.. 22 Do.
Mr Lord requires time to give his Objections agt. Nos. 13, 15, 16, 21 & 22.
The Considern. of this Business is Adjourned until Monday 3 Weeks at the Desire of the Parties.
Adjd. on other Business until Monday next.
("Signed")
Rich. Atkins.
Wm Moore.
Jams. Mileham.
Oct. 18th 1802
Court met pursuant to Adjournt.
John Palmer Esq Came before the Court and Stated that from the Multiplicity of Public Business, he hoped to be indulged with time, until the Departure of the French Ships, to this Simeon Lord the other Party had no Objection.
Adjournd until the above time.
("Signed")
Rich. Atkins.
Wm Moore.
Jams. Mileham.
Nov. 12th 1802
The Court met.
Simeon Lord, Delivered into Court a Paper marked (No. 7) which was Read and Mr Palmer Submitted to the Court the Following Quesn.
That the Court would have the goodness to inform, whether it is not the Business of the Plainf to prove any improper Charges made in the Accts. Delivered in by him.
The Court Cleared to Deliberate and being reopened. The Court is of Opinn. that Mr Palmer should Specify the Quantity and the Price of every Article exhibited in his Acct. and Produced to the Court.
Mr Palmer accordingly produced a Book in the handwriting of Stogdell. Containing the Quantity and Price of Certain Articles with which he debited himself down to a Certain part and with which the Court are Satisfied.
The Court
[Page 66]
The Court refused the Considern. of a certain item of £1282 and Upwards, until Mr Williamson attends to Prove the Same Simeon Lord Contending agt. the Validity of the Same. A Charge made for Tar Simeon Lord wishes to know if that Tar or the greater part of it was not expended on Mr Palmer’s Premises and Consumed in his Concerns.
Mr Palmer Says "not to his knowledge."
Mr Lord Objects to an Article of £500 Money paid by Mr Palmer for a Bill drawn on him in England – It appeared to have been a Blank Paper, Subscribed by Mr Palmer and left with Stogdell, filled up for £500 and paid away for that Sum And which Mr Palmer paid in England.
[Margin note] Stands over Goods Sent by the Supply and Reliance – Port Wine & Other Articles. [indecipherable] Charge
27 Bushl. & a half
Halfpenny to be Called.
He also Objects to Mr Palmer’s Claiming £724 and Upwards for some Articles sent by the Walker Contending that the Goods ought to be Rated at no more than Prime Cost.
The court Cleared to Deliberate as to the last Objection and being reopened.
They were of Opinion that David Bevan having Sworn that he paid into John Stogdell the Sum of £724.19.7 And the Goods having been Consigned to John Palmer Esqr. the said John Palmer Esqr. is authorized to Charge the full Sum, that the said John Stogdell Recd. from David Bevan.
Lord also Objects to [indecipherable] Acct. as Stated in the Adminrs. Paper produced to the Court.
Admitted by the Court.
Adjournd until Wednesday.
("Signed")
Rich. Atkins.
Wm Moore.
Jams. Mileham.
Novr. 24th. 1802
The Court Sat.
James Williamson Esqr. being Called and Sworn Respecting an Item Objected to by S. Lord, is asked the following Question by Lord Vizr.
Quesn. – Did you pay to John Stogdell on Acct. of John Palmer Esqr. the Sum of £1202.11.10
Ansr. – I am not prepared to Answer this Quesn. Until I see my Books.
Quesn. – Whether you did not in Consn. of £375.17.5 paid to Captain Salkold receive Certain Sums in Wheat Bills for Wheat Stogdell turned into the Stores to aid in Covering that Sum.
Ansr. – I received on Acct. of Mr Palmer, but do not recollect positively whether it was in Aid of that Payment or not – it possibly might, but I cannot take upon myself to Say.
Quesn. – Whether in Mr Palmers absence from this Country you did not Conceive Mr. Stogdell generally his Agent.
Ansr. – I did.
Quesn. – In Consequence of your Friendship for Mr Palmer and your good Opinion of Stogdell would not have you advanced him Money to enable him to Carry on the Concerns as Mr. Palmers agent.
Ansr. – Not beyond what I Conceived indebted to Mr. Palmer.
Mr. Williamson
[Page 67]
Mr Williamson finding it Necessary to have recourse to his Books to Clear up Certain Items Objected to this part of the Business – is to Stand over for the Present.
Lord v Palmer Esqr. Admr &
Novr. 24th. 1802
Continued.
Respecting the £500 paid by Mr. Palmer in England, a blank paper having been filled up for that Sum by Stogdell, The Court Objects to going any further into it, as they hold that it was decided on Monday.
Simeon Lord Objects to No. 15 on the principal that £100 is not [indecipherable] [indecipherable] to the Sum Expended on Woolloomooloo for 5 Years and proceeds to Call,
William Earl Who being Sworn is asked the following Questions.
Quesn 1st. – You were employed by Mr Stogdell to Work at Woolloomooloo in Mr. Palmers Absence
Ansr. I have Occasionally done Jobs at Woolloomooloo.
Quesn. 2nd. – Can you state the Work you have done there.
Ansr. – No! I have been Employed in Posting, Railing and Shingling.
Quesn. 3d. – Did you do anything at any Boats.
Ansr. – Yes! I Repaired a Schooner Boat, that Mr Palmer left in the Country.
Quesn. 4th. – Was any other Person employed besides yourself at that Job.
Ansr. – No.
Quesn. 5th. – What time was you Employed about that Boat.
Ansr. – A fortnight.
Quesn. 6th. – What Materials were Used in that Boat.
Ansr. – 7 New Timbers – some Nails, Pitch and Tar, about 3 Galls. of the latter and 20lt of Pitch.
Quesn. 7th. – What would you have Undertaken that Job for.
Ansr. – I cannot Say.
Quesn. 8th. – You Worked at a Bridge.
Ansr. – Yes! John Bolger and I worked at a Bridge about a fortnight.
Quesn. 9th. – Were not a great many labouring People also Employed.
Ansr. – Yes! There were.
Quesn. 10th. – What other Work did you do.
Ansr. – I Shingled the Stables and Worked with Golder in assisting to make the Waggons.
Quesn. 11th. – Had you any Written Agreement with Mr Stogdell and who did you Consider Mr. Stogdell.
Ansr. – I had! And I Considered Mr. Stogdell my Master.
Quesn. 12th – Can you produce any Agreement with Mr. Stogdell.
Ansr. – I can.
An Agreement produced between Earl and
Stogdell.
[Page 68]
Stogdell that had been left in the Judge Advocates Office Read Marked (No 8)
Quesn. 13th. – Do you know of any other Work done at Woolloomooloo by Contractors under you.
Ansr. – No.
Quesn. 14th. – Did you assist in fencing the farm in.
Ansr. – I did! With Bolger and other labourers – the Posts and Rails too were brought in Boats.
Quesn. 15th. – You Shingled the Stables, Coach House etc.
Ansr. – I did all that Work myself prior to the Agreement.
Observation by Mr. Palmer, who stated that the Boat being his Property and allowed by the Court to belong to him he Submits to the Court that as that Boat was Worked by Stogdell in his absence, she surely earned Sufficient to repay her Expenses.
Quesn. To William Earl
Mr Lord has stated that you were allowed £80 for 2 Years besides Provisions and Wearing Apparel – Did you Receive the following Articles Viz 7 Fresh Pork, ½ a Bushell of Wheat 1 lb Sugar Weekly and 1lt of Tobacco And 1 lt of Tea per Month.
Ansr. – I already had everything that I wanted, as I lived in the House. had I lived out of the House, I should have drawn those Articles.
John Bolger Called by Mr Lord and Sworn,
Quesn. By Mr Lord – Did you live with Mr Palmer before he went home.
Ansr. – Yes and was employed by Mr Palmer 18 Months after he went home & by Stogdell until the time of his death.
Quesn. 2nd. – You entered into a Written Agreement with Stogdell.
Ansr. – I did! the same as Earl, only I was to have Recd. A Guinea per Week instead of £40 a Year. – I made part of a Staircase at Woolloomooloo – a Desk and did other Jobs abt. The House in Stogdells time – The Kitchen Tables &c – I made all the Chairs and Tables at Woolloomooloo and built a Water Closet there.
Quesn. 3d. – Did any other Person Work at Walloomooloo besides Yourself.
Ansr. – Somerville assisted in the Work Occasionally and got the Stables done.
Quesn. 4th. – Was there any Plastering or flagging done.
Ansr. – Yes! There was – Young painted the House – Vandecombe & Pybus did the Plastering Work – the House got into Order – afterwards neglected and Repaired again preparatory to Mr. Palmers Arrival.
Quesn. 5th. – Who Sawed the Cedar that you Worked.
Ansr. – McNamara Sawed part of it. Charles Brown another part
Quesn. 6th. – Who Split the Shingles for the Stable.
Ansr. – Monham Split 25 thousand – Nails were got at 10s per thousand.
Question by Mr. Palmer – You were Employed by me 18 Months after I left this Country – now what
work
[Page 69]
Work did you do for Stogdell at the Hawkesbury.
Ansr. – I Built a Barn assisted by others and the Major part of the Dwelling House assisted by Earl.
Quesn. 2nd. – What manner were you and Guy and Latimer feed.
Ansr. – Chiefly in Sheeps tails.
Quesn. 3d. – Did I not leave a Quantity of Hogs when I went away.
Ansr. – Yes! a large Quantity which Stogdell killed.
Quesn. 4th. – Can you Recollect what furniture, you made for me at Walloomooloo.
Ansr. – I made Chairs and Tables.
Quesn. 5th. – Did I not Desire you and every other Servant about the Place to point out every Article that you possibly Conceived belonged to Stogdell.
Ansr. – Yes! You did.
Quesn. 6th. – Was not everything belonging to him put up for Public Sale, to the best of your Knowledge.
Ansr. – It was. A vast quantity of China and Glass which Mr. Palmer left was Removed to the Hawkesbury by Stogdell and I never could learn what became of it.
Quesn. 7th – You know the State Walloomooloo was in when I left it, after my Return and you Saw it, what State it was in etc
Ansr. – I cannot say.
Quesn. 8th. – Did not Stogdell remove a Number of fruit trees from Walloomooloo to the Hawkesbury.
Ansr. – He did.
Quesn. 9th – Did not Stogdell frequently kill Wether Sheep of mine.
Ansr. – He did.
Quesn. by Lord.
In what light did you consider Mr. Stogdell in Mr. Palmers absence.
Ansr. – I considered Stogdell responsible for my Labour & Considered Stogdell as Mr. Palmers Servant.
Quesn. – Did you obey Stogdells Orders equally has you would have Obeyed Mr. Palmer.
Ansr. – I Obeyed him According to my Agreement
Quesn. – Did you perform the Work of the Stables &c in the 18 Months you was
Mr Palmers Servant.
Ansr. – Yes! I did.
Edward Swinney Sworn
Quesn. by Lord – Was you Gardner at Walloomooloo.
Ansr. – I was! the first Work I did for Mr Stogdell was in Camp at Mr. Palmers House, afterwards at Walloomooloo
Lord v Palmer
[Page 70]
Lord v Palmer Admr.
Novemr 24th. 1802
Continued.
State as near as you can the Quantity of Work you have at Walloomooloo and who assisted you.
I cannot be Precise – Two Men assisted me Occasionally.
Quesn. by Mr. Palmer What Work did you generally do at Walloomooloo.
Got Vegetables, which were Consumed in the House.
Quesn. by Lord – Did you ate any time Come down to Walloomooloo, for the purpose of putting the Garden into Order previous to Mr. Palmers expected Arrival.
Ansr. – Yes! by Mr Stogdells Orders.
Quesn. by Mr Palmer – What Quantity of fruit trees did you remove from Walloomooloo to the Hawkesbury.
Ansr. – About 30 – of various kinds, Sizes and Ages.
James Vandecombe – Called and Sworn
Quesn. by Mr. Lord – You were Employed by Stogdell to do some Work at Walloomooloo
Ansr. – Yes
Quesn. – State what Work you did.
Ansr. – I Lathed and Plastered One of the Stables and Plastered the Other. I Repaired and White Washed the House. I lathed and plastered the Room over the Hall, the Staircase &c – Pybus worked there first and Introduced me to the Job – he had a Contract, I believe with Stogdell.
William Peachey – Called and Sworn
Quesn. 1st. – Same as the last Witness.
Ansr. – Yes
Quesn. – State what you did and what you know to be done at Walloomooloo.
Ansr. – I speak only for myself – the first Job I did was flagging the larder for £2.10.00 the next was flagging the Servants Hall £8. Working Steps £1.0.0 One Dresser 15/- - laying the Kitchen hearth 10/- Steps 2/6 –
Who brought the flags.
They were brought by a Horse and Cart.
John Young Sworn.
Quesn. 1st. – Same as last Witness
Ansr. – Yes.
Quesn. 2d. – Same as last Witness
- I worked as near as I can guess to the amount of 40 or 50 £ - I painted the whole House – except one Room in which the Rabbits were in. – A Room up Stairs and the Kitchen, the Doors of which only I painted – the paint was furnished by Stogdell – I Recd. About 22 or 23 £ for all the Work I did there and at the Hawkesbury – the Rest I never Recd. Payment for. My Agreement was that I was to paint the House and the Work was to be Measured - 4£ of the 22 or 23£ was to be allowed for a landscape I painted over the Chimney Piece. I was employed al-
together
[Page 71]
altogether on and off about two Years – painting landscapes &c.
Adjourned until Monday next.
("Signed")
Richd. Atkins
Wm. Moore
Jams. Mileham
April 4th, 1803
The Court Sat.
The Plainf Calls John Marsden who being Sworn.
Quesn. – You were Employed by Mr Stogdell doing Sadlery Buss. at Walloomooloo a Considerable Time
Ansr. – Yes.
Quesn. – What length of time were you Employed.
Ansr. – Ever since Mr. Palmer and Mr. Stogdell had any business to do and which I could be employed in.
Quesn. – Do you Remember [indecipherable] and other Tradesmen employed at Walloomooloo.
Ansr. – Yes.
Quesn. – What was Pybus employed in.
Ansr. – Building a Stable and Coach house.
Quesn. What Amt. do you Conceive the labour and Jobs might be.
Ansr. – That Job came to £13.13.6.
Quesn. – There were other Jobs performed by you and him.
Ansr. Yes! a great Many.
Quesn.- From the Opportunities you had of being so frequently at Walloomooloo what do you Suppose might be the Annual Expense of Improvements, alterations Servants and Labourers Wages – New Manufactories &c
Ansr. – I speak for myself. I earned about a Hundred Pounds from Mr. Stogdell in Mr. Palmers absence – which I Recd. In Bills and property. Pybus I dare say Recd. above £30.
Quesn. – Can you Recollect what Carpenters were Employed.
Ansr. – Whitter was there.
Quesn. – Was the House, Officers and outhouses Completely finished before Mr. Palmer left the Colony.
Ansr. – No.
Quesn. – Were they finished in Mr. Stogdells time.
Ansr. – What work was done was in Mr. Stogdells life time
Quesn. by the Defendt.
Did Mr. Stogdell use the Saddles and Bridles for his own use which you made and Repaired.
Ansr. – Yes! he did, and I made them at Walloomooloo, by Mr. Stogdells Order.
Quesn.
[Page 72]
Quesn. – And the Work you did to the Amt. of £100 was for Mr. Stogdell.
Ansr. – Yes
Henry Murray Called and Sworn,
Quesn. – You were employed at Walloomooloo during Stogdells lifetime in Mr. Palmers absence.
Ansr. – Yes.
Quesn. – What length of time were you Employed.
Ansr. – Most of my employment was Cultivating Ground at the Several places at Walloomooloo and the other Farms.
Quesn. – You Grub’d up Stumps in the Garden And assisted in Improving it.
Ansr. – Yes anything that was to be done.
Quesn. – What length of time and what was the Value of your labour.
Ansr. – About 40 [indecipherable] Months at 15/- per Week and Provisions.
Quesn. – What other Men were Employed there.
Ansr. – Another Man who worked in the Garden.
Quesn. – Were there no Bullocks, Horses, Carts Or Waggons Employed at Walloomooloo
Ansr. – There were 2 at Work with me.
Quesn. – Will you Say that no others were Employed that you know of
Ansr. – I do not say that there was or was not.
Quesn. – Were 2 outbuildings erected after Mr. Palmers absence in Mr. Stogdells lifetime.
Ansr. – Yes.
Quesn. – Were all the Materials prepared at Walloomooloo.
Ansr. – Yes! they were.
Quesn. – You were also employed at the Hawkesbury after Stogdells death.
Ansr. – Yes.
Quesn. – And who Employed you.
Ansr. – Mr. Palmer.
Quesn. – What were you Employed in.
Ansr. – In Sawing and preparing Timber.
Quesn. – Did you help to Remove or Convey from the Hawkesbury in Waggons Boats or other Carriages any Stock, Grain, Goods or any property belonging to Stogdell at the Hawkesbury.
Ansr. – I have helped Bond to Remove in a Boat some things which Bond Called his own Property.
Quesn. – What was that Property.
Ansr. – Two or 3 Boxes and a Bed – I don’t know the Contents of the Boxes.
Quesn. – Do you Recollect any Pigs, Poultry, Grain or other Articles being Removed from the Hawkesbury to Walloomooloo prior to Bonds leaving it.
Ansr. - Not
[Page 73]
Ansr. – Not to my Recollection
Quesn. – I believe you Admind. to the Effects of Jos Pearce Decd.
Ansr. – Yes.
Quesn. – Who is in Possession of Pearces farm now.
Ansr. – I am
Quesn. – Who was in Possession of it at Stogdells Decease.
Ansr. – Mr. S. rented it for a 12 Month.
Quesn. – Of whom did he rent it.
Ansr. – Of Joseph Pearce before he was drowned.
Quesn. – Who Reaped the last Crop previous to Stogdells Decease.
Ansr. – The Crop that Mr. S. reaped before his death was lodged in the Barn
Quesn. – Did Stogdell ever buy this farm of Pearce.
Ansr. – No.
Quesn. – Have you never heard of any Agreement with Stogdell & Pearce Respecting the Purchase of that farm.
Ansr. – Never.
Quesn. – Where are the Deeds of Pearces farm.
Ansr. – I can produce them.
Quesn. by the Court – Where are they.
At the Mill (Produced)
Quesn. by the Plainf. – What Quantity of Pigs and Poultry was at the Hawkesbury when Stogdell died
Ansr. – I cannot tell – there was a great Number of both Sorts
Quesn. – Do you Recollect any Work being done at the farm at Toongabbie after Mr Palmers departure.
Ansr. – The House was shingled – I think.
George Thomson Called and Sworn, Saith that in Consequence of Stogdells informing him that the Indorsement made on the back of Pearces Grant was of no Value, he Consented to the Indorsement being Erased, and he Recd. back the Money he had paid for the Purchase from Pearce.
Quesn. by Defendt. – You had then Weekly Provisions allowed you.
Ansr. – Yes.
Quesn. – Did not Mr. Stogdell Occasionally kill Mr. Palmers Stock to furnish them Provisions with.
Ansr. – I Cannot Say – he killed the Stock for the Use of the house.
Quesn. – When you were at Walloomooloo, did the Stock there Answer for the labour.
Ansr. – I eat in the House And they killed Stock for the Use of it.
Quesn. by the Court – Whose Stock was it.
Ansr.
[Page 74]
Ansr. – I Cannot pretend to Say.
Quesn. by the Defendt. – Was the Stock that was killed for the Use of the House – the Stock on Mr. Palmers farm at Walloomooloo.
Ansr. – It was down there.
Quesn. by the Court. – Had Mr Stogdell any Stock there of his own.
Ansr. – He was Continually Buying Stock, which was killing for the Use of the House.
Quesn. – Was not Mr. Palmers Farms Cropped with Wheat or Maize.
Ansr. – Walloomooloo was Cropped with Wheat.
John Guy (Sworn)
Quesn. – You lived with Mr. Stogdell at Walloomooloo, after Mr Palmers Departure for England and to the time of his Death.
Ansr. – I did.
Quesn. – From the time Mr. Palmer left Walloomooloo to Mr. Stogdells death – What Improvements, Alterations and Additions were made at Walloomooloo And by whom and to What Amount you Reckon they might be.
Ansr. – The Farm was railed round – a Stable and Coach House built – the flagging in the Kitchen was laid.
Quesn. – After Stogdells death What Articles were brought from the Hawkesbury to Walloomooloo.
Ansr. – I don’t know – I was at Work on the Water.
Quesn. – In the Course of the times you were at the Hawkesbury, after Stogdells death do you know of any Grain, Pigs, Poultry, being removed from Hawkesbury to Walloomooloo.
Ansr. – Yes. by Mr Bennet, when he came there – I don’t know of any being Removed before he Came.
Quesn. – Do you know of any Inventory being taken at Walloomooloo after Stogdells death.
Ansr. – I do not or any where else.
Quesn. – Were you in the habit of keeping Mr. Stogdells Accts.
Ansr. – Entering a few things in a bit of a Day Book.
Quesn. – Did you not for the Space of 18 Months before Stogdells death enter the usual Issue of Articles from time to time.
Ansr. – Mr. Stogdell and myself Used to enter them on One Book.
Quesn. – Were you ever Called upon by Mr. Palmer to Assist in Arranging his Accts. So as to throw a light upon his Affairs.
Ansr. – Never.
Quesn. – How many Servants were Employed at Walloomooloo before Mr. Palmer arrived.
Ansr. – There were 4 of us – And people Coming backwards and forwards from the Hawkesbury.
Quesn. – Do you know of any Grain or other Articles Coming from the Hawkesbury to
Support
[Page 75]
Support the House at Parramatta in Mr Stogdells lifetime.
Ansr. – There had been Grain, come down from the Hawkesbury and Grain taken from Walloomooloo.
Quesn. – What property was there in the Cellar at Walloomooloo before Mr. Palmer arrived.
Ansr. – I don’t know any particulars but the Wine that was bottled from Pipe that had been sent by Mr Palmer with Captn. Lock.
Quesn. – Was there any Pigs or Poultry came from that Hawkesbury to Walloomooloo previous to Mr. Palmers arrival.
Ansr. – I don’t think any at all – Mr Palmer left Pigs Sufficient to Maintain the house at Walloomooloo without any produce at all And after the Grain was Expended some of the Pigs were drove to the Hawkesbury and some of them were put into the Store at Sydney.
Quesn. by the Court – Was Mr. Stogdell in the habit of purchasing Pigs for himself and Mr. Palmer.
Ansr. – I thought it was for himself.
Quesn. – What Capacity did you Conceive Mr. Stogdell in at the time Mr. Palmer left this Country.
Ansr. – A Servant, as myself.
Quesn. – Did you not look upon him as Mr Palmers Agent.
Ansr. – I obeyed him as I would a Superior Servant.
Quesn. – When Stogdell was Carrying on those Concerns at the Hawkesbury & elsewhere to whom did you Conceive they belonged.
Ansr. – To himself.
Quesn. by the Defendt. – Do you know of anything that was Mr. Stogdells property in his lifetime, but what was brought forward by Mr. Palmer and fairly disposed of.
Ansr. – I do not.
At ¼ before 3 the Court Adjourned to 10 Tomorrow Morning. –
("Signed")
Richd. Atkins.
Wm. Moore
Jams. Mileham.
Lord v Palmer Esqr.
April 5th. 1803
The Court Sat.
The Plainf proceeds to Examine Witnesses
James Molee Called and Sworn.
Quesn. – Do you know of any Waggons being employed in Removing property from the Hawkesbury after Stogdells death.
Ansr. – Yes! there used to be property go down – Poultry the Chief
thing
[Page 76]
thing. Pigs were removed from Gross farm – but Whither I cannot take upon myself to Say.
Quesn. – What quantity of fowls & other Stocks do you Suppose remained there at Stogdells death.
Ansr. – About 500 head of Poultry – there was a great Compliment of Goats and Pigs but the Number I cannot pretend to ascertain – they were all Removed down here.
Quesn. – Since Stogdells death, do you Recollect any Buildings being pulled down and the Materials removed to any Place.
Ansr. – Yes.
Quesn. – What Buildings.
Ansr. – The Buildings upon Pearces farm – a House which I paid for the Building of myself. The flooring of a Barn which was removed from the Premises to [indecipherable] farm and there Converted I believe to the Use of Mr. Palmer.
Quesn. – Who Caused those Buildings to be pulled down.
Ansr. – I should Suppose Mr. Bennet, as he had the Command there.
Quesn. – Had any Person Admind. to Pearces effects at this time.
Ansr. – No! Unless it was Mr. Palmer.
Quesn. by the Court – What time was it after Stogdells death that those Buildings were pulled down.
Ansr. – About 18 Months ago.
Quesn. – Did you Consider that farm as Mr. Stogdells.
Ansr. – Undoubtedly I did, as I was present in Mr. Palmers Parlour where the Walings were drawn up.
Quesn. – What was that Agreement.
Ansr. – That Mr. S was to give £100 Sterling in a Year. after date and £20 for the Use of the farm for Rent.
Quesn. – At the time those Buildings were pulled down had the Year expired from the date of the Agreement.
Ansr. – Yes! it had.
Quesn. – Did you not Consider that when Mr. Palmer pulled down those Buildings that he did it by Virtue of that Agreement.
Ansr. – To be Sure I did.
Quesn. – Was Murray at the Hawkesbury when this took Place.
Ansr. – I believe he was not – I think he was at the Coal River.
Quesn. by the Defendt. – All that have been Stating is since Stogdells death.
Ansr. – No! not all.
Quesn. by the Court. – Pearce was dead at the time those Buildings were taken down and had letters of Adminn. Been granted to Murray.
Ansr. – Pearce was dead and no letters of Adminn. Had been granted – Mr. Palmer had cropped the farm before letters of Adminn. Had been allowed.
Quesn. by Defendt. – When did those transactions take Place, before o after the Sale of Stogdells Effects.
Ansr.
[Page 77]
Ansr. – After the Sale.
Quesn. – Were the Goats sold by direction.
Ansr. – I cannot say.
William Bond Called and Sworn.
Quesn.- You lived at Mr. Stogdells at the Hawkes at the time of his death
Ansr. – Yes.
Quesn. – In What Capacity.
Ansr. – Taking care of the farm and Stock.
Quesn. – What Steps did you take on hearing of Mr. Stogdells being drowned.
Ansr. – When I heard I went with a Boat and got the Mare and in his general Concerns I took care of everything as I had done in his life time.
Quesn. – There was a good deal of Property of various Descriptions in the house at the time of his death.
Ansr. – Yes! a good deal.
Quesn. – Did you take any steps to Secure that Property.
Ansr. – I took care of it as before.
Quesn. – Was any Inventory taken of the Effects and When.
Ansr. – The Effects were looked over by Mr. Palmer and Mr. Campbell within a few days.
Quesn. by the Court – Were they taken down on Paper.
Ansr. – I cannot Say – but I believe they were taken down about 2 Months afterwards.
Quesn. – After Stogdells death and until Mr. Palmer took possession when you gave up your Charge to Mr. Bennett was any Stock or fowls taken out of the Premises.
Ansr. – There might be a few fowls.
Quesn. – What quantity of Pigs was there.
Ansr. – About 70 or 80 head of Pigs not large.
Quesn. – How many were Continued Employed after Stogdells death & for what length of time were they Employed.
Ansr. – About 30 or 40 and they were Employed about 2 Months as long as I Stayed on the Premises.
Quesn. – What were they Employed in.
Ansr. – Various ways, Cultivating the land, Garden farms and looking over the Stock.
Quesn. – Under whose Directions.
Ansr. – Mostly under Mine.
Quesn. – Was any Acct. kept of their Work and the Provisions offered to them.
Ansr.
[Page 78]
Ansr. – Yes.
Quesn. – By Whom.
Ansr. – By Charles Haton the Clerk.
Quesn. – When did you begin sending Pigs, Grain and Poultry to Walloomooloo.
Ansr. – I Recollect none being Sent Whilst I was there.
Quesn. – Do you Recollect Mr. Palmer and his family with Mr. Campbell and others, being on a visit at the Hawkesbury, after Stogdells death.
Ansr. – Yes.
Quesn. – How long might they Remain there.
Ansr. – 3 or 4 days to the best of my knowledge.
Quesn. – And in that time the family were Supplied with Necessaries for their Consumption from the Said Stock on the Premises.
Ansr. – Yes.
Quesn. – The Stock that belonged to Mr. Stogdell.
Ansr. – I always Understood it to Stock that Mr. Palmer had left, when he left this Country with the Produce.
Quesn. – Did you not Consider that to be a General Concern of Mr. Palmers.
Ansr. – I looked upon Mr. Stogdell as Servant – but it is a thing I did not look into.
Quesn. – Did you Consider the farms and other Places that were Improving and that you had the Superintendance of, to belong to Mr. Palmer or to Mr. Stogdell.
Ansr. – I could not rightly say which way.
Quesn. – Did you consider yourself a fellow Servant with Stogdell, who was Servant to Mr. Palmer.
Ansr. – I Considered Mr. Stogdell as my Master.
Quesn. – Did you Consider it a joint Concern Or that Mr. Stogdell was Improving those Places for Mr. Palmers advantage.
Ansr. – I cannot Speak to this Point.
Quesn. – Do you not know of Mr. Stogdells from having a Quantity of Pigs from Persons at the Hawkesbury.
Ansr. – I cannot Speak.
Quesn. – Did he purchase Pigs of no Settlers.
Ansr. – Yes, there was some few Pigs, purchased by Stogdell of Settlers.
Quesn. – And yet you Say that the Pigs were all Mr. Palmers with their Produce
Ansr. – I heard Mr. Stogdell Say he had parted with some Sheep of Mr. Palmers that were left at Walloomooloo – Which might have been paid for those Pigs.
Quesn. – Will you take upon yourself to Swear, that the Pigs, which were at the Hawkesbury, during the time you were there, were the Pigs Mr Palmer left or were the Produce thereof.
Ansr. – I looked upon some of the Produce to have been Mr. Palmers
Quesn. – Were the Pigs that were sent up occasionally from Parramatta by Stogdell to the Hawkesbury, the Pigs belonging to Mr. Palmer or Mr. Stogdell.
Ansr.
[Page 79]
Ansr. – I look upon it in part to have been Mr. Palmers property.
Quesn. – How do you know them to have been Mr. Palmers Property
Ansr. – Because when I talked with Mr. Stogdell he had said they were Mr. Palmers Property.
Quesn. by the Court – Was there any distinguishing Mark in the live Property of Mr. Palmer and Mr. Stogdell.
Ansr. – I cannot say there was.
Quesn. – Had you any Orders to keep any Separate or distinct Account of this Property.
Ansr. – No.
Quesn. – Nor you kept any distinct Account
Ansr. – No! I did not – the Clerk might.
Quesn. – Do you recollect any Quantity of Sawn Timber being near the Premises or the Creek.
Ansr. – Yes! there was some timber Squared for the purpose of building a barn – I recollect no Sawn Timber.
Quesn. – Was there not a Quantity of Cedar at the time of Stogdells death.
Ansr. – I know of none – except a few Planks.
Quesn. – Was there not a Quantity of Poultry at Goss’s farm when Mr. Stogdell died.
Ansr. – There could be but very few – what was there was brought to the Hawkesbury farm.
Quesn. – Was any of them sent down to Walloomooloo.
Ansr. – I don’t know of any.
Quesn. – At the time the Waggon broke down coming from the Hawkesy. To Sydney what property was therein.
Ansr. – I was with the Waggons at that time, there was Clements’s Goods and his Woman and Mine – the Waggon was sent by Mr. Palmer – it was drawn by Bullocks.
Quesn. – Do you know how many farms Stogdell was in possession of at the time of his death.
Ansr. – No.
Quesn. – Do you know of any beside that on which he Resided.
Ansr. – Yes, there were Different farms at the Hawkesbury – Pearces farm he Rented for a Year.
Quesn. – Do you know if he was possessed of Hobbs farm.
Ansr. – I do not.
Quesn. – How did Stogdell pay you your Wages.
Ansr. – I received none.
Quesn. – Did you ever Receive any Monies or bills from him.
Ansr. – No. only the Money that was paid on Acct. of the farms.
Quesn. – Do you know whether Stogdell at the time of his death was
possessed
[Page 80]
possessed of any Money
Ansr. – I never Saw any.
Quesn. – If the Conditions of Sale, respecting the Payment of the Purchase Money had not been so limited, do you not think the property would have fetched Considerably more.
Ansr. – I Cannot Speak to this Point – not being a Judge of it.
Quesn. – From what you observed of Stogdells general Conduct and mode of living did you discover or has you Reason to think him guilty of any Extravagancies that had a tendency to Waste his Substance or to Injure his Circumstances.
Ansr. – I always Considered Mr. Stogdell at the Hawkesbury a frugal Man – What he was at Sydney I do not know.
Quesn. – You always Considered him in a Solvent State and that he Acted to the best of his abilities in Managing his Concerns as Mr. Palmers Agent.
Ansr. – Yes I always though so.
Quesn. – Did you not think him Active, Steady, Industrious and Clever.
Ansr. – I always thought so.
Quesn. – Quesn. by the Defendt. – Do you know of any Effects that were in the Possession of Mr. Stogdell at the time of his death, that have not been disposed of & brot. to Acct.
Ansr. – There were some Sheep Sold – I cannot say how many – some were sold to [indecipherable] and on board different Ships to Captains.
Quesn. – The Produce of those Sheep, were applied among the Working People.
Ansr. – They were – such as Spirits, Teas, Sugar, Tobacco, paid to the Working People at the Hawkesbury.
Quesn. – Was any paid to the people at Walloomooloo.
Ansr. – I Understand it was, but was not there myself.
Quesn. by the Court. – How do you know that this Tea, Sugar, Tobacco &c were Received as the produce of the Sheep.
Ansr. – Mr. Stogdell told me so.
Quesn. – Did you See any of the things Sealed, such as Papers, Drawers &c after Mr. Stogdells death.
Ansr. – There was none Sealed – I had the Whole Charge myself and none were taken away.
Quesn. – Was the Sale before or after you left the Hawkesbury.
Ansr. – After.
Mrs. Bond Called and Sworn
Quesn. – Had you the Keys of the Cellar and other places where property was deposited at the time of Stogdells death.
Ansr. – I had.
Quesn. – What property was there in the Hawks at that time.
Ansr. – I cannot tell.
Quesn. – What became of the Property.
Ansr.
[Page 81]
Ansr. – I believe it was Sold by Public Auction.
Quesn. – Was any part of it Consumed in the family by Mr. Palmer and Visitors.
Ansr. – There was no Visitors came – except on the decease of Mr. Stogdell – Mr. and Mrs. Palmer and Mr. Campbell and Miss Palmer Came up.
Quesn. – Who came immediately after Mr. Stogdells death.
Ansr. – Mr. Palmer came first by himself and Remained there till the [indecipherable] came when he went away.
Quesn. – Before the Corps came in, did Mr. Palmer take any Acct. of the Effects.
Ansr. – It is out of my powers to Say – I was in such a State of Confusion – he did not look into any trunks or boxes.
Quesn. – When was any Inventory taken of the Effects under your Charge.
Ansr. – When Mr. Palmer and Mr. Campbell came to the Hawkesbury with Mr. Bennett, then the Inventory was taken by Mr. Bennett in Writing and I gave up my Charge – Charles Haton assisted – this was within a Week or so after Stogdells death
Quesn. – Was any of the Goods Contained in that Inventory removed to Walloomooloo.
Ansr. – Yes they were and Sold by Public Auction.
Quesn. – Was any Acct. taken of those Articles and any Entry made.
Ansr. – I believe there was by Mr. Bennett – the property was Conveyed by a boat to Goldinggys farm and from thence by land to Walloomooloo.
Quesn. – Do you know of Mr. Stogdell being possessed of any Money at the time of his death.
Ansr. – I know of none – I never Saw any of his Money.
April 5th 1803 Mrs Bond
Quesn. – Upon your Oath, have you held no Conversation directly or Indirectly with any Person whatever respecting the Evidence you were to give on this Business.
Ansr. – I have not.
Quesn. – Was there any wine, Spirits or Porter in the Cellar at the time Mr. Stogdell died.
Ansr. – There was a Small Quantity and what there was, was lost by the Water being in the Cellar and the Casks floated about, with the Bungs being out – there might be a few Bottles of Porter in the Cupboard – the Cellar was in such a State that I could not go into it.
Quesn. – Did the Consumption of fowls and other things Continue amongst the Working People, the same as before.
Ansr. – I Cannot Say having no Concern with the Cooking.
Quesn. – Had you any orders to keep any Separate Acct, of what was Con-
sumed
[Page 82]
Consumed at the farm by the family.
Ansr. – I had nothing to do with it.
Quesn. – Whose property did you Suppose the farms and other things to be.
Ansr. – I never knew for I never enquired about them.
Quesn. – Had you ever any Order to keep any Separate or distinct Acct. as to what was Mr. Palmers or what was Mr. Stogdells property.
Ansr. – No! I had not.
Quesn. – Do you know of Mr. Stogdells purchasing any Pigs from any Settlers at the Hawkesbury.
Ansr. – No, I do not.
Question by the Defendt. – Do you know of any property that was Mr. Stogdells that has not been brought forward to Acct. and Sold.
Ansr. – No I do not.
Quesn. – Could anything Such as the household furniture or any other Effects in the House , probably by Concealed without your knowledge.
Ansr. – No.
John Wood – Called and Sworn.
Quesn. – You lived with Mr. Stogdell as Groom, prior to Mr. Palmers arrival and attended him when the accident happened.
Ansr. – Yes.
Quesn. – You went to the Hawkesbury Immediately after.
Ansr. – Yes.
Quesn. – How long did you Remain there after that Evening.
Ansr. – About a Week.
Quesn. – Do you know whether any Person took any Inventory of the Effects – if Seals were put on any Articles for Security – Or was everything left open, as before Stogdells death.
Ansr. – Everything Remained in the State it was before, until Mr. Palmer came up.
Quesn. – When did Mr. Palmer Come up.
Ansr. – In the Course of the Week.
Quesn. – Did you see any Inventory taken before Bond went away.
Ansr. – Charles Horton took an Inventory of the House and Pigs and the live Stock in general – within a Week after Stogdells death.
Quesn. – Was any Grain, Pigs Poultry or other king of Property, belonging to Stogdell removed from the Hawkesbury to Wallooo. After Mr. Stogdells death and prior to the Sale.
Ansr. – I cant take upon me to Say.
Quesn. by the Court. – Was not there a great quantity of Poultry at Goss’s Farm which were
sent
[Page 83]
Sent down to Walloomooloo
Ansr. – There was a great Quantity of fowls at Goss’s farm, sent over to the House Stogdell lived in and a great many came down to Walloomooloo.
Quesn. – Were not the Horses, Bullocks, Carts and Waggons made Use of to Convey different things to and from Wallooo. After Stogdells death, the same as had been Usual in his lifetime.
Ansr. – Yes.
Quesn. – Were not everything made Use of and left equally Open from the time of Mr. Stogdells death to the Sale, as had been Usual in his lifetime.
Ansr. – Yes.
Quesn. – Do you know of any Grain, Poultry or other Articles brought down in Waggons Boats Or Otherwise from Hawkesy. to Wallooo.
Ansr. – I Cannot Say rightly before the Sale.
Quesn. – Have you any Reason to Complain of Mr. Stogdells treatment to you, generally as a Master.
Ansr. – No.
Quesn. – You had plenty to Eat and Drink.
Ansr. – Yes I had plenty of Beef, Pork and Sometimes Sheeps tails to Eat.
Quesn. – You have seen Mr. Stogdell very anxious to finish the Improvements he projected at Wallooo to be ready for Mr. Palmers Arrival.
Ansr. – I have seen him give Orders to that Effect to the Men repeatedly.
Quesn. – And Tradesmen were Employed to finish those Improvements accordingly and were constantly in the habit of doing something or other about the Premises.
Ansr. – There were 2 Carpenters at Work Constantly Employed, sometimes at Walloo. And sometimes at the Hawkesy,
Quesn. – Do you know of Mr. Stogdells purchasing a quantity of Hogs at different times.
Ansr . – No.
Quesn. – Do you know if he purchased any of Thos. Randall.
Ansr. – I cannot say that I do.
Quesn. – Do you Recollect or know of any Inventory being taken of the Houses, Carts, Harness and other Implements of Husbandry about the House, Stock Cooking Utensils &c prior to the Sale at Wallooo.
Ansr. – There was a Man came here on purpose to take ye Inventory – I am pretty sure it was Mr. Wilshire.
Quesn. – What time was that after Mr. Stogdells death.
Ansr. – I dare say it might be a Week before the Sale.
Quesn. – Do you know of anything being taken prior to that time.
Ansr. – No, only just before the Sale.
Quesn.
[Page 84]
Quesn. – Was any live Stock taken in that Inventory.
Ansr. – There was none down there.
Quesn. – From the time of Mr. Palmers Arrival to the time of Mr. Stogdells death was there no Grain or other things brought down Occasionally from the Hawkesbury to Walloomooloo.
Ansr. – I cannot take upon myself to Say whether there was or was not.
Quesn. – Was any Articles sent from Wallooo. to the Hawkesbury or from Ships at Sydney by direction of Mr. Palmer or Stogdell to be applied to the Concerns of the Hawkesbury.
Ansr. – None that I Recollect.
Quesn. – Do you Recollect anything going from the Royal Admiral.
Ansr. – No.
Quesn. – Do you Recollect the Waggons going backwards and forwards to and from the Hawkesbury.
Ansr. – They went up and down but what they were loaded with, I don’t know.
Quesn. – Was not Latimer Guy and others Employed at Wallooo taking Care of the Concerns there.
Ansr. – Yes! they had the general charge there – there was always two left at the House.
Quesn. - - Did you know of any division of Mr. Stogdell and Mr. Palmers Property before Stogdell died.
Ansr. – No.
Quesn. – Did you Conceive the general Concerns to be jointly between Mr. Palmer and Stogdell.
Ansr. – The Hawkesbury farm and all that side of the Creek, was looked upon to be Mr. Stogdells – those on the other side, I understood to belong to Mr. Palmer.
Quesn. – Did you Conceive Mr. Stogdell did all he could to Improve the Concerns and to be in a Solvent State.
Ansr. – Yes I did. Mr. S paid away his property to a great advantage.
Quesn. by the Defendt. – Did Mr. Palmer give any direction to bring everything forward for Sale that was the Property of Mr. Stogdell.
Ansr. – Yes and I did so.
Quesn. – There is nothing then, but what was brought to the hammer.
Ansr. – Nothing but the Hogs and fowls that I Recollect.
Quesn. – What became of the Hogs.
Ansr. – Made Use of at the Hawkesy.
Quesn. – How many Hogs were there.
Ansr. – 72 little and Big – some Weighed 14 or 15 Score.
Quesn. – Were they all Used at the Hawkesy. to the best of your knowledge.
Ansr. – They might for anything I know – but as there were other Pigs Intermixed with them, some might come down to Wallooo.
Quesn. – Was there any private distinguishing Mark on Mr. Palmers Pigs to Identify
from
[Page 85]
from the Rest.
Ansr. – None.
Quesn. by the Court – Was any Separate Acct. kept to distinguish them.
Ansr. – None that I ever heard of.
Quesn. – What became of the fowls.
Ansr. – What was not consumed at the Hawkesy. came down to Wallooo. that was after the Sale.
Quesn. – Do you Recollect Mark Clements coming down with a large Quantity of fowls 8 or 10 Dozen.
Ansr. – No.
Quesn. – Do you Recollect any such Quantity ever coming down.
Ansr. – Yes Several times and a greater Quantity.
Quesn. – Was it before or after Mr. Stogdells death.
Ansr. – After.
Quesn. – Within what time after Stogdells death – was it within 2 months.
Ansr. – I Cannot positively speak.
Quesn. – What Quantity of fowls were at the Hawkesy at the time of the Sale.
Ansr. – There might be an hundred.
Quesn. – Was there near the Quantity left as at the time Mr. S. died.
Ansr. – Not so many running about.
Mr James Wiltshire Called and Sworn.
Quesn. by the Court – You acted as Auctioneer at the Sale of Mr. Stogdells Effects.
Ansr. – Yes.
Quesn. – Amongst other Articles that were brought to the hammer was there any Poultry.
Ansr. – No. I do not think there was.
Quesn. by the Plainf. – Do you Recollect my delivering to Mr. Palmer or hearing me say anything about a Note for £30 of McDonalds.
Ansr. – No I do not.
Quesn. by the Defendt. – Did you not bring everything forward for Sale that belongd to the late John Stogdell.
Ansr. – Yes. According to the Inventory I Recd.
Quesn. – Did you not make every Enquiry you could to that effect.
Ansr. – Yes! I did.
Quesn. – Did you dispose of everything to the best advantage that you could.
Ansr. – Yes I did.
Quesn. – As far as your knowledge was everything Sold.
Ansr. – Everything that belonged to Stogdell, that could be pointed
out
[Page 86]
out by the Servants.
Quesn. – Did you Receive Instructions from Mr. Palmer to bring everything forward that belongd to Mr. Stogdell and Sell it to the best advantage.
Ansr. – I did.
Quesn. – Then everything was brot. Forward and Sold within your knowledge.
Ansr. – Yes! Everything.
Quesn. by the Court – What was your Commissn as Auctioneer.
Ansr. – It amountd to £477.8.3 which I expect Mr. Palmer will give me Credit for.
Quesn. – In Examining Mr. Stogdells papers were there not a great quantity torn and thrown into a Bucket.
Ansr. – Such as were Useless.
Quesn. by Plainf. – Did you know anything of Stogdells Concerns before you came here so as to enable you to judge of what was or what was not Useless.
Ansr. – By examining the Papers, I judged of what was Useless – what I thought of the least Utility I brought forward.
Quesn. – Do you recollect my Remonstrating with you at Wallooo. on the Impropriety of tearing the Papers until they had been Examined by some Persons who could throw a light on the Business.
Ansr. – Mr. Lord remarked that he thought there might be several papers which he could throw a light upon – but I destroyed no Papers that I conceived of any Utility.
Quesn. – Did I not say that Guy and other Persons besides myself about the house might have thrown a light upon those Papers had they not been destroyed.
Ansr. – I do not Immediately Recollect that Observation – the Papers were busn. mostly to Acct. before Mr. Lord came down for the purpose of Examg. his own Accts.
Quesn. – Do you not recollect my throwing a light upon a Certain paper which Related to a Sum of Upwards of £100. Some Paper that I think was about Major Foveaux.
Ansr. – It was on a Paper I had Reserved.
Quesn. by Defendt. – Then all papers which wod. have thrown a light on the Business were Reserved and brot. To Acct.
Ansr. – They Were.
At ½ past 2 the Court Adjd. To Tomorrow at 10 O’Clock .
("Signed")
Richd Atkins
Wm. Moore
Jams Mileham
April 6th 1803
The Court Sat
Lord v Palmer Esq Admr.
Michl Hickson Called and Sworn
Quesn.
[Page 87]
Quesn. by Plainf. – What Stock you Suppose was at the Hawkesbury when Stogdell died.
Ansr. – At the time of his decease I had the Pigs in my Charge – Mr. P sent over to me 2 or 3 days after his death for a Return of the Stock – I sent an exact Acct. 92 or 97 I cant Speak to which with Certainty.
Quesn. – Was any part of this Stock Removed.
Ansr. – It was Removed, I cant say where with Certainty but I Understand it to be Wallooo.
Quesn. – What No. of Goats was there at the Hawkesbury and what became of them.
Ansr. – I had no charge of them and therefore Cant say.
Quesn. – Were the Pigs Mr. Palmer bout. Of Mr. Grimes mingled with the others (the 92 or 97) and fed together.
Ansr. – All fed together. I observed no difference.
Quesn. – What size were Mr. Stogdells Pigs.
Ansr. – There were 2 very large Pigs, which we called the Brothers – One was killed the day Stogdell was drowned and the other some days afterwards – the Rest of the Pigs [indecipherable] large and small some 120lbs and from that down to 40lbs and less – Some were Suckling Pigs – there were sometimes 2 killed in a Day.
Quesn. – Do you know of any Poultry being sent down from Hawkesbury to Wallooo.
Ansr. – I have seen Poultry Came away from the house very often, but I don’t know anything of any Grain.
Quesn. – Do you know of any Inventory being taken of Stogdells Effects.
Ansr. – I Cannot Speak to this with any Certainty.
Quesn. – Did you Observe any restriction in the Articles Or did everything Continue as before his Death.
Ansr. – I saw no Restriction everything Appeared to go on as before.
Quesn. – Were there many People Continued in Employ at the Hawkesy after Stogdells death.
Ansr. – The Same People Remained and One or Two more were added in Consequence of its being Seed time.
Quesn. – Were those People fed out of the general Stock.
Ansr. – Bond Cookd them Victuals 3 times a Day for them.
Quesn. – Who has the Direction and Employment of the Men.
Ansr. – Bond
Quesn. by the Defendt. – When Mr. Palmer bout. those Pigs of Mr. Grimes was not Stogdells Stock so much diminished by those killed for the Use of the farm that those [indecipherable] bout. to Supply the labourers.
Ansr. – I don’t know what [indecipherable] Mr. P. has in buying those Pigs.
Quesn.
[Page 88]
Quesn. – Were any of them killed.
Ansr. – I cannot say.
Quesn. – The Goods Deliverd out were paid to the labourers Employed on the farm.
Ansr. – Yes.
Quesn. – And the Stock killed to feed the Workmen.
Ansr. – Yes.
Patrick Boyle Called and Sworn
Quesn. – You had the Management of the Pigs at the Hawkesy.
Ansr. – Not till the 20th March.
Quesn. – What Quantity was there.
Ansr. – I Cannot say.
Quesn. – What No. had you when you went to Goss’s.
Ansr. – About 200 big and little.
Quesn. – Were any Pigs bought and added to the Stock by Mr. Palmer.
Ansr. – Yes. he had Pigs from Mr. Grimes.
Quesn. – They were all fed together were they not.
Ansr. – Yes and no private Marks were on them.
Quesn. – Do you Recollect any poultry or Grain coming from the Hawkesy. to Wallooo.
Ansr. – Several times – but I Cant tell how much or little.
Quesn. – Was any Poultry at Gosss farm when you went there.
Ansr. – There was a flood and the Poultry was brot. To Mr Stogdells.
Quesn. – Was any Acct.. taken of them.
Ansr. – I Suppose Mr. Bennet took the Acct.
Quesn. by Defendt. – Were you with the Waggons, when this Poultry and Grain came down to Walloomooloo.
Ansr. – No.
Quesn. – Then all you know is that the Waggons were loaded and came away from the Hawkesbury.
Ansr. – That’s all.
Thomas Horton – Called and Sworn
Quesn. – You lived with Mr. Stogdell before his death and with Mr. Palmer after.
Ansr. – Yes.
Quesn. – You took care of the Bullocks.
Ansr. – Yes.
Quesn. – You went with those Bullocks frequently too and from the Hawkesbury.
Ansr. – Yes.
Quesn. – Did you ever fetch any Poultry, Grain or other Articles from Hawkesy. to Wallooo prior to the Sale.
Ansr. – Yes! I brought down 12 dozn of fowls all but 1 which died – 20 Bushells of Wheat – this was before the Sale and a few days after Stogdells death by Order of Mr. Palmer.
Quesn.
[Page 89]
Quesn. – What became of those fowls.
Ansr. – The fowls were lodged in the hall, One day some of them broke the windows and got out – they were caught and again put in – the next day they were taken on Board a Ship – sometime after I went again to the Hawkesy before the Sale – I brought Corn and Wheat down at that time to Walloomooloo – to the best of my knowledge about 50 of Corn and Wheat – the other Cart which broke down Contained some Chests and a trunk with Clothes belonging to Mr. Stogdell to be sold at the Sale.
Quesn. – Were any of the fowls you were speaking of made use of in the house or kitchin.
Ansr. – They went on board a Ship.
Quesn. – Were any Goats brot. Down from the Hawkesbury.
Ansr. – Yes.
Quesn. – What Quantity.
Ansr. – I cannot say.
Quesn. – Was any of those Goats killed at Wallooo before the Sale.
Ansr. – Yes there was Several times.
Quesn. – Do you know of a Cow being taken from the rest of the horned Cattle prior to the Sale.
Ansr. – There was a Cow kept back, but whether it was Mr. Stogdells property I don’t know – it was in the Country before Mr. Palmers Arrival.
Quesn. – Do you know of any Inventory being taken of the effects at Wallooo.
Ansr. – I don’t.
Quesn. – Were not the Cattle, Waggons, harness and every other Article and Implement in and about the Premises made Use of after Stogdells death, tho same as they had been in his lifetime.
Ansr. – Yes.
Quesn. – Was any Acct. kept of their labour and any distinction made as to their Services to Mr. Palmers Concerns after Stogdells death and to the time of the Sale.
Ansr. – Not that I know of.
Quesn. – Was not everything made use of without any Reserve.
Ansr. – Yes.
Quesn. Was not Stogdell Continually Improving Wallooo in his lifetime and employing Tradesmen for that purpose.
Ansr. – And a great No. of men Used to come from the Hawkesbury to Wallooo to Work for a Month or Six Weeks at a time.
Quesn. – From any time after Stogdells death to the Sale, was the harness or any other property belonging to Stogdell at Wallooo taken care of and put by or was it used in Common.
Ansr. – It was Used in Common – the same as before.
Quesn. – Did you know of any difference or distinction in Mr. Palmers or Stogdells property from the time of his death to the Sale.
Ansr. -
[Page 90]
Ansr. – No.
Quesn. – Before Stogdell died, were you not in the habit of going Occasionally to and from the Hawkesy. Conveying Goods from Wallooo. and returning back with Grain and Pork for the Consumption of the [indecipherable].
Ansr. – Yes generally about once a fortnight.
Quesn. by Defendt. – Then Mr. Palmer had Stock.
Ansr. – Yes Mr. P. had Sheep which he called his Property, there was One Mare and horse which he called his Property.
Quesn. – After Mr. Stogdells death, were the farms in Cultivation.
Ansr. – Not till after the Sale.
Quesn. – Was none of the ground till’d till after the Sale.
Ansr. – I wont take upon myself to Say – there might be Some – but after the Sale the Men were Sent up to Cultivate it.
Quesn. – Were those Goats killed before or after the Sale.
Ansr. – Some of them were killed before the Sale for the Use of the House.
Quesn. – Do you know of whom the fowls were bought, that you brot. From the Hawkesy.
Ansr. – They were in the Yard at the Hawkesy. on Mr. S.s Premises.
Quesn. – Were they bought after Mr. Stogdells death.
Ansr. – That I wont take upon myself to Say.
Quesn. by the Court – Were any fowls purchased from the time of Mr. Stogdells death to the Sale.
Ansr. – Before I brot. Down those 12 Dozn. There were no fowls purchased.
Quesn. – How many might be left there.
Ansr. – The yard was very full – there might be above 200.
Charles Holton – Called and Sworn.
Quesn. – You lived at the Hawkesy. in Mr. Stogdells Service for a Considerable time before his death.
Ansr. – Yes I did.
Quesn. – You acted in the capacity of a Clerk.
Ansr. – Yes.
Quesn. – Do you Recollect Information arriving there after the Accident happening to Stogdell.
Ans. – I was at the house at the time.
Quesn. – There was a good deal of property in the House and on the premises at the time.
Ansr. – Yes there was a good deal of Property.
Quesn. – Was any Inventory taken of that Property.
Ansr. – Yes! Mr. Palmer took an Inventory of it himself.
Quesn. – Did he leave a Copy of the Inventory with any Person.
Ansr. – Not with me – Mr. Bond only was with him when he took it – I took
An Acct.
[Page 91]
Acct of the stock on the outside.
Quesn. – You kept accts for Mr Stogdell before and after his death and till the sale
Ansr. – Yes Until Mr Bennett took charge
Quesn. – Have you got those Books in your possession.
Ansr. – They were all Delivd home to Mr Palmer in Mr Bennetts presence and were sent down to Sydney.
Here the Plainf interposed a wish to submit to the considern. of the Court the propriety of those Books being produced and examined.
Quesn. by the Court – How long did you continue keeping those Books – Accts after Stogdells death.
Ansr. – Within one day of a month.
Quesn. – You kept acct of what was issued and what was received.
Ansr. – yes I did.
Here the Plainf submits to the Court whether an Admor is not or aught not to be Compelled to Produce Books or Accts. which tend to throw a light on any transactions of the deceased and particularly when in the present case he has retained in his hands for upwards of 2 years all the property and effects without rendering an Acct. until compelled so to do by the Court or making any division or proportion of the Same.
Quesn. – At what time did you take that Acct. of the Stock on the Outside.
Ansr. – I believe it was on the 4th.
Quesn. – What things were inserted in that Inventory.
Ansr. – There were 110 goats bad with the distemper – 72 pigs most of them small – 25 horses – 5 oxen.
Quesn. – Did you take any acct. of those implements of Husbandry – tools, tobacco and other articles that were occasionally delivered to the labourers
Ansr. – I took no inventory of those articles
Quesn. - Did you take any acct. of the fowls.
Ansr. – There was no acct. taken of them, nor were they sold – there was a few over at Goss’s farm – very few.
Quesn. – Do you know of any fowls or grain being sent down to Wallooo. from the time of Stogdells death to the Sale.
Ansr. – I am not certain – but I have a memorandum amongst some papers
of
[Page 92]
of what things I sent down – if any were sent down there is a memorandum.
Quesn. – What No. of Men were Employed at the Hawkesy. after Stogdells death
Ansr.- I can produce a book containing their names
Quesn. – How were these people Subsisted and paid
Ansr. – In goods of various kinds – they had Beef, Pork and Sheeps tails.
Quesn. – Do you know of any seals being put on the effects after Stogdells death, when Mr Palmer Came up or before.
Ansr. – I know of none.
Quesn. – Was everything left [indecipherable] the same after Stogdell died.
Ansr. – Yes. Just the same under Mrs Bonds care.
Quesn. – Do you know of any timber sawn or squared on one of the farms on the creek.
Ansr. – there might be but I do not Recollect.
Quesn. - Were any sawyers employed.
Ansr. - My books will Acct. for them.
Quesn. – Was any distinct acct. kept of the different Expenditures at the Hawkesbury after Stogdells death and prior to the sale.
Ansr. – I made no particular Remarks on whose Acct.
Quesn. – Do you know of any Meat, grain, or other Necessaries sent down from the Hawkesbury occasionally to Wallooo. For the subsistence of the people there before Mr S died.
Ansr. – I don’t recollect if there was any meat - there was grain, I know but I can by referring to my books, ascertain the quantity
Quesn. – Was any Wine, spirits or Porter in the house at the Hawkesy. when Mr Stogdell died
Ansr. – There was some porter but what quantity I cannot say. The water was high in the Cellar and the Bungs were out.
Quesn. – Was any distinct account kept of the articles sent from time to time to Walloomooloo so as to debit Mr Palmer with them.
Ansr. – Yes and they are somewhere amongst the paper Memors.
Quesn. – Did you not conceive that the Concerns at the Concerns at the Hawkesy. were blended together in one general map.
Ansr. – They were all in one Book, until Mr Bennett took charge.
Quesn. – From what you observed of Mr Stogdells attention to his concerns, do you not think he made the most of everything and did you not consider him in a solvent state.
Ansr. – Yes I did.
Quesn. – Did Mr Stogdell act generally as Mr Palmers representative.
Ansr. – As his agent – I saw an Agreement in which he is stated the agent and attorney of John Palmer Esqr.
Quesn. – And you obeyed him as such.
Ansr. – Yes.
Quesn. – What was that agreement about.
Ansr. – A limited time for some sawyers to perform some work.
Quesn.
[Page 93]
Quesn. – was that sawyers work to be done for Wallooo on the Hawkesy.
Ansr. – I can’t say – Owen [indecipherable] was one of the sawyers.
This witness Examinan. Discontinued until the books produced.
Hugh Mc. Donald called and sworn.
Quesn. – At the time Mr Stogdell purchased your farm did he not give you an order on me for £30 of goods at 6 mo. Credit.
Ansr. – Yes
Quesn. – Did you give a note for that sum at 6 months.
Ansr. – I did in favour of Mr Stogdell.
Quesn. – Have you ever paid that Note
Ansr. – No other way than having paid it to Stogdell in Seed Wheat - 40 bushl. of seed Wheat.
Quesn. – Has Mr Palmer ever demanded Payment of that Note from you.
Ansr. – His clerk called and said a note was found in Stogdells papers in Stogdells favour.
Quesn. – At what time did you and Stogdell settle for this note.
Ansr. – About the time that the J. Advocate sat with Capt. McArthur in the Court at Parramatta.
Quesn. – Have you ever had your note up Or any Rect. For the money.
Ansr. – No! I had not.
Quesn. – At the time I told you that Mr Stogdell Requested me to get that Note paid, had you settled with Mr. Stogdell for your Farm Concerns.
Ansr. – No! I had not.
Quesn. by Defendt. – Did any body tell you that the Goods you recd for this £30 were Stogdells goods.
Ansr. – I found fault with receiving the goods, being contrary to my agreement with Mr Stogdell, which was that I was to have them at ready Money price. Mr lord said he knew of no agreement between Stogdell and me – if there had been any between him and me he should know how to act And to the best of my Recollection Mr Lord said they were Stogdells goods.
James Oran Called and sworn.
Quesn. by the Court – you presented a note for £30 to Hugh McDonald.
Ansr. – Yes.
Quesn. – And you conceived that Note to be a part of the effects of Mr Stogdell.
Ansr. – Yes and he said he had paid to Mr Stogdell to that amount and he believed he would bring him in something in debt – I told him it was necessary to prepare his Accts.
Quesn.
[Page 94]
Quesn. – And you consider that £30 due to the estate until it is proved to the contrary.
Ansr. – I do.
The Instrument from John Stogdell to Robert Campbell Esq for securing £ produced at the Instance of the Plainf – who requested to have a Copy of the same and to accompany the Minutes of the Court – The Court grant this request.
Michael Robinson called and sworn. Is asked to speak to this paper, as to what [indecipherable] at the J. Advocates office respecting it Saith"
That Mr Campbell and Mr Palmer came together to the Office and desired to have that Instrument delivered up and that this deponent at the time gave up the Paper and that Mr. Campbell and Mr. Palmer Received it from him and that Mr. Campbell remarked at that time he was satisfied and that this was in the lifetime of Mr. Stogdell.
Quesn. by Lord – Did Mr. Palmer see that paper at the time.
Ansr. – I delivered it to them both and I believe Mr. Palmer received it and took it away with him – by which I understood Mr. Palmer had satisfied Mr. Campbell but nothing further passed.
S. Lord States to the Court, that in regard to the Debt Claimed by Govt. there is a very considerable ballance due from Govt. to the Estate for the use of the Schooner &c What Mr Palmer aught to have Enforced and brot. to the Credit.
At 2 O Clock the Court adjourned to tomorrow morning at Ten A.M.
("Signed")
Richd. Atkins.
Jams. Mileham.
Wm. Moore.
Augt. 7th 1803
The Court proceed
In this Cause
Mr Bennett called and sworn is asked by the Plainf.
Quesn. 1st. – You took possession of the House at Hawkesy. some short time after Stogdells death.
Ansr. – About a month.
Quesn. 2d. - Mr Palmer Desired you take an Inventory of all the effects then on the Premises.
Ansr.
[Page 95]
Ansr. - Mr Palmer took an Inventory of the Effects in the House and I Copied it.
Quesn. – When was the inventory taken.
Ansr. – The beginning of April.
Quesn. – Were the things that were thus inventoried Sealed or did they appear to have been carefully put together prior to the inventory being taken.
Ansr. – They were not sealed – the things that were particularly taken Acct. were the furniture in the respective rooms and some odd matters in the store room.
Quesn. – Did you see or know of any other inventory being taken prior to that.
Ansr. – I do not.
Quesn. – Where is that inventory.
Ansr. – In Mr Palmer’s possession.
The Plainf. requires the original inventory to be produced.
Quesn. – Did you take an inventory of every Individual Article, the Instruments of husbandry etc.
Ansr. – I only took an acct of what was in the house.
Quesn. – Do you know of any inventory being taken at Wallooo of the effects there.
Ansr. – I do not.
Quesn. – Were you not in the habit of sending down grain, pigs, poultry from the Hawkesy. to Wallooo before the Sale.
Ansr. – I do not recollect pigs or poultry – but there was some grain.
Quesn. – Was any other articles sent down.
Ansr. – Not to my recollection.
Quesn – What articles were chiefly sent in the Waggons and Boats to Wallooo. from the Hawkesy.
Ansr. – The grain was sent down in the boat.
Quesn. – There is a No. of men Employd. under you at the Hawkesy.
Ansr. – Yes.
Quesn. - What did their employ consist of.
Ansr. – Threshing – stock keeping and various Employments.
Quesn. – How were they paid for their labour and on what articles subsisted.
Ansr. – They were paid at the rate of 20/ per week including the value the ration.
Quesn. – Were they fed from the general stock.
Ansr. – Yes! Before I went up they 20/ per week and their Ration then we began to reform.
Quesn. – What No. had you there Chiefly.
Ansr. – About 40 or 50.
Quesn. – Was it necessary to employ that No. of men for the purpose of
taking
[Page 96]
taking Care of the Farm and property on the Premises.
Ansr. – I considered that there were more people there at the time of Stogdells Death than Necessary – some of whom were discharged by Mr Palmer.
Quesn. – Was any Ground Cultivated Or any Men Employed Cutting up Weeds before the Sale – Or hoeing the Ground.
Ansr. – There were [indecipherable] People Threshing.
Quesn. – Do you know of any Inventory being taken of the Goats and other Stock.
Ansr. – Most of the live Stock was Sent down and was not under my Charge.
Quesn. – Was any Distinct Acct. kept of the Pigs belonging to Mr. Palmer and those of Stogdell, as they were from time to time killed and Consumed.
Ansr. – There was not – I [indecipherable] 197 - but I knew of no Distinction between Mr Palmers and Stogdells.
Quesn. – Did you receive any Directions to Keep any Account of the Ordinary Articles of Consumption
Ansr. – Not that I Recollect.
Quesn. – Was any property paid away to labouring people that belonged to Stogdell whilst you was there – Wheat Corn or Tobacco.
Ansr. – Not that I Recollect.
Quesn. – Was there any Timber sawn or Squared on a farm near the Creek.
Ansr. – There was some timber Sawn Opposite Cornwall’s Farm but I do not know what quantity.
Quesn. – Do you know for what purpose it was professing and what became of it.
Ansr. – It was not Used there part of it was Sent to Sydney.
Quesn. – How long after you came to the Hawkesy. did Bond Continue to reside there.
Ansr. – About a Month.
Quesn. – What was he generally employed in.
Ansr. – In attending the fowls and other Domestic Duties.
Quesn. – As you took possession of the farms and saw the immense quantity of Grain on the Premises as well as Other Articles - Do you not think that if they had been Sold to Settlers and Others On Approved Security for a Credit given that they would have fetched Considerably more.
Ansr. – I did not Consider myself a competent Judge.
Quesn. - Immediately after the Sales at Sydney did you receive any Instructions Respecting the Cultivating of the farm at Hawkesbury.
Ansr. – Yes I did.
Quesn. – From whom.
Ansr. – From Mr. Palmer.
Quesn. - You have Remained there until very lately, Conducting the Concerns at that farm.
Ansr – Yes.
Quesn. – Who Accounted with you for your Services there.
Ansr. – Mr. Palmer.
Quesn. – You kept an Acct of what Articles were sent down from the Hawkesbury to Walloomooloo.
Ansr.
[Page 97]
Ansr. – I rendered a Monthly Acct. to Mr Palmer.
Quesn. – Were those Pigs that were purchased of Mr. Grimes fed with the rest of the Stock.
Ansr. – I know no Distinction between Mr. Palmers and Stogdells property.
Quesn. – Was any Acct. kept of the Grain and other things that this Stock was fed with.
Ansr. – No Distinct Acct.
Quesn. – Was the Grain Measured that was on the Premises.
Ansr – The Corn was in Bulk – there was no Wheat.
Quesn. – What No. of Poultry was there when you Arrived.
Ansr. – There was a great quantity but they were Wild and roosted about from 100 to 150 or there might be more.
Quesn. – You know of none of those fowls being sent down to Sydney.
Ansr. – I do not.
Quesn. – Can you State to the court the time when those fowls were sent to Captain Stewart.
Ansr. – I Cannot Speak to the time – I rather think they were purchased before.
Quesn. – How were they Sent.
Ansr. – I believe by the Cart.
Quesn. – After the Sale whilst you were Sowing the Hawkesy. farms , Did you receive any Seed Wheat, that came from Toongabbee farm, or do you know of any Seed Wheat that came from thence and how was it Disposed of.
Ansr – I do not Recollect - I had not the Charge of putting in the Seed Wheat – there might be Wheat brot. without my knowledge.
Quesn. – Did you at the time Mr Campbell was making these Purchases at the Sale Conceive they were making for himself.
Ansr. – I had no Reason to think Otherwise.
Quesn. – Did you ever hear Mr. Palmer hint anything of the kind to Mr. Campbell or anything of that kind pass between them.
Ansr. – I do not Recollect any thing of the kind.
Quesn. – Did you hear that any Settlers would have given a higher Sum if Credit and time had been given them.
Ansr. – Not till some months Afterwards, and then only as Common talk amongst the Common People.
Quesn. – Do you Recollect receiving Orders to Cultivate Pearces farm.
Ansr. – Yes.
Quesn. – From whom did you Receive them.
Ansr. – Mr. Palmer.
Quesn. – Was any Buildings – Frames or Outhouses pulled down and Removed from these Premises.
Ansr. – They were not pulled – I believe some of the paling was brot. Away.
Quesn.
[Page 98]
Quesn. – When did you Receive these Directions.
Ansr. – About the end of June following Stogdells Death.
Quesn. – Had that farm been Considered as Stogdell and was it in his possession at his Death.
Ansr. – I Considered it in his Possession, but there was something to be Settled with Pearces Adminr.
Quesn. – Had any Person Administered at that time to Pearces Effects.
Ansr. – Not to my knowledge.
Quesn. – Was Henry Murray Employed at the Hawkesbury at that time.
Ansr. – He was employed in the boats.
Quesn. – When did you first hear that Murray intended to put in a claim to Pearces Effects.
Ansr. – I cannot speak to the time exactly – but think it was about the beginning of July.
Quesn. by Defendt. – You say there was 12 Dozn. of fowls bout. with Rum and sent for Capn. Stewart.
Ansr. – I cannot Say they were the Identical fowls that were bout. for Capn. Stewart. but there was 10 or 12 Dozn Bot. and sent Down And it was a little before or after the Sale.
Quesn. – Then all the Pigs that belonged to Stogdell which had not been killed were sold at the Sale.
Ansr. – To the best of my knowledge.
Quesn. – Mr Palmer Directed everything that belonged to Stogdell to be Sold.
Ansr – He did and was very particular in his Directions in that respect, some things having been Omitted, he Directed them to be Sent down to Wallooo. to be Sold.
Quesn. – Was any fowls purchased by Mr. Palmer previous to the Sale at the Hawkesbury.
Ansr – By Bond for Mr. Palmers Use, from 2 Dozn. to 2 ½ Dozn.
At 10 Minutes past 1 The Court Adjourned
To Monday next at 10 O Clock.
("signed")
Richd Atkins.
Wm. Moore.
Jams. Mileham.
April 11th 1803
The Court Sat.
Adjournd till Tomorrow Morn. At 10 O Clock.
April 12 1803
The Court Sat
Lord v Palmer Esq
Adminr. Etc.
At ½ past 12 the Court Adjournd. to 10 O Clock on Thursday
14th April
[Page 99]
14th April 1803
The Court Sat
On an Objectd Item that the Plaintf Contends was not given Credit to Stogdells Estate Viz. 3 Bills for £157.7.6.
James Williamson Esq. Called and Sworn - Whose Testimony stood over for the Production of his Books.
Quesn. by the Court. – What Sum of money Did you stand Indebted to Mr Palmer at the time of his Departure for England.
Ansr. – By these Books it appears I owed Mr Palmer £905.17.3.
Quesn. by Defendt. – Did you Receive any Money by an Order on Mr Marcott.
Ansr - £6.
Quesn. – Did you receive any Sheep on the 21th Octr. 1796.
Ansr. – 2 Ewe lambs and a wether – which I purchased of Mr Stogdell at £3 each making £9. And I Conceived them to be Mr. Palmers Sheep.
Quesn. – Did you receive a Norfolk Island Bill.
Ansr. – Yes. One of £16 (No 35).
Quesn. – Did you Receive any Cape Madeira from the Cape on Acct. of Mr. Palmer by Captn. Kent.
Ansr. – 59 Gallons - 100 lb Butter - 157 lb Soap – 54lb Candles.
Quesn. – Please to State the value.
Ansr. - £22.9.6.
Quesn. – Were those Wheat Bills Recd by you On Mr. Palmers Acct.
Ansr. – Yes! £152.7.6 the Amount – March 12th 1799 I recd. from Stogdell £52.10.00, And April 5th £60:10:0 and June 10th £39.7.6 making the Sum £152.7.6.
Quesn. – Had you not a Bill from Mr Palmer of £636.10.0 previous to his leaving this Country in 1796.
Ansr. – I had.
Quesn. – Is that Acct. (Produced) just and true.
Ansr. – All but £10 which I Charge for Expenses attending the Sale of the Rum.
Quesn – What is Mr Palmers proportion of that Rum.
Ansr. - £356.
Quesn. – How have you Accounted with Stogdell as Mr Palmers Agent for those Sums.
Ansr. – I never Accounted with Stogdell at all.
By the books produced Mr. Williamson Stated he had paid to John Stogdell £1193.19.10 on Mr Palmers Acct. there was an Error of £8.12.0 which Accts. for the Difference of the Sum.
Quesn. by the Court – In your transaction with Stogdell after the Departure of Mr.
Palmer
[Page 100]
Palmer from this Colony – were your concerns on Acct. of Mr. Palmer Or with John Stogdell, individually.
Ansr. – On Acct. of Mr. Palmer and with Stogdell as his Agent only.
Quesn. – From the time you began your transactions with Stogdell to his Death, did you Receive Sundry bills from Stogdell, which have been carried to due Credit.
Ansr. – Yes.
Here the Court wished to know in what part of the Accts. Credit is given for £152.7.6 being the Amt. of the 3 Bills which Plf. Contends is not Accounted for with Stogdells Estate.
The Court with the Instance of the Plainf direct a Copy of Mr Williamsons Acct. Oct. & Cred. with John Palmer Esq (as rendered by the Plainf in Mr W.’s Absence) may be Annexed to the Proceedgs and furnished by the Plainf.
Charles Horton – Called and Sworn.
His evidence stood over for the production of some Books and Papers.
Quesn. – Refer to your Memorm. As to what quantity of fowls or Grain was sent down from the Hawkesy to Wallooo. prior to the Sale.
The Witness on Referring to the books for a Particular Memorandum Book missed one with a Spangled Cover, which he said he Saw the last time in Mr Crossleys hands in the Commissarys Office.
Mr Bennett – Called and Sworn, is asked by the Court.
Quesn. – Did you see a Small Book with a Spangled Cover in Mr Crossleys hands in the Commissys office belonging to Charles Horton.
Ansr. – No. I did not – I saw Horton with a Book of this Description the Morning he was Intoxicated.
Charles Horton – asked if Mr Crossley made any Remarks as to that book in question.
Ansr. – Says that Mr Crossley put it on One Side and said it was of no Consequence.
The Book produced found by Mr Bennett in Hortons Hammock.
Horton’s Examination Continued – Refers to his Book. By which it appears that on the 6th March 1801 there were sent down to Walloomooloo Viz.
6lb Raisins
[Page 101]
6 March 20 Bushl. Maize
27 Do 20 Do
3 April 20 Do
12th Do 40 Do
March 27 10 Do Cape Barley.
6th 24 Do Wheat.
27 30 Do
April 3d 20 Do
12th 40 Do
6lb Raisins - 2 Dozn fowls – 14 Ducks and Drakes – 1 brace Pocket Pistols – 6 Pails – 1 Canvas bag – 1 basket of Onions – a Wheel belonging to the Bolting Machine – 50 Books – 1 Small parcel of red Paint – 1 box with Sundry Papers etc.
8th March – 2 Pieces of British Nankeen.
10th Do – 99 Goats, big and Small – 1 Bullock - 89 Sheep, big and Small.
12th April – 1 Cask of tallow – 2 Bushl. Pease.
Quesn. by Plainf – After Mr. Palmer’s Arrival in this Country and before Stogdells Death, what Articles were Occasionally Sent down from the Hawkesbury to Wallooo.
On the 18th Novr. 1800 – 12 fowls and 1 Turkey Cock
28th Do. – 6 Bottles [indecipherable]
14th Decemr. – 2 Galls Spirits – 1 Hat – 2lb Plumbs
1801 – 19th Jany. – 20lb loaf sugar – 1 lb Tea.
23rd – 2lb Tea – 20lb Sugar
14th Feby. – 1 Yd of Manchester Striped Nankeen
Grain.
11th Novr. 1800 – 10 Bushl Cape Barley.
18th Do. – 5 Ditto.
11th Novr. – 10 Bushl Maize
18th Do. – 5 Do.
1801 20th Feby. – 2 Bushls Do
28th Do. – 4 Ditto.
20th Feby – 10 Bush Wheat
28th Do. – 30 Do.
Quesn. – You said it would appear on your Books if any and What No. of Sawyers were Employed.
Ansr. – On the 6 March 1801 – 2 Men employed Sawing Cedar and Continued about one month at the Hawkesy.
Quesn. – What became of that Cedar.
Ansr. – I don’t know.
Quesn. – How many Men would it have Required to take Care of the Stock and general Effects after Stogdells Death, supposing that had been their Sole Employ.
Ansr. – It might take about a Dozen People.
Quesn. by the Defendt. – Did you take any Inventory of the Effects on the outside of the House after Stogdells Death – Such as the Stock, Utensils, etc.
Ansr. – Of nothing but the Stock.
Quesn. – Did not Mr. Palmer direct you to take an Acct. of the Whole of the Stock.
Ansr. – Yes! As I did.
Quesn.
[Page 102]
Quesn. – Were you there at the time of the Sale.
Ansr. – Yes.
Quesn. – Was it not Mr. Palmers Instructions that everything belonging to Stogdell should be Sold.
Ansr. – Yes! it was.
Quesn. – In Consequence of those Instructions – as far as Mr. Palmer knew so you believe everything was Sold.
Ansr. – Yes! everything.
At half past 2 the Court Adjourned to 12 O Clock tomorrow at Noon.
("Signed")
Richd. Atkins.
Wm. Moore.
April 16th 1803
The Court Sat.
Lord – Palmer Esq. The Defendt. Addressed the Court from a Written Paper (No ) after which he Calls,
William Organ Who being Sworn is asked by Defendt.
Quesn. – Was you Servant to Mr. Palmer at the time he left this Country for England.
Ansr. – No! I was not – I have been in Mr. Palmers Service Six Years.
Quesn. – In what Capacity.
Ansr. – Looking after his Sheep.
Quesn. – Who had the Direction or Disposal of any part of those Sheep in Mr. Palmers Absence.
Ansr. – Mr. Stogdell – he was my Master And I obeyed his Directions.
Quesn. – You are Speaking of Mr. Palmers Sheep.
Ansr. – The Sheep were Mr. Palmers.
Quesn. – Do you know of any Sheep belonging to Mr. Palmer that were disposed of by Mr. Stogdell.
Ansr. – Yes.
Quesn.- Do you know of any Sold to Richd. Cheers and how many.
Ansr. – In the 1st place he had £100 Worth by Weight – Goats and Sheep, in the last lot he had 21 Sheep for £100.
Quesn. – Were the Goats Mr. Palmers.
Ansr. – Yes.
Quesn.- Was any of the Sheep Sold to Major Foveaux.
Ansr. – Major Foveaux had a Score of fat Sheep at £5 a piece. Mr Stogdell killed about 20, which were sent about the Camp.
[Page 103]
Quesn. – Was any sent on board Ship.
Ansr. – There was some sent to Capt Raven but I don’t know the quantity – 2 Ewes Mr. Moore had.
Quesn. by the Plainf. – Who Employed you to look after the Sheep.
Ansr. – Mr. Stogdell.
Quesn. – How did you know they were Mr. Palmers Sheep.
Ansr. – By what Mr. Stogdell told me – he said he had only One Ewe.
Quesn. – Do you know any otherwise than by what Mr. S. told you that they were Mr. Palmers Sheep.
Ansr. – Guy kept Acct. of them for Mr. Palmer.
Quesn. – Do you know of any Sheep being sold on board Ship for Spirits, Tea, Sugar, etc.
Ansr. – I don’t know that there was any.
Quesn. – How did you know that those 20 Sheep were sent about the Camp and who were they sent to.
Ansr. – By Mr. Stogdells Servants being sent to carry them about.
Quesn. – When you took possession of those Sheep how many of them was there.
Ansr. – As near as I can remember about 300 at the Settlement and this place together.
Quesn. – How many were there when Mr. Palmer arrived in this Country.
Ansr. – I Cannot take upon myself to Say.
Quesn. – Will you take upon yourself to Say that none of the Sheep you are Speaking of were Mr. Stogdells own Property.
Ansr. – Yes! except as I have before Stated.
Quesn. by the Court. – Give an Acct. of the Goats sent from the Hawkesy. and if any were killed before the Sale And for what Purpose.
Ansr. – There was none killed before the Sale, for Mr. Palmers Use they all died except 55, which were Sold at the Sale.
Quesn. – How many Goats came from the Hawkesbury.
Ansr. – I cannot Say.
Quesn. – Then how can you Say only 53 were Sold at the Sale when 61 were Sold.
Ansr. – I might make a mistake in the Quantity – I know they were all Sold at the Sale.
Quesn. – Did you take care of and look after all those Goats every day after they came from the Hawkesy.
Ansr. – There was another Man looked after them – One Sam – but I brot. the Goats from the Hawkesy and all that did not die were Sold at the Sale – none were killed till after the Sale.
Quesn. – As you counted the Goats in and out every Night how comes it that you cant ascertain the No. there was there before the Sale.
Ansr. – I have forgot.
Quesn. – Was any Acct. kept daily of what died.
[Page 104]
Ansr. – There was not.
Quesn. – Immediately after Mr. Stogdells Death was there any Inventory taken Or Account kept of those Goats
Ansr. – There was no Acct. kept of the Goats at all.
Quesn. – Do you know of any Inventory being taken of the general Effects after Mr. Stogdells Death.
Ansr. – No! I know of none.
Richard Cheer – Called and Sworn,
Quesn. by Defendt. – What Sheep have you Purchased of Stogdell, during the absence of Mr. Palmer.
Ansr. – The first Lot was 16 Sheep and 4 Goats for £100.
Quesn. – Did you ever before or after, give Stogdell £100 for any Lot of Sheep.
Ansr. – I had some afterwards, but cannot Speak to the Amount – it might be more or less.
Quesn. by the Plainf. – Whose Sheep did you Consider them to be.
Ansr. – I Supposed them to be Stogdells – I know no otherwise.
Quesn. – In what light Or Capacity did you Consider Stogdell to Act, during Mr. Palmers Absence from the Territory.
[Note in Margin] 18th April 1803
Ansr. I Considered him in some light as Acting for Mr. Palmer – Mr. Stogdell told me he had made Considerable Alterations at Wallooo. and was anxious that Mr. Palmer should come out – when he would go and live at the Hawkesbury.
Quesn. – Were not your Dealings with him generally as Mr. Palmers Agent or Representative.
Ansr. – I thought I was dealing with Mr. Stogdell.
Quesn. – Was your Opinion of Mr. Stogdell, that he was in good Circumstances and going on Well.
Ansr. – Yes.
Quesn. – And you Supposed when he said he should wish to live at the Hawkesbury, that he meant to Retire upon his own Estate.
Ansr. – Yes.
The Pleadings here Closed.
The Plainf. Requests the Indulgence of the Court till Thursday Morng. To prepare his final Reply.
The Court grant it and for that purpose adjourn to Thursday the 27th Inst. At 10.
("Signed")
Rich Atkins I.A.
Wm. Moore.
Jams. Mileham
21st April
[Page 105]
21st April 1803
The Court Sat.
Lord v Palmer Esq. Admorr., etc
A Paper Signed by Simeon Lord , replicatory to the Defence of Defendt. And No. 8 was read to the Court and the Plainf. Requested it might be filed of Record.
Adjourned to Monday Morning at 10.
("Signed")
Richd. Atkins
Wm. Moore
Jams. Mileham
June 27th. 1803
The Court Sat.
The Court being Cleared to Deliberate on the Verdict.
Adjourned till Tomorrow Morning at 12 O Clock.
July 4th 1803.
At 10 O Clock the Court Sat and having Cleared to Deliberate And being Re Opened.
Verdict for the Plainf. With full Sum of £306.19.3 with Costs.
Notice of Appeal by the Defendant.
("Signed")
Richd. Atkins
Wm. Moore.
Jams. Mileham.
[Page 106]
Authentic Copies of certain papers, relative to the Administration of the late John Stogdells Affairs, etc. Lord v Palmer.
(No 1.) We whose names are Subscribed having Considerable Claims on the Credits and Effects of the late John Stogdell, Deceased, Request you to be good enough to furnish us with an attested Copy (at our Expenses) of the letter of Attorney, under which the Said John Stogdell conducted the Affairs and became the Representative of John Palmer Esq. in his absence from this Territory
We are etc,
To John Palmer Esq
Admr of the late Mr John Stogdell.
("Signed")
William Balmain.
S. Lord for Meakin
Do. For himself.
Thos. Smyth.
Sarah Cooley.
Jams. Bloodsworth
Matt by his X mark Kearnes
John Fleming.
(No 2.) Sydney May 15th 1801
Dear Sir
I do not feel myself at liberty to give up a Copy of my letter of Attorney to the late John Stogdell, unless directed to do so by Authority. Which you will, if you think necessary, communicate to the Creditors that have made the Request with you.
I am , etc
("Signed") John Palmer.
Wm. Balmain Esqr.
(No 3.) To His Excellency Governor King, etc, etc, etc
We whose Names are here under Subscribed, having Considerable Claims on the Concerns of the late John Stogdell, Respectfully beg leave to address your Excellency (the Civil Court not being Sitting) humbly to Request you to take into Consideration, the peculiar Circumstances under which we are immediately Interested.
On the Departure of John Palmer Esqr. from this Country in the Year 1796 he left John Stogdell his Agent with full power to manage his Affairs in his absence and the Authority which John Stogdell exercised left no room for the Public to doubt, but that he was the Representative of Mr. Palmer. Under this Idea we were induced to give Stogdell Credit to a large Amount, Supposing what we still think ourselves justified in, insisting on. That all the property of Mr. Palmer in this Territory, was Answerable for the Debts, that Stogdell might Contract, either in preserving or Improving that Property.
That
[Page 107]
That with a View to Ascertain the extent of the Power inserted in Stogdell under the letter of Attorney, given to him by Mr. Palmer and under which he acted in his Absence, We applied to Mr. Palmer, requesting to have an Attested Copy of the Instrument, but that Gentleman has declined producing it, until, as he Observes, he is called on to do so by Authority.
That Mr. Palmer, as Administrator of Mr. Stogdell, has advertised Farms – Grain, etc, for Sale for Monday the 18th Inst. And as from the present State of the Colony and other Circumstances, we Conceive it a very disadvantageous to put up Articles of such Magnitude to Public Sale, particularly under such Restrictions as are Contained in the third Condition of Sale – We respectfully hope your Excellency will Condescend to advise and assist us As in your Excellencys Wisdom shall seem meet.
We are, etc,
S. Lord
S. Lord for Meakin
Thos. Smyth
Wm. Jamisson
Jams. Bloodsworth
Thos his X mark Whittle
Matt his X mark Kearnie
John Flemming
(No 4.) NB. In Answer to this His Excellency Observed "That as it was probable the Business would come before him "Officially, he would, until then, decline taking any Steps what "ever." In Consequence of this, His Excellencys Message, the following Protest was drawn Up and Sent to the Judge Advocate.
We whose Names are hereunto Subscribed, Claim as its on the late Jno. Stogdell, Credits and Effects – Do Hereby Protest again any Sale being made of the said Effects, or any part of them at present, by Jno. Palmer Esqr. Administrator, On Account of the Reasons in a Paper hereunto annexed.
Dated this 18th day of May 1801.
To Richd. Atkins Esq.
Judge Advocate.
("Signed")
Wm. Balmain.
S. Lord.
S. Lord for
Jams. Bloodsworth
Thos. Whittle
Thos. Smyth
Wm. Jamisson.
Recd the 18th May 1801 at ½ past 11 A.M.
("Signed") Richd. Atkins J.A.
[Page 108]
No 5)
Reasons why we think the Sale of Stogdells Effects, at this Time will be injurious to the Claimants.
1st Because the present State of the Colony renders it almost impossible for purchasers to be found, who can engage in such Considerable Concerns, particularly at the time limited for the Payment in the third Condition of Sale.
2nd Because the Money Claimed by Mr Campbell for which this property now Advertised for Sale is Assigned over, is not due till August next.
3rd Because there is a very Considerable Quantity of Grain in Stacks etc at the Hawkesbury, the Amount of which cannot be Ascertained, And of Course it must be Sold to a very great Disadvantage, even if there was a ready Market for the Articles.
4th Because in a little time this Grain might be usefull to Government and Received into the Store at a fair Price, which would go a great way in paying Mr Campbell’s Claim.
5th Because if Mr Palmer instead of Confining the Purchasers to the payment of their Money in One Month (after having made the Deposit of 25 per Cent) was to extend to 3,4.5 or 6 as circumstances might admit of, it might be an Inducement to some of the Creditors as well as other Individuals to purchase.
6th Because Mr Palmer had not according to his Promise to the Creditors and as a Creditor himself Delivered in a Statement of his Claim on Stogdell, Nor has he produced the letter of Attorney under which Stogdell Acted for Mr Palmer in his absence from this Country.
No 6)
To be Sold by Auction
At the Commissary’s Office
On Monday May 10th and following Days in Separate Lots
The Undermentioned Farms and Lands with Tenements and Barns thereon; likewise will be Sold, Horses, Cattle, Sheep, Goats, Pigs, Wheat, Maize, Barley and other Grain, late in the Possession of John Stogdell Deceased
[Table not transcribed]
[Page 109]
[Table not transcribed.]
Three Days after will be sold by Auction at the Hawkesbury, The Household Furniture; Consisting of Bedhead, Bed Bedding, Tables, Chairs, Linen Glass and a Variety of other Articles.
And three days after will be Sold by Auction at Walloomooloo, The Wearing Apparel etc The Property of the late John Stogdell.
The Sale to begin at Ten O’clock each Morning, precisely.
Conditions of Sale
1st The highest Bidder to be the Purchaser, and if any Dispute arise, between 2 or more bidders, the Reversion to be put up again and Resold.
2nd No Person to advance less than one shilling in every pound at each bidding.
3rd The Purchaser shall pay down Immediately a Deposit of 25 per Cent in part of the Purchase Money and Sign an Agreement for Payment of the remainder within One Month of the Date hereof.
4th The Purchaser shall have a proper Assignment of the Reversion (at his own Expense) on Payment of the Remainder of the Purchase Money, agreeable to the third Condition. And Lastly If the Purchaser shall neglect or fail to make good and Complete his Purchase by the time above limited or shall not comply with the above Conditions the Deposit money shall be forfeited, the Reversion Resold and the Deficiency (if any) together with all Charges attending the Same , shall be paid by the Defaulter, at this present Sale.
NB The Wheat will be Sold in Stacks and the Maize by Measure at the Hawkesbury on the Same Day as the Household Furniture Disposed of there.
Sydney 16th May 1801
Gentlemen
I Cannot think, but it would be to the Disadvantage of those Interested to delay the Sale of the Effects of the late John Stogdell Deceased part of the Effects are of a perishable Nature.
I Certainly shall proceed in the disposal of the Effects and distribute the same According to this Administration, for the benefit of the Concern And that without any delay on my Part.
I am etc
(signed) John Palmer
Wm. Balmain Esqr. etc, etc
[Page 110]
The Estate of John Stogdell (Deceasd) in Acct. with the Adminisr John Palmer Esqr. 1801
[Accounts not transcribed.]
[Page 111]
[Accounts not transcribed.]
[Page 112]
[Accounts not transcribed.]
This Indenture made at Sydney in the County of Cumberland in the Territory of New South Wales this 19th Day of September In the Year of Our Lord One Thousand Seven Hundred and Ninety Six By and Between John Palmer Esqr. Of Walloomooloo in the said County on the One part and Two Mr John Stogdell residing at Walloomooloo in the said County of the Other part, in Manner and Form following, that is to Say. The said John Palmer Esqr. Agrees and Engages to pay to the Said Mr Jn. Stogdell the Sum of Forty Pounds per Annum for so long time as he shall Remain in the Superintendence and Charge of his the said John Palmer’s Concerns in New South Wales.
2nd The said John Palmer further agrees to allow the said John Stogdell the sum of Ten Pounds per Centum in the Nett proceeds of all Articles of Merchandise left by him in his Hands at Walloomooloo for Sale.
3rd The said John Palmer further Authorizes the said John Stogdell to dispose of at his Direction all the Wether Sheep which are now on his Farms and which may be during the term of this Engagement, allowing the said John Stogdell One half of the Nett Proceeds from the Sale thereof.
4th The said John Palmer further agrees to allow the said John Stogdell One half of the Nett Proceeds arising from the Sale of Hogs, upon the Farms which now are or may be hereafter.
5th The said John Palmer further agrees to allow the said John Stogdell One half of the Nett proceeds arising from the Sale of all such Grain which now is growing
or may
[Page 113]
or may hereafter grow upon the said Respective Farms of the said John Palmer during the term of this Engagement.
6th It is further agreed by the said John Palmer that the said John Stogdell shall be allowed One third of the Nett proceeds of all such Articles of Merchandize as the said John Palmer may find it Convenient to Send to New South Wales for Sale from time to time.
The said John Stogdell hereby engages in Consideration of the Advantages which will Accrue to the said John Stogdell from the performance of the Foregoing Articles, well and truly to perform the Duties of Steward to the said John Palmer, during his Absence Or until he shall Receive a Notification from him, that this Engagement is to Cease, rendering and Paying a strict and careful attention to his Interests, keeping a Regular and faithfull Account of all Transactions pecuniary and otherwise which Regard the Same. And Acting for the said John Palmer in such Manner During his Absence, as far as his knowledge and Abilities extend, as the said John Palmer would have done had he been personally present.
And to the Due performance of these Articles the said John Palmer binds himself, his Heirs and Assigns to the said John Stogdell in the Sum of Five Hundred Pounds of lawful Money of Great Britain and the said John Stogdell binds himself, his Heirs and Assigns to the said John Palmer, his Heirs and Assigns in the Sum of Five Hundred Pounds of lawful Money of Great Britain to be Recovered and paid by these Presents.
As Witness Whereof the Parties to these Presents, their Hands and Seals have Set the Day and Year first above Written.
("signed") John Palmer L.S.
John Stogdell L.S.
Signed and Sealed (where no Stamps are Used Or Can Be had) in the presence of
("signed") David Collins
John Levingston
Know all Men by these Presents, That I John Palmer, His Majesty’s Commissary in the Territory of New South Wales Have Constituted Made and Appointed and By These Presents, do Constitute, Make and Appoint my Friend Mr John Stogdell of New South Wales aforesaid, my True and lawful Attorney for me and in my Name and Stead and to my Use, to Ask, Demand, Sue for, Levy, Recover and Receive, all such Sum and Sums of Money, Debts, Rents, Goods, Wares, Dues, Accounts and other Demands whatsoever, which are and shall be due owing, payable and belonging to me or Obtained
from
[Page 114]
from me any Manner of Ways or Means whatsoever, by any Person or Persons whatsoever giving and Granting unto my said Attorney by these presents my lawfull and whole Power Strength and Authority in and about the Remedies to have, use and take all lawfull Ways and Means in my Name for the Recovery thereof and upon the Receipt of any such Debts, Dues or Sums of Money aforesaid Acquittance or other Sufficient Discharges for me and in my Name to make Seal and Deliver and generally all and every other Act and Acts, thing and things, Device or Devices in the law whatsoever needful and necessary to be done in about the Premises for me and in my Name, to do, execute and perform, as fully, largely and amply to all Intents and Purposes as I myself might or could do if personally present or if the Matter Required more Special Authority, than is herein given and Attorneys One or More under him for the purpose aforesaid to make and Constitute and again at pleasure to Revoke, Ratifying, allowing and holding for firm and effectual all and whatsoever my said Attorney Or his Substitutes shall lawfully do in and about the Premises by Virtue hereof.
In Witness whereof I have hereunto Set my Hand and Seal at Sydney in New South Wales aforesaid the Twelfth day of September in the Year of our lord One Thousand Seven Hundred and Ninety Six.
("signed") John Palmer
Signed Sealed and Delivered (where no Stamps are Used Or to be had) in the Presence of
("signed") W. Balmain
Jams. Williamson
No 1)
To the Honorable Court of Civil Judicature now Sitting
Simeon Lord as Attorney of Hugh Machin prays this Honorable Court grant a Rule for John Palmer Esqr. the Adminr. of John Stogdell Deceased to appear in Court to show 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.
("signed") Simeon Lord
Exhibited to the Civil Court 10th August 1802.
("signed") Richd. Atkins J. A.
No 2)
With Respect to the Day Mentioned in the Bond that is a nominal thing Because until the Administrator is duly Summoned to produce his Accounts at a Day Preferred by the Court And he makes Default no blame could be imputed for a Neglect of Exhibiting An Account and of that Neglect, the Court only are proper judges.
In the present
[Page 115]
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 [indecipherable] and in Advance for the Estate.
("Signed") John Palmer
Exhibited before the Civil Court the 11th August 1802.
("Signed") Richd. Atkins J.A.
No. 3)
Simeon Lord submitted 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. Pr as Administrator in Disposing of the Effects of the Deceased, and a period of 18 Months had elapsed, and no dividend had been made – but rather whether he was not, under these Circumstance, entitled to his Money from the Adminisr.
Whether, as Mr Pr. Had 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.
Exhibited before the Civil Court the 11th August 1802.
No. 4) New South Wales
An Inventory of all and Singular the Goods, Chattles, Debts and Effects of John Stogdell Deceased, who died Intestate came to the hands of John Palmer Esquire Administrator of all and Singular the Estate, Debts and Effects of the said John Stogdell, that is to say
[Accounts not transcribed]
[Page 116]
[Accounts not transcribed]
[Page 117]
[Accounts not transcribed]
[Page 118]
[Accounts not transcribed]
[Page 119]
The following debts due to the said John Stogdell at the time of his death are Outstanding Viz.
Robert Sidaway--£201.19.1 1/2
Benjamin Jones--25.0.0
Joseph Smallwood--1.0.0
William Skinner--1.10.0
Patrick Hynes--18.0.0
John Bowman--5.0.0
Joseph Phesent--4.0.0
Robert Hobbs--5.0.0
Edward Griffiths—2.13.0
James Williams, Note for 13 Bush Wheat at Hawkesbury
Christopher McGee--1.10.0
William McDonald--23.7.9
Joseph Saunders—1.4.0
Jams. Molee, note for 20 Wheat at Hawkesbury.
Robert Forrester, Do. For 10 1/2 Do. Do.
John Lewis—7.0.6
Charles Thomas—2.8.0
A Farm called Hachins Farm situate at the Hawkesbury Assigned to the said John Stogdell for a consideration of £100 paid by a Note the Deeds of which lately come to the possession of the said John Palmer Esquire when Sold will add what it may Sell for to the Account of Proceeds of the Intestates Estate Also a Farm called Bishops farm at Kissing Point, which has been advertised for Sale, but no Bidders was had and it now lies unsold and without Cultivation.
New South Wales
Simeon Lord against John Palmer Esq. Administrator of all and Singular the Estate, Debts and Effects of John Stogdell Deceased, who died Intestate
I, John Palmer Esqr the Administrator aforesaid in Compliance with an Order made by the Court of Civil Jurisdiction held in and for this Colony on the 9th day of August 1802, Whereby is decreed that I should prepare and tender an Inventory of all the Effects of the late John Stogdell Deceased at the time of his Death and furnish the same to the said Court on Monday then next at Ten of the Clock and the said Court by the Judge Advocate in Court was pleased to declare that such Inventory might only contain a Schedule of the Effects without any Valuation or Explanation. In Obedience to such Order of Court and Declaration, I do offer to the said Court the Inventory before above Written and Annexed containing a full and perfect Account of the Estate debts and Effects at the time of his death, that have come to my knowledge (save only some Pigs and Poultry, which were Necessarily expended by the Servant and labourers premises, before the letter of Administration was granted
To me
[Page 120]
to me and which was not Contained in the Inventory, because the same had been Used before and Inventory of the Intestates Estate was made or before Sale or disposal thereof And I do further beg leave to Represent that at a Court of Civil Jurisdiction held on the 27th of July 1801 on the Application of William Balmain Esqr. to whom the Intestate at the time of his death stood in Debt in some form of Money, I did then and there exhibit in the said Court an Inventory and Account of the said Intestates Estate As Value and all my Receipts and Payments And the Claims and Debts in Cause of Administration And which Inventory and Account under the Direction of the said Court was proved, allowed and filed and now Remains Affiled of Records in the said Court And I the said John Palmer having this day exhibited to this Court, a full and true Account and Inventory of all the Intestates Estate, and Effects, with their respective Valuation And an Account of Sales And of all the Receipts and payments made in the One Course of Administration And an Account of the Claims and Debts which with reference to the judgement of this Court, I Conceive to be Claims and Debts that I as the Administrator have a right to retain Or shall be by law liable to pay(in Case of Offset) in preference to the Debt (if any such there be) due to the said Simeon Lord, the Complainant in this Cause and which Inventory and Account, I submit to the judgement of the Court is made in direct Conformity to the Conditions of the Bond, directed by the Statute, to be given by every person taking out Letters of Administration to Intestates Estate And which Account I humbly pray the Court to file on records of the Court, and an Account of my Proceedings in Course of Administration of the Estate of the Intestate, all which I most humbly claim and Submit in One form to the judgement of the said Court
(Errors Excepted)
("Signed")
John Palmer
Sworn before the Civil Court this 16th Day of Augt. 1802
("Signed")
Richd. Atkins
Jams. Mileham
Willm. Moore
New South Wales
No.5)
An Inventory of all and Singular the Goods, Chattles, Debts and Effects of John Stogdell Deceased who dies Intestate come to the hands of John Palmer Esquire Administrator of all and Singular the Estate, Debts, and Effects of the said John Stogdell that is to say.
Bond farm, Wilcox Do. Brendley Do. Wilson Do. Stogdell Do. Ruffler Do. Stogden Do. Parson Do. Revitt Do. Roberts Do. Goss Do. Ruse Do. Brewer Do. Butler Do.
Sold by Auction in Separate Lots at Sydney on the 18th Day of May 1801 for Different Sums Amounting to -- £932.17.0
A grey Mare and Gelding, Brood Mare and Mare Foal, Two Colts 1 Black Colt One black Horse, One Brown Mare, Bay Mare and Foal One chestnut Mare Spanish Mare Rone Spanish Mare, Brown Mare, Sloven Young
Mare
[Page 121]
Mare [indecipherable] Stone Horse, Stone Horse Marquis.
Sold by Auction in Separate lots at Sydney on the 18th Day of May
1801 for different Sums Amounting to –1059.10.0
One Black Bullock, One Black Bull, Red Bullock, Black Bullock [indecipherable] Chestnut Bullock Jemmy, One Black Oxen, One Brown and White Oxen, Red Cow and Black Calf, Yellow Cow and Heifer Calf Pyeball Cow and Steer Calf, Red Cow and Black Calf.
Sold by Auction in Separate Lots at Sydney on the 18th Day of May , aforesaid for different Sums amounting to – 633.7.0
Sixty One Goats and One ewe, Six [indecipherable] Wheel wagons, One Small Cart, Saddle and Collar, two Saddles, One chaise And 2 Setts of Harness.
Sold by Auction in Separate lots at Sydney on the 18th Day of May aforesaid for different Sums Amounting to – 69.16.0
Six Rush Bottom Chairs and Water Jug, One Glass Lamp, One Hearth Brush, One Funnel, One pair of Snuffers, One Dinner Tray, Two knife Trays, One Spice Box, One Bedstead with Stripd. [indecipherable] furniture and hangings, One Bedstead, [indecipherable] furniture, One palampo, One Feather Bed and flock bolster, One pillow, 5 pair Sheets, Two pair Blankets/Palampo, Window Curtains for four Windows, One Toilet Table and [indecipherable], One [indecipherable] , One Dressing Glass, three pictures, three side carpets, One Wash hand stand Basin and Water Pot, Eight Cedar Chairs with Covers for four of them, One Dressing case. One box, One pair of Razors, One Bedstead with [indecipherable] furniture, One Mattress, One Blanket, One Bolster, One Pillow, One Palampo, One Wash hand basin, Jug and Waterpot, One Bedstead and furniture, Two Mattresses, One Blanket, One Bolster, One Pillow, One Palampo, One Table, One Window Curtain, One Dressing Glass, One Shaving Box, Six Stem [indecipherable] Two Copper Kettles, One frying pan, Two [indecipherable] , One pair Tin Candlesticks, One flour Box, One Pepper Box, One Pewter Salt, One Tinder Box, three Baking Dishes, One [indecipherable], One Cullender, Two frying Pans, One Tin Tea Kettle, One Poker, One shovel, One Cutlass, One pair of Irons, Nine Washer Tubs, Two Kitchen Tables, One Meat Safe, Two Tables, Two Sets of Window Curtains, Two Cloths Horses, three Steel Mitts, 2 Pitch forks, three Shovels, 1 pr Clippers, 11 Wood Seives, 1 Wire Serve, 2 Barrows, 760 lbs damagd. Tobacco, 7 Casks Containg. Paint, 9 jars Conting. Paint Oil, 2 Boxes with Old hinges, Sofa Cover, 6 Pictures, black and gilt frames, One picture view of Port Jackson Sydney, One Fender, 2 Tea Caddies, 1 knife Case, 1 Dozn. Plated knives and forks, 30 Wine Glasses, 22 Runners, 16 half pint Tumblers, 11 Pint Ditto, 16 Jelly Glasses, 11 Egg Glasses, 5 quart decanters, 4 pint Do., 2 Water bottle, four blue bottles and Stand, 7 Jelly pots, 4 blue Sugar Basons, 1 Stand of Cruets, 2 tin Tumblers, three Salts, 4 Silver Tea Spoons, 2 Silver Table Spoons, 8 Tablespoons
plated
[Page 122]
plated, 9 Teaspoons Do., 2 pr. Sugar tongs, Six Ivory Salt Spoons, 2pr. Plated Candlesticks, 1 Tin Candlestick, 1 pr. Snuffers, 1 Teaboard, 1 Punch Bowl, 1 Black Tea Pot, 4 Soup dishes, 14 Soup Plates, 35 flat plates, 14 Breakfast plates, 1 pint pot, 1 Salad Dish, 1 Quart Tray, 1 half pint Pot, 19 dishes, 1 Telescope, 8 Pictures, 3 brass [indecipherable] , 1 tin Baking Dish, 1 Green Carving knife and fork, 22green handled knives and forks, 12 [indecipherable] knives and forks, 6 White handled knives and forks, 11 Small knives and forks, 11 Odd forks.
Sold by Auction in Separate lots at the Hawkesbury on the 21st Day of May aforesaid for different Sums Amounting to – 150.12.8
One Stack of Wheat next to the Granary, One Stack next to that, One Stack, first next to the House facing the Barn, One Stack next to that, One Stack next to that, One stack next to that, One Stack of Barley, One large Stack of Wheat next to the end of the Barn, One Stack next to that, a Quantity next to the Barn, One Stack at Brindley farm, one Stack at McDonalds farm, three stacks at Raisin farm, a Quantity at Ruse farm, a Stack and Quantity in Bran at Goldingay farm, Five Stacks and Quantity in Barn at Richmond hill a quantity at Pearces farm Sixty Bushells Maize.
Sold by Auction in Separate lots at the Hawkesbury on the 21st Day of May aforesaid for different Sums amounting to – 1250.19.0
28 Empty Casks damaged, 1 Grindstone, a quantity of Brick Cats, 7 Pigs, 1 Medicine Chest, 1 Spanish liquor Case, 1 Case with Six pickle bottles , 10 Padlocks, 50 hat buckles, 5 funnels, 4 Baking Dishes, 4 [indecipherable] boxes, 4 pepper Boxes, One tin Candlesticks, 1 pudding dish, 9 brass Cooks, 1 Picture, 1 pepper Mill, 4 pair Crockles, 8 papers Pins, a quantity Curtain Rings, 60lb Raisins, 107 Pickles, 70lb Soap, 40lb pepper, 43lb Ginger Candy, 1 flute, 1 Drip Stone with Case, One long Boat, 2 Masts and Bowsprit.
Sold by Auction in Separate lots at the Hawkesbury on the 21st day of May, aforesaid for different Sums amounting to – 110.0.5 1/4
2 Copperplate Pictures, 3 prints Hope etc, 2 prints the fortunate Tars etc, 4 prints Seasons, 3 Scripture pieces, 1 pair Prints, before and after Marriage, 1 pr Prints Tragedy etc, Six Elegant Copperplate Prints, 8 [indecipherable] Books, 1 Fiddle and 2 fluted, 3 Volumes of the life of Young, 2 Vols of Elegant Extracts, 2 Vols of Poetry, 4 Vols. Coms. Eng. Dispeny., 1 Vole Barleys, a Collection of letters, 2 Vols by the Revd. J. Adams, Milton’s Paradise Lost, 6 books of Philosophy, Umbrella, 2 Trunks, 1 Cap, 1 breastplate, One box artificial flowers, 1 Coat, 2 Waistcoats, 1 Hat, 2 pr. Pantaloons, One Waistcoat, 2 pr. of drawers, 1 pr of Pantaloons, 1 Coat, 1 Waistcoat, 1 pair Breeches, 1 Silk Coat, 2 Waistcoats, 1 pr. Pantaloons, 2 pr drawers, 1 Jacket, 2 Waistcoats, 1 pr leather Breeches, 1 pr. drawers, 1 Stuff Coat, 1 Waistcoat, 2 pr. drawers, 1 black stuff Coat, 2 Waistcoats, 1 pr Kerseymore Breeches, 2 prs drawers, 1 pr Trousers, 1 black Coat, 2 Waistcoats, 3 pr drawers, 2pr Pantaloons, 2 Coats, 2 Waistcoats, 2 pr Breeches, 2 pr Trousers, 1 pr drawers, 1 Green Coat, 2 Waistcoats, 2 pr Pantaloons, 2 pr
drawers
[Page 123]
drawers, 2 jackets and 6 pr Pantaloons, 7 pair Trousers, 1 pr drawers, 7 pr Pantaloons, 3 Dressing Gowns, 36 Yds thickset, 24 Yds blue [indecipherable], 2 1/2 yds. Kerseymerd, 1 Breeches [indecipherable], three Waistcoats, 3 1/2 Yds. [indecipherable], 11 Yds [indecipherable], 1 Piece Irish linen, 1 Yd [indecipherable], 15 Yds [indecipherable], 9 Yds Indian Taffety, Six Yds of Black Satin, 29 Yds [indecipherable] Silk and Sattin, 22 Yds Girling, 1 Silk and Sattin Coat, Waistcoat and Breeches embroidered, 1 Dozn. Black Handks., 1 Silk Velvet Coat and Breeches with pink Waistcoat, 1 Black Coat and Breeches with Steel Buttons, 1 White Silk Waistcoat, 2 Coats, 1 Black Silk Waistcoat Embroidered, 1 Dozn. Indian Silk Handfs, 1 Dozn., 1 Doz. Ditto, 10 Dozn. Spotted and Stripd. Handfs. , 14 Pocket Handfs, 14 Do. new, 14 Muslin Handfs, 12 Worked Cravats and 2 Stiffners, 7 prs. White Silk Stockings, 2 pair Black Silk Do., 9 half Neck Handfs. and 2 Stiffners, 9 prs. Coloured Stockings, 10 pr White Cotton Stockings &4 pr. Socks, 9 fine Irish linen Shirts, 8 fine Do., 6 New Callico Shirts, 8 Callico Drawers, 2 black Stocks, 4 [indecipherable], 8 Chair Covers, 1 Sofa, 8 Stripd Muslin Windsor Curtains and traces, three Callico and 4 small Windsor Curtains, 3 pr Callico Sheets, 1 pillow case, 1 palampo, 4 Table Cloths, 2 Hand Towels, Nineteen Chairs, 1 Sofa & 2 Bolster Covers, four Window Curtains and hangings, 1 Tea and Coffee Set of blue China, 2pr. Sugar Tongs, One Sett of Tea and Coffee, blue and flowered China, 1 pr Sugar Tongs, 1 Set of Tea and Coffee White China, 2 Bowls, 1 plated Coffee Urn, 1 Tea Pot, 1 Snuffer stand, 1 punch Bowl, 1 Quart Mug, 1 Stone Quart with glass bottom, and Silver edges, 2pr. Gloves, 2pr. Buckles, 2 Dozn. Silver Buttons, 1 pr. Studs, 1 Odd Stud, 3 Silver Buckles, 2pr. knee Buckles, 1 pr. Spurrs., 1 Glass, 1 Silver Watch, 1 Gilt enamelled Watch with Jewell, 1 Gold Watch Case and Key, 1 Gold Seal and Ring, 21 Yds. Callico, 3 hedge Chairs, 3 tin Pint Pots, 1 knife tray, a basting ladle and Skimmer, some Matts for Doors, 1 Dozn. Padlocks, 1 Dozn. Black Do.
Sold by Auction in Separate lots at Walloomooloo on the 25th day of May, aforesaid for different Sums Amounting to – 262.5.6
12 Padlocks, 3 doorlocks, 1 hank Cat gut, 1 Old Saddle, 1 Bitt, 2 Brushes, and 3 pr. Old Boots, 1 Box with Mounting for doors and Windows, 1 Chest Carpenters Tools, fifty planes, sorted 18 Chissels, 2 Awles, a short sett of bitts, 3 punches for [indecipherable] Screws, 14 Files, 6 door bolt pins, 1 hammer, 1 Glue Pot, 8 black tin dish covers, 1 Sett black tin Camp furniture, a Quantity of Paper, 1 pr Pocket Pistols, 20 Chair Covers, 3 Sofa Covers, 2 Window Curtains, 4 Callico Bed Curtains and fringes, 6 Window Curtains, 1 Sett Callico Bed furniture, 1 palampo, 3 Linen Sheets, Ten Bed furniture of printed Callico, One Leather Bed and bolster, 2 pillows, 4 feather pillows and 4 P. Beds. 4 plated Candle Sticks, 1 Sett of glass Cruets and Stand, 1 Sword, 1 Dressing Glass, 1 Small Pembroke Tables, 1 Pembroke Table, pillow and Claw Table, 1 leather Bed, 2 Pillows and Mattress, 1 Turkey Carpet, 3 Side comforts
5 Cott.
[Page 124]
5 Cott. Back and 1 Armed Chairs, 2 pier Glasses, 1 Hall lamp, 1 Spy Glass, 1 large fowling Piece, 1 hair Mattress, 1 Cloths Chest, 1 [indecipherable] Razor with 5 blades, 1 Case, 75 border’d Muslin Handfs. 21 Fancy Handfs., 81 Indian Silk Handfs., 4 Striped Muslin Window Curtains, 2 Callico Do., 4 Table Cloths, 8 Callico pillow Cases, 70 thimbles, 5 Callico pillow Cases, 34 Dozn. Metal plated Buttons, 8 Dozn. gilt Buttons, a quantity of loose buttons, 76 Dozn. Shirt Buttons, some Black tape, 21 Callico Shirts, 4 pr. Drawers, 4 Table Cloths, 4 pillow Cases, 2 1/2 Yds. durant, 8 Silver labels, 1 Tea Caddie, 12 lbs thread, 1 Remnant Spinnah, 68 Yds. Black Course Cloth, 3 Serge Jackets, 1 pr. thicksett Breeches, 11 pr black Stockings, 2 lb Allspice, 1 Remnant Gurrah, 132 Yds. Gurrah, 1 black Mourning Sword, 1 Whale Boat and 6 Oars, 1 Box Coopers Tools, 1 pr. Pistols., 1 thatched House, 8 Shovels and 4 Spades, 12 Shovels, 1 Cart, and Chairs, a lame Mare, 1 Waggon, 1 Chest.
Sold by Auction in Separate lots at Walloomooloo on the 26th Day of May aforesaid for different Sums amounting to – 295.15.0
Which Effects above Inventoried produce -- £4774.2.7 1/4
Expense of Sales by Auction and Commission – 477.8.3
The Nett proceeds of Effects, above Inventoried and Sold by Auction, are £4296.14.4
1801 – August 23rd Cash Recd. of Thos Bray – 5.10.6
Value of an Old Whale Boat, 2 pr. 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 day of July Valued at --12.0.0
1802 – April. By Cash of Thos. Upton Upon a Note for Bushs Wheat, after Carriage deducted produced – 3.10.0
21.0.6
The whole Produce of Effects came to the hands of said John Palmer -- £4317.14.10
The said John Palmer the Adminr hath paith, retained and distributed in Course of Adminr 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 deliverd to Court and allowed the 27th July 1801 and files amongst the Court papers amounting to 8553.11.5
The said John Stogdell on the 9th March 1797 paid an Order for – 23.13.0
Also for work at Walloomooloo – 100.0.0
Also due at the time of the death of the said John Stogdell for 5 years Wages at £40 per Annum – 200.0.0
[sub-total] 323.13.0
[total] 8225.18.5
The said John Palmer has paid to redeem Effects in Mortge to R. Campbell 1864.4.8
paid Expenses of Funeral to James Bloodsworth – 4.4.0
ditto – to James Somerville – 5.0.0
ditto – to Simeon Lord – 10.13.10
ditto to R. Atkins Esqr. for Adminisn. & proof of Claims etc 8.0.0
[sub-total] 27.16.10
[total] 10121.19.11
The Whole of the Administrators disbursement
[Page 125]
£ s d
Due from the Estate of Jno. Stogdell to Jno. Palmer Esq. 5804.5.1
There is a debt claimed to be Due to Government to the Amount of £396.5.6.
NB. The said Jno. Palmer Esq having by the Agent of Mr James Williamson been furnished with an Account in which the said Mr James Williamson States payments and Allowances of Money paid by him to the said John Stogdell on the Account of the said John Palmer Over and above the Sum of £1202.11.10 before Charged and Allowed in the Schedule aforesaid referred to and filed in Court on the 27th July 1801 Amount to £952.16.1 and which the said John Palmer Esqr. craves leave to add to or alter if upon any Explanation, Mr Jams. Williamson may give it may appear to the Court necessary on any future Occasion.
The following Debts due to the said John Stogdell, at the time of his death are Outstanding Vizt.
[column 1] £ s. d.
Robt. Sidaway 201 19 1½
Benjan. Jones 25 9 0
Josh. Smallwood 1 0
Willm. Skinner 1 0 0
Patrick Hynes 10 0 0
John Burman 5 0 0
Joseph Phesent 4 0 0
Robt. Hobbs 5 0 0
Edward Griffith 2 13 0
James Wilbone Note for 3 Bus’l Wheat at the Hawkesbury
[column 2] £ s. p
Chrisr. McGee 1 10 0
Willm. McDonald 23 7 9
Joseph Saunders 1 4 0
James [indecipherable] Note for 20b B Wheat at the Hawkesbury
Robt Forresters Do: Do:
John Lewis 7 0 6
Charles Thomas 2 0 0
A Farm called Hackings farm, Situate at Hawkesbury Assigned to the said John Stogdell for a Consideration of £100 paid by a Note, the Deed of which, lately come to the possession of the said John Palmer Esqr, when Sold will add what it may Sell for to the Acct. of proceeds of the Intestates Estate.
Errors Excepd.
("Signed") John Palmer.
Exhibited before the Civil Court the 16th August 1802.
("Signed")
Richd. Atkins.
Jams Mitcham.
William Moore.
No. 6)
I have now, Gentlemen, I Hope satisfied you, by the Evidence I have produced as to the Certain injury the Estate of Stogdell has Suffered by the Sale of the Effects under the Uncommon Restrictions Annexed to the Conditions.
I should have gone a great Way further on this head, had I been permitted to have Called all the Witnesses I brought down; but as they were
Rejected,
[Page 126]
Rejected, as it was said, On Account of having an Interest in the Event, altho in some Instances it was no More than to the Amount of 3 or 4 Pounds, I have been Deprived of the Opportunity of Enlarging on this Point in a Manner which would doubtless have Convinced you, that the Administrator in rejecting the Protest against the Sale and the Reasons for Offering that Protest, Acted in a Manner that has since Occasioned all the Trouble that I am now Obliged to give this honourable Court.
If the Effects had turned out Sufficient to pay 20/- in the pound , I grant an Administrator may do what he thinks best, under his own Direction, but when the effects are sold Considerably under their Value merely because the Administrator thinks fit to limit the payment to a time which he must honour. Could not be convenient to the Purchasers to be provided, I humbly Conceive such an Administrator has not duly and truly administrated according to law and that his Bond which he gave for his due performance of the Trust is therefore forfeited.
Gentlemen! The Administrator has produced an Inventory - by his Clerk it appears that this is not an Original Inventory nor a copy of One - What is it then? Mr Palmer has Sworn to it - but why does Mr Palmer refuse to State, when it was taken, And how can he Assert that it Contains a statement of all Stogdells Effects at the time of his Death? It might be taken when perhaps a Considerable Quantity of the Effects had been Removed from the Premises; not by the Administrator, nor with his knowledge; but by others on the spot. Nor does it appear who was Supported or Maintained out of the Property that was Consumed before the Inventory was taken – The Quantity of People about the Premises; nor for what purpose; Nor at whose Direction those People were Employed.
Gentlemen, it was I humbly say, the Duty of the Adminr. [indecipherable] a Concern to have Secured and Sealed up the effects immediately after the Adminisn. began. This should not have been left to the Mercy of Others – How many injured Creditors might Suffer by such Neglect, I am sure is Obvious to every One. In Mr. Palmers Note annexed to the Inventory or paper produced, he says that an Inventory and Account have been Rendered to the Court in the Law Suit with Mr. Balmain.
Gentlemen – No Inventory – No Account was Rendered – Mr. Palmer desired 12 Months to produce his Accounts and he Insisted upon having the full benefit of the time allowed him by Law and it was granted – Well Gentlemen! What has this Year and half [indecipherable] for the benefit of the Creditors? Have yet any Shares been paid – And does it appear that Mr. Palmer was not as well prepared 12 Months Since, as he is now?
He has kept the Money in his own hands all this time and the Creditors who claimed it might have been ruined for the Want of it.
Has Mr. Palmer even performed the Promise he makes the Creditors in his Answer to their Protest? He says "he shall Sell and proceed to distribute according" "to law", why then is this Distribution, not made?
Does it not Strike you, Gentlemen, that almost all the heavy property was purchased by Mr. Campbell? Who else could buy it? And does Mr. Campbell pretend to say he has all the property now in his Possession? Who then did he purchase for?
Why is not Walloomooloo Included in the Effects, and is it right, Gentlemen, that Mr. Palmer should Refuse answering the Question. I put to him about
Separating
[Page 127]
Separating the Interest of that Concern – "This is not a Question of Law, but of Justice." And the property which by Thorlys Appears to have been Cut up and altered after Mr. P. arrived in this Country – I would wish to be delicate in touching upon, but the Creditors always have a Right to be satisfied and I hope Mr. P. will be Called upon to show Cause why he had not sold Walloomooloo.
("Signed")
S. Lord.
Exhibited before the Court the 25th Augt. 1802
("Signed")
Richd. Atkins, J.A.
No 7.)
Lord vers Palmer Esqr. Admorr etc.
If this Honorable Court has any doubt of my being entitled to recover the Whole of the Money for which I am Suing, I pray that this honorble Court will direct that 2 proper persons may be appointed, One to be chosen by each Party to Inspect all the Accounts rendered and produced by Mr. Palmer as Administrator, with power to examine Evidence upon Oath – But I humbly Conceive that has been [indecipherable] proved that John Stogdell was the legal representative of Mr. Palmer, as will appear by the Records of a former Court, held at Parramatta.
Septemr. 2, 1802
("Signed")
S. Lord.
Exhibited before the Civil Court the 2d September 1802.
("Signed")
Richd Atkins. J.A.
No 8.)
Simon Lord Ver. John Palmer Esqr. Admor. etc
Mr. Simon Lord having under the Authority of the Court filed a Paper which the Court have Required and John Palmer Esqr the defendant to Answer the Contents of. I beg leave to Represent for the Consideration of the Court a [indecipherable] of this Paper and I trust the Court in the Wisdom will discover the same to be merely a Matter of Argument, replete throughout with false Allegation and Contradicting and [indecipherable] the decisions and judicial Proceedings of the Court and affecting the falsify the Minutes, Decisions and Records of the Court, in many Cases determined for this Identical Case.
If such a speech had been delivered Viva Vice to the Court, I should not have thought it merited a Reply, but when I see and Read such Manifold Untruths put into writing now filed of Record of the Court and the Court ordered me to Answer the Contents, altho’ no part of the paper doth Contain matter pertinent to the Cause in question before the Court, I must humbly submit, that this paper has been Surreptitiously filed and such an Order Obtained because I do presume that if the Court had heard this Paper Read, they would have seen as tendency to mislead their attention and Refuse it their Sanction, I most humbly
submit
[Page 128]
Submit to the Court, that the only Question in this Court is first, is the Claim set up by the Plaintiff against the Intestates Estate founded in fact and when the Court have made up their decision in that part of the Case, the next question for them to Consider is whether
I as Administrator have administered all the Effects of the Intestate come to my hands or what (if any) Remain Unadministered.
In deciding this last part of the Matter I most humbly submit the Court are to Act upon the known rule of the British Laws which I most humbly submit to the judgement of the Court are.
1st. – That an Administrator may Retain any debt due by the Intestate in his lifetime to such Administrator in priority to any other Creditor.
2nd. – To pay Judgement or Specialty Debts.
3rd. – To pay Simple Contract debts. And then to divide the Residue of the Intestates Estate amongst the next of kin.
But the Court having adopted this Paper, by their permission to file and directing the answer to be given which if it had not Received such the Sanction of the Court, I should Contend I was not [indecipherable] to give any Reply, but the Contents of the Paper, having received the Approbation of the Court, I will first Reply to the last Paragraph of this Paper by which I am Called upon amongst other things.
To Show Cause why I have not sold Walloomooloo, I do protest against the Legality of such an enquiry but for Answer I do state to the Court that Walloomooloo is my own Freehold Estate held by Grant from the Crown to me my Heirs and Assigns for ever and I have not as yet and I trust I never shall, Sell, dispose, or part with that Estate Or at present I have not any Necessity or Inclination so to do.
Mr. Lord in the first part of his Paragraph "Says Why is not" "Walloomooloo included in the Effects". By which I most humbly Conceive Mr. Lord means the Effects of the Intestate and then he proceeds by saying it is right that Mr. Palmer should refuse answering the question he (Mr. Lord) put about Separating the Interests of that Concern, I do submit to the Court that upon a former Meeting of the Court Mr. Lord did put some question which I thought from its impertinency did not merit any Reply for I could not suppose that a Court of Justice, would approve of such a question or require any Answer thereto, because it cannot be Supposed that an Administrator is to give an Account of his own Estate and Effects, with the Account of the Estate and Effects of the Intestate, but as the Court by filing such paper and requiring such answers have made it necessary that I should Reply to such Question, I have given the before mentioned Statement why I have not and why I will not sell my Freehold Estate called Walloomooloo.
And I most humbly submit, that even Mr. Lord did not mean this as a Serious Matter requiring any Reply, for in the same paragraph Mr. Lord says "This" "is not a Question of Law." Now if this is not a legal question, how can Mr. Lord expect the Court to require any answer. And then, he goes on by saying it is not a Question of Law, but of Justice, how he can in a matter of legal decision in a Court of Justice separate the terms and define between so Nice a distinction, I am not competent to decide, for my own part I Conceive the Terms Synonimous, But as Mr. Lord differs in his Opinion I most humbly
hope
[Page 129]
hope the Court will take Mr. Lords reasoning, as to it not being a Matter of Law, as he mentioned it and do me the Justice to dismiss this cause out of Court.
In the first paragraph of Mr. Lords Statement, he says he has Satisfied by Evidence, the Injury the Intestates Estate has suffered by Sale under the Conditions, this is presuming a great deal. For I know of no Evidence to Warrant such Assertion Or any decision of the Court to Warrant such a Supposition.
I do most Solemnly Contend and Insist that the Court having granted the letters of Administration to me I from that time became Accountable for the Effects and I submit I was not bound to part with any of the property, Until payment was made, there was nothing Uncommon in the Conditions of Sale, they being to Pay a Deposit of 25 per Cent And the Remainder of the Consideration Money in a Month for altho I submit to the Court, I was not bound to give Credit even for an hour, yet there has been no proof of any Person having offered to buy and a refusal to postpone the Payment or that any One would have bought that could Pay And I Contend, if a Man was not able to Pay the Deposit, the payment of the Whole Consideration Money must eventually depend upon Chance.
Misfortunes happen Unforseen And if an Adminr once parted with the Intestates Estate and Effects, he would be responsible for their Value whether he got payment or not and in this Case, it is [indecipherable] of by the persons Examined on the part of Mr. Lord, that the Wheat Stacks were in a damaged State And the longer they Remained Unthreshed the Worse the grain would be, this I submit to be the jist of their cross Examination.
Mr. Lord in he 2nd Paragraph of this Paper so filed, states he should have gone further, if permitted but his Witnesses were Rejected on Account of Interest, this Matter of the legality of the evidence, was adjudged by the Court and ill becomes Mr. Lord to [indecipherable] the Conduct of the Court in their Solemn decision in a point, they were the only competent judges of this particular requires no answer from me but I most humbly Submit to the Court, that the implication Mr. Lord makes in this paragraph against the Court and its decisions And as Mr. Lord called in Question the Conduct of the Court in their decisions in Court, it is I most humbly Conceive a gross Calumny and Contempt of the Court and which I conceive it my duty to draw the attention of the Court to.
The Court have decided that the Adminr is the Sole judge of what is and what is not a proper time And in What way he may dispose of the Effects of the Intestate and their decision on that point made the 19th August 1802 gives the full answer to that part of Mr. Lords Statement, about his Protest as therein mentioned.
In Explanation of Mr. Lords Statement wherein he Says, The Property which by Thorlys Evidence appears to be Cut up and altered after Mr. Palmers Arrival in this Country, he would wish to be delicate in touching upon, but/says Mr. Lord/the Creditors always have a right to be Satisfied.
As
[Page 130]
As to this part of the Case, on which Mr. Lord seems to have a Wish to be so very delicate as if there was some Wonderful Discovery to be made of a Secret of great Magnitude Mr. Lord himself has helped me by his evidence to an Explanation, for Thorly by his Evidence States.
That Stogdell told him some bed furniture which Stogdell had purchased of Captain Raven he Thorley was to alter fo some furniture for me and that when it was altered it was done by the joint direction of myself and Stogdell.
Now from the Nature of this Evidence, this was done in the lifetime of Mr. Stogdell and by his directions and this wonderful matter that is so delicate to be touched upon is Mr. Stogdell in his lifetime had made me a present of this furniture, but upon his death and I was appointed the Adminr. I would not keep that furniture so altered but put it up with the other Goods belonging to the Intestates Estate for Sale and also Caused it to be put in the Inventory of the Intestates Estate and makes a part of the Schedule filed in Court in this Cause.
I will not take up the time of the Court in following Mr. Lord through all the absurd matter Contained in this paper, but generally and Shortly State my Case as Adminisr. And Claim the protection of the Court.
The Court of their own knowledge know of the Unfortunate Accident that occasioned the late Mr. John Stogdells death, and at the time of his death his Concerns in this Colony, were of very great magnitude and from the great Industry and known good Conduct and exertions of the Intestate in his lifetime it surprised me, as with everyone else that he was so much Involved in his Commitments, this seems to me a great Mystery, that time only can develop, what at present remains in Oblivion.
But I Conceive in my Office of Administrator, I am not to Act by Surmise but upon facts and the Case appears to Stand thus.
At the time of Stogdells death all his effects stood charged by Assignment to Robert Campbell Esqr. as a Security for £1750 and Interest at 10 per Cent, and although the Court granted to me letters of Adminn. Until his debt of £1750 and Interest was paid off to discharge the effects from the Mortgage Charge I could not Act, as the effects in Law was the property of Robert Campbell Esqr. by that Deed, same of the Wheat Stacks were much infested with Vermin and in a bad state and daily growing Worse for keeping and upon my advising what was best, it was thought that an immediate Disposal of the Property world be for the benefit of the Concern and in this Opinion Mr. Campbell agreed.
The whole were put up by lots for Sale by Publick Auction and every step taken to make the most of the Effects and the greatest price that could be was gotten for each Article and all the produce, without delay, paid in due course of Administration.
And Mr. Balmain a Creditor to the Intestates Estate, applied to the Court on that Occasion where on the 27th July 1801. I produced a general Account of what the Effects then came to my hands sold for together with all my receipts and payments in Course of Adminn was there-in fully set forth and filed in Court and is the Same now Remaining as filed in the said Court and the Court having them and there allowed that Account Mr. Balmain proceeded no further in the prosecution of his Claim at that time and I further
state
[Page 131]
state that I have also in this Cause exhibited an Inventory and Account, with an Account of the Receipts and Payments made since the first account filed and which last Account is filed of Records in this Cause under the Order and Direction of the Court.
By which Account it not only Appears what Monies have come to my hands as Adminr but how and to whom I have disposed of the same in Course of Adminn. And there now Remains due to me £5800 Sterling and Upwards remaining to be paid to me out of any further Effects of the Intestates Estate, that may be gotten in preferences to any other Debt, if it be Law And which I aver to Under the Direction of this Court, that I ought to Retain such Debt in preference to any other Claim against the Intestates Estate.
I further State to the Court that it was for the benefit of the Estate that the Effects were disposed of as they were and which if the Court require I can prove to the Satisfaction of the Court, at which time as they may require that I can produce proof that the Wheat Stacks, which from their bulk and Size ought to have contained some Thousand Bushells of Wheat on being threshed out did not produce One fourth the Supposed Quantity and that One Stack in particular that were Supposed to Contain 1200 Bushells of Wheat only produced about 30 Bushells and that very bad, being utterly spoiled and every Article of any Account I can, if the Court desires it, cause due proof to be made.
("Signed")
John Palmer
Exhibited before the Civil Court, September the 2nd 1802.
("Signed")
Richd. Atkins. J.A.
No. 9.)
Memorandum of an Agreement made and entered by and Between Mr. John Stogdell the Attorney and Agent of John Palmer Esquire of the One Part and William Earle, Carpenter, Shipwright and Freeman on the Other part as follows. Vizt.
Dated at the Hawkesbury in the County of Cumberland New South Wales this Twenty Fourth Day of August in the Year of Our Lord, One Thousand Seven Hundred and Ninety Nine.
Whereas the said John Stogdell from the Multiplicity of his Concerns finds it Necessary to Employ a Carpenter and Shipwright for a Certain term of time and from the Opinion he entertains of the Articles of William Carl applied to him to
become
[Page 132]
become Indented for Two Years from the Day of the Date above Written.
Be it the said John Stogdell hath proposed and Offered to the said William Earl to pay and to allow him for Two Years Eighty Pounds for the labour, Care, diligence and Attention of the said William Earl an and about the Concerns of the said John Stogdell, as a House Carpenter and Shipwright, Also to find and maintain him in Sufficient Maintenance, allowing him Two Working Suits, consisting of a Frock and a pair of Trousers each of duck and One Cloth Jacket and Trousers with four pair of shoes Yearly and at the expiration of Two Years from the Day of the Date hereof to pay to him the said William Early the full sum of Eighty Pounds in a Government Bill if he requires it. And the said William Earl being fully Satisfied with the proposals and Offer of the said John Stogdell hath acceded and Agreed thereto Now Know Ye and these Presents Witness, that the said William Earl for and in Consideration of the Sum of Eighty Pounds, to be paid to him in manner aforementioned and also for and in Consideration of a Weekly Ration of Seven Pounds of Fresh Pork, half a Bucket Wheat And One Pound Sugar with One Pound of Tobacco and One pound of Teas per month, with his before mentioned Working Apparel doth hereby engage and bind himself into the said John Stogdell for the full space of Twenty Calender Months from the Date of these Presents, as his House Carpenter and Shipwright and to Act in that Capacity faithfully, honestly and attentively by using the uttermost of his endeavours to discharge every Trust reposed in him with all readiness and the extent of his abilities, when and Wheresoever the business of the said John Stogdell Or that of John Palmer Esqr. may require the same and the said William Earl doth also bind and Oblige himself, not to undertake any Private or Public Work as a Carpenter or Shipwright but what my be required for the Use and Benefit of the said John Stogdell or that of his Constituent John Palmer Esqr. and he shall not neglect his Work or absent himself from the Employment without the Consent and Approbation of the said John Stogdell for that purpose first had, and Obtained Or default of so doing to forfeit what Wages may be then due to him and the said John Stogdell, doth hereby Oblige himself to Allow and pay unto the said William Earl the Sum of Eighty Weight for Twenty Four Calender Months with his Maintenance and Articles of Wearing Apparel as above specified due to him at the expiration of Twenty four Calender Months and for the true and just performance of the presents, the said John Stogdell hereby binds himself to the sad William Earl in the penalty of One Hundred pounds and for the like performance of every Clause herein on the part of the said William Earl, he binds himself in the penalty of Fifty pounds and ordains the same to be Recovered by the said John Stogdell by Execution or otherwise as the Judge Advocate may direct. In Witness whereby both parties to these Presents have hereunto set their hands the day and Year first above Written.
("Signed")
John Stogdell
William Earl.
Signed and Delivered in the Presence of ("Signed")
Martin Mason Surgeon of H.M. Ship Buffalo
And in Addition to allow One pound of Soap, in every Two Months.
[Page 133]
No. 10.
Lord versus Palmer Esqr. Administrator etc.
I have already Submitted to the Consideration of this Honorable Court my Reasons for Requiring the Acct. of the Adminsn. Of the late John Stogdell to be produced – I will now proceed to State my Objections to these Accounts.
Mr. Palmer Observes that the Debt of £8553.11.5 due to him from the late John Stogdell was allowed by the Civil Court the 27th July 1801 – To this I answer that unless the Civil Court had examined the Accts. produced they could not have allowed a debt or Claim of the particulars or proofs of which they were wholly Unacquainted.
But I trust I may Venture to enquire why Mr. P. should with so much [indecipherable] exactness, require all the Claimants to exhibit their demands, and establish them on Oath within a limited time, under pain of being excluded any dividend; and withhold his own Accts. Unproved and Unsupported even 18 Months after the Decease of Stogdell, to whom Mr Palmer is the Adminr now, as much as Stogdell was, in his lifetime, the Representative of Mr. Palmer, in that Gentleman’s Absence from this Country.
I humbly Conceive Gentlemen I have a right to Call on Mr. P. for Vouchers and Proofs to Establish the Claim he has [indecipherable] Up; to the Injury and Exclusion of every other Creditor.
The first Article is Tobacco £325. Need I go any farther? Is this exhibited in a mercantile Manner? And what quantity of Tobacco must it be to Amount to so vast a Sum? But this is nothing to some Subsequent Items. Rum £1307.10.0. Two Items Called Cash each £500. Sundry Articles Sent by the Walker £274.19.7 and for what purpose were all these Articles sent? Does Mr. Palmer Insist that he had Rated them at Prime Cost, or their Value here? And how did this vast debt accrue, was it not to give Stogdell the means of raising a Credit with the Public, which they were afterwards to be told they should not have given him, as he was only a Steward of Mr. Palmer? If Mr. Palmer placed such a confidence in Mr. Stogdell he deluded others into the same Error; and is it right – is it Law – Is it Justice, that he should set every Creditor at defiance and keep the whole of the Effects; after having disposed of them, when and where he pleased, Contrary to the Protest of the Creditors; and when it has appeared that Mr. Robert Campbell was the purchaser of nearly all the Valuable Lots, that were put up at the Auction?
You will observe Gentlemen, that a Credit is given for £900 expended on Improvements at Walloomooloo. For Five Years these improvements were making and Carrying on. – Bridges were Built – Outhouses Stables, Barns, erected. – The Garden Cultivated, planted with valuable fruit trees and the House flagged and decorated – Pictures costly and Magnificent were purchased – Glass ware, was brought in and numerous other Articles and
Improvements
[Page 134]
Improvements which I am Unable to mention – nor should I have known what do now, had not my Intimacy with Stogdell, been very close and I had an opportunity of hearing from his own Mouth these projected and progressive improvements. Yet £100 is all that is allowed in Credit - £20 a Year for such Concerns! Surely Mr. P. Conceives you very much Uninformed; as to Buildings and Improvements of this kind if he supposes you can believe that £100 can do all this in Five Years! When these Matters Came under your Investigation Gentlen it will be more likely to appear that One Thousand Pounds and Upwards have been expended, besides property paid to labourers and Others; and who was to call Stogdell to Account for all this? He had sole direction of Mr. P.s Business and Affairs –* – He managed everything – and the Public at large looked upon him, and Accredited him, as Mr. Palmers Representative, or as they would have done to Mr. Palmer himself. *
There is one Subject more for your Considern. Gentlen. – Mr P. [indecipherable] and owe Debts due to the late John Stogdell. May it not be Asked why Mr. P. had not taken effective Steps to recover these Debts? Several Courts have met where they might have been enforced – Yet, Court after court adjourned and we hear nothing of these claims. Taking the Whole then in One View together are you Satisfied Gentlen. That Mr P. had duly and truly Adminrd.? Such an Administration I believe is unprecedented in England; and when you weigh all the circumstances with due deliberation I trust you will not hesitate, Gentlen. To award the whole sum I am Sueing for.
I have one thing further to remark – I expect, Gentlen. In the Course of the Enquiry to Satisfy you by [indecipherable], that Sundry Articles which it will appear were amongst Stogdells Effects at the time of his Death have not been Inserted in the Inventory produced – This will convince you of the Necessity there is for Mr P to State at what time the inventory (even such as he has exhibited) was taken and which Mr Palmer’s seems to feel so much trust at being called upon to Declare. Nor has Mr Palmer mentioned to you, not Accounted for the Wheat expended and brought down to Sydney And the Pigs and Poultry Consumed and Various other Deficiencies which the Creditors have a right to be Satisfied in.
Adverting to the Commissn. Charged by Mr Palmer as an Administrator, I humbly Conceive, Gentlen. such a charge is warranted by no precedent in this or any other Country, under Circumstances like these. In Captain Hamilton’s business there was a Considerable Surplus. In the Present Case, the Property is Sacrificed and Frittered to Nothing. And Whilst the Creditors as such Suffered Ought an Adminisr. To be [indecipherable] in his Commissn and Charge 10 per Cent for what he might have done for 2½ per Cent.?
I therefore submit to you Gentlen. The propriety of Calling on Mr. P. to establish his Claim on Stogdells Estate by Evidence.
("Signed") S. Lord
November 22nd 1802
* Mr P. Stiled himself "His Friend"
* This can be proved by Sundry Instruments made between Stogdell & Others in which Stogdell always Called himself Mr Palmers Representative.
[Page 135]
Lord Attorney of Machin
Versus
Palmer Esqr. Adminr.
Of Stogdell Deceasd.
To the Honble Court of Civil Jurisdiction.
No. 11 Gentlen.
This Suit which has Occupied so much of our time and Attention, and to the Issue of which the Public at large look with anxious impatience, is at length drawing to a Crisis – and how ever it may appear that any extraneous or irrelevant matter has been Introduced, those only who are aware of the Difficulty I have had to come at the Truth, so as to elucidate the Subject before you will judge what allowances are to me, for having necessarily Wandered from the regular Path – Believe me Gentlen. not with a view to perplex, but to facilitate the purposes of Justice.
For myself, Unacquainted with forms of Law and Destitute as I was of Professional Assistance to Direct or advise me, I come before you as a plain man, Suing for my Principal Mr Hugh Machin, on a plain and Simple matter of Right. The Note was subscribed by the late Mr Stogdell. The Deft. did not Contend it, of Cause no proofs were Necessary to be adduced to establish it. Mr Palmer admind., to all Mr Stogdells effects; and to Mr P. only could I look for Payment. If in Setting up his Defence to this Suit, he had made it necessary for me to travel into other enquiries, the Court will readily judge, which of us has Occasioned them the most trouble.
Having Established the Debt, due from the Deceased, I found it expedient to enquire into the extraordinary Cause of Mr Palmers insisting [indecipherable] to himself, the first right of Paying what he calledhis claim on the Estate and which he contends is inobjectionable, because letters of Adminn. were granted to him this produced other and further enquiries - and however unpleasant the task personally felt I was under the necessity of proceeding to prove to you, that Mr Palmer had not duly and truly admind. - For Gentlen. I called Witnesses of Respectability, who told you, that had not the Conditions of Sale been so strangely and peculiarly limited, and had time been given for this payment (which local circumstances in this Colony would have undoubtedly Warranted) the Property would have sold, considerably higher. And the Estate would have been consequently benefited - But time was not given and the Estate was thereby injured. As it is within your Recollection Gentlen. that the Adminr. proceeded to this Step, Contrary to a solemn protest made and Signed by all the Creditors, who saw the vast hazard of bringing Articles of such Magnitude to Public Sale under such manifest disadvantages.
Gentlen. now be pleased to Consider of what had passed previous to this Protest and what had Occasioned it - Mr Palmer convened the creditors by Public Advertisement - They met at his office - Mr Palmer proposed that the Creditors, should appoint two persons on their behalf and he would appoint one for himself - These were to meet in Order to Separate the Interests of the two
concerns.
[Page 136]
concerns - It was Mr Palmer’s own proposition - It was agreed to - Mr Palmer was requested to produce his letter of Attorney and Agreement with Stogdell - He was also asked to bring forward his own Claim and establish it by Oath as he had required the other Creditors to do - he promised to do so, in Two Days, but never performed. On the contrary he proceeded forthwith to advertise the property for Sale under very Obvious Disadvantage, and when the creditors saw what was going forward - they protested - but he persevered - He sold the property and got possession of the produce, no Acct. of his Adminn. was rendered within the time limited by the Statute and when an Acct. is required he Sets up his Claim of £8,000 to the exclusion of every other Creditor - In consequence of this Interval of Time, he had every Opportunity to Act as he pleased to make such Arrangements as were most Convenient to his Interest - He refused the Assistance of any person that could have pointed out Matters likely to explain the Concerns - and if there had been nothing Mysterious & that he was afraid to bring forward why did he go on thus in the Dark, & suffer a period of 18 months to elapse, before he would produce any Acct. at all - and not even then, but by the Coercion of the Court.
The Judge Advocate will bear in remembrance that Mr Palmer produced no other Acct. as an Adminr. in the Suit Instituted by Mr Balmain against him, than the Sale Accts. and a general Statement of his Claim on the Estate, which at the same time he begged to add to[indecipherable] Diminish - a request very Unusual for an Adminr. - And when I brought forward my Claim and Called for a Production of his Accts., Mr Palmer availed himself of the Year not being expired - And he sheltered himself then from any proceedings on my part by Contending that he had not had time to make up his Accts. And many months elapsed after the Year before I could bring him into Court when he still prayed for further time to procrastinate this enquiry.
Gentlen. it has been endeavoured to Impress your Minds with an Idea that an Adminr. can do no Wrong – that his [indecipherable] his Absolute and [indecipherable] - But will you, Gentlemen, sitting as a Court of equity Suffer such a Manifest Absurdity to go out into the world? What an Opening would it leave for frauds and Impositions - And why has the Statute so expressly objected, that Security should be given for the True and faithfull Adminn. of the party to whom Letters are allowed - And which are held an Indispensible preliminary before such letters are or can be granted.
Gentlen. There was a Considerable Quantity of Grain, [indecipherable] and other Articles sent down Occasionally in Waggons which have not been accounted for any otherwise than their being sent to Wallooo. from the Hawkesbury previous to the Sale – A Number of Goats were killed and consumed at Wall’oo. and you have heard that after Stogdells death everything at Wallooo and at the Hawkesbury, was left open and unreserved, as before his decease – exposed of Course to [indecipherable] and Misapplication - Nor was any Inventory taken till a Month after his death - and even this Inventory, which you are told was Composed from bits and scraps of Paper, Cannot or will not be produced - What is before you is a paper taken (as the Clerk who wrote it himself told you) from the Acct. Sales. I must still contend for the production of the Original Inventory and trust Gentlen. you will see the justice of my Requisition. – If I fail in obtaining it, your own minds will give this Circumstance all the weight it ought to have in my favour.
I have
[Page 137]
I have produced witnesses who have satisfied you that Wallooo. and its Concerns, must have [indecipherable] allowed up a Considerable property of Stogdells for which Mr. Palmer has only allowed £100. It is scarcely necessary to dwell on this point, for you have gathered by Competent evidence that if a Thousand Pounds had been allowed, it would not have exceeded the Expenditures.
In the course of this Arduous Enquiry, I have never lost sight of Mr Stogdells being the Agent - the Attorney & of Course the personal Representative of Mr Palmer in this Country; Mr Palmer in his letter of Attorney calls John Stogdell, his Friend - An appellation not usually bestowed on a Servant - Had Mr Stogdell been living now, we should have heard nothing about Servitude and Wages. And in that important Deed, which Mortgaged the farm to Mr Campbell, you have seen that Mr Stogdell called himself such; and says he is indebted, not only not only on his own Acct. but on Acct. of John Palmer Esq. to Mr Campbell in that sum - And you can have little doubt (however it may be attempted to be explained away) but that Mr Campbell whilst Stogdell was Contracting this vast debt had in view Mr. Palmer or his property as his Ultimate Security - I would here beg leave to refer to an Affidavit of Mr. Campbells, made on the Original deed - what purpose Mr. Palmer had in View by this Affidavit, I am at a loss to Conceive - If Mr Palmer, thought it necessary to have such an Affidavit, perhaps he can explain his motives thereto - Indeed Mr Campbell is too much a Man of Business to leave you to believe, that he would trust a servant of Mr. Palmers (such as they now represent Stogdell) at £40 a Year Salary, with £1,800. For in fact, he had trusted him to that amount, before he got any Security in the Farms - Gentlen. Mr. Palmer does not deny that he came with Mr. Palmer to the Judge Advocates Office, but he and Mr. Campbell both say not to Ratify the Deed. The Act may not be an immediate Ratification, for the Witness does not go to the absolute fact of Ratifying, but he says that Mr. Campbell came with Mr. Palmer to the J. Advocates Office for the Deed and when it was delivered to them and Mr. Campbell expressed himself satisfied – Mr. Palmer draws a line between Ratification and Satisfaction - The Court will judge of it as they think best.
In forming your minds Gentlen. to determine on this Weighty Business, I trust that you that establish Mr. Stogdell as Mr. Palmers agent, inasmuch as he built his Credit with the Public, in that Gentlemans immediate personal Representative - . It is highly essential that this should have its due Weight - This of too much Magnitude to be passed over in this enquiry. It will lead to the elucidation of many points, that must otherwise be left in the dark - It will soon do away Mr Palmers pretended equality of Claim and Remove him from the state of an Adminr. having [indecipherable] over the effects of the deceased, below that of any Commonest Creditor - It will in point of Equity and Conscience make Mr. Palmers personal Estate liable to the Creditors for leaving a Person in his shoes, to gain a Credit with the Public, into which they were [indecipherable] by false promises and according to Mr. Palmers Doctrine, now are to be [indecipherable]
for
[Page 138]
for their Creditability – whilst Mr. Palmer who Sanctioned this delusion by giving so high a Colour to Mr. Stogdells Representation, comes in, And Swallows up the Whole of his Property.
Gentlen. You have heard of Mr. Stogdells unremitting attention to the Interests of the Concern and the prodigious Profit and Advance he made on the Articles he purchased – Mr Stodgell was never deemed an Extravagant Man – It has been proved that Stogdell repeatedly and anxiously wished for Mr. Palmers Arrival, that he might relinquish his Concerns and Retire to his own Farms to enjoy the fruits of his unremitting Industry. How then can you Reconcile to yourselves the possibility of his Owing so vast a Sum to Mr. Palmer and being indebted so Considerably to the Public Withal? When or how Could Mr Stogdells Debts to Mr. Palmer Accrue? What documents have you Seen to Support Mr. Palmers Claim? You have heard of a debt, but I would beg leave to ask how it has been Establishd?
Gentlen. In the Course of this Investigation, which I have gone into with a View to Support any Assertion of Mr. Palmers not having duly and truly Admind. Orr not having made the most of Mr. Stogdells Effects Or given him that Credit, in his Accts. to which he was entitled, and which Mr. P. ought to have allowed to his Estate, I have made it appear that the Sum Charged for the Sale of the Effects was £477.8.2 When in fact, I Offered, as the Public Auctioneer, to do it for 2 ½ per Cent And when Mr. Palmer is asked Why he did not employ me – he Says to Save the 2 ½ - and put the Estate to the Expense of near £500! I can scarcely think necessary to take any serious Notice of the Intimation that has been thrown out, of my being Instigated to this prosecution, because I was not the Auctioneer – Mr. Palmer is welcome to any benefit you may be inclined to allow him from the Suggestion – I contend that it was Wastefull to allow such a Sum for Commission when it could have been done for a fourth part – I have Objected to that £500. Charged for that Sum – said to be filled up by Stogdell on a blank Paper – I have stated to you Gentlen. And it has not been Controverted, that this Sum was filled up to pay a Debt due to Mr Peterson; before he left the Colony. – Gentlen. There was a Valuable farm at Toogabbee which Mr. Stogdell expended considerable property in and Upon, by Cultivating the same from Year to Year – the Crops of which were Injured by Floods – but Stogdell improved it – He Shingled the Roof and otherwise contributed to its Value – This Farm has been Sold to Mr. Grimes, but we find no Credit given to the Estate for these Improvements – and the mode it has been Sold in and the Contract Established is a Mystery which, I trust, will hereafter be Explained.
Gentlen. Mr. Palmer, Instead of Consulting with those who from Knowledge of Mr. Stogdells Concerns, might have thrown considerable light on his Affairs, committed the examination of his Papers to Strangers, wholly ignorant of his Concerns, with power to throw to [indecipherable] and Destroy Papers at their Will – Papers which high probably might have led to a Discovery of several Matters and Transactions that now must necessarily remain in Obscurity.
I have brought McDonald to make it Appear that a Note of his for £20. was due to the Estate, which Mr. P. as Admorr. Ought have Noticed and enforced. And if recovered to have given a Credit for. You have heard Mr. Palmers Reply to this and how he has Combated this Enquiry – When £150 is discovered deficient from Mr. Williamsons Accts. (the Amt. of bills not Accounted for) Mr. Palmer admits the Error and says he will allow for it – Yet he still
Insists
[Page 139]
Insists he has duly Adminisd.! I have proved that a quantity of People were [indecipherable] in employ at the Hawkesbury, Consuming the Provisions and Receiving payment in Articles – 50 Men Employed in doing what might be performed by 4 or 5. It is true they were employed in Cultivating the Farms, but for whose Benefit? For the Benefit of the Purchaser – that Purchaser at the Sale was Mr. Campbell – But Gentlemen, you find Mr. Palmer is now and has been ever since in Possession of them.
Gentln. you have seen the difficulties, I have mit to Obtain a [indecipherable] the possession of any Papers that I have called for and which I humbly Submit, it was the Duty of an Adminr. to bring forward, without starting any Obstacle to their Production – Every paper that could in any Manner contribute to explain any transaction connected with this Concern, should be furnished to the Court as well for its information as for the general advancement of Justice.
Gentlen. I have trespassed a good deal on your time, and regret most Sincerely the Occasion – [indecipherable]will not find, that like my Opponent, I have travelled into Law Cases – Obsolete Statutes – and the Remoter pages of Antiquity, to bewilder you with irrevelant points – My Cause is the Cause of Equity and Justice – Yours is the province to decide upon it – If I was in the habit of Consulting Law Books, I might possibly discover Cases that would Support me. But I rest my [indecipherable] on that principle of Justice, to which I appeal and which I am sure presides in your breasts as judges, And Men of Honor & Integrity – And I will pause but a moment to Submit to your Serious Consideration, how it is possible, that the Case of Lawson, adduced by the Defendant can Apply to the present Question – There the Defendt. himself, sets out with Mentioning a Confiscation of £50,000 – This Connected a fraud, with the Transaction on the part of Simpson and Altered the Complection of it essentially – Here no such Suggestion has been attempted And Justice to the Memory of the Deceased, is prompt to crush every Insinuation to his Prejudice.
Gentlen. A more arduous or discouraging task never fell to the lot of any Individual, than I have had to encounter in this enquiry – But Conscious of the Rectitude of my pursuits and the Justice which Attached to it, I shrink from no Difficulties – I never will shrink – And the Man whose Rights are invaded – Whose Property is wrested from him and detained by false and fallacious Arguments, is the Man that a Court of Justice will protect, and you Gentlemen, as the dispensers of it, will redress.
Sydney 21st April 1808
("Signed") Simeon Lord.
[Page 140]
Appeal
Between Hugh Machin by S. Lord his Attorney Plainf.
and
John Palmer Admr of all and Singular the Debts and Effects of John Stogdell Decd. Who died Intestate. Defendt.
To His Excellency Philip Gidley King Esqr, Captain General and Governor in Chief in and over His Majestys Territory Called New South Wales and its Dependencies &c, &c, &c.
John Palmer Esqr, the Admr. Defendt. above Names Appealeth against the Judgement, Sentence or [indecipherable] of the Court of Civil Jurisdiction, pronounced in this Court on the 4th day of July 1808. Which said Judgement is as follows
That the Court [indecipherable] a Verdict for Hugh Machin the Plainf against John Palmer Esqr. Admr & Defendt for £306.19.3 Damages and Costs of Suit.
That the said John Palmer the Admr. Finding himself aggrieved by the Judgement pronounced by the said Court gave Notice of Appeal, pursuant to the Directions of the Charter in such Case made.
For Cause of Appeal, the Appelt. Sits down the Causes following.
First, Because the Court of Civil Jurisdiction, gave their Verdict for the Plainf. Agt the sd. Defendt. the Admr, Whereas by the Laws and Statutes of this realm of England, the sd. Verdict, ought to have been given for the Defendt.
Second, Because the said Court, gave Judgement for the Plainf. agst. the Defendt. for £306.19.3 damages and Costs of Suit, Whereas this is a Judgement against future Effects – Reasons. Because at a Court of Civil Jurisdiction held the 27th July 1801 in a Matter than depending between Mr. Balmain Esqr. Plainf and the Appelt. Admr. aforesaid Defendt. The Court then and there directed an Inventory of the Intestated Estate and Effects come to the possession of the Defendt. the Admr. to be brought and Produced into that Court And which sd. Inventory was then and there produced and filed in Court Amounting in produce from the Sale thereof by Auction & otherwise to £4754.2.6 And which was allowed to be paid and Retained in due Cause of Adminn. And the sd. Admr. then and there produced on Oath and files in the sd. Court and Acct. of divers Sums of Money due and Owing by the Intestate, at the time of his Death to the sd. John Palmer the Admr. Amounting on balance to the Sum of £8062.11.11 which Sum the Court was pleased to allow and the Admr. Claimed to Retain the Same out of the first Effects that should come to his hands, to be Admind. in Cause of Adminn.
That the Appelt. Then and there, exhibited to the Court a certain Deed under the hand and seal of the Intestate, whereby the sd. John Stogdell, in his lifetime, Assigned certain Estates and other his Effects to Robert Campbell Esqr. to secure the Payment of £1750 and Interest as therein is Mentioned and which sum the sd. Robert Campbell Claimed to be paid, And the sd. Court then and there Adjudged that such Debt had a priority to all other Claimed & Debts to be paid out of the Intestates Estates is by the Record of the proceedings affiled in the sd. Court , may Appear?
Because When the Respondt. First exhibited his Complaint & Cause of Action, in Writing to the Court of Civil Jurisdiction, the Appellt. Pleaded the sd. Debt owing by the
Intestate
[Page 141]
Intestate to the Admr And Showed that thereby and by payments in the Course of Adminn. the Appellt. had fully Admind. all the Estate of the Intestate, come to his hands to be paid and Retained in due Course of Admn. and the Appellt. by Order of the Court in the sd. Cause, filed in the sd. Court de [indecipherable]; an Inventory of all and Singular the Goods and Effects of the Intestate, come to his hands to be Admind. and also an Acct. of his Receipts and Payments in Order to Show, that he had so fully Admind. in manner aforesd. but the sd. Respondt did not then pray of the Court, to give him Judgement of any future effects, as by the Law he might or aught to have done, but by way of replication the sd. Respndt. said that the Appellt. had not duly Admind all and Singular the Estate and Effects of the Intestate and thereupon the Cause was at Issue and the Appellt. Duly proved his Case.
Because the Court of Civil Jurisdiction, in the sd. Cause allowed the Appellts. Accts. in these Words.
It appearing by the Accts. given into Court that John Stogdell stood indebted to John Palmer Esqr the Admr. at the time of his death in the Sum of £8229.18.5 and that the Sale of the Effects of the sd. John Stogdell Amounted to £4774.2.7½ and that the sd. John Palmer has paid £1892.1.6 out of the sd. sum leaving a balance, to the sd. John Palmer Esqr of £6337.16.11.
That the Appellt. discovering an Error in the Making this Ballance and which was dependant upon the figures, caused Application to be made to the Court and prayed that they would Correct the above Statement, as to the Ballance or otherwise explain how the ballance was made out when the Court refused to alter the figures finding the ballance, but under the above Copied Order upon this Appellts. Request, to have the same ballance set Right, the Court all Signed at foot of the above finding these Words. Error in the Ballance, which should be £5347.17.3½ instead of £6337.16.11 (Signed Richd. Atkins William Moore. James Mileham.
That the Appellt. has a certified Copy of this Order, under the hands of the Judge Advocate to produce or the same may Appear on the Record of the Court, in this Cause, And the Appellt. prays the Court of Appeal, to Establish this ballance of £5347.17.2½ may be paid to the Admr. or that he may retain the same out of the first Effects got in out of the Intestates Estate.
That the Money due to the sd. Hugh Machin, the Respondt. was a Simple Contract debt and of the same or of less degree, in point of Construction of Law, than the debt or Sum above found, due to the Adminr. for the Appellt.
That by the Court having allowed the sd. Acct. the Court have established the Case made, by the Appellt. in his pleading to this Cause of Action or Complaint in writing of the Respondent; That is that the Appellt. the Adminr. had fully Admind. all the Intestates Estate and Effects before the Respondt. commenced his suit and the Court thereby found, that such Effects were disposed of in due Course of Admn. and as those Accts. were in proof before the sd. Court of Civil Jurisdiction, before the giving the Verdict, from which the Appelt. now Appeals, the Appellt. Submits the Judgement aught to have been given for the Appellt.
The Appellt.
[Page 142]
The Appellt. Admits that before the giving the Judgement in the sd. Cause in the sd. Court of Civil Jurisdicn, it was some way noted and alleged it would be Consistent with Justice, to give Sentence for the Appellant, to be first paid his ballance, one as aforesd. and then the debt of the Respondt. the Court said they thought aught next to be paid and the Appellt. from what [indecipherable], then Understood the Court meant so to do, And the Appellt. has been told by some of the Members, that in giving Judgement, the Court meant to give a Judgement of future Effects, so be paid after such Ballance due to the Adminr. as aforesaid was discharged and paid And such they said was the Intention of the Court, when they gave the Judgement aforesaid but supposing the Law would operate in that way, if they gave a General Verdict, the Court gave such Verdict General.
And notwithstanding the Appellt. gave the Court to Understand, after giving the Verdict aforesaid, the mistake in point of Law And Requested of the Court, to Set such Judgement right in Order to save the Appellt. the necessity of this his Appeal, notwithstanding the Mistake the sd. Court Or some of the Members declared that having pronounced the Verdict in Court, altho the Court were Sitting, they did not Consider it Competent to them to alter the Minutes or to set the Judgem0ent right, save only by Appeal to your Excellency.
For these Causes and Reasons. with other Causes in the Law arising the Appellt. Submits to the Judgement of Your Excellency, to reverse the sd. Judgement in the Premises, as to Your Excellency, shall seem meet, and the Nature of the Casse Require And the Appellt. will ever pray &c, &c, &c.
("Signed ") John Palmer.
To His Excellency Philip Gidley King Esqr. &c, &c, &c.
The Memorial of Simeon Lord
Most Respectfully Showeth,
That Your Excelleny. Memort. in the Month of August last, Commenced a Suit against John Palmer Esqr. to Recover from him, as Adminr. of the late John Stogdell Decd. a Sum of Money due to Memort. as Agent to Mr. Hugh Machin.
That after a long, harassing and expensive Suit to your Memort. the Court of Civil Jurisn. on Monday the 4th of July, last, gave and pronounced an Unqualified Verdict in favour of Your Memort. which entitled Memort. to the Whole of the Sum sued for with full Costs of Suit – from which decision, Solemnly and Deliberately made and given Your Memort. Understands the Defendt. has been advised to Appeal to your Excellency.
Your Excells. dutiful Memort. is well aware that no Sophistry that can be extracted from the Remote Ambiguities of Law or that may be fabricated, by any of its Subtle Professors, will for a moment impose upon Your Excellens Judgement, or disturb that
System
[Page 143]
System or Equity and Impartiality which has Uniformly distinguished Your Excells. Adjudications And on which your Memort is proud to Rely, as his Undoubted Security for Justice.
Memort. takes the liberty to Offer a Statement of his Case to your Excells. consideration, regretting the Occasion that is productive of so much trouble to Your Excelly, but at the same time, yielding to the humble hope that when Your Excelly. is satisfied with its Correctness (and which Your Memort. pledges himself to prove) the motives of Opposition on the part of the Defendt. will appear in their genuine colours and Your Excelleny. will be convinced that they are dictated by Artifice And Calculated to prevent, if not to defeat, the regular Current of Justice.
The Defendt. John Palmer Esqr. on his departure from this Colony in the Year 1796 left Mr. John Stogdell (who he Stiles His Friend) his Agent and Representative in this Colony. And for that purpose executed a Letter of Attorney bearing date the 12th September 1796 (a Copy of which is Annexed) – Mr. Palmer also entered into an Agreement with Mr. Stogdell Stipulating a Certain Centage on Sundry Articles of Merchandize left in his possession for Sale besides an allowance of half the proceeds on Sundry livestock, such as Sheep, Hogs, etc. and the same allowance on Grain, then growing or afterwards to grow on the Farms. Also a third of the next proceeds of all the Merchandize that Mr. Palmer might afterwards send to N. S. Wales from time to time – besides which Mr. Palmer allowed him £40 per Annm. generally for his attention to the Interests of the Concern. (A Copy of this Agreement is also Annexed)
Thus empowered Qualified and Authorized Mr Stogdell Conducted Directed and Arranged all the Concerns at Walloomooloo, the Hawkesy., etc. – Traded with Merchandize on hand – bartered, bought and Sold other articles – Managed the Public And Domestic Concerns of the Farms, Houses Premises Lands and Possessions and became the personal Acting Representative of Mr. Palmer and vested with such Power, Unlimited and Uncontrolled, he Continued to Act until the arrival of Mr. Palmer about the latter end of the Year 1800.
(During Mr. Palmers Absence, the Public Dealt with Mr. Stogdell as his Agent and Representative, whose Acts they Considered Mr. Palmer, eventually Responsible for – And Upon the surest grounds that could exist in Society because he had by letter of Attorney, himself Confidently Elected and Appointed him to that Situation And left him to Act in it.
Among other debts that Mr. Stogdell Contracted was one for £1000 and Upwards with R. Campbell Esqr. And when Urged by Mr. Campbell for a Security, he gave a general Charge on all Mr Palmers Property in this Colony – including Wallooo(This Sum has since been paid)
Early in the Month of March 1801 John Stogdell met
with
[Page 144]
with his death – and on the 9th of the same Month, Mr. Palmer took out Letters of Adminn. – The Public at large looked up to Mr. Palmer as a Gentleman, holding a high and important Office in this Colony and they did not oppose his Adminn. because they thought him a proper Person to stand as a Trustee for their Claims, between them and the Estate.
And here it may be necessary to Remark to your Excellency that in England it is the practise when any Opposition is intended to an Adminr. to lodge a Caveat with the proper Officer, the merits of which are decided by the Ordinary, before letters of Adminn. are granted. The Circumstances of this Colony may not altogether admit of such a form being Introduced here but it shows that Care and Caution are Necessary to be Observed in the Election of Persons to an Office of such Importance – an Executor differs widely from an Adminr. in as much as he is appointed by the free will and Action of the Testator – Whereas the Adminr. is Self elected. But to Return – The first step that Mr. Palmer appears to have taken after he had possessed himself of Letters of Adminn. was to invite the Creditors to bring in a Statement of their Claims on the Estate and to verify the same on Oath – they did so – they were Virtually deluded into this Measure as the Event proved – Mr. Palmer produced no Acct. of his Claim, nor did he Substantiate it by Oath or Otherwise – When the Creditors had presented their Claims and attested them on Oath Mr Palmer Collected them together at his Office and proposed that three Persons should be appointed, Two by the Creditors and One by himself in Order to examine the papers connected with the Concern and to Separate the Interests thereof (particularly Wallooo. in which a Considerable Su of Money had been Swallowed up in Repairs, Improvements and Decorations) The Creditors saw no Reason to disapprove this Measure and Agreed to it, provided Mr Palmer would produce his Letter of Attorney and his Agreement with Stogdell – they knew the Importance of these Instruments – Mr. Palmer hesitated – but did not altogether Refuse to produce them – he warily took advice on the Occasion and at length declined to render the Creditors this Satisfaction or even to perform his proposed Measure of Appointing Persons to Inspect the Papers – They addressed him by letter, dated May 14th 1801 (a Copy annexed) he replied by letter dated May 12th and said he did not find himself at liberty to give up a Copy of the Letter of Attorney unless directed to do so by Authority, the Creditors then presented a Memorial to Your Excellency Soliciting Your Excelly to interpose to prevent Mr. Palmer from proceeding to the Sale of the Effects, According to his Public Advertisement under Circumstances so manifestly Injurious to their Interests And disadvantageous to the Estate – Your Excelly was pleased to decline interposing – The Creditors then formally protested, at the Judge Advocates Office against the Sale And in a paper Annexed to such protest, assigned their Reasons for so doing (See Papers) But Mr. Palmer was not to be led from his determined purpose – He peremptorily proceeded to dispose of the Effects and in his letter of the 16th May 1801. is the following remarkable Passage, "I certainly shall proceed in the Disposal of the Effects and distribute the Same according to due Course of Adminisn. for the benefit of the Concern and that without any delay on my part" – The Sale then went on, under every local disadvantage – The Effects were Sold or appeared to be Sold – They want [indecipherable] into the Channel – the Monies were Received and Instead of being distributed (As Mr. Palmer said) According to due Course of Adminr have since been locked up in Mr Palmers possession wherein Until Your Memort. Commenced his Suit and Recovered his Verdict the Suffering Creditors might have looked in Vain for any proportion or dividend.
By this Verdict
[Page 145]
By this Verdict which was the Result of due deliberation and will ever stand as an honourable Accord of Impartiality and Virtue. Your Memorial’t had received a Right to the Claims he led up – And the creditors at large have the same Channel open to them for Redress. Since the verdict which was founded on a conviction in the minds of the Court that Mr Palmer had not duly Administr’d but on the contrary had improperly discharged his self assumed [indecipherable] gives them generally the same power and must eventually lead to restore to them their property which has been so long and so unjustly [indecipherable] withheld and will prove to the World that unsuspecting minds are subject to be delude by false appearance s (Such as Stogdell seems to have been sanctioned in holding on to them) the person who gave him that sanction is and ought to be the only sufferer. What might be Credulity in them, in him, merits another appellation.
Dangerous as the experiment was, Mr Palmer was incautious by advice to reject the evidence of Sundry creditors because he contended they were eventually interested. This evidence would have saved the Court infinite trouble had it been admitted. But your memorst. was obliged to withdraw it. And the result has answered the genuine purpose of justice – the creditors indeed are eventually interested since their claims are confirmrd and recoverable by the verdict of 4th July last.
If this statement to Your Excelly is true what [indecipherable] can Mr Palmer have for an appeal from such verdict? What will it appear but as the last desperate effort of a disappointed mind that would eagerly fly the bewildering [indecipherable] of Law to assist him to counteract the course of justice.
Your Memorst will trespass no more upon Your Excelly’s time than humbly to refer Your Excellency to the evidence which went to prove that Mr Palmer had not duly Admin’d:- That is material to advert insomuch as it produced the verdict in favour of your memor’t - and will show the strong grounds on which the verdict was foundede.
Your Excell’y in tracing the records of this important inquiry will prove the difficulties your memor’t has to encounter in extracting the whole truth from the witnesses he has been [indecipherable] to call into Court. The cautious and reserved replies of those in Mr Palmer’s service evidently show a reluctance to disclose anything that tend to strengthen your Memor’t’s causewhich in fact wanted no other reply than simple and undisguised truth.
Several respectable witnesses settlers and others Messrs Kable, Archer, [indecipherable] Rickaby Bennet declared that if time had been given for the payment they would have advanced the price considerably higher and wanted and could have given ample security for the money. (a recent instance has occurred in the late Mr Cox’s effects, where an amt. of time being given to settlers and others produced 100 per cent in an average) [indecipherable] of this [indecipherable] at the Conditions of Sale and they said Mr Campbell was the only person likely
[Page 146]
[Note in the margin}
The Copy of Sales Inventory the [indecipherable] No 5
and No 6]
- He had purchased many of the farms and effects – but Mr Palmer is now in possession of them.
An Admin’r is a Trustee, whose duty it is to make the most of every thing considerable to his charge. The tenor of his bond which the Law directs to be given is to this [indecipherable] effect. And for what purpose is a bond given if the obligation entered into is not complied with?
Mr Palmer should have taken a regular inventory immediately after his Admint’n commenced - he should have put a seal on the effects - he should have distinguished, arrange and preserved them. He did nothing of the kind. From the testimony of Ryan his clerk it appears that the inventory exhibited before the Court was only a copy taken from the Acct. Sales. Your memor’st has called upon Mr Palmer regularly in Court for the Original Inventory. None could be produced for none was ever taken.
Your Memor’st was the Public Seconded auctioneer and offered to sell the property for 2½ per Cent. Mr Palmer employed his clerk and charged 10 per Cent. His clerk knew nothing of the [indecipherable]. And when Mr Palmer is asked why he did not employ a regular auctioneer he answers "I save the 2½ per Cent." To save 2½ per Cent and put the estate to the expence of 10 per Cent!
The person whom Mr Palmer was pleased to appoint as auctioneer was a stranger in the country – he knew nothing of Stogdell’s concerns yet to him was the examination of private papers committed. And he had the priviledge of preserving or destroying as he pleased. Your Memorial’t offered to assist in looking over the papers and could have thrown light on some of Stogdale’s transactions. Nay he did so in one instance altho’ it was in the latter stage of the examina’n. But the task was assigned to a stranger and papers were burnt and the subjects connected with them are and must forever main hidden in obscurity.
From the time of Stogdell’s decease to the Sale evidence has shown that a considerable quantity of grain, pigs, poultry, fruit, wine and other articles were occasionally brought down in wagons from the Hawkesbury to Walloon for which Mr Palmer had allowed no Credit.
In fact and in truth, the two interests of Mr Palmer and Stogdell were so blended so interwoven together and so inseperable that Mr Palmer did not attempt to separate them. He did produce "An item in his acc’t of £100 allowed for improvements at Walloo" for 5 years. By the evidence your Memor’st brought into Court Your Excell’y will judge that matter. From its vast improvements, its extensive buildings (after Mr Palmer’s departure) its decorations and furniture must have swallowed up some thousands of pounds which Mr Palmer has not accounted for. Your Excell’cy will gather information on this point from the evidence of Thorley the upholsterer who spoke to the cutting up of some bed furniture – from the carpenters, boat builders, carpenters gardeners, labourers, fruiterers, saddlers, harness makers, wheel wrights, printers, and the domestic servants, all of whom were employed from time to time at considerable expence on and about Walloo’ and appear to have earned and received immense sums for their services.
[Page 147]
This expence Mr Palmer has conscientiously estimated at £100!
Your Excellency will further find from the evidence of Mr Williamson that he considered Mr Stogdell as Mr Palmer’s Agent and accounted with him as such. And in Mr Williamson’s examination reference is had to certain Wheat Bills which were never brought to light by Mr Palmer in his Account. Mr Palmer chooses to take every advantage receiving a credit without giving any.
Mr Grimes’s evidence goes to prove a contract respecting a farm at Toongabbee entered into by Stogdell and afterwards certified and confirmed by Mr Palmer.
The circumstances of the blank paper left by Mr Palmer for Mr Stogdell to fill up shows the confidence Mr Palmer placed in him as agent and differed widely from the common trust reposed in a servant. But even the £500 is stated incorrectly since the money received from this draft went to pay a former debt contracted on Mr Palmer’s account and should not have formed any part of charge against Stogdell’s estate.
But [indecipherable] are the instances attest to establish the fact of Mr Palmer not having duly admin’d according to the law. Your Excell’y will gather then on a review of the evidence that is recorded in the minutes. It would trespass too much on your Excell’y time for your Mem’st to animadvert further upon them. When the merits of the appeal come to be enquired into; your mem’st humbly hopes that he shall have an opportunity to enlarge on them.
[summary indented]
May it therefore please Your Excellency in consideration of all the relative circumstances of this extraordinary case, the importance of the object it embraces by resolving the property of so many [indecipherable] parties who as well as your memorial’t are materially interested in the event. And moreover when your Excell’y is informed that your Memor’t had a further claim on Stogdell’s estate nearly to the amount of £900 (a debt contracted by Stogdell in the course of mercantile concerns) your Mem’t humbly hopes Your Excellency will graciously interpose your high authority to direct measures to be taken to leave the money and effects in the hands of the Admin’r. Mr Palmer as trustee for the estate to answer such decision as may await this important enquiry. Your Mem’t humbly submitting that no personal security in this Colony is competent to the responsibility a charge of such magnitude and moment.
Your Dutiful Memor’t &c &c &c
("signed") S. Lord.
Sydney Aug’t. 12th 1802
[Page 148]
Augt.10,1803
Dear Sir,
I have taken the liberty of enclosing a memorial, being the Whole I shd have to pay, unless Your Excellency may have any questions to put to me on the Appeal now before you – from the [indecipherable]of Mrs Palmer, I fell myself so agitated as to be unfit for any kind of business today – therefore if it meets your Great Approbation, shall be much obliged by the appeal being put off till Saturday
I have the honor [indecipherable]
(signed) John Palmer
His Excelly. Gov King &c &c &c
In the matter of Appeal
Between John Palmer Esq, Admr. Of the Estate, Debts, and Effects of John Stogdell, Deceasd, Appellt. And Hugh Machin by Simeon Lord his Attorney, Respondent
To Philip Gidley King, Esq, Captain General and Governor in Chief over his Majesty’s Territory of New South Wales &c &c &c
The Memorial of John Palmer the Appellant
Most Humbly Sheweth
That in the Month of September 1796 your Memort. then and still being Commissary of this Colony with and by leave of absence departed from this colony and embarked for England – Your memort. By letter of attorney appointed John Stogdell Decd Your Memorts agent in this Colony except that of the Public Office of Commissary
That Your Memort. Again returned to this Colony in November1800 but before the Acct. between your Memort and the sd. John Stogdell on acct. of Stogdells agency could be settled the sd John Stogdell met an accidental death.
That at the time of such death the sd John Stogdell stood justly indebted to your memot. in the sum of £ 8553.11.5 and divers other sums subject to small allowances which brought the balance to £ 8229.10.5 and there being no will of the said John Stogdell or any next of kin in the said Colony, letters of adminn. Were granted to your memort. as a creditor in which character as Adminr to the sd. John Stogdell Deceasd. The Respondt prosecuted the suit in the Court below from which this appeal interposed
*/
Note these amounts confirmed by Privy council appeal records
see http://www.law.mq.edu.au/pc/LordvPalmer,1809.htm
And in support and for the better authenticating the facts and suggestions in your memor’ts appeal in this cause your memor’ts as of right with submission to your Excellency and Judges of the Court of appeal offers and tenders to the sd. Court and prays that the said Court
[Page 149]
Court of Appeal may read as evidence upon hearing this appeal the following proceedings of and in the Court of Civil Jurisdiction [indecipherable] in the sd Court
And which proceedings are the [indecipherable] as mentioned and referred to by your memor’t in the original acct. exhibited to the court in this cause and which papers and proceedings are set forth or mentioned in the proceedings of your memorise in that Court in this cause of the 11 Augt. 1802 upon your memort pleading to the cause of action (if any) in which proceeding it is amongst [indecipherable][indecipherable] said
That in the cause of Balmain Esq agt. Your memort. as Adminr. of John Stogdell deceased an acct. was exhibited on the 27th July 1801 by which acct filed with [indecipherable] Court in that cause the Appllt. Showed that he had fully admin’d all and singular the effects of the intestate came to his hands to be Adminr and thereon setting forth the application of the money, that had been received and which papers the then court of Civill Jurisdiction did refer to and read from their records in that court, in this cause and which papers your memort. Prays may now be read in and before the Court of Appeal as [indecipherable] on behalf of the Appellt on the hearing of this appeal, that is to say
The records of the suggestions, resolutions and orders of the Court of Civil Jurisdiction made in a certain cause depending in this Court on the 21st July 1801 in which cause the sd William Balmain Esq as plaintiff and of your memor’t. As Adminr. Aforesaid defend.
By which proceedings of Record amongst other things it may appear that a letter of Attorney and an agreement therein your memorial. and the deceased
John Stogdell was then and there read and that the Court then and there delivered their opinion concerning the [indecipherable]
And that under the direction of the sd Court your memort then and there produced to the sd Court on acct of [indecipherable] of the Intestate estates and his own acct. with the deceased John Stogdell at the time of his death, amounting to a balance then allowed by that Court at £ 8061.11.11 and which acct was by order of that court delivered to the sd court on oath and filed on the 27th July 1801 and doth now remain affiled with the sd court and also the acct of the sales of the intestated effects produced to the sd court whereby it appears that the effects of the sd john Stogdell came into the hands of your memort, was sold by auction to the highest bidder for £4774.2.7 and no more which was then and there deposed to on oath and filed and remain affiled of record in the sd court
And the sd Court delivered their opinion as to certain matters, relative to the estate and effects of the sd John Stogdell deceased and relative to, an instrument under the hand and seal of the sd John Stogdell made to Mr Campbell, then[indecipherable] produced to the sd Court, by way of mortgage for the sum of £1750 and interest and the sd court then and there declared, that the same security to the sd Robert Campbell had a priority of claim on the effects of the sd John Stogdell deceased and in answer to a suggestion of the sd William Balmain then and there made, that the Court would
consider
[Page 150]
consider and decide whether your memort was or was not liable or subject to be responsible for the sum in that instrument charged or part thereof, the sd Court of Civil Jurisdiction then delivered their opinion touching and concerning the same
That your memort was not liable or responsible thereupon, as by the Record and Proceedings thereof remaining affiled and received in the sd Court of Civil Jurisdiction
The sd suit of the sd William Balmain, a creditor of the sd John Stogdell, deceased, agt your memort. Admin of the estate debts and effects of the intestate was thereupon by the direction of the court discontinued
Although it will appear on inspecting the accts delivered into Court that if the Court had not been of opinion that your Memorts. debt had a preference of payment to other claims of equal degree, there was a considerable surplus of effects then in the hands of your Memory. after payment of the mortgage debt, due to the sd. Robert Campbell, and that to a far greater sum than would pay the then claim of the sd. William Balmain and your Memort. Then and in court claimed to [indecipherable] hands, the same money as part of his debt and was by the Court then and there allowed to retain the same as part and in aid of payment of the debts, due to your memort. As by the said proceedings of the sd court may on reference appear
That the decision of the sd Court in a matter touching the estate and effects of the intestate withal case was ended and ought to be binding as well as the adminrs. As upon all persons who are Creditors of the said John Stogdell, deceased, no appeal having been interposed from that decision and the judgement and decrees of the Court of Law ought to be to every person in the same case
That your Memort. in compliance with such order of the Court produced and filed such inventory de novo, on the 16th Augt. last mentioned and Your Memort. [indecipherable] such inventory, also by order of the court filed in the sd. Court on oath another inventory and account of what such effects produced on sale and an acct of all other receipts and payments of your memort. Up to that time and which the Court filed and under which inventory or account your memort. Made a protest in writing, that such acct or inventory contained a full and true account and inventory of all the intestates estate, debts and effects at the time of his death, that had come to your Memorts. knowledge save only some pigs and poultry which ad necessarily been expended for the tenants and labourers on the intestates premises before the letters of admin’n. granted and which were not contained in the inventory because Used before any inventory of the Intestates Estate was [indecipherable] made or before sale or disposal thereof
And that the court on the 27th July, 1801 on the application of William Balmain Esq, a creditor of the sd John Stogdell agt. your Memort. as the Adminr. of the sd. John Stogdell decd exhibited a complaint and by the direction of the court your
Memorialt.
[Page 151]
Memort. Exhibited an Inventory and Acct. of the Intestates Estate its Value and all Your Memorts. Then Receipts and Payments and the Claims and Debts that had come in, in course of Adminn. Which Inventory was proved, allowed and filed of Record of the Sd. Court, that Your Memort. (16 Augt. 1802) Exhibited a full and true Acct. and Valuation and Acct. of Sales and of Receipts and payments and Claims and Debts. Which as Adminr. Your Memort. Conceived he had a right to retain Or should by law be liable to pay (in Case of Assets) In preference to the Debt (if any) of the Respondt. And Your Memort. Prayed of the sd. Court. That such Acct. might be filed of record as an Acct. of Your Memorts. Proceedings and of his Receipts and Payments in Course of Adminn. Of the Effects of the Intestate.
And which Acct. and Inventory and the Sd. Protest Your Memort. then [indecipherable], in and before the sd, Court. And the same was filed of Record by Order of the Court and now remain affiled of Record in the Sd. Court in this Cause and which Your Memort. prays may be referred to and Read as Evidence on hearing this Appeal and which fully Or so far as necessary in Law contradicts the Memorial of the same Simeon Lord filed in the Court, on hearing this Appeal.
And which Memorial is not established or proved by any Evidence or proof in the Cause, but is a mere Suggestion of a Party Interested without any Evidence or other proof of and which Your Memort. submits to the Court Unless proved the Court of Appeal cannot by law Act upon and will reject.
And Your Memort. most humbly submits to the Court that no Suggestion ought to be made by any party on hearing the Appeal, but on evidence of the Truth of the Contents Or such as are Warranted by the Record of the Court below, but as every Court are judges of what is, or what is not, to be Received in such Court by way of Suggestion and no Suggestion ought to be Received in any Case without proof. Your Memort. with due deference states the Objection for the judgement of this Court.
That upon the Appeal of your Memort. in this Cause being red by Richard Atkins Esqr. On Saturday the 13th Day of August Instant, in the Court of Appeal, before Your Excelly. Your Memort. having, as the truth was, amongst other Reasons for the Appeal stated that.
An Order made by the Court of Civil Jurisdiction, in this Cause for allowing the Accts. of Your Memort. and what passed in that Court after an request made by Your Memort. to the sd. Court to explain or set right the balance which first appeared in the Act of the Court to be Wrong, and which Act was afterwards altered by a Memorandum at foot of that Order of Court, by the Members of the Court, as in that Appeal, now filed in this Court expressly mentioned and set forth.
Your Memort. with Surprize heard the said Richard Atkins, the Judge Advocate, aver, to Your Excelly. in Court "That there was no such "Act of Court in the Cause Or that such Act did not Concern the Same."
Altho
[Page 152]
Altho Your Memort. then held in his hands, a true Copy of such Act of the Court, attested by and Under the hand of himself the Sd. Richard Atkins, as Judge Advocate, and which Order of Court or Copy, is now ready to produce to the Court of Appeal, in these Words, Letters and figures. July 7th 1808 – The Court Sat – Sydney New South Wales.
"It appears by the Accts. given into Court, that John Stogdell, stood "Indebted to John Palmer Esqr. The Adminr. at the time of his Death in the Sum of £8229.18.2 "that the Sale of the Effects of the sd.. John Stogdell Amounted to £4774.2.7½ . And that the "Sd. John Palmer Esqr. had paid £1892.1.6 out of the sd. Sum, leaving a ballance to the said "John Palmer Esqr. of £6227.16.11 ("Signed" Richd. Atkins. Wm Moor, Jams. Mileham" (a true Copy) Richd. Atkins J.A. Error in the ballance, which should be £5247.17.2½ "Instead of £6227.16.11 ("Signed") Richd. Atkins, Wm. Moore, Jams. Mileham – Richd. "Atkins J.A." Which Order Or Paper Or Act of the Court, above set down or copied – Your Memort. most humbly prays of Your Excelly. as Judge of the Court of Appeal to Order the sd. Richd. Atkins, The Judge Advocate to produce to this Court (as a part of the Record and proceedings in the Cause, in the Court below, on which this Appeal is interposed) and that the same may be Read before your Excelly. on the hearing this Appeal and that the same may be taken as part of the Proceedings and Acts of the Court and Received as Evidence to Establish, as well the debt due to Your Memort. from the sd. John Stogdell at the time of his death, as to shew what Your Memorialist. Has since Received and paid in due Course of Adminn. And that Your Memort. may retain the ballance due to himself from the first Effects that may be got in out of the Estate and Effects of the Intestate to be distributed in due Course of Adminn.
That Your Memort. for Reasons sets down and Shews to the Court these Causes following.
That the Items in the Acct. mentioned in the sd. Order Or Acct. of the Court allowing that the sd. John Stogdell stood indebted to Your Memort. the Adminr. At the time of his death, in the Sum of £8229.18.2 And that the Sale of the Effects of the sd. John Stogdell amounting to £4774.2.7½ and that Your Memort. has paid £1892.1.6 out of the sd. Sum, leaving a ballance to your Memort. as therein expressed, Are Set forth in part, in the Acct. filed in the Cause of Balmain agt. Your Memort. as Adminr. As aforesaid in July 1801. And again set down and expressed in the Schedule and Acct. delivered into the Court below on the 16th August 1802, in the Cause in which this Appeal is Interposed and which Accts. of Your Memort. Debt is then in those Accts. set forth in these Words, due to the Adminr. And which he was allowed by the Court on the 27th July 1801. to Retain in preference to all other Claims out of the Effects and of the Intestates Estate when collected the Sum of £8061.11.11.
And Your Memort. shows that upon reference to the Acct. filed in Court the 27 July 1801 the Court of Appeal will discover that Sum to be the ballance and which is allowed and States in the Minutes, Act of the Court, Or record of the Proceedings in these Words
The Deft. (Meaning Your Memort. ) produced to the Court, his Acct. with the late John Stogdell Deceasd. Agreeable to his Answer to the Question put to him on the 21st. Instant in Court to which Acct. he deposes on Oath And by which it appears that the Estate of the Deceasd. stood Indebted
to him
[Page 153]
to him in £8062.11.11 Errors excepted and the Rest of the sd. Sum, making up £8229.10.2 mentioned in the sd. Allowance of the sd. Copied Order Or Act of Court, of the 7th July 1803 is other Sums of Money, discovered by Your Memort. to have been Received by the sd. John Stogdell, on Acct. of Your Memort. from divers Persons and proved by such Persons to be paid him on Your Memorts. Acct. over and above the Items, in the first Acct. exhibited in July 1801. And over and above these Accts. and Proofs, the sd. Debts due to Your Memort. by the sd. John Stogdell at the time of his death, was proved before the sd. Court by an Acct. of the separate Items, comprising the sd. Acct. making up the sd. £8061.11.11 were proved by Evidence in the Cause and may be seen in the Court of Appeal.
That although the sd. Court in July 1801 had allowed Your Memorts. Accts. the Court below, after they had accepted and filed those Accts. upon Oath of Your Memort. which Oath was made in Compliance with an Order of the Court, in this Cause, from which the Appeal, now before the Court is Interposed, the sd. Court on the 22nd. Novr. 1802 delivered their Opinion, that Your Memort. [indecipherable] [indecipherable] and prove the quantity and Price of every Article exhibited in his Accts. and produce it to the Court.
That your Memort. produced to the Court and filed a paper Containg. the Articles Or Items which Comprised as well the said £8061.11.11 as other the Sums Claimed by your Memort. to be due by the sd. John Stogdell at the time of his Death to Your Memort. amounting with the former Claim to this Sum of £8223.11.2 in which Acct. Your Memort. gave Credit for £328.13.0 as therein Mentioned And leaving a Ballance of £8229.10.5 due by the sd. John Stogdell at the time of his death to Your Memort. and Your Memorialt. under the Directions of the Court below proceeded by Evidence to Substantiate and prove the sd. Acct. of Monies due and Upon the sd. 22d. November aforesaid, Your Memort. in proof of an Article of the sd. Papers filed Amounting to the Sum of £4340.10.6 And in Order legally to Establish such debt by proof in the sd. Cause. Your Memort. duly proved and produced to the sd. Court a Book in the hand Writing of the sd. John Stogdell, Containing the Quantity, Quality and the Price of Certain Articles, And other Sums of Money, received by the sd. John Stogdell from Or on Acct. of Your Memort. and with which he debited himself in the Month of Septemr. 1796 and with which, proof of that Items of £4340.10.6 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. Novemr. 1802 and by them it also appears that an Article of £1202.11.10 for Cash and Goods by Mr. Williams on Delivered Stogdell and debited to Your Memort. and by him paid was then under Consideration and which the Court afterwards allowed and an Article of 26 Barrells of Tar Charged at £91 proved by John Guy, was also under Consideration and which the sd. Court also allowed and another Article of £10 paid Henry Revill, was proved by the sd. Revills Receipt and another Article of £60.12.6 paid Frances Newcomb the Mother of the Intestate is proved by the Receipt and an Article of £21.7.0 Bills Remitted the 12th October 1796. As proved by Your Memort. letters enclosing them to, and found in the papers of Stogdell And a Bill dated the 22d. Novemr. 1796 purporting to be drawn by Your Memort. and Approved by John Stogdell for £500. is proved to be filled up by Stogdell on a Blank left by
Your Memort.
[Page 154]
Your Memort. and paid by him to Mr. John White and by Your Memort. paid in England and £724.19.7 paid by David Bevan, to the sd. John Stogdell, is proved by the sd. David Bevan and £442 – Charged to be paid by James Ruse to the sd. John Stogdell, on Your Memorts. Accts. is proved by the Affidavit of the sd. Jams. Ruse, And an Article £121.15.6 pd. by Jams. Squires on Your Memorts. Acct, is proved, on Oath of the sd. Jams. Squires and £120 Cash pd. by Samuel Wheeler to the sd. Mr. Stogdell on Your Memorts. Acct. is proved by the sd. Saml. Wheelers Affidavit and the Sum of £30- Cash pd. by Richd. Hawkes to the sd. John Stogdell on Acct. of Your Memort. is proved by the sd. Richd. Hawkes and the payment of £123 pd. by Thomas Raby to the sd. John Stogdell on Your Memorts. Acct. is proved by the Affidavit of the sd. Thos. Raby and all other the Items in the sd. Acct. Comprising the sd. £8553.11.5 was duly proved to the satisfaction of the Court from which the Court. deducted a Credit of £323.8.0 and by the sd. recited Act of the Court allowed Your Memorts. Debt at £8229.18.5 aforesd. that the Sum of £1892.1.6 in that Act of the Court said to be pd. by Your Memort. was the Sum of £1864.4.8 pd. by Your Memort. to Robt. Campbell Esqr. a Mortgage Creditor of the sd. John Stogdell for that Sum and £27.16.10½ pd. by Your Memort. for funeral Expenses and for the Letters of Adminn. And other the Judge Advocates [indecipherable] and the Sum of £4774.2.7½ mentioned in that Act of the Court to be the Amt. of the Sale of the Effects of the sd. John Stogdell Deceasd. is the Money for which the Inventoried Effects Sold by Auction without any deduction or allowance for any Expences of Your Memort. pd. for taking Care of the Effects previous to the Sale Or for taking the Inventory or Payment thereout to the Auctioneer for such Sale. that is in proof by James Wiltshire and William Bennett, Witnesses Examined by and on behalf of the Respondt. that everything belongg. to the Intestate, as far as the Appellts. Knowledge extended were Sold and that they were Sold to the best advantage and for the utmost money that could be gotten for the Same.
And it is proved by Mr. Thos. Laycook and Robt. Campbell Esqr. that the Customary Commission allowed an Adminr. in this Colony was and is 10 per Cent on the whole produce Or Amt. of Sales, which Amts. to £477.8.3 which Sum of 10 per Cent Your Memort. Claimed to be allowed in his Acct. but which Sum of £477.8.3 Or any part thereof the Court below did not allow and that taking those proofs and deducting what is Received over and above any such Commission Or Expences of keeping the Effects until the Sale or expences of the Sale by Auction, there doth appear an allowance Ballance of £5347.17.3½ found by such Act of the Court below, to be due to Your Memort. at the time of the Commencement of the Respondents Suit in this Cause and which debt Your Memort. Claimeth to be allowed and first pd. out of the Effects that might be got in from the Estate and Effects of the Intestate. Your Memort. also offering in his next Acct. to be exhibited to give Credit for all other Sums that have been Received since the Exhibiting the sd. former Acct. and which last mentioned Sums now unaccounted for are of small Value.
That Your Memort. had been the more particular and Specific in staling the Accts. and references to the Proofs of the same in this Memorl. because Your Memort. Conceived the proceedings in this Cause Or the greater part thereof, as recorded in the Court below appears to Your Memort. irrevelant to the matter in Question and to be so much Confused and Stuffed with Matter, nowise relative to the Issue. that the proceedings are as appears to Your Memort. wholly Unintelligible.
That
[Page 155]
That the proceedings of the Court below, in a great part appear to Your Memort. to be a mere proposal by the Plainf. of Questions. to the Court and of replys and Answers and Opinions of the Court, neither determined upon Evidence or Upon any point necessary to a Court of Civil Jurisprudence sitting in Judgement to deliberate and decide according to the Law of the Land, and there appears no solid Basis. Or point in Issue to Warrant most of those Opinions and Declarations and the greater part of the Suggestions and Matters put upon the Record of the Proceedings Or Acts of the Court from time to time, are in no way Your Memort. Submits, relevant to the Question before the Court and which was and is Simply this "Whether John "Stogdell the Intestate at the time of his death, was Indebted to Hugh Machin, the " Respondt. in any and what Sum of Money And if then as so indebted, then whether "Your Memort. had any Effects of the Intestate Unadmind. to Satisfy that debt." And although Your Memort. by Suggestions entered on the Acts or Minutes of the Court on the 11thAugust 1802 first shews and States that in Acct. was exhibited the 27th July 1801 by which he had fully Admind. the Effects and the Application of the Money received is Accounted for and then pleads in these Words.
"The Adminr insists, he has fully Admind. the Goods of the Decd. "come to his hands and he is in advance for the Estate". And which was the only Issue before the Court for Trial in this Cause. Yet there is little or no matter shewn by the Respondt. relative to that Issue, as Your Memort. submits to the Judgement of the Court of Appeal.
Your Excelly. on the Opening of this Appeal, having said Your Excelly. was not acquainted with Law and an Opinion having gone out that the Law of the Province of Pensylvenia and the rule of Laws in this Colony and that if an Appeal goes from any Decisions of Your Excelly. Your Excelly. would require a deposit of hard Cash for the prosecution of such Appeal with Effect.
Impressed with the greatest Confidence in the high Estimation Your Excelly. from all Occasions show to Act Impartially, according to Justice and Equity as the right of the Case may require and Your Memort. being fully convinced in his Conscience, that if Your Excelly. should err in giving ----- judgement, such Error will arise from a want of a true Statement of the Case or from a frailty of human Nature, which is prone to Error and Mistake, Impressed with full Confidence in Your Excellys. Wisdom, Good Intentions, Integrity and Desire to Decide in all things According to Truth and the right and Justice of the Case, Your Memort. begs leave to Suggest to Your Excellency
First that no law of Pensylvenia, can have any Force in this Colony and that the laws of England only are in force, nor can any other laws be put in force here, but by an Act of the Parliament of England Or by Authority of the Crown and there is no Act of Parliament Or other legal Authority to enforce any other laws to the knowledge of Your Memort. relative to this Colony, the Statute made in the 27th Year of His present Majesty Ch. 56 by which the Court of Criminal Judicature in this Colony is Authorised to Act, in Criminal Cases, in some way different, to the County Courts of Criminal Judicature in
England
[Page 156]
England by no way gives any direction, as to the Civil Court or makes any other Regulations in this Colony, but as to the mode of prosecting Criminally, so that the Common Law is left as it at first whereby the laws of England and as such the Civil Courts in this colony are bound to proceed and give Judgement According to the laws and Statutes of the realm of England.
That with respect to any Appeal from the Decision of Your Excelly. by Your Memort. Your Memorts. is fully convinced that from the Manner in which Your Excelly. in every Case, Conduct the Affairs of the Colony, Your Memort. will be satisfied with the Judgement of Your Excelly. Yet Your Memort. begs leave to Observe that this is a Matter of great Moment to Your Memort. where a debt of £8000 and Upwards due, on ballance from the Intestate at the time of his death as due to Your Memort. and that this Contest is, whether he shall retain that Money or have the Whole wrested from him by the Intestates other Creditor, so that it may be a thing [indecipherable] to go before the King in Council, by one side or other.
Your Memort. with great deference to the Judgement of this Court, most humbly submits, that the Bail required by the Charter in all Cases, is that the Defendt. in the Cause shall Appear and perform such Judgement Sentence or Decree as shall be pronounced therin from by the Court of Civil Jurisdiction or finally given upon an Appeal and that neither the Provost Marshall or the Court below Or any other Court can require any other Security, than such Security as is agreeable to the Words and Tenor of the Charter which Authorize the same and which Security Your Memort. has given in this Case and which Security is binding in every part and Stage of the Appeal.
That an Appeal is in Nature of a Writ of Error and there is no Bail on Writ of Error but in the particular Cases described by Particular Acts of Parliament and in all those Cases the Bail is taken precisely within the direction and meaning of those Acts, so in this Colony, no Bail can be required on any Appeal, but from a Defendt. in the words that are Set down and prescribed by the Charter And in no Case, is there a Deposit of Money or other Bail Required than Personal Security and which Security Your Memort. has given in this Case.
And Your Memort. having given Security in Terms of the Charter which is that Your Memort. will perform such Judgement, Sentence or Decree, as shall be pronounced or finally given upon an Appeal, is altho. Security that can be Required by the Court of Appeal in any Stage of the Appeal, that with respect to the Law, give me leave to shew to Your Excelly. first the Conditional Law of England as to Colonies, which apply to this Colony, as Set out in Blackstones Commentaries Vol 1, Page 107 and the Cases of other Reporters there referred to, wherein is said that,
"It hath been held "(Salk 4111.666) that is any Uninhabited Country, be discovered and planted by English Subjects, all the English Laws, then in being, which are the birthright of every Subject (2d Page Wm. 75) are immediately then in force". And in Page (508) it is said,
"With Respect to their interior Policy, our Colonies are property of "three sorts 1st Provincial Establishment, the Constitutions of which depend on the respective "Conditions issued by the Crown to the Governors and the Instructions which which usually
Accompany
[Page 157]
"Accompany those Commissions, under the Authority of which provincial Assemblies "are Constituted with the Power of Making local Ordinances, not repugnant to the "laws of England."
And after reciting various different forms of Government which no way relate to the present Case he Says,
"The Form of Government in most of them is [indecipherable] from "that of England, they have a Governor named by the King, who is his representative" or Deputy, they have Courts of Justice of their own, from whose Decision, and Appeal "lies to the King in Council, here as in England, their General Assemblies which are "then House of Commons, together with their Council of State, being their upper House "with the Concurrence of the King or His Representative the Governor makes laws "suited to their own emergencies, but it is particularly declared by Statute (7 &8 Wm. 3 Chap 22) that all laws, bye laws, Usages and Customs, which shall be in practice in any of the Plantations, repugnant to any Law, made Or to be made in this Kingdom, relative to the sd. Plantations shall be utterly Void and of none Effect" And Your Memort. most humbly shows that by Statute (12 Car. 2d Ch. 18 & the 7th & 8th Wm. 3d &11 &12 Wm. 3d. Ch. 12) by those Statutes, every Governor of any Colony beyond the Seas are bound to put the laws in force, and prohibited to Act Contrary to the laws of the Realm Or those laws in force within their Government.
That there is not as yet any Assembly Or Authority to make any local law in this Colony and therefore the laws of England, as before mentioned to be the law of this Colony is in force, this being a New Discovered Country and planted by English Subjects and in Cases most Solemnly Argued in the Court of Kings Bench the One of Mostyn Governor of Minorca agt. Fabricas 14th Novemr 1774 the other Campbell agt. Hall 22d Novemr. 1774 and in both Cases argued in Error, before that Court and Council, on Arguing the Case of Mostyn agt. Fabrica and to show that the law cannot be Changed by any Authority but Parliament, is shown in the Case of Campbell agt. Hall as there mentioned.
That by the Laws of England, a Creditor, Adminr. may retain the Goods of the Intestate to Satisfy his Debt.
An Executor or Adminr. shall never be Charged de bonis propriis, but where he does some Wrong, as by Selling the Testators Goods and Converting the Money to his own Use or Concealing Or Wasting them or by pleading what is false (Dyer 20.2 Roll – Refer Page 295.)
Where an Adminr. pleads plene Administravit and that he hath no more, than to Satisfy such a Judgement &c the recovery shall be de bonis Testatories &c 2 Roll. Rep 400.
By 24 Hen 8 no Costs agt. Adminr, Administration granted to a Creditor he may by Virtue thereof retain Goods for his own Debt 2d Rep 20.
There are diverse Cases adjudged both in the Courts of Law and in Chancery where Adminrs have been Uniformly allowed to retain And in a Case in Chancery of the Creditors of Simpson agt. Lawson in 1779 the Lord Chancellor decreed that
Lawson
[Page 158]
Lawson should retain in his hands, the whole of the Amt. of his Debt, due to him by the Intestate in Exclusion of the Rest of the Creditors.
And that Case was Limited to the Case of Your Memort. for this Lawson went to India and left Simpson his Agent in London and here Your Memort. went to England and left Stogdell his Agent in this Colony.
There is a Case in the Kings Bench in 1782 of the Creditors of Ormskirk agt. Grawman Adminr. of Ormskirk when the Lord Mansfield held the same law and there are numerous other Cases in law, which evince that an Adminr. has a right Suit to retain his Debt.
And if the law was not so, an Adminr. would be in a worse Situation than another, for in that Case the Adminr. would be the last to be paid and when the Intestate could not pay 20s/ in the Pound, he would lose his debt.
These are further Reasons for Your Memorts. Appeal And Your Memort. prays that if eventually either Your Memort. Or the Respondt. should think proper to Appeal to the King in Council agt. the Judgement of Your Excelly., this Your Memort. Memorial may be made a part of the Proceedings and Sent with them to the Court of the King in Council, to show the Statement laid by Your Memort. before Your Excelly. in Addition to his former reasons of Appeal before filed.
("Signed") John Palmer
18th August 1803
In the Court of Appeal New South Wales
John Palmer Esqr. Adminr. 2c, 2c – Appellant.
ver
Simeon Lord Attorney of Machin – Respondent.
Simeon Lord the Respondt. having by His Excellys. received an Attested Copy of the Appeal of John Palmer Esqr. from the Decision from the Court of Civil Jurisdiction made the 4th Day of July 1803. Craves leave to submit both Wisdom and Consideration of His Excellency, how far sch Appeal is Cognizable before His Excellency Or necessary for the Respondt. to Reply thereto, in as much, as the same is Attempted to be founded on false Premises, by which Respondt. Submits such Plea becomes Vitiated and Appears Prima facie, to be Calculated to harass Respondt. and Unjustly to Withhold from him the efficacy of the sd. Verdict of the 4th July.
Respondt. with due deference submits to His Excelly. that the Court of Civil Jurisdiction on the 27th July 1801 in a matter then depending between Wm. Balmain Esqr. and the present Appellt. did not make any Adjudication, on the Matter before them, nor did they allow Appellt. to [indecipherable] his Claims or to Retain Effects in his hands for that purpose. The Matters therein referred to were merely investigated at the Instance of the sd. Wm. Balmain who was about to Depart for England and who applied to the Court for their opinion with a
view
[Page 159]
view to satisfy his principals that he had made some Application to License their Interests – And the Appellt Insisting that there was a limited period of Twelve Months before he him as Obligd. to Tender in his Accts. Or to defend any Suit that referred to the Administratorship – The Court neither Could Or did make any Decision – They had no Excuse before them to judge of or be Governed by – And it was merely upon a Superficial View of Papers. Unsupported by Testimony of any kind that induced them to give any Opinion on the Subject.
Respondt. further Submits that the Appellt. did not show the Court, that by Payments in due Course of Adminn. he had fully Admind. – The Court found that Appellt. had by Sale of the Effects of the Intestate Received and Retained a Considerable Sum but that the Creditors were deprived the benefit of One Shilling in Aid of the claims.
And in Regard to future Effects, Respondt. humbly Submits that such an Idea never entered into the Minds of the Members of the Court, during the Various States of this Suit, Until it was suggested on the part of the Appellt. as a Subterfuge of Law, inconsistent with Justice And merely Nominal in its Operation – for from whence were those effects to Come?
Respondt. further Submits that the Court of Civil Jurisdiction which gave him an Unqualified Verdict did not at any time in the sd. Case, nor whilst it was pending, allow Appells. Acct. in the Words set it down in Appellts. Reasons for Appeal, nor do such Words or any Minutes referent thereto appear on the records of the Proceedings.
Wherefore as the sd. John Palmer Esq. had set forth no efficient Reasons for his Appeal. but has Obtruded the same upon false Premises – Respondt. humbly prays such Appeal may be disqualified as Vexatious and Groundless and the Verdict in Respondts. favour may operate According to the Tenor.
And Respondt. will ever pray &c.
("signed") Simeon Lord.
August 24th 1803
Your Excellency having on the last hearing of the Appeal directed that I should refer Your Excelly. to the Cases in Law that I mentioned in my Memorial of the 18th August 1803.
The laws of Colonial Government, is mentioned in the Appeal to be in Vol. 1 Blackstones Commentaries Page 107 & 108.
And the Cases referred to, that is Statute 7 & 8 W 3d, Ch 22.12 Ch 2. Ch 18. and the 7 & 8 W.3 And the 11 2 12 W3 Ch 12 And all Acts of Parlia
ment
[Page 160]
Parliament And will be found in the Books of the Statutes at large, but are Set out in the Law Dictionary under the word Plantation
In the Case of Mostyn v. Fabricas And Campbell v Hall are referred to in the Memorial and will be found in that Report Book, which I borrowed out of the Judge Advocates Office And the Cases are very long and Special And are determined before Lord Mansfield and the Cases adjudged in his Lordships time are looked up to as the greatest Law Authorities and binding on the Subjects.
There is also Stated in the same Dictionary And under the same Word Plantation, that,
The Courts of Justice abroad, cannot transmit a Matter or Cause to the King and Council here for difficulty, but are to determine the right and give Judgement One Way or Other. I mention this Circumstance, because when this Appeal came on, on Saturday last, Your Excelly. was pleased to Observe some difficulty in the Words of the Reasons Assigned for the Appeal and which Words appear to me, by no means to admit of the Objections there Stated And give me leave to Say, that unless the Clerk in Copying the Appeal from the draft that was delivered, has made some Mistake – The Reasons alluded to, by Your Excelly. Start thus – After first stating as a reason what the Court of Civil Jurisdiction did in a Cause of Balmain agt. the Appellt. on the 27th July 1801 it proceeds to a 2nd Reason in these Words Viz.
"Because when the Respondt. first exhibited his Complaint or Cause " of Action in Writing to the Court of Civil Jurisdiction"
I most humbly submit to Your Excelly. this must relate to the Cause of Machin and Palmer Adminr. and not of Balmain, by the language of the Paper, it can have no other reference, but to the Record of the Court below, in the Cause in which the Appeal is interposed. And it will appear that, that was done the 10th or 11th day of August 1802 And not upon the 27th July 1801. And I further Submit to Your Excelly. that then the Paragraph proceeds thus,
"The Appellt. pleaded the sd. debts, owing to the Intestate to the Adminr. "and showed that thereby and by Payments in due Course of Adminn. the Appellt. had fully Ad-"ministered all the Estate of the Intestate come to his hands to be Administered".
I most humbly Submit to Your Excelly. that this part of the Reason given by the Case can relate to no other time Or place, but the time when the Plea was filed and the place that is the Court, where and before whom it was put in, the plea is an exhibit in the Cause, but from the Way the Proceedings are carried on, in the Court below, unless the exhibit is referred to, it does not appear on the Pleadings, but this Plea was filed and Exhibited to the Court the 11th August 1802, as appears by the Copy of the Minutes given out, and the Minutes of the Court below, as Copied, be rightly Copied, they are in these Words18th December 1802.
Simeon Lord Attorney of Hugh Machin Claims of John Palmer
Esqr.
[Page 161]
Esqr. the Adminr of the late John Stogdell the Sum of £306 and Upwards, on certain Notes produced and Sworn to.
This is all the Complaint Or Cause of Action, exhibited in Writing to the Court of Civil Jurisn. And the Words first in the Reasons mentioned can have reference to Nothing but the time when this was exhibited and this will be found to be exhibited the 10th or 11th of August 1802.
The next part of this Reason assigned can relate to Nothing but the time of pleading in the Cause in which the Appeal is interposed that, that Plea could not be fully filed before Machin the Respondt. exhibited his Cause of Action to the Court below.
The Plea will be found in the same Paper, with a Protest agt. Certain Proceedings of the Court and which Proceedings was made on a Suggestion of Simeon Lord and filed by John Palmer the Appellt. in these Words,
"Respecting the day mentioned in the Bond, until the "Adminr. is duly Summoned and produce his Accts. at a day prefixed by the Court "and he makes a default there can be no neglect and of that the Court are Proper Judges."
In this Case and Acct. was Exhibited 27th July 1801 by "which he had fully Admind. the effects and the Application of the Money reserved is Accounted for."
"The Adminr. insists he has fully Admind. the Goods of the Deceased come to his hands And he is in Advance for the Estate."
This last part or third Paragraph in the Paper as Mentioned or related before is the Plea of the Defendt. the Adminr. to the Cause of Action of the, the then Plainf. and now Respondt.
And the Plea or Answer of the Adminr. I could not file or Exhibit to the Court, until after the Respondt. had in the Court below, first made his Complaint in Writing Or exhibited his Cause of Action to the Court below, but this Paper is filed of Record, amongst the Proceedings of the Court below, but this Paper is filed of Record, amongst the Proceedings of the Court on the 11th August 1802.
For on that day the Court resolved that the Adminr. need not render an Acct. on Oath, until peremptorily required by the Court.
This is mentioned to Your Excelly. to Show that this part of the 2nd reason assigned can only relate to the time of the Respondr. exhibiting the Cause of Action to the Court And the time of the Appellts. pleading to the Cause of Action so Exhibited in the Court below.
I most humbly Submit to Your Excelly. that it can relate to no other time or Cause than the time and Cause in which the Respondt. Exhibited his Complaint and the time and Cause, in which the Appellt. held his Plea to that Cause of Action, in the Cause in which the Appeal is Interposed.
And the time there alluded to can relate to no other time, but the
time
[Page 162]
time of the Commencement of this Suit and the time the Appellt. pleaded in the Court below.
All these Matters Your Memort. Submits could not arise if any due regularity were Used in the Proceedings for the Proceedings if the Court below, but in this Case, there is no One Regular Step taken Or allowed to be taken on the part of the Respondt. and those in the part of the Appellt. he has been compelled to under direction of the Court below.
I beg leave to State to the Court another thing which arose in the Cause of Balmain, in that Cause there are three Papers filed in the Court of Civil Jurisdiction on the 27th July 1801.
The One paper begins thus "New South Wales – an Inventory of all and Singular, the Goods and Chattels Debts and Effects of John Stogdell who dies Intestate Came to the Hands of John Palmer Adminr. of all and Singular the Estates, Debts and Effects of the sd. John Stogdell.
And after the above Introductory Title the Inventory begins first, by enumerating all the Farms, beginning Bond farm &c &c.
And then it Says which Several farms, were Sold by Auction in several lots on the 18th May 1801. for different Sums Amounting to £932.17.0.
And then the Inventory proceeds to a Schedule of other Effects. A Grey Mare &c, &c, &c and then Shows what Sum this other part of the Goods sold for by Auction And this paper so filed the 27th July 1801 is the Inventory referred to by the first Reason for the Appeal Unpleased.
I most humbly Insist this Paper is an Inventory filed the 27th July 1801 and was filed as the law directs, on the Oath of the Adminr.
The other two Papers are One, the Contents, Comprising the Articles of the debt due by Stogdell at the time of his death to the Appellt. Adminr. and by me as Adminr. Claimed to be first paid out of the Effects – the other Paper is the Acct. Current of the Adminr. with the Estate, and making a Ballance then due of £8061.11.11 And all these Papers when produced will appear to be Signed by the then Members of the Court and Signed and Sworn to, by the Adminr. and filed in the Cause of Balmain &c.
The 2nd Reason, for the Appeal begins in these Words.
Because when the Respondt. first Exhibited his Complaint Or Cause of Action in Writing.
This 2nd Reason Or 2nd Cause Assigned for a Reason of the Appeal alludes to the Cause in which the Appeal is Interposed.
I Speak with great deference to Your Excelly. but it appears to me that the Objection raised in the English Courts of Error, some Objection to the Causes, yet there can be none to the Reasons, for the Reasons are Suggestions of the Appellt. Submitted to the Consideration of the Court, And which the Court on Consideration decided upon.
I beg leave to State, that in Blackstones Commentaries Vol. 2d. Page 511 it is said.
Amongst debts of equal degree the Executor Or Adminr. is allowed to pay himself first by retaining in his hands, so much as his debt amounts to – And that
Book
[Page 163]
Book refers the Reason, to the adjudged case reported in 10 Mod. 496.
The other Adjudged Cases mentioned in the Memorial that immediately relate to the present Question Vizt. That the Adminr. had a right to Retain his Debt in preference to any debt of equal degree, are as reported in Jacobs law Dictionary under the Word Adminr. said to be,
A Creditor Adminr. may retain Goods of the Intestate to Satisfy his debts and if the Goods are taken away before Adminn. granted to him he may have trespass against the Person that took them Still 304.
Against an Adminr. And for him an Action will lye, as for Or agt. an Exer. and he shall be charged to the Value of the Goods and no further unless it be by his own false plea, Or by wasting the Goods of the Intestate.
An Exer. Or Adminr. shall never be charged Propriis, where he doth some Wrong, as by Selling the Testators Goods and Converting the Money to his own Use, Concealing Or Wasting them, Or by Pleading what is false Oyen 210. 2 Roll Rep 295.
If an Adminr. plead "plene Administravit" and it is found against him. the Judgement shall be "de bono propis" because it is a false plea and that upon his own knowledge 2 Cro. 191 – Contra where he pleads such a plea and that he hath no more than to Satisfy such a Judgement &c the recovery shall be "de bono Testatoris" &c. 2 Roll Rep 400.
Special Bail is not Required of Adminrs. in any Action brought agt. them except where they have Wasted the goods of the Deceased, nor shall Costs be had agt. an Adminr. 24 Hon 8.
There is a Case determined in Chancery Trinity Term 1779,
The Creditors of Simpson agt. Patrick Lawson Adminr &c.
Patrick Lawson was Captain or Commander of The Lord Holland East Indiaman.
Lawson sometime Antecedent to his departure from London to India, deposited in the hands of Mr. Simpson Mercht. in London sundry Goods. Wares and Merchandizes to a large amount at the same time Lawson executed a letter of Attorney, empowering Simpson not only to Vend and Sell such Goods, but also to Receive. Sue for and Recover all such debts as was due to him in England.
Some time after Lawsons return to England, Simpson, his Affairs being much deranged, Simpson died and Lawson as principal Creditor, took out Letters of Adminn. and possessed himself of the Whole of Simpsons Estate.
The Creditors of Simpson filed a Bill agt. Lawson praying that Lawson might be Ordered to make an equal distribution to Simpsons Estate rateable amongst the Creditors in proportion to their debts.
The Lord Chancellor, decreed that Lawson, should retain in his hands the whole Amount of the debt due to him by the Deceased, in
exclusion
[Page 164]
exclusion of the rest of the Creditors, it appearing to him that Simpson was only a mere agent Or Trustee to Lawson and Ordered that Lawson should make an equal distribution of the Surplus amongst the Creditors &c.
A Case in the Court of Kings Bench reported in History Term 1782in the Term Reports and Mentioned in Butlers Nidi Prins, thus,
Grawman was a Russia Mercht. of great Respectability in London – the Deceased was a Capital Wine Mercht. in London.
Grawmans business called him abroad so far as Amsterdam and other places, previous to his departure from London, he deposited in the hands of Ormsink Sundry Merchandizes for Sales and at same time, executed a letter of Attorney to Ormsink empowering him to Receive, Sue for and Recover particular debts due to him.
Grawman was 8 or 10 months out of England, some short time after Grawmans return to London, Ormsink died. Grawman Admind. as Specialty Creditor.
Some of the Creditors brought their Action agt. Grawman to recover their respective debts due by the deceased.
These Causes came on to be Tried before My Lord Mansfield when his Lordship in his Charge to the Jury, said he was of Opinion that Grawman must retain in his hands the whole of his debts in exclusion of the Creditors at Large. – That Ormsink was no more than a mere agent or Trustee to Grawman – That Grawman was in the Nature of a Specialty Creditor and not as a Simple Control Creditor. A Verdict was given for Grawman, with full Costs of Suit.
These are all the Cases that I have been able to find and I have Stated the Report Books where they may be met with, the Cases of George Moslyn is a very Special Case. I submit this my Case to the Court and pray Judgement by the Court of Appeal for the Appellant.
("Signed") John Palmer
August 24th, 1803
In the Matter of Appeal
John Palmer Esqr. Adminr of John Stogdell Decd Appellant
and
Hugh Machin – Respondent
Robert Campbell of Sydney Merchant, in Compliance with that Directions given by His Excelly Govr. King on hearing this Appeal that this Deponent should make Affidavit to explain the Matters by His Excelly directed Maketh Oath that in the Month of October One Thousand Eight Hundred John Stogdell Deceased was indebted to this Deponent in the Sum of One Thousand Seven Hundred and Fifty Pounds for Merchandize sold and Cash Notes & other
Securitys
[Page 165]
Securities given by the sd. John Stogdell and by this Deponent Recd. in the Course of his Mercantile Concern, and this Deponent Conceived it proper to take Security on Stogdells Effects for securing Payment and having Confidence in the said John Stogdell And having previously perused his debts or having seen the Promises intended to be Mortgaged or part thereof this Deponent Ordered the sd. John Stogdell to have a Security prepared Accordingly and on or about the 29th day of October aforesd. this Deponent Received a Note in writing from Michael Robinson to the Effect following that is to Say. "Sir – Mr. John Stogdell"has Executed a very full and ample Assignment of Six Farms and Premises at "the Hawkesbury, Ten Horses and Ten Head of Horned Cattle with Goats "& as a Security to you for the Sum of £1750 payable with Interest on the 6th of "August 1801 and whenever you think proper to Call at the Office it shall be delivered of Course Mr S. may Receive his Notes from you – I am Your Most Obedt. Sert. "M Robinson Judge Advts. Office. 29th October 1800. Robert Campbell Esqr". As by reference may appear and this Deponent saith the sd. Decd. remained in the Judge Advos. Office from that time until after the Death of the sd. John Stogdell, and this Depont. saith that after that Event, he Called at the Judge Advos. Office and Recd. the Mortgage Deed and this Deponent took the same away; And this Deponent saith that John Palmer the Appellt. did not take the same from the sd. Michael Robinson in his presence Or with the knowledge of this Deponent Or did this Depont. say he was Satisfied Or did this Depont. make Use of any Words that could be Construed or give the sd. Michael Robinson Or any other Person to Understand that Mr. Palmer meaning the Appellt. had Satisfied this Deponent but on the Contrary this Deponent received the Deed from the Judge Advs. Office as a Security for the Money therein Mentioned and saith the Whole Sum of Money was then And so Remained for some time Afterwards.
("Signed") Robert Campbell
Sworn Before me this
24th August 1803
("Signed") Richd. Atkins. J.A.
In the Matter of Appeal Between John Palmer Esqr. Appellant
and
Hugh Machin Respondent
John Palmer of Sydney Esqr. in Compliance with the Order of Court given by His Excelly. Govr. King on hearing this Appeal on Saturday last that this Deponent should make Affidavit as to the Matters and things His Excelly. directed – this Depont. saith that he did not directly or indirectly know the series and Contents of the Deed of Mortgage made to Secure Payment of £1750 to
Robt. Campbell
[Page 166]
Robert Campbell Esqr. Or did he ever See Or Read such Instrument until after the death of the sd. John Stogdell and saith that he did not either by himself Or jointly with the sd. Robert Campbell Received the sd. Deed from the Judge Advocates Office Or from Michl. Robinson the Clerk there.
And this Depont. saith that the sd. John Stogdell Decd never had any Authority to Sell or Charge any of the real Estates of this Depont. with payment of moneys but Stogdell was this Deponts. Steward, Servant or Agent to transact the personal Affairs of the Dept. in his absence and for which he had Letter of Attorney and this Deponts. saith that the farm called Stogdell Farm assigned by that deed by way of mortgage was a grant made to the sd. John Stogdell under Seal of the Colony by the governor and the sd. Estates was Stogdells own proper real Estate by virtue of such grant and that the other five farms mentioned in this mortgage deed called Ruffler Farm, Wilson Farm, Bond Farm,
Brindley Farm and Wilcox farm and every one of them at the time of making the sd. Mortgage deed the several and respective Freehold Estates of the sd John Stogdell by him obtained by purchase from the several former holders thereof and no ways relating to or concerning any estate of this Deponent
(signed) John Palmer
Sworn before me this 24th August 1803
Richd. Atkins JA
Parramatta Aug 26th 1803
Sir
In order to save time I have to request you will Inform Yourself how far the distinction between the dates of the Civil Courts on which Mr. Palmers Appeal is founded can be dispensed with and how far it Appears necessary for proceeding in the Appeal.
I am Sir
&c, &c, &c
Philip Gidley King
Richd. Atkins
J.A.
I am exceeding sorry it is not in my Power to attend your Excellency this day, arising from Illness - I think it will be proper for your Excelly. to Continue the Appeal, rejecting that part which is irrelevant to the matter before you. I mean the proceedings of the 27th July 1801
I have the Honor &c, &c, &c
Richd. Atkins J.A.
23rd August 1803
His Excellency Govr. King
&c, &c, &c
[Page 167]
[Margin Notes - Start]
Query As this document makes no part of the proceedings of the Civil Court delivered to me on this Appeal, I require the reasons for that omission?
Is this document an Order of Record and was it considered by the Court as having any reference to the General Verdict given.
In what stage of the proceedings was this document given, which is said to be Signed by the Judge Advocate and the Members?
In any stage of the present Cause when before the Civil Court either at the Suit of Balmain or Lord did it Decide that the Appellt. (the Adminr.) had or had not Fully Admind. all the Intestates Estate and Effects before the Respondt. commenced his Suit – And is there any Proof on the proceedings that the Civil Court found that such Effects were disproved for due Cause of Adminn.
As the Proceedings of the Civil Court of Jurisdiction delivered to me Contains no such Evidence or Explanation I require being Informed the Cause of that Omission and whether the Court Considered that the Verdict they gave had a reference to what is alledged in the above Paragraph of the Appeal.
Richd. Atkins J.A. and Members of the late Civil Court.
[Margin Notes – Finish]
Governt. House Sydney
Augt. 25th 1803
Sir
To the questions annexed to the following Extracts from the appeal of John Palmer Esqr. I have to request your answers as well as that of the other members of the Civil Court that gave a verdict on that cause
First "It appearing by the Accts given into the Court that John Stogdell stood indebted to John Palmer Esqr. the Admn. at the time of his death in the sum of £8229.18.8 and that the Sale of the Effects of the sd. John Stogdell amounted to £4774.2.7 ½ and that the sd. John Palmer had paid £1892.1.6 out of the sd. Sum leaving a Ballance to the sd. John Palmer of £6337.16.11"
"That by the Court having allowed the sd. Accts the court have Established the case made by the Appellt. in his pleading to the Cause of Action or complaint in Writing of the Respondt. that is that the Appellant, the Adminr. had fully Admind all the Intestates Estate and Effects before the Respondt. commenced his Suit And the Court thereby found that such Effects were disposed of in due Course of Adminn. And as those Accts were in proof before the sd. Court of Civil Jurisdiction before giving the Verdict from which the Appellt now appeals, the Appellt. Submits the Judgement ought to have been given for the Appellt."
The Appllt. admits that before the giving [indecipherable] Judgement on the sd. Cause in the sd. Court of Civil Jurisdiction it was someways Noted and alledged it would be Consistent with Justice to give sentence for the Appellt. to be first paid his Ballance due as aforesd. And then the debt of the Respondt the Court sd. they thought aught next to be paid and the Appellt. from what passed then, understood the Court meant so to do and the Appellt. had been told, by some of the Members that in giving Judgement the Court meant to give a Judgement of future Effects And to be paid after such Ballances due to the Adminr. as afored was discharged and paid and such they said was the extension of the Court when they gave the judgement afored. but Supposing the Law would Operate in that way, if they gave a General Verdict – The Court gave such "Verdict General."
I have the Honor &c, &c, &c
("Signed") Philip Gidley King
[Page 168]
In Answer to the Queries Contained in Your Excellys. letter of the 25th Instant We beg leave to Return the following replies –
Ansr. to Quesn. 1st Because it makes no part of the Proceedings
Ansr. to Quesn. 2d. None. As it was no document on Record in the proceedings it cannot Operate on the Verdict given.
Ansr. to Quesn. 3d. Some days after the Verdict.
Ansr. to Quesn. 4th. The Judge Advocate for himself answers that no Application was made in the Matter then before the Court at the Instance of Mr. Balmain. (Vide proceedings)
Ansr. to Quesn. 5th. It was Expected the Verdict would operate According to the Tenor in favour of the Plainf. to which Verdict we refer.
We have the Honor &c, &c, &c
("Signed") Richd. Atkins
Wm. Moore
Jams. Mileham
26th Augt. 1803
His Excelly. Gov. King.
An Acct. of Wheat, Maize and Pork put into His Majestys Stores by John Stogdell Agent for Commissary Palmer from 19th April 1797 to the 4th May 1800.
[Table not transcribed]
[Page 169]
[Table not transcribed]
Amount at Sydney £1605.6.3
Do. at Parramatta 350.7.6
Do. at Hawkesbury 786.10.0
--------------------
£2022.3.9 Total Amount.
============
Errors Expected
("Signed" Jams. Williamson
Parish of St John County of Cumberland N.S.W. to Wit.
James Williamson Depy. Commissy. at Parramatta Came before me this Day and made Voluntary Oath that the above and what is on the other side of this Paper, is a true and Correct Acct. of Wheat, Maize and fresh Pork, put into H. M. Store by John Stogdell, late Agent to John Palmer Esqr. in the Name of himself and the sd. John Palmer Esqr. from 19th April 1797 to the 4th May 1800.
("Signed") James Williamson.
Sworn before me at Parraa. this 19th day of Septemr. 1803.
("Signed") Chas. Throsby. J. P.
In the Matter of the Administrator of John Stogdell Deceased.
[Margin Note - Start]
1803 19 April [indecipherable] List of Debts due to the Estate
[Margin Note – End]
To be added to the Schedule of Effects before filed By the Account of Charles Horton. –
+ 154 Bushs. Wheat @ 8/- 61.12.0
+ 121 Do Maize @ 4/- 24. 4.0
+25. Do. Barley @ 6/- 7.10.0
O Recd. of William House a Debt of 8.1.0
In Wheat from Sidaway. has Sidaway informs me Delivr. at the Hawkesy. 50.0.0
In Maize from James Witlow 25.0.0
+ From Joseph Merrick 3.3.3
---------------------
O [indecipherable] Collecting Maize and of Which no return has been Received 179.10.3
August 25th 1803 ("Signed") Jon. Palmer
[Page 170]
+ No Inventory being produced in the first Instance, the above Wheat of course was not Included And the Book that has the Acct. of it, is Investigated by Civil Court & S. Hortons Evidence respectg. the Book.
+Maize as above.
+Barley as above.
O Is kept in a Book of Stogdells – which Came into Appellts. hands. the Book is dated in 1796 & 1797 – This does not Appear in the Inventory of Debts due to the Estate – which was given into [indecipherable] Civil Court Augt. 16th.
In the Court of Appeal
John Palmer Esqr. Appellt.
ver
Simeon Lord Respondt.
Respondt. with humble Deference has enclosed certain Interrogatories to be Admind. according His Excellencys Pleasure, and further begs leave to State that his Housekeeper Ann Blyth. Yesterday on hearing the Circumstance mentioned, Voluntarily declared herself Willing to make Oath to Stogdells having in her presence mentioned the Bond having been given up and that it had made his Mind very Easy – but as she is in Close Affinity with Respondent he would not Insist on the Benefit of her Testimony, unless His Excelly. in his Wisdom should deem it Necessary.
His Excelly. will please to bear in Mind Mr Palmers Declaration that he had been informed soon after his Arrival in the Country that Stogdell had Mortgaged Walloomooloo, And that he went to, and Spoke with Mr. Campbell in Consequence of it which leaves a Strong probability, that the Bond was then adverted to and produced – Mr. Palmer also States that he has been in the Colony some days before the Circumstance of the Bond was mentioned by Mr. Campbell.
Respondt. humbly Submits to His Excelly. the propriety of direction of the Interogatories to be Admind. Separate, And not in the presence of any Person, that is interested – Should any of them appear in His Excellys. Judgement to be Interested Or not Conformable to His Excellys. Directions they shall be immediately withdrawn Or altered - And altho the ground of the imputation of Perjury agt. Michl. Robinson will be [indecipherable] and Refuted by the Evidence of the Judge Advocate and others, yet Respondt. nevertheless humbly Submits that the Bonds being in the Office of the J. Advocate after Stogdells Death rests with Mr. Palmer and Mr. Campbell, whose Affidavits contain mere Assertions, Unsupported by Evidence – And Assertions from persons who are naturally Interested in the Event of this Sort. the one as principal and the other his Bondsman aught to be supported by Colateral Testimony – Whereas Michl. Robinson is in no Respect Interested in the Event – but merely was Called and came forward to Speak to a point in his Official Capacity And there is Evidence which goes to Establish the Testimony he has given.
Respondt. also Submits to His Excellency the [indecipherable] of an Affidavit of Mr. Palmers Admind to him on Receiving the letters of Adminn. which whilst the Verdict of the Civil Court stands on the principle that he has not dulyAdmind. must inevitably appear in Judgement against the Appellt. And show here the Perjury lies.
26th August 1803 ("Signed") Simeon Lord.
[Page 171]
Interrogatories which Simeon Lord prays His Excellency The Governor will Cause to be put to the following Persons.
Mr. Larra –
Quesn. 1st. - At the time you [indecipherable] Mark Flood. at Capt. Mr. Atkins Instance did not Stogdell come forward in Court and Say he was Mr. Palmers Agent and Representative in this Colony. And [indecipherable] some Papers to the Court. to Confirm it.
Ansr. – He did.
Quesn. 2d. – Did Stogdell Refuse to pay you 2 Notes, which he had given you on Account of Flood and what Reason did he assign for so doing.
Ansr. – He did – he said he would not pay until Compelled by a Court, as he was Accountable to Mr. Palmer.
Quesn. 3d. – Did you Suppose Stogdell to be Mr. Palmers Agent and Representative in this Colony And that he Established his Credit here on that footing.
Ansr. - He always did.
("Signed") W. P.
Mr Thomas Smyth P. M. ---
Quesn. 1st. – When the Judge Advocate pronounced the Verdict on the 4th of July did he not preface it by Observing that the matter before the Court was reduced to the simple Question whether Mr. Palmer had Or had not duly Administered And in the next Sentence, give Verdict for the Platiff, with full Costs of Suit.
Ansr. – Yes.
Quesn. 2d. – Did you attend the Court held at Parramatta, when Captain Kent and Mr. Marsden sat as Members.
Ansr. – Yes
Quesn. 3d. - After Flood had been arrested at the Suit of Land and the Cause was at Issue, did Stogdell step forward and Say he stood in Mr. Palmers Shoes as his Representative and Agent,. Or did he express himself to that Effect.
Ansr. – He did.
Quesn. 4th. – Did he produce some Papers, which were Read in Court and which proved him to be the Representative of Mr. Palmer.
Ansr. – He produced a Power of Attorney to that Effect.
Quesn. 5th. – Have you ever Seen the Records of the Court, before which that [indecipherable] was determined.
Ansr. – He has.
Quesn. 56th – Did Mr. Palmer Since the Verdict was given get from you the Original Security you held for Prosecuting the Appeal And did he Substitute any other in its Stead.
Ansr. – Yes.
("Signed") W. P.
Captain Cummings –
Quesn. 1st. – When the J. Advocate pronounced the Verdict on the 4th of
July
[Page 172]
July, did he not preface it by Observing that the Matter before the Court was reduced to the simple Question whether Mr. Palmer had or had not duly Admind. And in the next sentence, give a Verdict for the Plaintiff with full Costs of Suit.
Ansr. Yes to the best of his knowledge and belief, those were the Words.
("Signed")
W. Paterson.
Thos. Jamieson.
Chas. Throsby.
Robert Campbell Esqr.
Quesn. 1st – Was Adam Klerk in your Service after Mr. Palmer Arrival in this Colony, previous to Stogdells Death?
Ansr. – He was as a Menial Servant
Quesn. 2d – Did you ever send Adam Klerk Or any other Person in your House to the Judge Advos. Office with any Message respecting the Bond in Question?
Ansr. – No.
Quesn. 3d. – Had you any Conversation or Correspondence with Mr. Palmer soon after his Arrival on the Subject of Stogdells Debt And the Security he had given you.
Ansr. – Yes he had he Applied to Mr. Palmer.
Quesn. 4th. – When did you first see the Bond Or Receive it at the Judge Advocates – And who was present – Was it in the lifetime of Mr. Dore?
Ansr. – Refers to his Affidavit made on Wednesday last, before the Judge Advocate.
Ques 5th. – Will you take upon yourself to say that you never Applied to Mr. Palmer, previous to the Death of Stogdell respecting Stogdells Debts and the Security?
Ansr. – He did apply to Mr. Palmer – after his arrival before Stogdells Death.
Quesn. 6th. – Did Mr. Palmer ever promise you in the lifetime of Stogdell that you should be paid this debt, as soon as he could Conveniently Discharge it?
Ansr. – Never.
Quesn. 7th. – At Whose Instigation and for what purpose was your Affidavit made that Appears on the back of the Instruments in Question.
Ansr. – Believes it to be before the Court Or the Judge Advocate.
Quesn. 8th – Was any Suit then pending Or at issue or had it been required by any Person who had a claim on the Estate.
Ansr. – Not to the best of my Remembrance.
Quesn. 9. – Does not the Tenor of that Affidavit do away the priority of Claim set up by that Instrument?
Quesn. 10. – Will you take upon yourself to Say that Mr. Palmer was not with you at the J. Advos. Office when you Received the Instrument in Question – And why did you reserve that circumstance in your last Affidavit?
Ansr. – He went after the Death of Stogdell to the J. Advos. Office for the Instrument – does not know if Mr. P. was in the Office, but he might be in the J. Advocates Office.
W. P.
Richd. Atkins Esqr.
[Page 173]
Rich. Atkins Esqr.
Quesn. 1st. – At the time you took possession of the Papers in the J. As. Office On Receiving your Appointment after Mr. Dores Decease, did you see the Instrument in Question amongst the Papers?
Ansr. – He did not – If the Instrument means the Security given by Stogdell to Mr. Campbell?
Quesn. 2d. – Was it likely that an Instrument of such Import should be Unnoticed by you?
Ansr. – If it had been in the Office, he thinks he must have seen it.
Quesn. 3d. – When did you first see the Instrument And in whose Possession was it when you saw it?
Ansr. – Cannot Recollect – but am inclined to think it was when the Affidavit was made by Mr. Campbell on the back.
Quesn. 4th. – If Mr. Robinson had given up an Instrument of such Consequence whilst he Acted as Your Clerk was it Consistent with his mode of doing business to do so without remarking it to you at the time Or immediately thereafter?
Ansr. – He should be inclined to think that he would being a Paper of such Consequence.
Quesn. 5th. – Did he ever inform you he had done so?
Ansr. – Not to my Knowledge.
("Signed")
W. Paterson
Thos. Jamieson
Chas. Throsby
Mr. Palmer
Quesn 1st. – When I asked you how soon it was after Your Arrival, that Mr. Campbell Applied to you Respecting Stogdells Debt, did not you say in the presence of the Governor that it was 9 days after your Arrival before Mr. Campbell mentioned the Subject to you?
Ansr. – He was not asked upon Oath. An therefore was not particular, he might have said so, but thinks it was longer.
Quesn. 2d. – Did you ever directly or indirectly make any promise to See, that Satisfied as soon as possible, so as to pacify Mr. Campbell in that Respect?
Ansr. – Mr. Palmer does not Comprehend what is meant by the word "that".
Quesn. 3d. – When did you first know the Nature of the Security Stogdell had given Mr. Campbell?
Ansr. – Soon as Mr. Campbell [indecipherable] forward his Claim.
Quesn. 4th. – How did you Come to the knowledge of it?
Ansr. – Does not exactly know.
Quesn. 5th. – When did you first see the Bond and Where?
Ansr. – Cannot say but not until after Stogdells Death.
Quesn. 6th. – Did you never tell me in your Office Yard when you were advising with me on Stogdells affairs, previous to your taking out Letters of Adminn. that Mr. Campbell had a Bond of
Stogdells.
[Page 174]
Stogdells to a Considerable Amount which you had promised to see paid as soon as Possible?
Ansr. – Not to my Recollection.
Quesn. 7 – Did you ever admit to me that you had been to the J. Advos. Office with Mr Campbell about the Bond?
Ansr. – Never to my knowledge.
Quesn. 8 – What did pass at the Office where you went about the Bond?
Ansd. By Quesn. 7
Quesn. 9 – Did you ever admit to any other Person, and make a Remark at the time that it could be of no Importance, as it was a Judgement Debt that of Cause had a priority of Claim?
Ansr. – Never.
("signed") W. P.
Mr. D. D. Mann
Quesn. 1st – You were upon Terms of Intimacy with the late John Stogdell. Did he ever Express himself to you Uneasy at Mr. Palmers being pressed by Mr. Campbell for Money on Acct. of the Bond and that he thought it Unhandsome in Mr. Campbell to Urge him so soon after his Arrival in the Colony considering the ample Security he was possessed of?
Ansr. – I cannot Swear it was on Acct. of the Bond – I understood it so – It was in the Hands of S. Lord.
Quesn. 2d. – Did you hear Mr. Stogdell at any time say that he was made easy in his mind as Mr. Palmer had promised Mr. Campbell to pay the Debt as soon as he possibly could?
Ansr. – I heard him say in the Theatre, that he shd be his own Master in a few Days And that the Farm at the Hawkesy. wod. be in his own Possession.
("signed")
W. Paterson
Thos. Jamison
Chas. Throsby
Mr Bennett.
Quesn. 1st – Immediately after the Sale did you Receive any Instruction from Mr Palmer respecting the farm?
Ansr. – Not particularly then.
Quesn. 2d. – What was the nature of the Instructions you Received?
Ansr. – To take Care of Mr. Palmers Property and to obey such Orders as he might Receive from time to time.
Quesn. 3d. – Did Mr Campbell ever give you any Instructions and if he did what were they?
Ansr. – None.
Quesn. 4th. – Who Accounts with you for your Wages during the time you were at the Hawkesy. After the Sale and Until you left the Hawkesy.
Ansr. – Has had no final Settlement to this Day.
Did Mr. Campbell
[Page 175]
Quesn. 5th – Did Mr Campbell receive any of the Grain in Stacks at the Hawkesy. after the Sale or appear to have any Corn or give any Directions about it?
Ansr. – There was Grain sent down to Mr Palmer from the Hawkesy. by Mr Palmers Directions.
Quesn. 6th – Did you not in 14 days after the Sale Consider everything there that had been purchased by Mr. Campbell as Mr. Palmer’s property and has not it remained ever Since in the Same State?
Ansr. – I heard that Mr Campbell had purchased the farms but shortly after Understood Mr. Campbell had Disposed of them to Mr. Palmer - I never Considered myself in Mr Campbells Employ.
("signed") W. P.
("signed")
W. Paterson
Thos. Jamison
Chas. Throsby.
Wm Evans
Quesn. 1st – Were you present at a Court at Parra. when Flood had been directed by Lord and Stogdell stepped Forward and sd. he was Mr. Palmers Agent and Representative in this Colony and did not he produce some papers to Confirm it?
Ansr. – He did and produced an Instrument to that Effect.
John Wood
Quesn. 1st – Do you remember Mr. Campbells purchasing any Cattle, Horses and other property at the Sale at the Commissarys Office in Sydney?
Ansr. – Yes.
Quesn. 2d – Did Mr. Palmer purchase any?
Ansr. – Does not Recollect.
Quesn. 3rd – What became of those Mr Campbell purchased?
Ansr. – They went to Mr. Palmers.
Quesn. 4th – Did you receive any directions from Mr Campbell to take Care of that Stock as his Property after the Sale?
Ansr. – No.
Quesn. 5th – Did it not appear to you that those Cattle, Horses &c were purchased for Mr. Palmer?
Ansr. – Yes.
Quesn. 7th – Have they not ever since the Sale been in Mr. Palmers Possessn. and Can you Say that they were ever Delivered into Mr Campbell’s Possessn. in the same manner that the One I purchased was Delivered to me and the others who Purchased received theirs?
Answr. – They were always in Mr. Palmer’s Possession and never Deliverd. to Mr Campbell.
[Page 176]
Quesn. 6th – Did you not receive your Directions Respecting them frequently from Mr. Palmer?
Ansr. – Yes.
("signed") W. P.
(Draft) Govt. House Sydney Aug. 27th 1803
Gentlen.
The Enclosed are Interrogatories from the Respondt. Simeon Lord in a Cause of Appeal before me, which you will please to exhibit on Monday next 29th Inst. to the Persons named therein taking their Direct Answers on Oath, separate from each Other. Unsealing them in the Order they are Numbered and Sealing them before another is Opened.
I have the Hon. &c, &c, &c
signed Philip Gidley King
His Honor
Lt. Govr. Paterson
Thos. Jamison Esq.
Chas. Throsby Esq.
Sydney 28th Augt. 1803
Sir,
I beg to Represent to Your Excellency that in March last I mentioned to the Civil Court from the Multiplicity of Public Business, it was impossible for me to attend the Cause Depending between me as Adminr. and Mr. Lord as Attorney for Hugh Machin and Craved they would Admit Mr. Crossley to act as my Agent and by deed of 23d of March I made him an Appointment, this was only placing me on the same footing with Machin my Opponent, who was represented by Mr Lord his Attorney.
From that time I delivered up every paper then in my possession and for this Reason my Agent only point out the Necessary proceedings that may be wanted by Your Excellency and he only can give the proper Information relative to the Appeal.
I can have no other Desire but that Your Excellency will proceed and decide on the Matters which Appeared before the Civil Court; I beg to add that by Reason of my non attendance in that Court I am Unequal to give the proper Answers you may Require and as Your Excellency has declared you wish to be in possession of every necessary Information to enable You to Decide on this Case – I have to Request you will allow my Agent on this Appeal to produce such Papers as may be Wanting and Reply to such questions as you may deem proper to ask in the Cause. This Request I trust you will in justice to me, be pleased to Comply with - From the Concerns that may arise upon the Decision before Your Excellency, unless I have my Agents Assistance, I must stand Neuter and only require this further of Your Excellency to permit me to Deliver the Papers you call for and give judgment on what Appears in the Proceedings of the Court of Civil Jurisdiction one way or another as you may be pleased to deem right.
I have the honor &c, &c, &c
("signed") John Palmer.
His Excellency Govr. King
[Page 177]
The Witness is Inadmissible for the Following Reasons -
1st. Machin the principal in this Cause, as Respondt. being absent from the Colony – the Respondt. being his Agent represents him which woud. not be allowed, if the principal was present.
2d. – The Appeal being before me in Apellts. Name And no Record being on the proceedings of the Civil Court of George Crossleys pleading - And Apellt. having hitherto prosecuted the Appeal in Person – I do not consider George Crossleys Conducting the Remainder of this Appeal as Consistent with Justice, Equity and Propriety.
Augt. 30, 1803
Philip Gidley King
New South Wales
To all to whom these Presents shall come, I John Stogdell of the Hawkesbury in this Territory Agent and Attorney to the concerns of John Palmer Esqr. Commissary for this Territory send greeting Whereas I stand indebted unto Robert Campbell of Sydney Merchant as well on my own Account as in the part and behalf of the sd. John Palmer Esqr. in the Sum of One Thousand Seven Hundred and Fifty Pounds of lawfull Money and in Order to Secure the payment thereof to the sd. Robert Campbell, his Exectors., Adminrs. and Assigns, at the time herein after particularly limited and expressed, I the sd. John Stogdell, for myself, my Heirs, Execurs and Admins. do bargain, Assign, Transfer and make present to the sd. Robert Campbell his Execs., Admins., and Assigns all and Singular all the following Farms, belonging to me or to the sd. John Palmer Esqr. situate at the Hawkesy. aforesaid Commonly Called or known by the Several and respective Names of Stogdell Farm, Ruffler Farm, Wilson Farm, Bond Farm, Brindley Farm and Wilcox Farm, together with all and Singular the Messuages Tenements, Buildings Barns and Outhouses on the sd. premises or thereto belonging. Also the Crop and Crops on the same. Implements of Husbandry, Sundry Goats, Ten Horses, Mares Or Geldings and Ten head Horned Cattle To hold the same and every part and parcel thereof to the sd. Robert Campbell his Execs. Admins. and Assigns until the sum of One Thousand Seven Hundred and Fifty Pounds and every part thereof is duly paid and discharged and no longer, provided always and it is the true Intent and Meaning of this Assignment that if the sd. Sum of One Thousand Seven Hundred and Fifty Pounds together with Interest after the Usual and Established Currency of the Colony for Monies Sterling is not duly and truly paid and discharged on or before the 6th day of August which will be in the year of our Lord One Thousand Seven Hundred and One, that then and in such Case it shall and may be lawfull to and for the sd. Robert Campbell his Execurs. Admins. and Assigns to enter into and upon the sd. hereby assigned several farms Crop and Crops, Goats Horses and Horned cattle and take possession of the same and proceed to Sell and dispose thereof by Public Auction to the highest and best bidder and apply the Produce or so much thereof as shall be equivalent to the sd. Debt to the payment of the same reserving the surplus (if any) after deducting all
reasonable
[Page 178]
costs and charges to me the sd. John Stogdell or to the sd. John Palmer Esqr
on or either of our assigns and for the purpose aforesd. I the sd. John Stogdell do herein and hereby Nominate and Appoint the sd. Robert Campbell my true and lawfull attorney in the premises hereby ratifying confirming and allowing all and whatsoever my sd. Attorney shall lawfully do or Cause to be done by virtue of these presents and I do moreover direct Consent and Agree that this Instrument be Considered and taken in law as a Confession of the sd. debt Or Sum of One Thousand Seven Hundred and fifty pounds Sterling and to have all the power and Operation of a Warrant of Attorney on which judgement is Recovered and by Virtue whereof Execution shall and may Issue against me my Goods Chattels, Credits and effects whatsoever and Wheresoever in the Territory, if the sd. Debt hereby secured or Intended so to be, is not duly paid and discharged at the time herein before limited and Mentioned according to the true Intent and Meaning of this Assignment.
In witness whereof I the sd. John Stogdell have hereunto Set my hand and Seal this 29th day of October in the Year of our Lord One Thousand Eight Hundred.
("signed") John Stogdell
Sealed and Delivered (no stamps being used in the Colony) in the presence of
("signed") Michael Robinson Clerk to the Judge Advocate
Received this 23rd day of June 1801 from John Palmer Esq Adminr. of the above Named John Stogdell Deceased a Conveyance of Certain Lands part of the premises above mentioned purchased by me at Public Auction in Separate lots in Sums Amounting to the sum of £932.17.0 which I accept as part of the Sum due and Secured by the above Deed
Witness my hand
("signed") Robert Campbell
£932.17.0
Sydney 30th June 1801 Received from John Palmer Esqr. Adminr. of the above Named John Stogdell the further sum of £931.7.8 in full of the principal Sum Contained in the foresaid Deed and Interest thereon, from the 29th day of October last to the 23rd day of the present month of June - Witness my hand
("signed") Robert Campbell
£931.7.0
Witness ("signed") Adam Clink
The deceased John Stogdell Or.___________ To the Principal Sum Contained in your Bond & Assignt. dated 29th October____________£1750.0.0
Interest thereon from Octr. to the 23rd June at 10 per cent 7 months and 23 days
£114.4.8
---------------------
£1864.4.8
=============
£1864.4.8
932.17.0
-------------
£931.7.0 ("signed") Robert Campbell
[Page 179]
New South Wales.
Robert Campbell named in the Within deed maketh Oath that the Sum of One Thousand Seven Hundred and Fifty pounds within mentioned was at the time of the Death of the within named John Stogdell and still is firstly due to this deponent and this deponent saith that the Items and Articles which Constituted the sd. Original demand for which the sd. Security was given, was, and every part thereof were the proper debt due from the sd. John Stogdell to this deponent and no ways on Acct. or concerning John Palmer Esqr. within mentioned to the knowledge or belief of the deponent
("signed") Robert Campbell.
Sworn before me this 18th day of May 1801
("signed") Richd. Atkins, J.A.
The Mortgage signed by Stogdell can affect only his own Effects
Mr Campbell proves by Affidavit the debt was due from Stogdell which is proof all the Goods were delivered Stogdell – the Farms and all the property specified were Stogdells Own
("signed") John Palmer
Augt 30, 1803
Sydney Augt 30,1803
Sir
I send you down the papers I received from you, as making the whole of the proceedings of the 27 July – 16th August and have to Request you will inform me whether any other Paper or Acct of Sales were delivered into the Civil Court on either of the above dates
I am Sir &c, &c, &c.
("Signed") Philip Gidley King
Richd. Atkins Esqr
In Answer to your Excellencys letter of this Days date, I have to inform you that I never had to my Recollection any other documents in the cause Lord vers. Palmer than those I transmitted to Your Excelly. Accompanying the Proceedings in that Cause.
I have the honour &c
(signed) Richd. Atkins J.A.
26th August 1803
His Excelly, Govr. King &c
[Page 180]
I am not possessed of a single Authority your Excelly requires by the enclosed. There may be such, but I believe they are not in the Colony And if they are derived from Memory they are not legal Quotations, being Subject to Error.
I have the Honor &c
("signed") Richard Atkins J.A.
1st September 1803
His Excelly. Govr. King &c
[Next three lines indecipherable – list]
In the Court of Appeal
New South Wales.
To His Excellency, Governor King &c, &c, &c
( John Palmer Esqr. Admor Appellt.
( vers
(Simeon Lord Attorney &c Respondt
For Respondent,
Appellant having filed two papers in this Cause Subsequent to Respondents Memorial, the one on the 18th and the other on the 24th Augt. last and a number of false suggestions as well as a Quantity of irrelevant Matter being Introduced in such papers manifestly Calculated to mislead Your Excelly as Supreme Judge in the Case before you by pretended Invitations or Authorities of law and Cases sd. to be adjudged, Unsupported by any legitimate document and it is presumed partially selected, as they might best answer the purposes for which they were produced Respondt humbly craves leaves on his part to Submit to the Consideration of His Excellency, in what point of View Suggestions ought to be Received and taken which are [indecipherable] on and refer to Incontrovertible facts and those which grow out of false promises and receive no other Colour or Support than what they may temporarily derive from the Subtle perplexities and quibbles of Law.
To the Laws of England as they were wisely framed for the best of purposes and are happily Calculated to protect the Properties of every Subject, respondt. prays the most [indecipherable] deference; it is the gross perversion of them for unworthy purposes, that he trusts will never escape the discernment and the Correction of Justice.
The Memorl. presented to your Excelly. by Respondt. Contains a Sample Detail of the Circumstances Connected with his Case and the Suggestions therein Stand uncontroverted in any one Instance whatever, they went to prove that Mr. Stogdell was Mr. Palmers Agent and Representative in the Colony and that he built a Credit with the Public in that Capacity, and the Investigation which Your Excelly. has with much patience and with such [indecipherable] impartiality, [indecipherable][indecipherable], has Confirmed it. Nor do the affidavits of Mr. Campbell and Mr. Palmer in the circumstances of the Bond come in a Shape free from Doubt or Suspicion, as to their Validity and until they are Supported by some Collateral facts, Respondt. presumes that doubt and suspicion will still attach to them.
It must be a task too arduous to be Imposed upon Your Excelly to trespass
on your
[Page 181]
time by Recapitulating the Numerous Instances in which it has appeared Mr. Palmer has not duly Admind. Your Excelly. is already in Possession of them, the Court saw that it was not merely Suggestion, but Matter of Fact and they decided and gave their Verdict accordingly.
Respondt. has already pointed out the false and falacious pleas which the Appeal delivered in by Appellt. abounds with, this has been attempted to be done away in some Measure by a Quibble in the Construction of the Word "reasons" and causes", where Respondt. is Urged to the Necessity of having recourse to such Subterfuges, he will admit his case to be Desperate Indeed.
The Memorial presented by Appellt. on the 18th of Augt last, is replete with a string of Assertions, which the Records of the proceedings in the Court below immediately and [indecipherable] negative.
No adjudication whatever was made by the Court in the matter of Balmain Esqr. against Appellt. of cause what passed at that time can afford no Ground for Appellt. to refer to, in Order to plead a due Adminn", nor could he, nor was he allowed to retain in his hands any Sum of Money in aid of Payment of the debt he had Set up, the Matter before the Court was premature, Twelve Months Appellt. Claimed and that period (and a Considerable longer time) he took before he came forward with his Accts.
The Paper Surreptitiously Obtruded on the Court, after the Verdict was pronounced, is Virtually a Nullity in Law and having no reference to the Verdict, can of course form no part of the Proceedings in the Court or Admit of any reference whatever in the Course of it, it was Clandestinely interposed in the absence of Respondt. - he had no Notice of it - nor did he know of such a Circumstance until he Observed it in the Sydney Public Gazette.
As to the mode in which the Court below thought fit to proceed in the Cause, Respondt. was not to direct or to dictate to them; they adopted what Respondt. presumes appeared to them the most effectual Measures to come at the Truth to guide them in the Adminn. of Justice and they became possessed of the fact and their Verdict declares it.
The inventory which Appellt. mentioned in his Memorial, was not an Original Instrument, taken as it aught to have been when the Adminr.-ship Commenced but framed from the Acct. Sales long after the Intestates Decease and after the property had been left open and exposed; and this Inventory such as it was, might be produced to the Court below, but there is no record by which it Appears to have been ever allowed, as that Sort of Inventory which the law required and was consistent with the Oath, the Adminr. took when Letters of Adminn. were granted to him.
Respondt perfectly Coincides with Appellt. in that part of his Memorl. where he states that no Suggestion, aught to be made by any party on the hearing of this Appeal, but on Evidence of the Truth Or such as are Warranted by the Records if the Court below, to the Records of that Court Respondt. refers and tests his pretensions
to Truth
[Page 182]
Truth or what will there Appear.
The Circumstance referred to by Appellt. which related to the transaction with Mr. Williamson has been explained and it has Clearly Appeared that Appellt. has taken credit for a Considerable Sum and given none, And as the Wheat Bills, respondt. Submits that it rests with the Appellt. to prove to your Excellys. Satisfaction that it was Wheat Received by Stogdell for Debts due to Mr. Palmer previous to his Departure from this Colony; and in Short, most of the Items to which the Appellt. refers, are, more or less founded on Error, and wilfully misstated or misapplied.
Little more remains for Respondt. to Reply to Or offer any Comments upon, Your Excelly. has Successfully developed many of the Intricacies in which this Suit has been Involved, with a View to Overturn and Defeat the just, honest and Established Claim, set up by Respondt. and allowed by the Civil Court, In turning over the Records Your Excellency will observe the Circumstance of McDonalds note for £30 Unaccounted for the testimony of Horton who Swears that he was ordered by Mr. Palmer to Send down Wheat and other Articles from the Hawkesbury to Wallooo. The Manner in which Mr. Bennett Speaks of the Management of the Farms at the Hawkesbury and in whose possession they have all along Remained and from whom he Expected his Wages. the Declaration on Oath of Wood, as to the cattle purchased at the Sale at Sydney and from which it indisputably appears the property was never Changed and the Inference readily drawn therefrom – the Number of Men Employed and paid after Stogdells Death amounting to 50. when perhaps 6 would have been amply sufficient. The Consumption of Articles, in and about the House and Farm at the Hawkesy. for which a Credit has been allowed - the Cautian and reserved Replies of some of the witnesses in Mr. Palmers Service, altho others have been brought to Speak the Truth; the astonishing Remarks made by some of the Witnesses, that they knew of no distinction of property at the Hawkesy - , Yet at the same time, they swear that all Mr Stogdells property was brot. forward and sold by Auction: the manner in which Mr. Campbell replied to the question which was put to him in a very early stage of the Suit, when Asked if he had entered into any Conversation with Mr. Palmer about purchasing the lots at the sale Mr. Campbell said "there was no agreement" which is an answer so indefinite, so reserved and so little Calculated to apply to the Question, that it never could have been admitted in a Court of Jurisprudence in England.
Respondt. has Observed a Remark in the Appellants "Observations by way of argument", that Appellt. would be in a Worse Situation than any other Creditor if his Claim as Adminr. was inadmissible, so, Respondt. Submitted, he certainly might, the Public were deluded by Mr. Palmers having left Mr. Stogdell his Agent and Representative in this Colony, they placed a Confidence in him under that delusion, and it is to Mr. Palmer only that they had to look to Answer those debts, which were Contracted by Mr Palmers Agent standing in his Shoes, in his absence and trafficking and bartering with Merchandize the profits of which Stogdell was interested in a Certain degree, as the Vender, but Mr Palmer was the merchant and the principal.
This is the law of England in its pure Construction and the law of equity and
Reason
[Page 183]
Reason in every Sense and altho the Appellt. from a Conscientiousness of the Weakness of his Case seems to anticipate Your Excellys Decree and to have prepared himself to Carry this Suit before the King and Council in England and altho it is not for Appellt. to point out what kind of Security your Excelly. may deem it prudent or proper to Exact, in a Concern of such Magnitude. Yet as Unforeseen Circumstance, frequently subject personal Security to hazard, And as this is a case different from what usually Occurs in Error, in as much as in this Instance the property has been Received and is in the Actual possession of the Adminr. if, as Respondt. presumes, it will appear that this Adminr. has not duly discharged his trust, what security can be so Competent or Safe to abide the Issue of this Enquiry as the property itself?
("Signed") Simeon Lord
Sydney 3d. Sepr. 1803
Sydney Sep 5th. 1803
Sir
The Appellant Mr. Palmer, having Used the following Assertion in his Memorial of the 18th Ultimo.
I have to Request you will inform me if you know of any and on what grounds, such an Assertion is founded and whether those Laws alluded to have ever been avered by me, to be Observed, either directly or Indirectly, in any Process, Decision or Judgement, Civil or Criminal.
I am Sir &c, &c, &c
("signed") Philip Gidley King
Rich. Atkins Esqr.
J. Advocate
In answer to your Excellys Letter – I have to inform you, that I never heard you say that the Laws of [indecipherable] were binding or could operate in this Colony.
I have the Honor &c, &c, &c
("signed") Rich’d Atkins J. A.
5th Sep 1803
His Excellency Gov. King
In the Matter of Appeal
Between John Palmer Esqr. Adminr. and Appellt.
And
Hugh Machin Defendt.
The Memorial of John Palmer the Appellt.
Sheweth
That Your Memort. having with leave of your Excelly. prepared Interrogatories for the Examination of Richd. Atkins Esqr. Ensign Wm. Moore and Mr.
James
[Page 184]
James Mileham, late Members of the Court of Civil Jurisdiction touching certain matters as therein inquired of.
Your Memort. most humbly prays Your Excelly. that the sd. parties may be duly Sworn an the Court of Appeal before Your Excelly full, true and perfect Answers to make to all and "singular the Matters and things touching the sd. Interrogatories."
And that Your Excelly. will be pleased to Appoint some Person to examine the sd. parties on the sd. Interrogatories and that such examination by themselves Severally and the person Appointed to examine may read such Interrogatory And take the Answer or Answers of the sd. parties thereto to be put into Writing and Signed by the sd. parties respectively and Returned to Your Excelly. at such time as Your Excelly. directs and that Interrogatories when returned and the answers of the Parties thereto may without delay be Copied and Delivered to your Memort.
And your Memort. Craves leave when such Examinations are returned to have leave to Address Your Excelly. thereon by Memorial or Otherwise as the Nature of the Case may require.
And Your Memort. will ever pray &c
("signed") John Palmer.
8 Sepr. 1803.
In the Matter
Of Appeal
Between John Palmer Esqr. Adminr. and Appellt.
And
Hugh Machin Respondt.
His Excelly. the Governor on hearing this Appeal on Monday last having permitted Interrogatories for the Examination on Oath as to the explanation and Ascertaining of the Matters arising in this Case the Appellt. Submits the Following Interrogatories for the Approbation of His Excelly. for examination on Oath to be Sworn before the Court of Appeal in this Matter, that is to say Richd. Atkins Esqr. Judge Advocate Wm. Moore and James Mileham late members of the Court of Civil Jurisdiction.
First Whether the sd. Richd. Atkins is or is not Judge Advocate of the Court of Civil Jurisdiction and if Yea, how long he has Exercised that office and whether the sd. Wm Moore are or are not the Associated Members Or Jurors Associated to the sd. Judge Advocate to Compose or that did Compose the sd. late Court of Civil Jurisdiction and if Yea, Whether in the beginning of Aug. 1802 Or at any and what other time a Cause was not Instituted before them Wherein Hugh Machin was Plaintiff and the Appellt. John Palmer Adminr. of the late John Stogdell Deceased Defendt. And presented before the sd. Court from that time until the 4th of July 1803 on which day Judgement was given and if Yea, whether this Appeal is not promoted by Reason of such Judgement Or how otherwise
[margin note] Second –
Declared. Whether at the Time or immediately after giving the Verdict on the 4th July 1803 in Court and while the Court was Sitting in the Cause, the sd. Richd. Atkins did not say to the Appellt. You aught to be Satisfied, or what other Words And whether the Appellt. did not make Answer that was as it aught might turn out Or what other Words And whether this Conversation did or not pass in the Open
Court
[Page 185]
Court before the other two Members or how else Declare.
Third -------------Whether it was not sd. by the sd. Richd. Atkins in Open Court after the Appellt. was gone, Mr Palmer, meaning the Appellt. does not seem Satisfied And whether the Appellts. Agent did not make Answer, how was it possible he should And whether the sd. Richd. Atkins did or not after the Court was over, on Coming out, Say to the Appellts Agent, you certainly do not Understand this Verdict it is given in favour of Mr. Palmer Or any and what other Words and whether the sd. Agent, did not reply he feared the Court did not Understand it, it was quite the reverse Or any and what other Words And whether the sd. Richd. Atkins did not then say Mr. Palmer meaning the Appellt. is to retain his Debt first, and of the Effects of Stogdell and then if there be effects to pay Lord (meaning the Respondt. Machin or any and what other Words did he Use on that Occasion and whether upon the Appellts. Agent. replying that should have been said on the Minutes of the Verdict, for as the Verdict then Stood, the Law will Compell the Appellt. to pay Machin first or Words to that Effect. Whether the sd. Mr. Atkins said that was not so And whether a request was not then made to get the other Two Members to go back into Court and Set the Minutes right and whether this was for some time Debated in the Clerks Office And before the Clerk between the sd. Mr. Atkins and the Agent of the Appellant And that the sd. Richd. Atkins may Set forth the whole of this Conversation and his reason for it, at large
Fourth ---------------Whether the Appellt. did or did not immediately, Or how soon after the Court had Delivered their Verdict on the Day aforesd. go to the House of the Lieut. Governor Colonel Paterson and there if the Appellt. did not meet with Robt. Campbell Esqr. and whether Jams. Mileham one of the Members of the Court, did not come there and if Yea
whether the sd. Jams. Mileham did or not in the presence and hearing of the sd. Robt. Campbell Or how else address the Appellt. in these or the like Words "You don’t "seem Satisfied with our Verdict", And upon the Appellt. replying he certainly was not whether the sd. Jams. Mileham did not then in the presence and hearing of the sd. Robert Campbell Say the Verdict was given in your favour, Or what other Words did the sd. Jams. Mileham Use and whether upon the Appellt. replying he believed not, the sd. Jams. Mileham did or did not say, why you are to retain all the Money due to you first and then to pay Lord next, if there be effects come in for the purpose Or any and What other Words to that or the like effect And that the sd. Jams. Mileham may state the whole of this Conversation with his reasons for the same and whether the sd. Robt. Campbell was not present or how otherwise And whether as well the sd. Richd. Atkins Or the sd. Jams. Mileham have not often on the 4 July 1803 and at other days and times declared to divers persons that the Verdict was given in favour of the Appellt. or how otherwise Declare.
Fifth---------------Whether or not the sd. Jams. Mileham upon being Called upon at his own house and informed that the Verdict would operate Contrary to what he had related as inquired after by the foregoing interrogatories he did not say Mr. Atkins the Judge Advocate had told him to the Contrary And that the Appellt. was first to retain all the
Money
[Page 186]
Money due and what he had paid and when effects came in after those were Retained the Appellt. was to pay Lord meaning Machin the Respondt. Or what else and whether the sd. Jams. Mileham did or not say Mr. Atkins aught to have Mentioned if the Operation of the Verdict was otherwise Or to that, Or the like Or any what other effect And what was the sd. Jams. Milehams reasons for so declaring.
Sixth.---------------Whether the Appellt. did not shortly after see the sd. Mr. Atkins And whether he the sd. Mr. Atkins did not say the Appellts. Agent was Mistaken and that the Appellt. had a Right to retain his own Debt first and also what he had paid as Adminr. and after if effects came in, to pay Lord meaning the Respondt. and not before and what else did the sd. Richd. Atkins say And whether in the Course of Conversation the Appellt. did not say he had seen Mr. Mileham who had said that was the intention of the Court, but as it did not Appear in the Minutes of the Verdict, it would not avail, if the Court did not set their Verdict right And by that means save the expense of an Appeal Or any and what other Conversation had the Appellt. with the sd. Richd. Atkins on that Occasion and that he may set forth the same fully and at large.
Seventh------------Whether the sd. Richd. Atkins did not Declare that he Understood or the Court Understood or he had informed the Court at the time of giving the Verdict, the law would Operate so as to authorize this Appellt. the Adminr. to retain his Debt in preference and whether the Appellt. did not request the sd. Richd. Atkins to Convene the Members of the Court And if they had been mistaken to set the Verdict right and save the necessity of an Appeal Or what else [indecipherable] and whether the sd. Richd. Atkins did not declare that the Court having on their Minutes, declared the Opinion, they could not set it right but on an appeal or [indecipherable] else declare.
Eighth--------------Whether in the morning of 5 July 1803 the sd. Richd. Atkins did not after the Conversation mentioned in the foregoing interrogatories Or when else write a letter to the Appellt. and enclose it under Cover, addressed to the Appellt. by the name of John Palmer Esqr. and whether the letter is or not in these or the like Words
Dear Palmer,
Shew the enclosed to -------------- and let me know, if it will not be very proper that it should be Mentioned at the Bottom of the Proceedings.
With respect to the Verdict, I am concerned it cannot be Molested for altho possibly Mr. C. might find out some method to Qualify it, in a Colony like this, where it is Ordered to be done in a Summary Way, any Interposition, that has not been in Practice hitherto would be Considered, as an attempt to Injustice, the enclosed will prevent its having any effect in future cases
Yours truly
R.A.
5th July 1803
And if Yea, then by these Words Show the enclosed to --------------- the sd. Richard Atkins did not mean the sd. Jams. Mileham One of the Members of the Court, who the Appellt. had mentioned to him the day before or whom else did he mean and whether by the Words "let me know if it will not be proper that it should not be mentioned at the bottom of the Proceedings" the sd. Richd. Atkins did not mean the proceedings in the Cause in the Court of Civil Jurisdiction of Machin agt. Palmer Adminr &c Or what else Or what other proceedings did he mean And whether by the same being
entered
[Page 187]
entered at the bottom of the Proceedings, the sd. Richd. Atkins did or not mean that the sd. entry might attend the Proceedings on any future Stage of the Cause Or of any Appeal thereto or how else and Whether by the words "with respect to the Verdict, I am Convinced it cannot be molested" the sd. Richd. Atkins did not mean the verdict of Machin agt. the Appellt. as pronounced the 4th July being the Day before Or what other Verdict and whether by the Words of the sd. letter where he says "the enclosed will prevent it having any effect in future Cases", the sd. Richd. Atkins did not refer to a paper inclosed in the sd. letter and Whether such paper is or is not in the hand writing of the sd. Richd. Atkins in these words "Rule of Court made Absolute", We find that John Stogdell at the time of his death stood Indebted to John Palmer the Adminr. in the sum of ----------
and that his Effects sold by public auction amounted to ------------- leaving due to the sd. J.P. a ballance of ----------------- and if Yea then Whether the sd. Richd. Atkins did not mean or intend by the Words at the Top of the Paper "Rule of Court made Absolute", that the sd. Court of Civil Jurisdiction shd. make a Rule of Court in the Cause of Machin agt. Palmer Admr. to find that John Stogdell at the time of his death stood indebted to the Appellt. the Adminr. in the Sum of money of which an acct. was filed on 16th August 1802 in the Cause last mentioned and after proved in the Cause amounting to the Sum of £8229.18.5 or some such Or the like Sum or how else Declare all you know touching this Interrogatory with Your Reasons at large.
Ninth.--------------Look upon the paper writing now produced and shown to you – marked No 1 and 2 and Say whether the Same or either and which of them be or be not the handwriting of [indecipherable] the sd. Richd. Atkins. if Yea, whether the paper No 1 be or not the letter above as set forth in the foregoing Interrogatory Or not and Whether the Paper Writing No 2 be or not the paper enclosed set forth in the foregoing Interrogatory Or how they Or either of them vary or differ if they do in any do in any respect vary and differ from the Words of the Letter and paper set out in the sd. Interrogatory declare.
Tenth.-------------Whether the sd. Richd. Atkins, Wm. Moore and Jams. Mileham did or not meet on the 7th July 1803 being two Days after the sd. Richd. Atkins Writing the sd. Letter and Paper, or how else And whether the sd. Court did not make a Rule or Order in these Words "Sydney New South Wales July 7th 1803. It appears by the Accts. given into Court, that "John Stogdell stood Indebted to John Palmer Esqr. the Adminr. at the time of his Death in "the sum of £8229.18.5, that the Sale of the Effects of the sd. John Stogdell amounted to "£4774.2.7½ and that the sd. John Palmer has paid £1892.1.6 out of the sd. Sum, leaving "a Ballance to the sd. John Palmer Esqr. of £6337 16.11 ("Signed") Richd. Atkins, "Wm. Moore, Jams. Mileham", and if Yea, Whether some time after the Appellt. did or not apply to the Court to set right the ballance, upon the figures which the Court had made strong and whether the sd. Court, did not Set that right, by a Memorandum at foot of the sd. Order by writing these words "Error in the ballance which shd. be £5347.17.2½
instead
[Page 188]
instead of £6337.16.11 Richd. Atkins, Wm. Moore, Jams. Mileham". And if Yea, then that the sd. Richd. Atkins, Wm. Moore &. Jams. Mileham may Set Forth whether they did not find the sd. Debt of £8229.18.5 due to the Appellt. at the time of the Death of the sd. John Stogdell, from an Acct. that was exhibited to and filed in the Court in the Case in which the Appeal is interposed on the 16th of Augt. 1802 and if Yea, then whether the several Items of that Acct. had not been duly proved or was in Consideration pending the Cause Or how otherwise Or from what other Authority did they say such Debt Appeared or was found due by them. Declare.
Eleventh---------Look upon a Paper Writing now produced and Shewn to you at this the time of your examining Marked No. 3 And say if the sd. paper so exhibited be or be not a Copy of the sd. Order of Court and also say if the Name Richd. Atkins J. A. attesting the same as Judge Advocate, as a Copy of the Order of Court made as aforesd. Or how otherwise – Look upon the paper writing now produced Marked No. 4 and Say if those Items are or not a Copy of the Articles or Items produced and proved before the Court to Substantiate the Charge of £8553.11.5 mentioned to be the Debt claimed due by the Adminr. from the sd. John Stogdell at the time of his Death to the Appellt. his Adminr. as mentioned in the Acct. filed the 16th Augt. 1802 aforesd. and if Yea, then is not the Credit of £322.12.0 taken of to reduce that to the Sum of £8229.18.5 Or how otherwise and whether the sd. Sum of £4774.2.7½ said to be what the Sale of the Effects of the sd. John Stogdell amounted to is not the Amount of the Sale by Auction, and if Yea whether in that Sum they allowed any and What Sum either for expence of the Sale Or any other Expences of the Adminr. whatever and set forth the reason why they did not allow the Same Or any part of it. And whether the Sum of £1892.1.6 therein said that the Appellt. had paid was not the Money paid in Course of Adminn. out of the Effects before the Respondt. commenced his Suit or how Otherwise and Whether the sd. did or did not find a ballance of £5347.17.3½ to be thus due to the Adminr. or after deducting all the Money produced by the Sale of Auction – Declare.
Twelfth-------------Whether by the Words at the foot of the sd. Richd. Atkins [indecipherable] letter of the 5th July last mentioned recited "the enclosed will prevent its having any effect in Future Cases", the sd. Richd. Atkins did not mean that such a rule of Court would be a bar to other Creditors Or what else did he mean And if the Debt due to the Appellt. at the time of the Death of the Intestate exceeded the Money or Effects got in, why the Appellt. shd. not retain the Money or effects to pay himself as well against the Debt of the Respondt. whose Debt was of equal or less degree with the Debt of the Appellt., as against other Creditors and more especially as the sd. Debt was proved in the Cause to be firstly due Declare.
Thirteenth-----------Whether during the time the Cause was going on from time to time, there was or not Kept an Open or Free Table at the House of Simeon Lord, for such of the Members of the Court as Chose to resort thereto to refresh. And whether the sd. Simeon Lord is or not Agent for the Respondt. and whether the Members of this Jury and particularly the sd. Wm. Moore, did or not frequently and daily when the Court sat, resort to the sd. House of the sd. Simeon Lord to eat and to drink.
Lastly-------------Do you know any other matter or thing that may tend to Benefit the Appellt. in this Cause and if Yea Declare the same fully and at large.
Exhibited by
("signed") John Palmer Appellt.
September 8th 1803
[Page 189]
Sydney Sepr. 8th 1803
Gentlen.
The Appellt. Mr Palmer in the present Appeal having requested to Exhibit certain Interrogatories (to be Sworn before me in the Court of Appeal) to you as Judge Advocate and the Two Members of the late Civil Court of Jurisdiction touching his Cause.
I have to require your Information as a Law Officer, how far the Answers on Oath to such Interrogatories exhibited by the sd. Civil Court are legal and admissible as stated in the Appellts. Memorial enclosed.
I am Gentlen. &c &c &c
("signed") Philip Gidley King
Richd. Atkins Esq J. Advocate
Mr. Jams. Mileham
Lieut. Wm. Moore
Members of the late Civil Court
Sydney Sepr. 8th 1803
In answer to Your Excellys. letter of this day requiring my Information as a Law Officer how far the Answers on Oath to Certain Interrogatories are legal and Admissible - I have to Observe that any Interrogatories to me or to Other Members of the late Civil Court are in themselves illegal and of Course the Answers thereto are Inadmissible.
I have the honor &c &c &c
("signed") Richd. Atkins J.A.
This is also our Opinion
(signed) Wm. Moore
Jams. Mileham
May it please Your Excelly.
The Interrogatories which I have exhibited to the Court of Appeal was Submitted to the Judgement of the Court in their direction and to be disposed of as Your Excelly. might Consider Conducive to the ends of Justice.
I most humbly Submit that the Members of the Court of Civil Jurisdiction have kept back a part of the Proceedings in the Cause and in Answer to some Enquiry made by Your Excelly. on that Subject have replied in such way that if their Answers had been given on Oath, it might have been for my Consideration to Apply to Your Excelly. and have Submitted whether such might not have been the Subject of other Enquiry.
But as in the Cause of the proceedings there Can be no other way of inquiry in the Colony, I Submitted to Your Excellencys Discretion, as Judge of the
Superior Court.
That
[Page 190]
That Your Excellency has powers as Judge of a Court of Record to Order those Answers I Submit is right, Otherwise there may be a failure of Justice, and altho. I Conceive the Court of Appeal to have Competent power, it is Wholly discretionally to Order a proceeding of that Sort or not, the matter wholly resting with Your Excellency as Supreme Judge, whether such Interrogatories aught or not to be Answer’d. Or whether the Interrogatories are proper Or not And if your Excelly. in Considering the Case entertain the least Doubt on the Matter I crave leave to press the Matter no further, the Object of the Inquiry I Submit in part to be, that all the proceedings are not Returned to the Supreme Court from the Court below and to explain if they are so this Matter wholly rests with the Court of Appeal.
Had such a Case arisen in England in a Court of Error a Writ of Certiorari would have Issued from the Superior Court, to the Judges of the Court below And if they had made no return of a false Return, an Attachment would have been granted and if the Superior Court saw Cause, the Judges of the Court below would have been put to Answer an Interrogatories for a Contempt and upon those Answers the Superior Court would Act, as their Discretion directed.
These Interrogatories I most humbly Submit, have for their Object, three points One to prove that the Members of the Court below, after [indecipherable] Sentence have declared they were Mistaken in the Verdict, which Declaration they have since denied by their Certificate to Your Excellys enquiry - Another Object of Enquiry is that there are proceedings in the Cause not returned Viz The Paper of the 7th July – a Third Enquiry is as to some improper Conduct of the Jurors while the Cause was depending and which is a Matter for enquiry of the Court if they deem proper to make it, but not else, being a thing entirely discretionally.
There is no Method to get at these facts in the Colony but by the Mode I have submitted to Your Excelly. in the Court of Appeal.
With Respect to the Form I beg leave to Submit them to any Alteration Your Excelly. may deem proper, as I can have no Wish but to lay the Whole Case before the Court, and as the Case is entirely new and the enquiry wholly discretionally, I leave it to the Court of Appeal to file or Object the proceeding as the Court may Approve, if I had Considered the least impropriety in Offering the Interrogatories I assure Your Excelly. I would not have brought them forward and having done so I consider it wholly at the pleasure of the Court to admit them or not.
The Answers of Interrogatories are in Cases of Contempt and it is for Your Excellency to judge whether the Matter set Forth are or not in Your judgement as a Judge of the Superior Court, Such a Contempt of the [indecipherable] Court, as the parties aught to be put to Answer from the Nature of the Case, there can be no Decisions of this kind one way or another.
I have the Honor &c, &c, &c
("Signed") John Palmer
Septemr. 8th 1803
[Page 191]
Sydney Sepr 8th 1803
Sir
You having as Judge Advocate informed me by Letter in Answer to mine of this Date to You and the Members of the late Civil Court Occasioned by a Memorial from the Appellt Mr Palmer Containing Interrogatories to the Judge Advocate and said Civil Court.
"That my Interrogatories to You Or the other Members of the late Civil Court are in themselves Illegal and of Course the Answers Thereto are Inadmissible."
And as I Conceive the Questions first in the sd. Interrogatories Call in Question the Judicial and Moral Character of You as Judge Advocate and of the Members of the sd. Civil Court I have deemed it an Indispensible part of my Duty to require your Explaining to me in Writing such replies forwarded on [indecipherable] as may tend to Vindicate Your Conduct And that of the Other Members on the Queries and Observations Contained in the sd. Interrogatories, which you will Substantiate by Oath Or Otherwise where you deem them to differ from the Records of the Civil Court of Jurisdiction Delivered into me – This you will not fail to do as soon as possible.
I am Sir &c
("signed") Philip Gidley King
Richd Atkins Esq
J. A.
Sir,
In Answer to Your Excellency’s Letter of 8th Inst. I beg leave for myself as Judge Advocate to Say that as Your Excelly. was pleased to require of me as a Law Officer my Opinion respecting the legality of Administering Interrogatories to me and the Other Members of the late Civil Court And as I have already Observed that I Conceived such a Measure illegal I have no Reason to Alter that Opinion – But for Your Excellys. Satisfaction, I have no hesitation in Saying, that whatever private Advice I may have been Induced to give Mr. Palmer Could have no reference to my Judicial Capacity And any Letter or Note I may have sent to Mr. Palmer on that Subject was dictated by Motive of Friendship And such as I can have no inducement to Disavow.
In Regard to the paper referred to in the Interrogatories I Certainly never Considered it as forming any part of the proceedings in the Cause or that it Applied to or could Disturb the Verdict and for that Reason it did not Accompany the Proceedings.
And We the other Members of the late Court are equally desirous to render Your Excelly. any Information in our Power that may remove any Imputation upon our Moral Character. The Insinuation that Mr Palmer seems to have been Vindictively advised to make, respecting the House of Simeon Lord, being Open to afford refreshment During the hearing the Cause we think too illiberal to require any Serious reply to at present, reserving to ourselves the Means of Obtaining redress hereafter for a Wanton and Infamous Attack upon our Reputation.
And
[Page 192]
we beg leave to add that we are and always shall be ready and happy to Answer any Questions that Your Excelly. may think proper to put to us privately that relate to the Subject before you Or that may have a tendency to elucidate the point in Question.
We have the Honor &c. &c. &c.
("signed") Richd. Atkins J. A.
Wm. Moore
Jams. Mileham
Sydney Sepr 9th 1802
Memorandum of Work done at the Hawkesbury for the late John Stogdell by John Bolger On any part of the time of his Agreement with John Palmer Esq.
[Table not transcribed]
[Page 193]
[Table not transcribed continued]
Memorandum of Work done at Walloomooloo to be deducted from the Former Statement.
[Table not transcribed]
We whose Names are hereunto Affixed do Acknowledge this whole Statement to be Just.
("signed") Thos. Moore
J. Whitear
Jno. Bolger
J. Bloodsworth
Errors excepted
Memorandum of Sundries 1803
[Table not transcribed]
[Page 194]
[Table not transcribed]
We the Undermentioned Persons do hereby Acknowledge the above Statement to be just and lawfull. In Witness whereof we have hereunto Set our hands this 10th Day of Sepr 1803
("signed") Thos. Moore Jam Bloodworth J. Whitear. Jno Bolger.
[Page 195]
Sydney Sepr [indecipherable] 1803
In Appeal
Gentlen
Observing by the Answers to the Interrogatories exhibited by you to Mr. Robert Campbell that he does not give a Direct Answer to the Interrogatory respecting his taking Possession of the Cattle &c, nor to the last Interrogatory "To Whom &c," that part "to Whom &c" not being Answered, I have to Require that you [indecipherable] Mr Campbell before you And demand a positive Answer to the sd. Interrogatories as well as to an Additional one herewith enclosed.
I have the Honor &c, &c, &c
("signed") Philip Gidley King
Lieut. Govr. Paterson,
Judge Advocate
Thos. Jamison
Commissrs. for taking Interrogas.
In Appeal
Interrogatory
Not before Answered to His Excellency the Governors Satisfaction
Re-put
Did you ever take possession of the Farms or Cattle you purchased at the Hawkesbury belonging to Stogdell, for your own Use and Benefit?
Ansr. - No farther than by Assignment that was given to me by the Administrator.
To whom and What time did you transfer your Property in those farms, Cattle &c
Ansr. - To Mr Palmer - about the 2nd or 3rd July 1801 when Mr. Palmer paid me the Mortgage Money.
("signed") Robt. Campbell
Sworn on the 24th Sepr. 1803
Before
("signed") W. Paterson.
Rd. Atkins
Thos. Jamison
Appeal - Palmer agt. the Verdict of the Civil Court in his Cause with Lord September 24th 1803
Interrogatories to be put to Mr. Robt. Campbell by the Magistrates Appointed as a Commission for that especial purpose
and
[Page 196]
and to be answered on Oath.
Did you ever go to the Judge Advocates Office in Stogdells lifetime, for the Deed of Mortgage made by Stogdell to you ?
Ansr. - No - not in his lifetime.
("signed") Robt. Campbell
Sworn the 24th Sepr 1803
("signed") W. Paterson
Rd. Atkins
Thos. Jamison
In Appeal Palmer agt. Verdict of Civil Court in his Cause with Lord
Sydney Sepr. 4th 1803
Memorm.
You will Call on Mr. Robert Campbell Merchant and Require of him the Assignment of the Farms, Cattle &c he purchased of Stogdells Auction at Hawkesbury which he says in Answer to the Interrogatories of today that he Received from the Adminr. You will also require from the Appellt. Adminr. the Grants of the Farms, he Received in Transfer from Mr. Robt. Campbell about the 2d. or 3d. of July 1801.
("signed") Philip Gidley King
To Mr. Thos. Smyth
Provt. Marshall
Attested
("signed") Richd Atkins J. A.
Septemr 28th 1803
Sir
Mr. Robt. Campbell and Michael Robinson alias Michael Massey Robinson Clerk to the Judge Advocate having Sworn Absolutely and with deliberation in the Cause of Lord ver Palmer, before the Court of Civil Judicature in a Matter directly in point of the Cause at Issue between Mr Simeon Lord and John Palmer Esq. And on a Verdict being given by the sd. Civil Court agt. John Palmer Esq., he appealed therefrom to me; In the hearing and Proceedings of Which Appeal Mr. Robt. Campbell had by Affidavit and in Answer to Certain Interrogatories exhibited by the Magistrates, in Obedience to my Recepts for that purpose dated the 27th August last and the 23rd of this Instant, which Documents have been read in the Court of Appeal - Deposed Absolutely and with Deliberation to the Contrary of what Michael Robinson had Sworn, as stated in the latters Evidence, before the Civil Court on the 5th Day of April 1803, Whereby there is Manifestly an Apparent Perjury on one side or the other insomuch that one of the Parties in Variance in this Cause now in Appeal may be grieved, Hindered or molested in respect of their Cause if this Attempt to prevent Public
Justice
[Page 197]
Justice is not Removed so as to enable me to proceed to Judgement.
I have therefore enclosed you herewith attested Copies of the Evidence alluded to before the Civil Court of Judicature and Answers to Interrogatories on Oath with their Respective Originals, together with an Original Affidavit, made by Mr. Campbell And a Copy of the Bond or Security in Question - And have to Require that you will Convene a Bench of Magistrates and take the sd. Documents into your Consideration and to Determine by Evidence or otherways and Call for Papers, Books &c Whether Mr. Robert Campbell Or Michl. Robinson alias Michl. Massey Robinson appear to you [indecipherable] to be Indicted and tried by a Criminal Court for the Crime of Perjury tending to Aggravate or Extenuate the Damages on the point at Issue on the Appeal now before me And on which Appeal, I cannot proceed, until that Impediment (which may be otherways productive of an Erroneous Judgement ) is Removed.
I have the Honor to be
("signed")
Philip Gidley King
His Honor
Lieut. Govr. Paterson &c, &c, &c
Attested,
Richd. Atkins J. A.
Attested Copies of Evidence produced before Civil Court of Jurisdiction in the Cause Lord v Palmer, also of Interrogatories and their Respective Answers on Oath exhibited by the Magistrates by Virtue of a Recept from His Excellency on the Appeal Palmer agt. the Verdict of the Civil Court in the above Cause.
In Civil Court Augt 16 1802 Mr. Robt. Campbell by Plaintiff Lord.
Quesn. - Did not Mr. Palmer in the lifetime of Mr. Stogdell Acknowledge the Deed and agree to Satisfy you for the Sum Secured?
Ansr. - No.
Quesn. - Did you or did you not ever Come to the Judge Advocates Office and Ask Mr Palmer whether he would Confirm that Deed?
Ansr. - No.
In Civil Court the 5th April 1803
Michael Robinson Called and Sworn – is asked to speak to the Paper as to what passed at the Judge Advocate’s Office respecting it –
Saith
[Page 198]
Saith That Mr. Campbell and Mr. Palmer Came to the Office and desired to have that Instrument delivered up and that this Depont. at the time gave up the Paper and that Mr. Campbell and Mr. Palmer Received it from him And that Mr. Campbell Remarked at that time he was Satisfied And that this was in the life time of Mr. Stogdell?
Quesn. by Lord – Did Mr. Palmer see that paper at the time?
I delivered it to them both – Sand I believe Mr. Palmer Recd. it and took it away with him – by which I Understood Mr. Palmer has Satisfied Mr. Campbell – but nothing farther passed.
Vide Mr. Robt. Campbells Original Affidavit taken by Judge Advocate 24th August 1803 And Exhibited to Court of Appeal.
In Appeal
Interrogatories and Answers on Oath before the Magistrates on the 29th August 1803
Robert Campbell Esqr.
Had you any Conversation or Correspondence with Mr. Palmer soon after his Arrival on the Subject of Stogdells Debt and the Security he had given you?
Yes - he had – he Applied to Mr. Palmer.
When did you first see the Bond or received at the Judge Advocates Office – And who was present – Was it in the life time of Mr. Dore?
Refers to his Affidavit made on Wednesday last before the Judge Advocate.
Will you take upon yourself to Say, that you never Applied to Mr. Palmer previous to the Death of Stogdell, respecting Stogdells Debts and the Security?
He did Apply to Mr. Palmer, after his Arrival before Stogdells Death.
Will you take upon yourself to Say that Mr. Palmer was not with you at the Judge Advocates Office when you Recd. the Instrument in Question – And why did you reserve that Circumstance in your last Affidavit?
He went after the Death of Stogdell to the Judge Advocates Office for the Instrument – does not know if Mr. Palmer was in the Office, but he might be in the Judge Advocates House.
(a True Copy.)
("signed") Richd. Atkins. J. A.
In Appeal.
Interrogatories and Answers on Oath before the Magistrates on the 24th Sept. 1803.
Robert Campbell Esqr.
Did you either directly or Indirectly, give Michael Robinson Instructions Respecting Mr. Palmers Property (as Stogdells principal) being Indebted in the Mortgage Bond given you as a Security for the Money owed you by Stogdell?
No.
[Page 199]
Appeal Palmer – Verdict of Civil Court in his Cause with Simeon Lord Agent of Hugh Machin.
Septemr. 23rd 1803
In Appeal.
Gentlen.
It being Necessary that Certain Interrogatories Should be Exhibited to Mr. Robt. Campbell on the Appeal now before me in the Cause Palmer v Lord – I have to Request you will Summons that Gentleman to attend you after the Criminal Court is over this day, to Answer the enclosed Interrogatories on Oath according to their literal Meaning and Subscribing the Name to each Answer, which you will Attest generally.
I have the Honor &c, &c, &c
("signed") Philip Gidley King.
His Honor The Lieut. Governr. and Magistrates
Attested ("signed") Richd. Atkins. J.A.
Appeal Palmer agt. the Verdict of Civil Court in his Cause with Lord Septemr 23rd 1803
Interrogatories to be put to Mr. Robert Campbell by the Magistrates Appointed for that purpose And to be Answered on Oath.
Interrogatory.
Did you either Directly or Indirectly give Michl. Robinson Instructions respecting Mr. Palmers Property (as Stogdells principal) being included in the Mortgage Bond, given by Stogdell to you as Palmers Agent?
Answer
I did not.
[Interrogatory]
Did Stogdell ever inform you that he had as Palmers Agent included Mr. Palmers Property in the Mortgage Bond given you as a Security for the Money owed you by Stogdell?
[Answer]
No.
[Interrogatory]
When you Recd. Michl. Robinsons Note dated 29 October 1800 Informing you of the Mortgage Deed being executed as a Security for the payment of £1750 with Interest and Saying that "Whenever you think proper to Call at the Office it shall be delivered, or Course, my Receive his
Note
[Answer]
Because
Interrogatory
"notes from you", What Reason had you as a Merchant and Partner with Atkins, for not immediately taking up the Bond Or at least seeing the Conditions of the Security?
Answer
Because I held Notes to that Amount, Including one of Captain Nicholls’s.
[Interrogatory]
Did you in Consequence of Michl. Robinsons Note as above quoted deliver Stogdell up his Notes without seeing Or knowing the Tenor of the Bond?
[Answer]
I did not deliver them at all, but kept them.
[Interrogatory]
In the Affidavit you made dated May the 18th 1801 and in which is Annexed to the Bond, did you then mean by that Affidavit to exonerate and release Mr. Palmer from the responsibility which his Agent had charged him with?
[Answer]
I did.
[Interrogatory]
You have Stated on Oath before the Civil Court of Judicature that Mr. Palmer in the lifetime of Stogdell, never Acknowledged the Decd and agreed to Satisfy you for the Sum Secured – you have also to former Interrogatories, Stated that you had applied to Mr. Palmer after his Arrival and before Stogdells Death, on the subject of Stodgells Debt and the Security he had given you – That you went after the Death of Stogdell to the Judge Advocates Office, for the Instrument, that you did not know whether Mr. Palmer was in the Office, but he might be in the Judge Advocates House – Michl. Robinson in his Evidence on Oath before the Civil Court held April t last having then and there Declared That "Mr. Campbell and Mr. Palmer came together to the Office and desired to have that Instrument Delivered up and that this Deponent at the time gave up the Paper and that Mr. Campbell and Mr. Palmer received it from him, and Mr. Campbell remarked at the time he was satisfied and that this was in the lifetime of Stogdell" – Say then on the Oath you have taken.
1st – Did you Apply to Palmer after his Arrival and before Stogdells Death, as Stogdells principal And on Acct. of Stogdell as Palmers Agent having Included his principals Property with his own in the Security given you?
[Answer]
1st I applied to Mr. Palmer to know, if that large debt was Contracted on Mr. Palmers Acct. Mr. Palmer said NO he had no Right to make any Purchases on his Acct. but he was glad to find that Stogdell had said there was Wheat Sufficient to Answer my demand three times over.
[Interrogatory]
2d. – Did Mr. Palmer go with you to the Judge
Advocates
[Page 201]
Interrogatory.
Advocates Office for the Deed in Stogdells life time or did you meet him there by Chance?
Answer
Not in Stogdells life time, but after that I did.
[Interrogatory]
3d. – Did Michl. Robinson on your then applying to him for the Deed give it up to you and Mr. Palmer?
[Answer]
3d. – He gave it up to me.
[Interrogatory]
4th. – Did Mr. Palmer take it?
[Answer]
4th. – No. to the best of my Remembrance he might have taken it to Read it.
[Interrogatory]
5th. – Did you remark at the time you were Satisfied?
[Answer]
5th. – No.
Did you ever take possession of the farms or Cattle you purchased at the Hawkesbury belonging to Stogdell for your Use and Benefit?
I got possession of the Title Deeds this is the only Answer I choose to give.
Did you ever pay Or Account with any Person on those Farms or that had the Care of the Cattle &c for their Services?
No.
To whom and at what time did you transfer your property, in those Farms Cattle &c
Sometime after the Sale.
("signed") Robert Campbell
Sworn before me the 24th Septemr. 1803
("signed") W. Paterson.
Rd. Atkins.
Thos. Jamison.
No.
When you Recd. Michael Robinsons Note, dated 29 October 1800 Informing you of the Mortgage Deed being Executed as a Security for the Payment of £1750 with Interest and saying that "Whenever you think proper to Call at the Office, it shall be Delivered – of Course Mr. S may Receive his Notes from you" What Reason had you as a Merchant and partner with others for not Immediately taking up the Bond Or at least Seeing the Conditions of the Security?
Because I held Notes to that Amount Including One of Captain Nicholls.
Did you in Consequence of Michl. Robinsons Note, as above quoted deliver Stogdell up his Notes without Seeing or knowing the tenor of the Bond?
I did not Deliver them at all, but kept them.
In the Affidavit you made, Dated May the 18th, 1801 and which is Annexed to the Bond, did you then mean by that Affidavit to exonerate and Release Mr. Palmer from the Responsibility which his Agent had Charged him with?
[Page 202]
You have Stated on Oath , before the Civil Court of Jurisdiction, that Mr., Palmer in the life time of Stogdell never Acknowledged the Deed and agreed to Satisfy you for the Sum Secured – You have also to former Interrogatories stated that you have Applied to Mr. Palmer after his arrival and before Stogdells Death on the subject of Stogdells Debt And the Security he had given you that you went after the Death of Stogdell to the Judge Advocates Office for the Instrument that you did not know whether Mr. Palmer was in the Office, but he might be in the Judge Advocates House – Michl. Robinson in his Evidence on Oath before the Civil Court held April 6th last, having then and there Declared, That "Mr. Campbell and Mr. Palmer came together to the Office and desired to have that Instrument delivered up and that this Depont. at the time gave up the Paper and that Mr. Campbell and Mr. Palmer Recd. it from him, And Mr. Campbell remarked at the time, he was Satisfied – and that this was in the lifetime of Mr. Stogdell – Say then on the Oath you have taken.
1st – Did you apply to MR. Palmer after his Arrival And before Stogdells Death, as Stogdells principal: And on Acct. of Stogdell as Palmers Agent, having included his Principals property with his own, in the Security given you?
I applied to Mr. Palmer to know if that large debt was Contracted on Mr. Palmers Acct.. Mr. Palmer said No – he had no right to make any Purchases on his Acct. but he was glad to find that Stogdell had said there was Wheat sufficient to answer my demand three times over.
2d. – Did Mr. Palmer go with you to the Judge Advocates Office for the Deed in Stogdells lifetime Or did you meet him there by Chance?
Not in Stogdells lifetime, but after I did.
3d. – Did Michl. Robinson, on your then Applying to him for the Deed, give it up to you and Mr. Palmer?
He gave it up to me.
4th. – Did Mr. Palmer take it?
No – to the best of my Remembrance, he might have taken it to Read it.
5th. – Did you Remark at the time, you were Satisfied?
No.
Did you ever go to the Judge Advocates Office in Stogdells lifetime for the Deed of Mortgage, made by Stogdell to you?
No – not in his lifetime.
(a True Copy)
Richd. Atkins J.A.
Sydney Sept 30th, 1803
Gentlen.
In obedience and Agreeable to what was Communicated to me by His Excellency Governor King at a hearing of the Appeal Palmer ver. Lord on Wednesday last and you being directed to Examine into Certain points relative to the Affidavits I made in that Cause, I will by your permission State with as much brevity as Possible my transactions with the late John Stogdell.
In June 1798, I arrived in this Colony where I Remained till the September following when I embarked for Bengal, leaving my Concerns in Charge of a Mr. Smith who was in the
Capacity
[Page 203]
Capacity of my Clerk
In the Course of disposing of my Cargo or Merchandize, John Stogdell was a considerable purchaser as will appear by the Acct. Sales rendered to Messrs. Campbell Clark and C. now produced and Consisted of the following Articles.
1798 Aug 31 – 505 Pieces of White [indecipherable] at 2/- - £530.5.0
20 – 1200 [indecipherable] at 5/- - 300.0.0
31 – 6 Dozn Madiera – at 84/- - 28.4.0
Sepr 1 - 88 Fine Shirts – at 9/- - 39.12.0
17 Ditto – 7.13°.0
£902.14.0
And on Settling for the Same, there remained a ballance due to me of £430 on which I agred to give a Credit of 6 Months, receiving a Promissary Note for the Same as will Appear from my Acct. Current with my Partners on Accounting with them for the Sales of the Cargo and left with my Agent to recover the Amount when due.
I returned here in February 1800 When I learned the above Bill had not been paid and that my Attorney had acted in a very dishonest Manner – for in place of remitting the Govers. Bills he had Recd. in payment of Debts and Disposing of the property left in his Charge he paid or Exchanged them for Colonial Bills to Answer his own purpose And amongst others recd. Stogdells [indecipherable] Considerable Amount.
I was much Chagrined and more at a loss how to Act from the Settlers at the Hawkesbury having Suffered by Floods or other ways and after Deliberating on what I should do I Conceived it more prudent not to distress Stogdell. I had no Friend to direct me and equally a Stranger to the Captain of the Colony in Law proceedings therefore I afforded him my Support to Crop his Farms at the Hawkesbury without which they must have remained in an Uncultivated State as he had no other means of providing for his Relief.
At a Settlement of his Acct. on the 14th April 1800 he was Indebted to our House in the Sum of £1756.18.4 I Rec’d a Promissory Note on Demand for £1360.18.4 I kept his Acceptance to Captain Nichol of the Ship Walter for £346 Deliverd me by Smith and which with the Item of £50 Claimed by him in his Acc’t for Vinegar and not then, settled with me makes the sd. Total Sum.
The Cause of my not Consolidating the Note of £346 was that I had every reason to suppose I would be under the Necessity of Calling Mr Smith before a Court to Obtain a Settlement for his transactions in my Absence and to Substantiate the great loss our Concern had Sustained by his Conduct - My Cause was heard before the Court the 6th Augt 1800 agt Smith and afterwards Decided in my favour.
I was on this Occasion, it became public that I was a large a Creditor of Stogdells And I thought it necessary to endeavour to get Such a Security as would Indemnify me for allowing these Bills to lye over until he had an Opportunity of bringing his Grain into the Store and which he flattered me would soon be the Case, And in the mean time I resolved on refusing every Note of his that might thereafter be ten
dered
[Page 204]
tendered me in the Sales of my merchandise or the Management of our Concern; In Consequence of which his Credit was impaired, his Cash Notes were not in the same repute as formerly And he must have felt it severely, by Declaring to me he could produce more Money on his property in this Country than would discharge Double the Sum he owed me and if he failed in that he could even sell Walloomooloo at the same time it was his earnest Desire and Request that I should go to the Hawkesbury where he hoped to Convince me that what he had Asserted was true; And the latter end of August or beginning of Septemr I sett off with a View of Seeing such extensive property so much boasted of And where I was accompanied by Thos. Jamison Esq. One of your Members and Capn. Kent of the Ship Buffalo.
It was only then I had an Opportunity of examining into his property Such as the Wheat in Stack and the Farms – I also perused Stogdells Agreement and Power of Attorney from Mr. Palmer and it was my Decided Opinion that he had neither a Power to purchase on Mr Palmer’s Acct. or dispose of any of his Property except the Stock and I was then Convinced I could Obtain no other Security than what the Farms at the Hawkesbury Could yield and which fortunately for me was Conveyed or Assigned to Stogdell in his own name only. And these with the cattle and other Stock he was then in Treaty to receive from Captn Kent as I Understood in part of the Debt due by Flood I was perfectly satisfied with. These Cattle Stogdell wished me to take at the Value that was put on them but the Uncertainty of my Stay here induced me to decline receiving them in part of my Claim.
The Stacks of Wheat had such an Appearance of Grandeur that I Readily Believed his Calculation of 8 to 10 Thousand Bushells might be Correct being no Farmer, but if I had not Invariably and Without Distinction shown a Degree of [indecipherable], where I Conceived it delivering that False Appearance might easily have been Detected and the Visionary Ideas of Stogdells Wealth in Wheat sheaves would have vanished And I would not have had occasion that Day to encroach on your patience by Stating Circumstances founded on the soundest basis of Truth, Honor and Integrity And in Contradiction to the Assertions of a Man, whose Infamy is too well established to Require any Comment from me.
On my Return to Sydney Stogdell followed me very shortly Afterwards and when he Called left me Floods Assignment taking the Deeds of his own Farms with him And to the best of my knowledge it was on this Occasion he named or proposed Michl. Robinson to draw the Security he had proposed giving me Observing as I well remember, that if Mr Dore the Judge Advocate was employed he would make an extravagant Charge, Whereas Robinson would charge nothing – It was a matter of little Consequence to me, for as I have before Observed, I was so Impressed with the Appearance of the Wheat both growing and in Stack with the other property that I must have thought very little on the Subject and especially as Stogdell had pointedly and Uniformly declared that he was not Owing any other Person but Major Foveaux and Mr. Balmain, except this Circulating Notes, which were but trifling. - I must have been Satisfied with outward Appearances otherways I never would have Condescended to allow him the Privilege of postponing for so long a period for payment of his Debt to the 6th Augt 1801 before I could Sell or enter into the possession of the Property he had it in his Power to Secure me on And if I had given any Direction for drawing the Security, I would Certainly have Stated the Sum with the Usual Correctness I Flatter myself I have Observed in Settling and Managing Other Accts. in this Colony to the Amount of very
near
[Page 205]
near a Hundred Thousand Pounds Sterling – as these Books now produced will testify more of satisfying to me on this day than ever And a proud testimony of the Confidence placed in my Integrity not only by our own House, Campbell & Co. but that of a more Respectable and longer Established one, Fairle, Gilmore & Co of Calcutta.
On Searching my File of Chits it appears that on the 29th October 1800 I must have Recd the Following Note from Michael Robinson
Sir
Mr. John Stogdell has executed a very full and Ample Assignt. of 6 Farms and Premises at the Hawkesbury 10 Horses and 10 Head of Horned Cattle with Goats &c - as a Security to you for the sum of £1750 payable with Interest on the 6th Augt 1801 and whenever you think proper to Call at the Office it shall be delivered – of Course Mr. S may Receive his Notes from you.
I am &c
("signed") Michael Robinson
Judge Advocates Office
29th Oct. 1801.
Addressed to Robt. Campbell Esq.
As the Original Submitted to your Inspection will testify - And with Respect to the Assignment I neither Saw it or know the Contents, further than by the above Copied Note till some time after Stogdells Death.
The Affidavit annexed to it the 16th. Day of May 1801 I presume must have been done at either Mr. Palmer’s Request or by Desire of the Court and made to Show at any future period my Sentiments on the Debt in Case of Death or my leaving the Colony and which was not Contracted in his Name as the before Mentioned Books will prove in so ample a Manner, there is no Necessity for my adding any thing further on that point And shall Conclude Gentlen. by Submitting the following Account for your Consideration.
[Table not transcribed]
As extracted from my Ledger Folio 10 and which the following Paragraph of my letter to
Messrs.
[Page 206]
Messrs. Campbell and Co. dated the 4th July 1801 so fully and decisively Corroborates " I have obtained a Settlement with Mr Palmer the Adminr. to Stogdells Estate for the large Debt just Contracted by my dishonest Attorney Smith Including the Purchases from our last Cargo and which with Interest Amounts to £1864.4.0 but I have not Recd. any part of it Owing to the Wheat not having been got into Store And as His Excellency by a New Regulation will not draw on London but Quarterly I will not have it in my Power to make any Remittances till the 3rd of October except Paymasters."
I have the Honor &c, &c, &c
("signed")
Robt. Campbell.
Recd. 20th Sept 1803
To Lieut. Coll. Paterson and other Members
Of a Bench of Magistrates &c, &c, &c
New South Wales
Sydney 30th September 1803
Proceedings of a Bench of Magistrates held by Order of
His Excellency Governor King & & &
Present
The Lieut. Governor
The Judge Advocate
Rev Saml. Marsden Esq.
Thos. Jamieson
Chas. Throsby Esq.
Read - His Excelly. The Governors Letter to His Honor The Lieut. Governor.
Read - Michl. Robinsons Evidence, as taken before the Court of Civil Jurisdiction on the 5th April 1803 in the Cause Lord v Palmer.
Likewise Read The Evidence of Robt. Campbell Esqr. as taken before the Court of Civil Jurisdiction on the 16th August 1802.
Read - The Affidavit of Robt. Campbell Esqr. taken by The Judge Advocate on the 24th. Augt. 1803.
Read - a Paper presented to the Court by Robt. Campbell Esqr. which was Read by the Judge Advocate And the Accts. therein Stated Compared with the Originals and proved just.
Mr Campbell Delivered a Paper to the Court Containing Certain Interrogatories to Mr. Palmer. Court Cleared when they were of the Opinion that no Interrogatories Can be put either to Mr Palmer Or Mr Lord as being Contrary to Law Vide Jacobs Law Dictionary Word Perjury.
Mr Campbell has no Evidence to Call.
Michl. Robinson Says that Mr Campbells Letter to the Bench having no reference whatever to the matter Submitted to their Consideration And having Called no Evidence on the point in Question, He likewise declines Calling any.
In Obedience to Your Excellencys Letter Communicated to us by the Lieut. Governor We have perused with the greatest Attention and Deliberation the several Papers inclosed, together with Mr Campbells and Michl. Robinson’s Depositions before the Civil Court in the Cause Lord v Palmer And it Clearly Appears to us that there is an Evident Contradiction in the 2 Depositions of Campbell and Robinson, [indecipherable] so Enveloped
in Mystery
[Page 207]
in Mystery and Ambiguity (neither party on being Called on being able to produce any positive Evidence) that though we are Convinced One or the Other must have Sworn falsely, we Cannot take on Ourselves to Say which fearful as we are of prejudging the Case – We beg leave further to state that for the Conviction of Persons Accused of Perjury, two Witnesses at least (as in the Case of Treason) are absolutely necessary And the Evidence must be Strong, Clear and More Numerous on the part of the Prosecution than the Evidence on the other Side Vide Jacobs Law Dictionary Article Perjury and Trials Old Baily Page 812 – Under these Circumstances we must submit entirely to Your Excellys Judgement to give what Weight on the Evidence of Mr Campbell and Michl. Robinson you may think proper in the Shape they Come before You.
("signed") W. Paterson
Rt. Atkins
Saml. Marsden
Thos. Jamison
Chas. Throsby
In the Court of Appeal
John Palmer Esqr. &c Appellt
Simeon Lord &c Respondt
Respondent humbly Craves leave to State to His Excellency, as the Supreme Judge in the Court of Appeal, that he this Morning attended the Bench of Magistrates Convened by His Excells. Direction for the Purpose of Ascertaining the Truth of certain Evidence given in this Cause in the Court below.
That Mr Campbell Brought Forward no Evidence whatever to Strengthen Or Support his Assertions nor did he produce any Document that Could throw any light on the Matter in Question. His Books and a Paper accompanying them referring only to Transactions with Stogdell when the Debt was originally Contracted.
It had already Appeared in Evidence that Mr Palmer made Application to Mr Campbell some days after his Arrival in this Colony in Consequence of having heard from Mr Laycock, that Walloomooloo had been Mortgaged by Mr Stogdell, and that some conversation took place between them on the Nature of the Debt Stogdell had Contracted. It is reasonable to infer that, some mention was then made of the Bond or otherwise how Could Mr. Campbell give Mr Palmer as to the Security? And it is also equally as reasonable to Conclude that then the Bond itself was referred to.
Mr Campbell (although he denied that he was with Mr Palmer at the J. Advocate’s Office) says in his Answer to one of the last Interrogatories respecting the Bond that Mr Palmer might "take it to Read at the time" - This, Respondent submits is a manifest Contradiction.
Michl. Robinson had seen and known what Mr Campbell had Sworn on
his
[Page 208]
his first Examination before the Civil Court. Robinson was wholly Disinterested in the event of the Suit And at that time it did not Appear of much Import whether the Bond had, or had not, been given upon Stogdells lifetime. Yet he (Robinson) Comes forward and Says that it was positively in Stogdells life time. he could have no Inducement to Assert what was False, when it was in Direct Contradiction to Mr Campbells Evidence. And he must know that it was no difficult matter for Mr. Campbell to Controvert it by Evidence if he Asserted an Untruth. - No such Evidence can be found!
The Circumstance of Mr Campbell making a Voluntary Affidavit on the back of the Bond when no Suit was Depending is a Mystery which like many other transactions, in the Business Remains to be Discovered – Mr Campbell has not Attempted to explain it.
But when it Appears by Mr Atkins Evidence in Answer to the Interrogatories, that the Bond was never in the J. Advocate’s Office, after he became possessed of the Appointment. That several Persons heard Stogdell express himself easy in his mind in Consequence of Robinson having informed him that the Bond was given up - and that he should soon be his own Master again. Respondt. humbly trusts that the balance of Evidence will appear Strongly in Favour of Michael Robinson And that when Opposed to the mere Assertions of Mr Campbell will have weight Sufficient to establish his Testimony incontrovertibly in the Court below.
Septemr. 30th 1803
("Signed") Simeon Lord
I have the Honor of transmitting to Your Excellency, my Official Answers to the Questions in your letter of the October.
Quesn. 1st - Did Mr Campbell in Making the Affidavit releasing Mr Palmer’s Property as Stated in the Bond given by Stogdell Appear to do away the effect of that Bond?
Ansr. - I do not perceive the Motive which could have Induced Mr. Campbell to Release Mr. Palmer by affidavit Or otherwise from the Effect of the Bond - Satisfaction has been rendered in that Bond - But if there had not been effects enough of Stogdells to Answer the Full Claim would not Mr. Campbell have thought himself justified in attaching these Effects of Mr. Palmer which Stogdell has Mortgaged? How far Stogdell was authorized to to bind Mr. Palmers Property Or how far a Court of Law or Equity would hold the Instrument vitiated by any illegal Act of Stogdells (Supposing he had no right to bind Mr. Palmer) is a question I cannot take upon myself to Decide.
Quesn. 2d. - If the Effect of this Bond is done away by Campbells making an Affidavit of Release and from the
Circumstance
Ansr. - As it appears to me that equitable Assets in Cases of Adminn. must originate from the Court of
Chancery
[Page 209]
[Quesn. 2nd.]
Circumstance of every other Claim for or against being liable to Correction. Does it appear to you that the Remaining Assets are legal, ….. or Equitable Assets?
[Ansr.]
Chancery, I conceive the remaining assets in this Case to be legal and of Course Subject to the Payment of the Intestates just Debts.
These Answers are Submitted to Your Excelly. with great deference by
Your Excellency’s &c
(‘Signed") Richd. Atkins J. A.
4th October 1803
His Excelly. Govr. King
Sydney N. S. Wales 4th Decr. 1796
Sir,
I have sent in His Excellency Governor Hunters Packet the Duplicates of Bills left me by Mr John Palmer I have also filled a Sett of bills for Five Hundred Pounds in favour of Mr John White Commandr. of the [indecipherable] his signature being left for me to draw on Mr Oliver [indecipherable] his late Agent,[indecipherable] but a Report being in Circulation of his Insolvency, I therefore as Agent for Mr. Palmer thought it most advisable to draw on you for that amount for the better Accommodating his Affairs in this Colony and have Wrote him fully on the subject, Through the hurry of the Governors Clerk in the Directing the Bills and Letters of Advice he had omitted Martins, which I hope will not be the Means of any Obstacle arising in their being honored.
I am &
("Signed") John Stogdell
[The following were encircled and placed at the top of this correspondence]
3713 [and] 1622
Sydney N. S. W.
Novemr. 22nd. 1796
Sir
At Sixty Days after Sight of this my third Bill of Exchange. First and Second of the same tenor and Date not paid Please Pay to Mr John White Or Order the sum of Five Hundred Pounds Sterling [indecipherable] Recd. as fr. Advice from
Sir &c, &c, &c
("Signed") John Palmer
To Thos. John Palmer Esqr.
High St. Portsmouth
Hants.
Approved
("Signed") John Stogdell. Agent.
No. 1161 Noted for Non Acceptance 23d. March 1798 T. H. not. Public Portsmouth
[indecipherable] on Bills at Portsmouth as per Grant and [indecipherable] letter 4 which Mr Palmer will Please to Pay if he addresses the Bill for Payment - Pay the Contents to Messrs. Reeve and Green Merchts. London.
("Signed") John White
("Signed") Recd. Reeve and Green
[Page 210]
Received from Mr Jno. Stogdell One Sett of Bills, drawn on Thomas Palmer Esqr. for the Sum of Five Hundred Pounds Sterling being Payment for sundry Articles Received from Mr Jno. White Captain of the [indecipherable] Transport this 22nd Day of November 1796 for which I have Signed three Receipts of this Tenor and Date.
("Signed") John White
Sydney N. S. W.
A True copy (Contained in this and the preceeding Page) for the Original with which it has been Compared.
("Signed") Richd. Atkins J. A.
Sir,
Sydney 1st. October 1803
I have to request you will as Judge Advocate of this Territory, give me your Opinion on the following points
1st.- Did Mr Campbells making the Affidavit releasing Palmers property as Stated in the Bond given by Stogdell Appear to do away the effect of that bond?
2d. - If the effect of that Bond is done away by Campbells making of the Affidavit of Release And from the Circumstance of every other Claim for or against being liable to Correction - does it Appear to you that the Remaining Assets are Legal or Equitable Assets?
I am &c, &c, &c.
("Signed") Philip Gidley King
Richd. Atkins Esqr J. A.
Copy
I do hereby Certify that the Sydney Schooner the property of Mr Commissary Palmer was Employed by my Order on the Service of Government in bringing from the Hawkesbury River various Cargos of Grain and of Timber.
That this Vessel was not taken up as Stated in the Petition, for any Certain time Or employed between any particular periods, but was employed Occasionally as the public Service Required and the Owners Agent could Spare her.
That she was Manned from the Servants of Government And her Crew did neither receive Wages Or Provisions at the Expence of the Owner.
That I Spared my own Coxswain who was a Pilot for the River and Harbour to take the Command of her and this Man before he left the Colony assured me that he expected to have been paid by the Owner as her Pilot, but did not Receive from his Agent any Reward.
That the Owner furnished One Man, named Wood as mentioned in the Petition - that the Vessel when First Employed on Government Acct was so very Infirm and leaky that she required much Repair before she could be Employed and these Repairs were frequently Repeated at the Expense of Government.
That she was great part of the time she was employed by Government furnished with Sails Rigging and Government Tackling – These Considerations do in my Opinion lessen the
Amount
[Page 211]
Amount of Expence claimed in the Petition, as without these Repairs and Supplies of Stores which were supplied by Government she could not have been Employed either for the Government or Proprietor.
I am however of Opinion that for the Services Desired by Government from the Use of that Vessel And where no other was to be had Mr Palmer is Fairly entitled to the Sum of Three Hundred Pounds.
She was laid on the Shore latterly, at the Desire of the Owner’s Agent, it being impossible to keep her when afloat from Sinking - She was extremely bad, her bottom being Cut through by the Worms.
Given in My Hand in London this
22d Day of April 1802
("Signed") John Hunter
A True copy from the Original
("Signed") Richd. Atkins J. A.
Sir,
The Lords Commissioners of His Majesty’s Treasury having had under their Consideration your Memorial praying to be allowed half freight for a Vessel belonging to you while employed in the Service of Government by Governor Hunter, I am Commanded by their Lordships to Acquaint you that they have Directed a Warrant to be prepared to enable Mr Chinnery the Agent to the colony of New South Wales to pay the sum of Three Hundred Pounds to you which allowance My Lords think is as much as you are entitled to Receive for the Use of the Vessel in Question.
I am &c, &c, &c.
("Signed") T. H. Addington
Treasury Chambers
22d May 1802.
John Palmer Esqr.
N. S. Wales
A True Copy from the Original with which it has been Compared.
("Signed") Richd Atkins J. A.
Sydney New South Wales
Mr John Stogdell (Deceased)
Dr. to Government
[Table not transcribed]
[Page 212]
[Table not transcribed continued]
From Mr Campbell’s Bill Book
No 13 Dated 14th April 1800 John Stogdell Dr. Note to Mr Campbell £1360.18.4
16 Captain Nichols Order Accepted by John Stogdell dated Octr. 1799 in favor of Wm Smith and Rec’d from him as my Attorney £346
Which Notes were Delivered up by me to Mr Palmer when the Mortgage was paid by him as Administrator of Stogdells Estate.
Sydney 5th October 1803 ("Signed") Robert Campbell
£1360.18.4 Sydney 14th. April 1800
On Demand I Promise to Pay to Mr Robert Campbell Or Order at his House here the Sum of One Thousand Three Hundred and Sixty Pounds Eighteen Shillings and four pence Sterling Value Received
("Signed") John Stogdell
A True Copy Compared with the Original
("Signed") Richd. Atkins J. A.
Sydney Decr. 2nd. 1799.
Sir,
Please Pay Mr Willm. Smith (or Order) the Sum of Three Hundred and Forty Six Pounds Sterling And place the Same to the Account of
Sir &c
("Signed") John Nicol
Mr John Stogdell
Walloomooloo
£346
Accepted ("signed") John Stogdell
A true Copy Compared with the Original
("Signed") Richd. Atkins J. A.
[Page 213]
Expenses paid Sundry Persons for Attending Court.
[Table not transcribed]
Sir,
Above is an Account of Expenses paid by me to Evidences on the Business now Depending between Mr. Palmer and me – I have been at Several other Expences in Collecting Information &c of which I shall make no Charge.
And Am &c, &c, &c
October 6th 1803
("Signed") Simeon Lord.
New South Wales
Cumberland to Wit
By His Excellency Philip Gidley King &c, &c, &c
Whereas &c, &c, &c
John Palmer Esq - Appellant
and
Mr Simeon Lord, Attorney for Hugh Machin absent from the Colony - Respondent.
When after truly and impartially hearing and weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause it appeared - That Mr Palmer in the Year 1796 going to England on his private affairs left John Stogdell the management of his Concerns by Nature of a Power of Attorney to Sue for and receive all debts due to him; and an Agreement by which Stipulated that Stogdell was to Receive £40 per Annm. as a Steward in the general Superintendence and Charge of all Mr Palmers Concerns in the Colony – To have 10 per Cent on Merchandise left for Sale at Mr Palmers Residence Walloomooloo – To have half the proceeds of [indecipherable] and Sheep and the same Proportion of the Hogs and Grain or there might thereafter grown on the respective Farms - To be allowed a third of the produce of all merchandize that Mr Palmer might send to New South Wales from England or the Cape. In Consideration of the above, Stogdell bound himself to keep regular accounts, And to Act as far as his judgement and abilities extended, as Mr. Palmer would have done, if present - Mr Palmer also left with Stogdell three blank papers with his Signature to them.
During Mr Palmer’s absence Stogdell purchased several Farms in his own Name took up Goods to a great amount from Masters of Ships and among other Payments he filled up the Blanks on Mr Palmers Connexions in England to the
Amount
[Page 214]
Amount of £500 – He also purchased articles from Mr. Robert Campbell Amounting to £1750 for the Payment of which he gave his Promissory Notes of Hand And an Acceptance – And some time afterwards executed a Sealed Security to Mr. Campbell, binding his own property as well as that of the Principals in Payment of the above Sum and Interest.
It also appears that Mr Palmer returned in November 1800 from which time till March 1801 (when Mr Stogdell was drowned) no Settlement appears to have taken place between the Principal and Agent – That everything went on after Stogdells Death as it had done since Palmers return – That Grain and Stock were sent to Walloomooloo for Mr Palmer’s use and that there was no distinction between the Stock belonging to Mr Palmer and that of Stogdell nor any separate Account kept of it – That no Men were discharged from the Farms at the Hawkesbury after Stogdells Death And that Waggons [indecipherable] were Employed as before – That the Farms were not Cultivated till after the Sale and that Palmer directed everything belonging to Stogdell to be Sold – Mr Palmer soon after Stogdells Death Administered to the effects as principal Creditor and proceeded to the Sale of them by Public Auction – Money at that time being scarce the Creditors Represented to Mr Palmer the necessity of deferring the Sale as in the then state of the Colony there could be but few bidders - the Conditions of the Sale giving only a Months credit to the Purchasers and requiring a Deposit of 25 per Cent – Mr Palmer as Administrator Persisted in proceeding to the Sale - The Creditors regularly protested against it – The Auctioneer was one of his own Clerks and a charge was made of 10 per Cent Commission on the Sales when the Licenced Auctioneers offered to do it for 2½ per Cent - It appears also that the Farms and the greater part of the Cattle and other effects were bought by Mr Robert Campbell at the Auction and by regular instruments conveyed and Re Conveyed from Mr. Campbell to Mr Palmer immediately after the Sale but were not Registered till Septemr. 12th 1803. – It also appears that the day before Sale began (18 May 1801) Mr Campbell made an Affidavit at the back of the Bond given by Stogdell exonerating and releasing Mr Palmers property from being at all implicated as a Priority for payment of the Debt contracted by Stogdell as Palmers Agent. - It also Appears in the minutes of the Civil Court by which this Cause was tried that the Plaintiff Mr Simeon Lord, Agent of Hugh Machin contended that the Defendant John Palmer Esq. had not duly Administered and was therefore liable to the Payment of all demands on Stogdell not only out of the Deceased Intestates Effects, but out of his own property – Whih Payment Respondant expected pleading that he had duly administrated and as Administrator had a right to retain the Amount of his Debt in preference to all others of equal degree – From the Evidence and Documents Exhibited to the Civil Court it gave, "A Verdict for the Plaintiff in the full Sum of £306.19.3 with Costs" – From which Verdict the Defendant appealed – And after a full and impartial hearing and consideration of the Evidence and Documents produced before the Civil Court prior to and on the Verdict being given, as well as the Subject of the Appeal, with Memorials (omitting any consideration of unfounded suggestions and Contradicted Assertions) and also Affidavits and Answers to interrogatories together with the Magistrates Opinion of the Evident Perjury committed by One or Other of Two of the Witnesses in this Cause, I am of Opinion
1st.
[Page 215]
First – That Stogdell had no positive written agreement to purchase for or on Account of Appellant And that the Farm and several other Purchases together with the Stock being made in Stogdells own Name and Amounted for as his alone at the General Muster of Settlers and Others Cultivating Lands taken by me in August 1800 before Appellants Arrival, so far appears to predate the existence of such an Authority – that Appellant having left his Agent and Steward Blank papers with his Signature which Stogdell filled up with Bills for the Sum of £500 for the purchase of Goods which he advises Appellants Correspondent is for Better Accommodation of Appellants Affairs in this Colony, and Appellant having paid those Bills, together with that passage in the Agreement between Appellant and his Agent Viz. That he (Stogdell) was "To act as far as his Judgement and Abilities extend, as Appellant could have done if present" – is a presumption of the estimation Stogdells Credit derived from those Circumstances beyond which it does not appear he had any Authority to purchase for or enter into any Contract on Account of Appellant.
Second – That Stogdell Considered himself Authorised appears by his binding Appellants property with his own as Security for the Payment of a debt he had Contracted with Mr Campbell, as he states on Mr Palmers Account as well as his own – Mr. Campbell having applied to Appellant expecting the Security soon after his Return and some months before Stogdells demise, It became Appellants duty to have seen the Security which Michael Robinson deposes was done and given up by him in Stogdells life to Appellant and Mr. Campbell who both depose to the Contrary, and the Magistrates not being able to find an Indictment on the evident Perjury that appears to them, as well as myself to exist – are circumstances so contradictory and mysterious that whilst the laws the operation of the Bond, so far as it related to Stogdells property Appellant must be considered neglectful as Stogdells principal in not seeing the Security as soon as Mr. Campbell informed him of it.
Third – Altho it does not Appear that Appellant met the Wishes of the Creditors in giving more liberal terms to the Purchasers of the Deceaseds effects which several Witnesses alledge could have been transferred to the Estate whilst on the Contrary it is proved that if the Sales had been delayed that the Value of the Wheat would have decreased daily – And the Appellant urging the necessity of the Whole being Sold immediately, It is my Opinion that Appellant as Administrator had a right to turn the Effects into Money without delay and as he was responsible to the Creditors for the produce of those Effects the mode and terms of the Sale as far as they were General and Impartial at his Election – The Charge of £10 per Cent Commission appears excessive as the reason given by Appellant for beginning Mr. Wilshire to Sell the Effects by Auction, was to save the 2½ per Cent, for which Sum appears on Evidence it could have been done – And respecting Mr. Wilshires Selecting some Papers and Destroying others as far as his Character and Evidence goes, there might be no incorrectness in the part he was directed to take; Yet in a manner of such Consequence to many Creditors, it might have been Satisfactory to the Whole for Two or Three principal Creditors to have been present at the examination and Selection of the Deceaseds Papers.
Fourth – Whatever doubts exist of a regular Inventory being taken of all the Effects or
Sealing
[Page 216]
Sealing up the Deceaseds Papers as soon as Appellant Administered, Yet I agree with the Civil Court that he was by no means bound to exhibit such Inventory before ordered to do so by that Court – And although the Appellant advances the groundless plea in his Appeal, that the Civil Court held the 27th July 1801 demanded an Inventory which he Complied with – But which does not appear on the Minutes of that Court And is denied by the Judge Advocate And one of the Members, that any other Paper, than a Bill of Sales in the Aggregate was then exhibited – yet it appears that an Inventory on Oath And a full Bill of Sales Satisfactory to the Civil Court held the 16th August 1802 was then exhibited by Appellant in compliance with that Courts Order.
Fifth – That an omission has been made in giving in the exact Sum due to the King, by the Schedule annexed to the Bill of Sales exhibited the 16th August 1802 occasioned by the Appellants not being informed of the Sum that would be allowed for the hire of a Schooner employed by Government, that which appears to be £300 exclusive of any other demand which Sum it appears was ordered to be paid by the Treasury to the Colonial Agent on Mr Palmers Account These documents produced fixes Stogdells debt due to the Crown to be £388.13.0.
Sixth – The neglect on the part of the Appellant Administrator in not stating in the Inventory and Bill of Sales a quantity of Grain and Stock Received belonging to Stogdell for Appellants Use, before and after Stogdells death, together with the omission of some debts, which appear on Stogdells Book in favour of the Estate, while other debts of the same kind, contained in the same Book make a part of the Schedule annexed to the Bill of Sales given into the Civil Court on the 16th April 1802 – and the Appellants neglecting to give Stogdell Credit ofr £152.7.6 paid by Stogdell to Mr. Williams on Account of the Appellant, are Circumstances, that however oversight or Unintentional neglect is pleaded, Yet I am of the Opinion, that the exact discharge of an Administrators duty towards the Creditors as required by the Laws of England, has not, in these Instances been fulfilled, although no proof exists that these omissions proceeded from any dishonest motives.
Seventh. I am also of opinion that the Assets remaining in the Administrators hands and what he may hereafter receive should by Value of my decree in Equity, be deemed Equitable Assets which are as follows, with the exception of Errors.
[Table not transcribed]
That
[Page 217]
That the debt proved and allowed are of the same degree – are as follows.
Debt to the King - £388.13.0
Do. to Appellant - £8229.18.5
Do. to Respondent - £306.19.3
I do therefore AWARD and DECREE that the Appellant, Administrator, do retain in his hands the remains of equitable Asset Amounting to £3302.13.11½ as well as all future assets until January the first 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 these debts or Claims respectively before that time expires.
And on the 1st day of January 1804 after deducting the Funeral Expenses, Costs in the Civil Court and Court of Appeal, to proceed and make a first division of the said Assets, proportionate to the Several respective Claims, Amounts between the King, Appellant, Respondent and said Creditors who prove 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 o every Quarter, until no more Assets remain to be divided as above.
In default whereof Execution on the Appellants Administration Estate to Issue.
Given under my Hand and Seal at [indecipherable] this 7 day of October 1803.
("Signed") Philip Gidley King (S.S.)
To
The Judge Advocate and Provost Marshall of His Majestys Territory of New South Wales &c, &c, &c
New South Wales
To His Excellency Philip Gidley King &c, &c, &c
Cumberland to Wit.
Whereas the Patent for establishing the Court of Civil Jurisdiction in this Colony expresses "That &c, &c, &c to Council"
Pursuant to the tenor of such Charter, I the Undersigned Simeon Lord of Sydney, Attorney of Hugh Machin, absent from this Colony, Do hereby respectfully and with due deference, interpose my Appeal to His Majesty his Heirs and Successors in Council against an
[Page 218]
award or decree made and pronounced by Your Excellency on the Seventh day of this Instant, October, in a matter wherein John Palmer Esq. Admor. of John Stogdell Decd. was then Appellant And I the said Simeon Lord as Attorney as aforesaid Respondent and I humbly crave leave to refer Your Excellency to the following annexed Sheets, as comprising sundry Causes and Reasons (with others in Law and Equity arising and which to right do appertain) on which my Appeal is and will be founded.
Done and Dated ye this 18th October 1803
("Signed") Simeon Lord.
To His Excellency Governor King &c, &c, &c
Sydney October 18th 1803
May it please Your Excellency
Herewith you will receive intimation (by an Accompanying Paper) of my intention to appeal to His Majesty and Council in England, from an Award and Decree made and pronounced by Your Excelly. on the 7th day of this Instant, October, in a matter of Appeal wherein John Palmer Esqr. was then Appellant and Myself, as Attorney for Hugh Machin then and still absent from the Colony Respondent.
And that Your Excellency may not for a moment conceive that such Appeal is dictated by or founded on frivolity – Vexatious or Unworthy Motives, I have to take the liberty herein to suggest, with humble deference to Your Excellencys Wisdom and Judgement, the Reasons I have for finding myself, on this occasion, Aggrieved by your Excellys. decision – When those reasons appear in solemn and deliberate Review, I respectfully trust Your Excelly will [indecipherable] satisfied with their Import and Efficiency, and will believe me when I declare that acting as I am for an absent Friend, who has confidentially committed his concerns to my discretion and fidelity – I cannot, consistent with my duty and with justice to my Charge, take upon myself to abide by the tenor of a decree, which after a long, expensive harassing and litigious Contest (And by the Civil Court Unconditionally decided in my favour) affords me no other advantages than what it seems calculated to hold out to every other Creditor, who may have admissible Claims on the intestates Estate.
Aware as I am of the difficulty that will necessarily attend the Investigation of this Business at a distance so remote from the territory, yet upon the Whole I feel the stake so important and virtually embracing such extent of Interest, that I have determined in persevering in the Issue; and to the end with the same indefatigable earnestness which I have heretofore manifested in the various Stages of this Business, taking along with me the gratification of a self approving Mind and Conscience, to counter balance any tempory inconvenience, which may threaten, but not discourage me.
It
[Page 219]
It has been obvious to Your Excellys. discernment and has produced an enquiry and many indeed, but honourable to the views of Justice that the most prominent feature of this Suit, and one of the Chief Grounds upon which I established it, was that Mr. Palmer had not duly Administered and therefore was bound to satisfy my claim on the Estate of the Intestate, de bonis propriis; and however it was attempted to be done away by the fabrication of pleas of oversight Inadvertence Omission and Unintentional Neglect – Your Excelly. saw and has decreed that Mr. Palmer failed in his duty as an Administrator and that duty which the Laws of England pointed out to him and which he was bound to perform.
Altho. Your Excelly in your decree has adverted to the Ground on which this point is determined, and Recapitulated the numberless, instance, of Omission, neglect and Dereliction in Mr. Palmers Conduct in his Administration – yet I will crave leave to touch upon a few of the leading Circumstances to show that if Mr. Palmers Adminisn. had in any one instance been impeachable [indecipherable] as well Is Equity, gives a [indecipherable] to every claimant on intestates to which an Administrator, by or self assumed trust, takes upon himself the Administratorship and fails in the due discharge of that duty. that point once established and determined any Case on the principles both of Law and Equity is made out – the Court below saw it, and gave an Unqualified Verdict Accordingly – Your Excelly has, also seen it and that Verdict, I humbly submit, should be allowed its full operation.
The full instance of Error and Wrong in Mr. Palmers Administration commenced in regard to the Inventory and the groundless plea of his having rendered an Inventory to the Civil Court the 27th of July 1801 is pointed at by Your Excelly. in as much as it appeared from the Judge Advocate And One of the Members of the Court that no other paper than a Bill of Sales in the Aggregate may be exhibited. I submitted to your Excelly. in a former Memorial that a plea so false and fallacious, prima facie, validated Mr. Palmers Appeal altogether; but Your Excelly. although you seemed to be of the same Opinion was pleased to Wave the consideration of that Circumstance and gave Mr. Palmer full scope to support his other please as well as he could, - how he has supported them, the result of this enquiry will declare.
The paper produced on the 16th August 1802, was not, Your Excelly knows an Inventory taken of the Effects as they stood at Stogdells Decease but Copied from the Account Sales – this has appeared from one of Mr. Palmers own Witnesses And I trust Your Excellency is satisfied that no doubt should remain of the necessity of Mr. Palmers taking an Inventory, immediately on his Assuming his Admor-ship and Sealing and Securing effects, on which there were so many considerable claims.
The next Circumstance which Your Excelly deems an act of Omission and Neglect in the Adminr. is in respect to the exact sum due to the King – this is followed by Mr. Palmers not stating in his Inventory the Grain and Stock received for his Use, before and after Stogdells Death – the next is Mr. Palmers not inserting some Debts which appeared in Stogdells Books in favour of the Estate, Amounting in the aggregate £179.10.3 without including the Value of Fowls, Shrub, and other Articles confirmed at Walloomooloo, that belonged to Stogdell and which would have augmented this Item considerably – his further neglect to give Credit for £152.7.6 paid by Stogdell to Williamson; these Sums together Amount to Upwards of £330 at their present Estimation and in fact are more than what would be required to Satisfy my Claim as Machins Agent According to the principle laid down by Mr. Palmer himself as Comfortable to his Suggestions of the Con
struction
[Page 220]
- Construction of Equity – It is not for me to pretend to judge of the Complexion these various omissions give when they apply to the performance of an Administrators duty, but I trust I may be permitted to observe that they leave a reasonable presumption that more omissions and perhaps of higher importance may have been made – these, I have brought to light by Unworried researches – others which I am Unable to Challenge may remain in utter obscurity.
If these Acts are in incompatible with the duty of an Adminisr as required by the Statute Laws of England and which Custom and Practice have invariably strengthened in every part of His Majestys Dominions it is not the motives by which they could or would be judged in equity; it is the effect proportioned to the Injury, [indecipherable] and sustained, but allow me Sir to observe that Mr. Palmer persisted in his error long after it was detected and the item of the £132.7.6 he Contended against, even to the very last Stage of his Appeal.
But these are only a few out of the innumerable Acts of Error and Wrong done and Committed by the Adminr. contrary to his Oath, contrary to the Tenor and Engagement of his Bond and to the Nature of Trust he assumed – Your Excellency saw that it was represented to Mr. Palmer by the Creditors collectively how disadvantageous it would be to the Estate to proceed in the Sale at a time when there could be but few bidders; Still he persisted and proceeded to Sell alledging that the Wheat was of a perishable Nature – Yet that Wheat was afterwards proved to fetch 15/- a Bushel did not the event altogether justify the well founded fears of the Creditors, who suspected who dreaded a collusion – did it not bear the colour of collusion, when Mr. Campbell was the chief, if not the only purchaser [indecipherable] for Mr. Palmer, from Mr. Campbell no money was required – from the rest a heavy deposit was demanded and only one Month allowed for the residue – Mr. Campbell says There was "no Agreement" about purchasing at the Sale, but how does this appear reconcilable on the grounds of reason and fact, when immediately after the Sale, the property was conveyed and Reconveyed and no Register made of these dark transactions until 12 Septemr 1803, whilst Mr. Palmers Appeal was varying to its last stage; can the terms of the Sale be held [indecipherable] and Impartial under the existing local circumstances - had it been the practice of this infant Colony in Cases of such Magnitude and Extent, and was it impractical in the Adminr so to arrange and soften the Conditions of Sale, that scarcity no one but himself or Mr. Campbell, for him, could bid for the property, was it not manifestly sold at a very reduced Value – There is one Farm in particular which I believe I have pointed out already, bought by Mr. Palmer for £38 which cost £300 and would have fetched nearly that Sum if time had been allowed for Payment on Unexceptionable Security – Did not Jonas Archer declare on Oath that he would have given One Thousand Pounds for some Farms which Mr. Campbell bought in for little more than half that Sum – And for that Wheat which Mr. Palmer dwells upon so minutely And which was sold for £1300 I myself offered to give sufficient to liquidate Mr. Campbells Bond And should have been a Considerable farmer by the Bargain although Mr. Campbells debt was £1800 and Upwards.
Was not 10 per Cent charged and Claimed on the Auction when I offered to do it for 2½ per Cent? Your Excelly. reprobated the Charge and in particular has pronounced it excessive.
Was not paper confirmed and Selected according to the Opinion of a Person. who however his intention might be correct was a Stranger, not only to Stogdells transactions, but
even
[Page 221]
even in the Colony? What in a reasonable preparation, might not those papers, so destroyed, have tended to explain or indicate when the circumstance of my referring one paper occasioned a considerable saving to the Estate. And it is well known that I offered to give every Assistance in examining the property for I know many of Stogdells concerns and pointed out several others that knew them also; but my offer was rejected. This[indecipherable] of Neglect, cannot I trust be extenuated and is in itself Sufficient to involve an Adminisr in the penalties prescribed by Law And Secured to every fair Claimant, on the principle of Justice. Your Excely. is pleased to admit it was of Consequence, and very judiciously remarks that two or three principal Creditors should have been present on that Occasion.
What could be Mr. Palmers inducement to convene the Creditors together, previous to the Sale, and suggest to them the expedience of having the property Ascertained, so as to separate the interests of the Concern? The Creditors had no [indecipherable] July [indecipherable] to his proposition, than Mr . Palmer abandoned it altogether – Then they had recourse to a regular protest, but he persisted and turned a deaf ear to all their Remonstrances – he had begun and he persevered in, Error.
Mr Palmer contends that he gave directions for all Mr. Stogdells property to be unreservedly Sold – so his Servants say – but in the same breath they declare that there was no distinction of the property made nor any separate Accounts kept of the Articles from time to time consumed – to What extent does this testimony lead? If it is to be credited that they were ignorant of what was Stogdells and what Mr. Palmers Property – A Valuable Bed purchased by Stogdell for Mr. Palmer, in contemplation of his Arrival, Mr. Palmer possessed himself of. When he arrived and cut up, mutilated and transformed the Furniture – It is true it was afterwards Sold at the Auction, but under what manifest disadvantages? So it was with the Pictures, they were bought by Stogdell, as Articles of Ornament for Walloomooloo And he paid or was to pay dear for them. – At the Sale I believe they scarcely fetched a third of their original Cost.
Thus did Mr. Palmer benefit himself individually by his purchases, When his Creditors to whom the Money was owing for these very articles, were either excluded from becoming purchasers; or when Sold, from receiving any proportion of their Produce.
In adverting to the Debt, which Mr. Palmer had set up against the Estate and fixed at £8229.18.5 and contends that it has been proved and allowed by the Civil Court. I would by leave to enquire how, when, and where it was either proved or allowed. Swearing to a date, does not, I submit, prove it, and surely it is, but equitable that the Creditors who are interested in the concern should receive the same privilege of examining Mr. Palmers private Claim which Mr. Palmer as Adminr. has of investigating theirs – Your Excelly with due consideration, has admitted the Estimation Stogdells Credit derived by the Circumstance under which Mr. Palmer left him, as his Agent, by the remarkable passage in the Agreement. By Mr. Palmers paying the Bills for £500, which Stogdell filled up in his Absence (and can a stranger profess confidence be exhibited?) Surely then I am justified in contending that Mr. Palmer who gives Stogdell as his Agent this Unlimited power this delusive Right to transact business of Purchases and Mercantile Affairs in his Absence from this Colony, is
the
[Page 222]
the only person to whom the Creditors ought to look for Payment of those debts, which Mr. Palmer implicitly Sanctioned [indecipherable] on Contracting And even if his Administration had been legal and just.
In the Agreement Stogdell was to receive a third and certain proportions of the Profit of Stock, Goods and Merchandize. Where is that Credit to be found? Some [indecipherable] have been Sold to great advantage by Stogdell, through David Bevan, but what is become of Stogdells proportion of those advantages, they form no item in the Credit of the Estate.
And in the Credit given to the Estates your Excelly. finds no allowance made for the considerable Number of Men, which I have proved were kept employed at the Hawkesbury after Stogdells Decease – the various progressive improvements and Decorations at Walloomooloo, for upwards of four Years, during which period three men were constantly employed in the House and premises to take Care of Mr. Palmers Concerns, which Mr. Palmer only rated at £100 – The Expenses of Shingling a Capital Barn at Toongabbee, which was done under Stogdells directions, for Mr. Palmers Benefit. – The Debt of Mr. Palmer, to Mr. Peterson, which the £500 that arose from the Blank Bills went to discharge, but of which no mention is made on the Credit side of the Estate, together with other Credits of [indecipherable], perhaps of equal import, that have never been brought forward to relieve the Estate, by reducing Mr. Palmers heavy and extensive Claim.
The palpable Error in the Statement of Squires Account, but refrom which I have no wish to dwell in this Stage of the Enquiry, although it made a difference of £120 to the Estate is too obvious to require any explanation.
Nor can it have escaped your Excellys Observation that I was deprived the benefit of the Testimony of several Witnesses, on a plea, or rather an advantage of Law, suggested by Mr. Palmer that they were eventually interested in the Suit, the Witnesses could have revealed many circumstances of importance to the general interest – Mr. Palmer was aware of it and flew to the formalities of Law to avoid it.
Stogdells Bond to Mr. Campbell And the Mysterious Affidavit made [indecipherable] it the day the Sale began, I am free to confess I am not possessed of legal knowledge enough either to Account for, or to judge of the effect of. I will merely suggest it is a circumstance, apparently consistent with Reason is it any part of that Bond was vitiated by any illegal Act in the Obligor, it destroyed the validity of the Whole, Consequently its Specialty is done away and if Mr. Palmer took upon himself to pay it as a Specialty, when it was not so, (fro Mr. Campbell says he held the Notes, in his possession, Seamingly regardless of the Bonds by never Seeing it, or producing it to Mr. Palmer) Mr Palmer paid it in his [indecipherable] and is Accountable to the Estate for so doing.
This Bond and the circumstances relatively connected with it have been considered by Your Excelly as mysterious and Contradictory. for myself I may not have at present the Advantage of legal proof, as to the time it was given up, but my Mind, My Conscience and that pure principle of rectitude, which I boast of possessing in my dealings with
mankind
[Page 223]
mankind, telling me that Michael Robinsons Evidence is Correct – he was disinterested in the Event of this Suit and that power, to whom the secrets of the Heart are known, knows, that I would not to gain Millions have countenanced [indecipherable] any kind of Success to a deliberate Perjury.
The Interrogatories presented by Mr. Palmer in Order to be administered to the Judge Advocate and the Members of the Court, I would wish to touch upon with the utmost tenderness and delicacy, since they had a tendency to Impeach the Moral and professional Characters of the Parties they applied to, And as Your Excelly has not introduced any mention of the paper which was surreptitiously obtruded up the Court, after the Verdict was given, I rest satisfied that such a Circumstance has not derived any more Credit or Weight on your Mind, than it manifestly, on the Sale of it [indecipherable]. Your Excellency discovered its fallacious Construction and when it was once discovered its detection was inevitable.
Thus I have endeavoured by a Retrospective View of the manifold instance of Error and Wrong in Mr. Palmers Administration to Stogdells Estate, to point out to Your Excellency some of the Grounds upon which I mean to carry this Business before the King and Council in England. These are the Reasons and [indecipherable]in Law and Equity [indecipherable] which will strengthen my Appeal; but which I must be indebted for to the professional Aid of Superior Authorities at home. A Copy of this Address to Your Excelly will accompany my Instructions to my Solicitor in England and I trust Your Excelly will have the goodness to direct Copies of such papers as come before you in the Court of Appeal (which I have not already been favoured with) to be furnished me and as the different Interrogatories which were administered from time to time formed a certain chain of Evidence in this Cause, I shall trust to your Excellys Consideration to grant me also Copies of them. – Those Papers which Your Excelly received from me Comprizing the Minutes of the Court below, I shall take care to have duly attested as soon as Your Excelly is pleased to Return them to Me, I again beg leave to observe this is a very Serious and Important Object. The Expenses that have attended my Researches into these Circumstances which I have brought forward are incalculable – The Labour of Clerks I have continuously kept employed in transcribing Papers and my own [indecipherable] Time and Mental Anxiety are Considerations of great Weight with me, it is otherwise with Mr. Palmer – he has Recd the produce of the Property Sold and has the advantages of the Use of the Monies in his hands for upwards of Two Years, and the interest of which in this Colony in itself is a material Object.
Apprized as Your Excelly therefore is of my intention to Appeal from your Decision (with every respectful deference to Your Wisdom and Justice nevertheless) I trust Your Excellency will not decree it unbecoming of me to suggest to your Consideration that propriety of directing Mr. Palmer, as the Administrator to John Stogdell, to Surrender and Yield such legal or Equitable Assets as are now in his hands, in Order that the same may stand Answerable to the issue of this Or any other Suit, that may be instituted against him as Administrator. For myself I can wish it in no hands more secure that in Your Excellencys. – The Laws of England, although sometimes slow is invariably sure in its operation – if in the
present
[Page 224]
present Case it promises a temporary suspension of the Property I am contending for, it [indecipherable] me at the same time with the hope and belief that I shall one day convince the Colony, that my Labour – my [indecipherable] and my perserverance have not been Unsuccessfully exerted.
I am Yo
("signed") Simeon Lord
Palmer Esqr Admor Appellant
vers
Machin Respondent
Sir
I have enclosed an Appeal to the King in Council in this Case and pray your Excellency to allow the same.
I am advised that this proceeding is necessary and that the Appeal or Notice of Appeal given by the Respondent can be no bar to my right of Appeal.
It is material for me to have the powers or the Papers that may go to England and to have them under the Seal of the Colony in Order to prevent any Undue Advantage by the Respondent.
And I am informed that not Uncustomary for both sides to Appeal and for that Reason I claim the right of the Appeal being allowed.
I have the honor yo
Sydney 19 Oct 1803
("Signed") John Palmer
His Excelly Govr. King
In the Matter of Appeal.
Between
John Palmer Esqr. Admor and Appellt.
and
Hugh Machin – Respondt.
To His Excelleny Philip Gidley King Esqr &c. &c, &c
The Memorial of John Palmer Esquire Admor.
Most humbly herewith,
That by His Majestys Letters Patent, bearing date at Westminster the 2nd day of April in the 27th Year of his Reign, it is amongst the things Ordained.
That
[Page 225]
That if either Party find himself aggrieved by the Judgement or determination of the Governor or hearing any Appeal, where the thing in demand exceed the Value of Three Hundred Pounds and not otherwise such aggrieved Party may Appeal to His Majesty, His Heirs and Successors in Council.
Which Appeal from the judgement of the Superior Court is to be interposed within fourteen days after the judgement of such Court.
That for matters in Law and Otherwise arising upon the determination of Your Excellency given on hearing this Appeal And for other Causes and Reasons.
Your Memort finds himself aggrieved by the Judgement or determination given by the Court on the hearing of this Appeal And doth Appeal from such determination to His Majesty in Council, pursuant to the provision of the said Letters Patent.
That Your Memort of Right prays to have trued Copies of all and every the Proceedings of the said Court of Civil Jurisdiction and Court of Appeal together with a true Copy of such his Appeal and other proceedings in the Cause and Cause of Appeal to enable Your Memort to prosecute his Appeal before His Majesty in Council with effect.
And that such proceedings may be Examined by Persons Appointed by Your Memort. with such Records of the respective Courts And attested by And Under the Seal of the Colony in due form.
And Your Memort shall ever pray &c
19th October 1803
("Signed") John Palmer
Appellt.
[Margin Note] [indecipherable] this [indecipherable] and Answers are recited at the back of Mr. Palmers [indecipherable] letter dated 19th Oct 1803, vide Page 221*
The Judge Advocate will Inform me how far the Within Pertain can be complied with being in the possession of an Appeal for Simeon Lord dated the 18th Inst which I send with this; On the admissibility of this I require his written Opinion To Morrow at the Court of Appeal.
("Signed") P.G.K.
October 19th 1803
I do not think there can be Two Appeals
("Signed") Rd. Atkins
J.A.
[Page 226]
Rule of Court of Appeals, respecting Appealing to the King, in his Privy Council from the decision of the Governor.
That the Appeal be made within Fourteen Days after Judgement Or Sentence be pronounced And that the Appellant or Plaintiff in Error do give good Security that he will effectively Prosecute his Appeal or Writ of Error and Answer the [indecipherable] Money, And also pay such Costs and Damages , as shall be awarded by His Majesty in Case the Sentence, Judgement or decree of the Governor be affirmed.
That the Appellant or Plaintiff in Error, do give good and sufficient Security in Price the Amount of the Sum Sued for.
That on an Appeal to the King in his Privy Council, the proceedings must be copied fair in large paper by the Officer, who has the Charge of the Records. When the proceedings are thus Copied fair, the Officer who has the Custody of them must make Affidavit that they are true Copies and have them compared in the presence of the Parties with the Original Records. The Proceedings and Affidavit are then to be annexed together and delivered to the Governor and Commander in Chief who puts the Great Seal to them and they are then Transmitted by him to Great Britain to the Principal Secretary of State he corresponds with.
On an Appeal to the King in Council the proceedings must be transmitted and the Party Appealing must proceed within a Year after the Appeal is allowed, unless it so happens that a direct Opportunity of transmitting the Proceedings do not occur in time to allow of them being proceeded in before the Period of a Year Express; In which case that time may be extended by Certificate from the Governor.
("Signed") Philip Gidley King.
Sydney October 20th 1803
By Philip Gidley King Esqr &c, &c, &c.
Mr Simeon Lord Respondt And John Palmer Esqr Appellt. in the Cause of the Appeal between Palmer vers the Verdict of the Civil Court in the Cause of Lard agt. Palmer Adminr of the Effects of the late John Stogdell Decd. Intestate , being neither of them satisfied with my Award, Judgement or Decree, given on the said Appeal dated 7th October 1803 and from which decision the Appeal of Simeon Lord to the King in Privy Council has been allowed as being first lodged and in his Right as Respondent; And as the said Simeon Lord has given the Security required, I deem it essential to the Security of the Creditors that all and every of the Effects as well as Assets, now in the hands of John Palmer Esqr belonging to the Intestates Effects, to be Approved Amount of £3302.13.11 being
the
[Page 227]
the Amount of the Debts said to be due (as appears by a Schedule given into the Civil Court of Jurisdiction July 27th 1801 and Exhibited to me in the Court of Appeal October 6th 1803) to all the Creditors excepting the said John Palmer and the Specialty debt paid to Mr. Robert Campbell. Be Secured by the said John Palmers own Recognizance to the Governor for the time being to remain and abide by the decision which may be given in the Present Appeal to the King in Council by the said Simeon Lord.
You are therefore hereby Required and Directed to demand the said Security from the said John Palmer Esqr causing the said Security to be Registered. One Original of which to be deposited in the Judge Advocates Office and another to me.
Given ye the 24th day of October 1803
("Signed") Philip Gidley King
(L.S.)
To Mr. Thos Smith
Provost Marshall, &c, &c, &c
Attested ("Signed") Rd. Atkins J.A.
Sydney March 6th 1804
Sir,
Having upon my Appeal to the Governor given every Security the Law require.
And having since seen proceedings which I consider of such Tendency as may be the subject of Enquiry in the Court before His Majesty in Council.
I decline any further Act but such as my Council in England may advise.
I am Sir yo.
("Signed") John Palmer
To Richard Atkins Esqr
I have the honor of enclosing Your Excellency a Letter from Mr. Commissary Palmer by which he declines giving that Security Your Excellency required from him, to defend the Appeal of SD Lord before the King in Council.
I have the honor to be &c
("Signed") Rd. Atkins, J.A.
13th March 1804
His Excellency Governr King.
[Page 228]
Sydney N.S.W.
October 24th 1803
Sir
I have already given Security to abide the Judgemt Sentence or decree that should be pronounced by the Civil Court or finally given upon an Appeal And which has been Approved by the proper Officer, in the Cause of Machin and Palmer Admor.
The Govr has in due time had an Appeal lodged by me against his decision to the King in Council which he has said he will not allow because he had allowed an Appeal agt such decision on behalf of Machin the Plaintiff.
There is a responsible Secy given on the Grant of Letters of Admn and save only, if the Govr. demands other Security for the due Prosecution of any Appeal before the King in Council, and which I am ready to give, tho. I consider such a demand illegal. I object to any other until the Return of the Appeal from England.
I am Sir &c
("Signed") John Palmer
To Mr. Thos Smith
Provt Marshl
Attested ("Signed") Rd. Atkins J.A.
To His Excellency Governor King
&c, &c, &c
The Memorial of Simeon Lord
Most humbly Sheweth,
That your Memorialist has given the Security required by Your Excellency and in Obedience to your Excellys. precept to that Effect, to prosecute his Appeal to the King in Council in England within the time proscribed by the Colonial Charter, and to abide by the Payment of the Costs incurred and to be incurred in and by such Appeal.
That Your Memort. has been Informed that Mr. Palmer (the Respondt) and in whose hands all the Assets and Effects of the late John Stogdell (implicated in this Suit and Others in expectancy) are Vested had declined giving the Security which Your Excelly in Wisdom and in Justice was pleased to require from him as appears by the following in Tour Excellencys Recept Viz
" I deem it Essential to the Security of the Creditors that all and every of the effects, as well as Assets, now in the hands of John Palmer Esqr. belonging to the Estate, and effects to the Approved Amount of £3302.13.11½ be Secured by such John Palmers own Recognizance to the Governor for the time being, to remain and abide by the Decision Ye".
Your Excellency is aware that your Memort can only be eventually
liable
[Page 229]
liable to the Costs of this Appeal – Whereas Mr. Palmer is liable to the Payment of the Debt now in litigation, as well as all the Incidental Costs, consequently the Security required by Your Excelly from Mr. Palmer is conformable to Equity and Justice, and cannot, Your Memort Submits, in the Instance to be dispensed with, without being materially injurious to the Interest of Your Memorialist.
Your Excelly will also permit Your Memort. to suggest that various Circumstances and Events may take place during the period this Appeal is pending which may expose Your Memort. to great risqué if not Uncertainty in eventually recovering his Claim upon Mr. Palmer, as Adminr. unless the property is Secured to Answer such Event.
Your Memort. has been informed that Mr. Palmers Property already stands charged with a Sum of £770 to Isaac Nicholls, the period for Paying which is approaching and he hath also been informed that Mr. Palmer has various Private Notes in circulation in this Colony (£400 of which have been Registered) and are shortly coming due.
Your Memort. also has reason to believe from some transactions which Your Memort. has had with Mr. Palmer, in Accounts of Agency for Messrs. Stewart, Balls, Black and others that a Considerable Sum is and will be due to those Gentlemen or their Representatives from Mr. Palmer. And it has been moreover, suggested to your Memort. that Mr. Robt. Campbell has considerable claims on Mr. Palmer, but this last being merely a suggestion Your Memort. does not advance it as a positive assertion judging of it only as a natural and reasonable Inference, deduceable from relative Circumstances.
Under this Impression Your Memort. trusts Your Excelly. will see the Grounds upon which Your Memort. presumes to rest his pretentions to Your Excellys. consideration to proceed in requiring the property in Mr. Palmers hands, as Administrator (and of course as a Trustee for the Creditors) to be locked up and Secured, and the rather as Mr. Palmer, himself has interposed an Appeal (although deemed inadmissible by Your Excelly.) and still contends that he had a right to do, and that Your Memorts. Appeal was no bar, to that which he apprized Your Excelly. he meant to be made from Your Excellencys decision to the King in Council in England.
Your Excelly. has also been pleased to say that if anything of a [indecipherable] Complexion had appeared or should hereafter appear, in the course of Mr. Palmers Adminn, you would Interpose Your Authority to secure the interests of Creditors; Your Memort. Submits that by concealing Articles of Property belonging in right of the Estate the Administratorship of Mr. Palmer became impossible and that several Articles have been concealed, or not fairly Accounted for, appears by the Shrub and fowls belonging to the Estate, being sent to Walloomooloo, these being circumstances the Evidence of Horton Established.
There was also a quantity of Cedar and at the Expense of Stogdells Estate for which no Credit had been tendered or any allowance made, And Mr. Palmers
suffering
[Page 230]
suffering the [indecipherable] Pigs be purchased of Mr. Gr4imes to be turned amoung & fattened with Stogdell’s Service, are other Circumstances injurious to the Estates, & leave a tendency to establish the Ma-administration, & shews the necessity of the Property being secured, & out of the Power of further devastation, by the Administrator.
Wherefore & considering that your Excellency’s precept issues out of a Court of equity in this Territory of which you are supreme Judge (& Guardian of the Rights & Propertys of His Majesty’s Subjects therein) AND in as much as the Tenor of such precept is directed to preserve the Assetts & Effects in Mr. Palmer’s hands for the benefit of every bona fide Claimant thereon, YOUR Memort. prays that such precept may be enforced & that the Security required thereby may be rendred by Mr. Palmer without delay & that this Memorial may follow & be added to the other Papers connected with this Suit in Appeal
Sydney 26th Octr. 1803
And your Excellency’s &c.
(Signed) Simeon Lord.
Crossley & ats. versus
Wentworth & o’rs
Civil Court 16th Decr. 1801.
D’Arcy Wentworth Esquire maketh Oath that George Crossley is justly & truly Indebted to him as Agent to Willm. Balmain Esq. who has been appointed Agent & Atty. to Jno & Jas. Mangles of Wapping Morelants & also to Jas Fulliance Turner in the Sum of £1886 Sterling & upwards being the Amut. of Three certain Bills of Exchange drawn by Mr P Geo Crossley, (conjunctively with A M Crossley) on Anthony Schull Esq. Dean’s Court St. Martin’s le Grand, London, & which sd. Bills of Exchange are returned protested for non Paymt. to the sd. Willm. Balmain Esq. as Agent & Atty. as aforsd., by reason of the sd. Willm. Balmain Esq. being absent from this Territory are now in the hands of the sd. D’Arcy Wentworth as Agent & Atty to the sd. Willm. Balmain Esq by him duly authorized & appointed.
Sworn before the Court of Civil Jurisdictn. 16th Dec. 1801
(Signed) D. Wentworth
(Signed) Richd. Atkins
Thos. Laycock.
Resworn on the same day in Court before us
Rd. Atkins
(Signed) Thos Laycock
To
[Page 231]
To Henry Cable, Chief Constable.
We the undersigned members of the Court of Civil Jurisdiction now sitting & [indecipherable] at Sydney Do hereby specially authorize & empower you in the absence of the Provost Marshall to execute a certain Writ or Process hereunto annexed commanding you to take into Custody the body of George Crossley against who D’Arcy Wentworth Esquire has made Oath that the sd George Crossley is indebted to him in the Sum of £1886 & upwards
Given under our hands the 16th Decr 1801
Richd. Atkins J.A.
(Signed)
Thos Laycock.
16th Decr. 1801 The Court Sat
Present The Judge Adv.
Thos. Laycock Esquire
Writ granted on a special Affidavit.
D’Arcy Wentworth Esq
Agent to Balmain Esq
v
George Crossley
£1886.0.0 & upwards.
Return (codem Diê)
Wentworth Esq. agt. & agt. Crossley
The Deft. being arrested on this Suit & brought into Court & Three bills of Exch. to the amot. of £1886 being produced by the Pltff, & the Deft. being asked if the said Bills were drawn by him, the Deft acknowledged them to be subscribed by him, but says the sd. Bills were never presented to him by the Pltff for Payment according to the Law in such cases, Deft further says that a reasonable time should have been allowed him for Payment of the sd. Bills after they had been presented as aforesd.
The Court being of Opinion that the Bills should have been presented to the Deft for payment by the Pltff after he became possessed of the, & before he applied to the Court for a writ against the Deft do hereby quash this Writ but agreeable to the established Parctice of the Courts of Civil Jurisdiction, under certain circumstances in this Colony Do allow the Pltff to issue a fresh Writ against the Deft returnable at the opening of the Court to morrow morning –
17th Decr. 1801 The Court Sat
Present – The Judge Advocate
Thos. Laycock Esq.
Jas Thompson Esq.
Wentworth Esq. Agent &c
v
Crossley…
The Bills being produced (Scheduled as hereunder) subscribed by the Deft. & the hand-writing being proved by Michael Robinson, late Clk to the Judge Adv.
deceased
[Page 232]
deceased before whom they were subscribed,
Verdict for Pltff - £1886.0.0 Debt with Costs
Deft gave Notice of Appeal to His Excellency the Governor.
Schedule of Bills in question
One Bill of Exchange (being the third) dated April 15th. 1800 for £1000 Sterling, drawn by Geo Crossley & A M Crossley at forty one days after sight thereof on Anty. Schell Esq Merchant Dean’s Court St Martin’s le Grand, London payable to the Order of Captn Hugh Reed & by the sd Hugh Reed directed to be paid to Jno. & Jas. Mangles Esq. or their order.
One Bill of Exchange (being the third) dated April 15th 1800 for £500 Sterling drawn by Geo Crossley & A M Crossley at forty one days after sight thereof on Anthony Schell Esq Dean’s Court St Martin’s le Grand London, payable to the Order of Captn Hugh Reed & by the sd. Hugh Reed directed to be paid to Jno & Jas. Mangles Esqr. or their order.
One Bill of Exchange (being the first) dated April 18th 1804 for £386 Sterling, drawn by Geo. Crossley & A M Crossley at forty one days after sight thereof on Anthony Schell Esq Dean’s Court St Martin’s le Grand London payable to the Order of Mr. Jno Muirhead & by the sd. Mr. Jno Muirhead directed to be paid to Mr. Jno Fulham Turner or Order.
Wentworth Esq.
v
Crossley
The Court having taken into consideration the Appeal of the Deft in this Cause to the Governor are of Opinion that the Deft must give Bail to double the amount of the Debt awarded to prosecute his said Appeal, within the time limited by the Charter & agreeable to the Practice of the Courts of Civil Jurisdiction in this Colony. & that until such Bail is given the Verdict remains in force.
The Pltff being asked by the Court if he would have Execution against the Body or Effects of the Deft. desired to have Execution against the Effects pursuant to the Verdict.
(Signed)
Richd Atkins
Thos Laycock
Jas. Thompson
Decr. 21st
[Page 233]
Decr. 21st. 1803
Present, The Judge Advocate. Thos Laycock Esq. & Jas. Thompson Esquire.
Wentworth Esq. Agt. &c,
v
Crossley
The Deft Submitting to the Court that as his Effects are all attached in this Colony & in the possession of the Provost Marshall, he can offer no better Security under his present Circumstances for prosecuting the Appeal to the Govr. than that such Effects so attached, shall remain charged to abide the Event of this Suit & therefore prays the Court to accept such Security, & suffer his Appeal to proceed.
The Court taking the Circumstances into consideration accept the Effects so charged in Execution, as Security for prosecuting the Appeal to the Govr. & to abide the Event of this suit & admit the Appeal accordingly.
(Signed)
Rd. Atkins
Thos Laycock
Jas Thompson
(Copy)
[note indecipherable]
May it please your Excellency
To let me have some few Things out of the Store to enable me to pay the Reapers of my Grain for which I will put in Grain this season if your Excellency please.
The Provost Marshall retains my Books to my great Loss & says it is by Order of your Excelly. when I get them I will endeavour to make out a true State of the Loss I have received by the late proceedings & with your Excelly. leave after Harvest lay it before your Excellency.
I look upon it that after Payment of the £1886 that Mr. Wentworth had a Claim upon me for he will be in my Debt about £8000.
The Effects sold or taken away by him or those acting under him if left to my Disposal would have sold for £10,000.
Every step taken on his Part after the Deed of Trust was executed was Illegal, & I shall be able, when your Excellency sees my Case & the Law is pointed out to you upon it, Your Excellency will view it in that light.
If on making out my Case your Excelly will be so good as point out any Mode of redress I may look to, I shall be ready at some Loss to have Peace; If that cannot be done I hope your Excellency will after my crop is reaped give me leave to return to England, that
I
[Page 234]
I may there take such Advice as my Case may require.
I put this to paper that your Excellency may see I have no wish but to apply to your Excellency with Order, but the Law is the same to all his Majesty’s Subjects & by the Charter of this Colony the Law of England only is to be exercised in it.
I have been from the Age of 15 years in the Law Office, & an Attendant daily on the British Court of Justice as an Officer of those Courts therefore when any illegal Proceedings is done to me, I feel it because I know it.
Your Excellency did me the favour to give me an Emancipation, Thanks & Gratitude for that Act tell me I ought to look up to you for the Protection which the Law of the Country gives every Man & to reply on your Justice for redress.
Sydney 31st Octr. 1802
I am &c
(Signed) George Crossley
Exchange for £500 Sterling
Sydney April 15th 1800
Forty one Days after Sight of this our third Bill of Exchange, first, second & fourth of the same Tenor & date unpaid. Please to pay to the Order of Capt. Hugh Reid the Sum of £500 Sterling Value received in Merchandise & place it to Account of
To Anthony Schell Esq.
Dean’s Court
St Martin’s le Grand
London
Sir Your most obedt.
(Signed) George Crossley
A M Crossley
T.S. Not [indecipherable] Pub. 26th May 1802 S/C
Principal; 500.0.0
Noting 1.6
£ 500.1.6
a true copy from the Original
(Signed) Richd. Atkins
J. Adv.
No Effects
T.S 26th May 1801
I certify that the within Bill of Exchange was given by the subscribing Parties Geo Crossley & Anna Maria Crossley to the within names Capt. Hugh Reid in Payment for Merchandize Sold and delivered to the said
George
[Page 235]
George & Anna Maria Crossley by the said Captn Hugh Reid.
In Testimony whereof I have hereunto subscribed my hand this 16th day of April 1800 at Sydney in His Majesty’s Territory called New South Wales
(Signed) Richd. Dore J.A.
Please pay John & Jas. Mangels Esquires or their Order.
(Signed) Hugh Reid
Sept. 12th 1800
Exchange for £1000 Sterling
Sydney April 15th 1800
Forty one Days after Sight of this our third Bill of Exchange first second & fourth of the same Tenor & date unpaid, please to pat to the Order of Capt. Hugh Reid the Sum of £1000 Sterling Value received in Merchandize & place it to account of
To Anthony Schell Esq.
Merchant Deans Cot.
St Martin’s le Grand
London
Sir Your most obedt.
(Signed) Geo Crossley
A M Crossley
T.S. Not [indecipherable] Pub. 26 May 1801 [indecipherable]
Principal 1000.0.0
Notg. 1.6
£ 1000.1.6
No Effects
T.S. 26th May 1801.
A true Copy from the Origl.
Signed Richd. Atkins J.A.
I certify that the within Bill of Exchange was given by the Subscribing Parties Geo Crossley & Anna Maria Crossley to the within named Captn Hugh Reid in my Presence in Payment for Merchandize sold & delivered to the said George Crossley & Anna Maria Crossley by the sd. Capt Hugh Reid.
IN TESTIMONY whereof I have hereunto subscrib’d my Hand this 16th day of April 1800. at Sydney in His Majesty’s Territory called New South Wales.
(Signed) Richd Dore J.A.
Please pay Jno & Jas Mangles Esqr or their Order
12 Septr. 1800
(Signed) Hugh Reid.
Exchange
[Page 236]
Exchange for £386.0.0 Ster’g
Sydney April 18th 1800.
Forty one days after Sight of this our first Bill of Exchange second third and fourth of this same Tenor & Date unpaid, Please to pay Mr. Jno Muirhead or Order the Sum of £386 Sterlg Value received in Merchandize, which place to
Account of
To Anthony Schell Esqr.
Dean’s Court
St Martin’s le Grand
London.
T.S. Not/Pub 26th May 1801 [indecipherable]
Principal386.0.0
Not.y 1.6
£386.1.6
Your most Obedt
(Signed) Geo Crossley
A. M. Crossley
No Effects
T.S. 26th May 1801
a true Copy from the original
(Signed) Richd. Atkins J.Adv.
Please to Pay to Mr. John Fulham Turner or Order, & oblige your most Obedt. Servt.
(Signed) John Muirhead.
London 4th June 1801
Sir
We have received by the Buffalo your favour of the 10th Octr. 1800 Covering an Attested Account of Expenses on the Ship Bethlehem & a Statement of Debt & Credit for the same & have observed that you have remitted to Messrs Robarts & Co. for the Captors £1010, & that there still rems. coming to them £111.9.6/ to which you will take the earliest opportunity of forwarding in the same manner – all which Proceedings appear to us to be correct & proper. & we are much obliged to you for your Punctuality. We have now to trouble you with another matter of Business which has arisen from Capt Hugh Reid of our Ship Friendship lately from your Place having taken in Payment from Geo Crossley & A M Crossley two Bills one of a thousand, & another five hundred, amounting together to £1500 upon Anthy Schell Esqr. Merchant (as they stile him) Dean’s Court St Martin’s le Grand, London, which Schell upon Enquiry we find to be a miserable Pauper, & are informed is in a Workhouse & not worth a Farthing. Having experienced your Punctuality in the Affairs of the Bethlehem, we have with the concurrence of Captn. Hugh Reid & of Mr. John Fulham Turner our Clerk, who has had remitted him by Mr. Jno Muirhead, Mate of the Friendship, a similar Bill of £386
constituted
[Page 237]
constituted you our Attorney to recover by every means in your Power these several Sums together £1886 of the sd. George & A M Crossley & we herewith send you the proper Authorities for so doing under the Seal of the Lord Mayor of London to which is attached the original Bills properly Protested by a Notary Public, as we are informed that Crossley has property sufficient in your Country to pay these Bills we have no doubt but you will use your utmost endeavours to establish our Claims & get us our Money & for your Charges in so doing you will please to debit our Accounts, indeed Crossley must be liable to the whole, & these documents will Cost some Money, tho’ we cannot just now say how much, Trusting to your kind exertions in this Business we remain Sir &c
Wm. Balmain Esqr.
(Signed John & James Mangles
London 4th June 1801
Sir
My friend Mr. John Muirhead Mate of the Friendship having received a Bill of Exchange (in Payment for Goods Sold Mr. Geo Crossley drawn by him & A M Crossley on Anthy Schell Esq. who is not worth a Farthing) for the Sum of £386. I am under the necessity of returning it protested to Port Jackson and my worthy Employers having done me the Favor of mentioning my name to you, I have sent the proper Documents with theirs constituting you my Attorney in order that you may recover the Amount together with Interest & Expenses if possible; & beg you will take the same steps with my Bill as you do with theirs, which they also request, & should you be successful I beg you will have the goodness to send the Remittances addressed for me under the same cover with Messrs. Mangles’s. Duplicates will be sent by another Conveyance. Your kind Attention in this Business will exceedingly oblige
Sir &c
(Signed) John Fulham Turner. at Jno & Jas Mangles’s
Willm. Balmain Esqr.
TO ALL TO WHOM THESE PRESENTS SHALL COME I John Mangels of Wapping in the Country of Middx Merchant for & on behalf of myself & Jas. Mangles of the same Place; Merchant, my Copartner in Trade SEND GREETING WHEREAS Geo Crossley & Anna Maria Crossley of Sydney in His Majesty’s Territory called New South Wales, are justly & truly indebted to us the said Jno & Jas. Mangles in the Sum of One Thousand five hundred pounds Sterling on & by virtue of two several Bills of Exchange
drawn
[Page 238]
drawn by the said Geo Crossley & Anna Maria Crossley on Anthony Schell. Esquire of Dean’s Court St Martin’s le Grand London for the several Sums of £1000 & £500 Sterling at forty days after Sight payable to the Order of Captn. Hugh Reid, for value received in Merchandize – And which sd. two several Bills of Exchange were indorsed by the sd. Captn. Hugh Reid to us the sd. John & Jas Mangles & have been regularly tendered for Acceptance & refused by the sd. Anthy Schell for want of Effects to answer the Payment thereof, one Set of which said Bills are protested for non-acceptance, & hereunto annexed together with proper Documents verifying the legality of the Proceedings had thereon.
NOW KNOW YE that we the sd. John & Jas. Mangles for diverse good Causes & considerations us hereunto moving have & each of us hath made ordained nominated Constituted & appointed AND BY THESE PRESENTS DO & each of us DOTH make ordain nominate constitute & appoint William Balmain of New South Wales Merchant to be our & each of our true & lawful Attorney for us & in our names & on our behalf & to & for our joint use & on our Accot. to ask, demand sue for recover & receive by all lawful ways & means whatsoever of & from the sd. George Crossley & Anna Maria Crossley or either of them their & either of their Heirs Executors & Administrators the aforesd. two several Sums of Money so due & owing to us on the sd. two several Bills of Exchange together with Interest thereon, & on receipt or recovery of such Sum or Sums of Money or any Part thereof for us & in our names & on our Account to execute & give good & sufficient receipts Release or other Discharges for the same, or any Part thereof, & on Receipt or Payment of such sd. two several Sums of Money or any Part thereof, by Virtue of these presents to return & consign the same to us the sd. Jno & Jas. Mangles or one of us at London aforesd. as soon as conveniently may be after receipt thereof AND GENERALLY for us the sd. Jno & Jas Mangles & in our names & for our joint use & on
our Account to negotiate transact do perform & accomplish All lawful Acts Matters & Things in & about the Premises as fully & effectually to all Intents & Purposes whatsoever as we or either of us might or could do if we were personally present & did the same and WE DO HEREBY also give full Power & Authority unto the sd. Willm. Balmain by writing under his Hand & Seal for that Purpose to nominate & appoint, authorize & empower any other proper & sufficient Person or Persons as he shall think fit to be & act as an Atty or Attornies for & on behalf of us the sd. Jno and & James Mangles in the room & stead of him the sd. Willm. Balmain & with full Power & Authority to do transact & perform all or any or so much of the aforesd. matters & Things which he the said Wm. Balmain is herein before & by Virtue of these Presents impowered to perform & execute. AND we do hereby agree to ratify corroborate & confirm, all & whatsoever
the
[Page 239]
the sd. Willm. Balmain or such Attornies so to be appointed by him as aforesd. or either of them shall lawfully do or cause to be done in & about the Premises by Virtue of these Presents, IN WITNESS whereof I the sd John Mangles have hereunto set my Hand & Seal this 29th day of May in the year of our Lord One Thousand eight hundred and one.
(Signed) John Mangles L.S.
Witness (Signed) Jno Glasse junr, T. R Peters
Clerks to Mr. Lys No 17 Pub; Tooks Court
TO ALL TO WHOM THESE PRESENTS SHALL COME I John Fulham Turner of Wapping in the County of Middx & Kingdom of Gt. Brit. Merchant SEND GREETINGS WHEREAS GEO CROSSLEY & ANNA MARIA CROSSLEY of Sydney in His Majesty’s Territory called New South Wales are justly & truly indebted unto me the said Jno Fulham Turner in the Sum of £386 Sterling & by Virtue of a certain Bill of Exchange drawn by the sd. Geo C. & Anna Maria Crossley on Auth of Schell Esq Dean’s Court St Martin’s le Grand London for the Sum of £386 Sterling at forty days after sight payable to Mr. Jno Muirhead for Value received in Merchandize, & which Bill of Exchange was Indorsed by the sd. John Muirhead to me the sd. John Fulham Turner & has been regularly tendered for Acceptance, & refused by the sd. Anthony Schell for want of Effects to answer the Payments thereof, which sd. Bill was protested for non acceptance & hereunto annexed together with proper Documents verifying the Legality of the Proceedings thereon, NOW KNOWN YE that I the sd. John Fulham Turner for diverse good Causes & Considerations me thereunto moving HAVE made ordained nominated, constituted, AND by these Presents do make Ordain nominate constitute & appoint Wm. Balmain of New South Wales Merchant to be my true and lawful Atty. to ask demand sue for recover & receive by all lawful ways & means whatsoever of & from the sd. Geo Crossley & Anna Maria Crossley or either of them their & either of their Heirs Executors & Administrators the aforesd Sum of £386 Sterling so due & owing to me on the sd. Bill of Exchange together with Interest thereon & on receipt or recovery of such
Sum
[Page 240]
Sum or Sums of Money or any Part thereof for me & in my name & on my Account to execute & give good and sufficient receipts releases & other Discharges for the same or any Part thereof & on receipt or Payment of such Sum of Money or any Part thereof by Virtue of these Presents to return & Consign the same to me at London aforesd, as soon as conveniently may be after receipt thereof. AND GENERALLY for me the sd. John Fulham Turner & in my name & for my use & on my Account to Negotiate transact do perform & Accomplish all lawful Acts matters & Things in & about the Premises as fully & effectually to all Intents & Purposes whatsoever as I might or could myself if I was personally present & did the same, And I do hereby also give full Power & Authority to the sd. Willm. Balmain by Writing under his Hand & Seal for that Purpose to nominate & appoint authorize & impower any other Proper & sufficient Person or Persons as she shall think fit to be & act as an Atty or Attornies for & on the behalf of me the sd. Jno Fulham Tuner, in the room & stead of him the sd. Willm. Balmain & with full Power & Authority to do transact & perform all & any or so much of the aforesd Matters & Things which he the sd. Willm Balmain is hereinbefore & by Virtue of these Presents impowered to perform & execute, And I do hereby agree to ratify corroborate & confirm all & whatsoever the sd. Wm. Balmain or such Attorney so to be appointed by him as aforesaid or either of them shall lawfully do or cause to be done in or about the Premises by Virtue of these Presents. In Witness whereof I have hereunto Set my Hand & Seal this 29th day of May in the year of our Lord 1801.
(Signed) John Fulham Turner (L.S.)
Witness
Jno Glasse Junr – Clerks to Mr Lys, Notary Public, Tooks Court
T. R. Peters
A true copy of the Original compared at my Office the 28th of October 1803 at Sydney in New South Wales
(Signed) Rd. Atkins (Judge Adv.)
To His Excellency Philip Gidley King, Esqr &c, &c, &c
The Memorial of Robt. Campbell of Sydney Merchant on behalf of himself & all others that may be concerned, Humbly Sheweth - That on the 21st of Novr. 1800 Your Memort. represented to your Excellency "that on
his
[Page 241]
his arrival here in Feb 7 last Geo Crossley applied to purchase Part of the Bark Hunter’s Cargo from Bengal & at the same time produced a Bond or Letter of Credit said to be Granted by Anthony Schell Esq, Merchant in London bearing that the said Geo Crossley & Anna Maria Crossley his wife had conveyed to him the Sum of £6500 Sterling being monies due to them & Standing in the Books of the Bank of England, in their name & for which he the sd Anthony Schell bound & obliged himself to pay his or her Drafts to the extent of that Sum, provided the same was given for Merchandize in consequence of which the said Geo Crossley purchased from your Petr. Sundry Articles amounting to £1691 Sterling, as the Fourth Set of Bills granted for the same & herewith produced will Testify; THAT your Petr. has reason to suspect & good Cause to believe that the sd. Bills will not be honored being drawn on a Fictitious Credit, & as it consists with his knowledge that several others were granted in a similar manner, particularly to Captn. Reed & the Officers of the Ship Friendship of London he humbly Craves that your Excellency will prevent the sd. Geo Crossley or Anna Maria Crossley from embezzling their Effects by appointing such Persons as you may think expedient to inventory whatever Property may be found in the Premises possessed by them & to dispose thereof for the benefit of all those so unfortunately defrauded, & who may hereafter substantiate their Claims according to Justice".
That your Memort. not being in possession of the sd. Bills, Your Excelly declined complying with the Prayers of his Petition, & being anxious to take such Steps as would secure the Property of the sd. Geo Crossley to be equally distributed among his Creditors if the sd. Bills should be unfortunately returned, the sd. Geo Crossley proposed to your Memort. to assume a Partner in carrying on his Trade, with a View to preventing any Person from obtaining a Preference, which meeting with his Approbation the sd. Geo Crossley assumed Nichs Devine of Sydney & executed two Instruments of Co-partnership herewith produced & which provides for the Payment of the sd Bills in case of being returned as aforesd.
That on Tuesday last the sd. Geo Crossley was arrested at the Suit of Mr. D’Arcy Wentworth Assistt Surgeon for Part of the sd. Bills as stated in the said articles of Co-partnership amounting to £1886, on a Protest for non-acceptance & being Carried before a Civil Court of Judicature, a Verdict was given in favour of Mr. Wentworth, against which the sd. Geo Crossley appealed to your Excellency but before allowing the Appeal Your Memort.
understands
[Page 242]
understands Security was required, which will if persisted in Subject your Memort. in a very severe Loss he therefore with great deference begs to State the followg Circumstances for your Excellency’s consideration.
In an Appeal in which your Memort. was respondent & Wm. Smith Appellant for the Sum of £635.18.5 No Security was required by the Court as their records will testify, altho’ that Appellant was in a worse Situation than Crossley as he had made away with his Effects & was ready to elope the first Opportunity that occurred.
That Execution having issued in the Cause, & Property of Greater Value than the Amount of Mr. Wentworth’s Demand being in possessn of the Provost Marshall, it is impossible from the Nature of the Case that Bail can be necessary as the Property so taken in Execution will be Security for hearing the Appeal, And as your Memort intends to apply for a Commissn. of Bankruptcy, in case your Excelly is of Opinion the Laws of Bankruptcy does not extend to this Colony he humbly hopes your Excellency will authorise the Court of Civil Jurisdiction to take into consideration the Deeds made for the Benefit of the Creditors in general & to take such Steps as would be carried into Effect in cases of Bankruptcy, by admitting all the Creditors to come in for their Proportion of such Effects, on a Division being made & to allow such time for the sale of the sd. Effects, as may be deemed for the Benefit of all the Creditors concerned.
(Signed) Robt. Campbell
Sydney 19th. Decr. 1801
Registered as above & considered in Appeal
(Signed) P. G. K.
At the request of His Excelly Govr. King Robt. Campbell of Sydney, Mercht. maketh oath & saith, That the annexed Petition was presented by him & that the matters & Things therein mentioned is the Truth to the best of his Knowledge and Belief
(Signed) Robt. Campbell
Sydney 1st Decr. 1803
Sworn before Me
(Signed) Wm. Paterson Lt. Govr.
To His Excelly. Philip Gidley King Esqr. &c, &c, &c
The Memorial of Geo Crossley, humbly Sheweth
That
Your Memort. having had the Misfortune to have some Bills of Exchange returned unpaid in the Month of May last, your Memt.
entered
[Page 243]
entered into an Agreement with Mr. Nichs. Devine to become a Copartner in Trade, That Mr Robt. Campbell being the only Person resident here, to whom Bills of Exhge drawn by your Memort. were payable & then Out Standg. Your Memort. applied to the sd. Robt. Campbell to know if it met his approbation that Your Memort. shod. enter into Co-partnership with Mr. Nichs. Devine when Mr. Campbell said he thought it might be for the benefit & Protection of your Memort. & a better protection security for himself & other Bill holders that such Co-partnership could be formed. That with his Approbation your Memort. & the sd. Nichs. Devine became Partners & one Deed of Partnership dated 29th May last & another dated 13th July last altering the first Deed was duly executed, & witnessed by Michl. [indecipherable] Robinson the Judge Advocate’s Clk., Contg. an Assignmt. of your Memorts. Leasehold Premises Stock in Trade & Effects as to one moiety thereof to the sd. Nichs. Devine, & a consideration of £4050 were secured by the sd. Nichs. Devine to your Memort. or Bearer at a time therein mentd that being the estimated value of one half of your Memorts. Effects, thereby secured. That upon a Bill of Exchange being returned of which your Memort. had notice, but which Bill was in part specifically provided or secured Payment of by Articles of Co-Partnership your Memort. was alarmed to other Outstanding Bills & thereupon applied to the sd. Mr. Campbell & having previously advised with the sd. Mr. Devine with his Approbation proposed that they would both join in any further Assignment to secure the payment of all the Bills that might eventually be returned, in any way that he approved, at which time Your Memort. had received no notice that Bills to Captn. Reed & Mr John Muirhead were unpaid.
That on the 16th day of this Instt Decr. as Your Memort was returng. from the sd. Mr. Campbell’s he was arrested at the Suit of Mr D’Arcy Wentworth for £1886 & immediately taken into Court when three Bills of exchange amounting to that sum was produced & which was the first Intimation to your Memort. that such Bills or any of them, were unpaid or returned, That your Memort. took an objection as to the Want of Notice & a nonsuit was Obtained, but immediately after on your Memort. going out of Court, Mr. Wentworth shewed your Memort. one part of the Bills there being three Parts of each Bill, but the Protest was not as your Memort then shewed & a few moments after & as your Memort. was returng home your Memort. was again arrested & Mr Nichs. Devine thereupon became bail for your Memort. that on the 17th Decr. when the Cause came on your Memort.
first
[Page 244]
Omitted to be entered in its proper place
Appeal
George Crossley - - - - Appellant
D’Arcy Wentworth Esq. - - - Respondent
Appellant humbly begs leave to state his reasons for bringing this Appeal from the decision of the Civil Court and will endeavour to do it in Terms as plain and concise as possible
First Because on the 29th day of May last and the subsequent Deed of the [indecipherable] July last, the Appellant made and executed a fair and equitable deed of Assignment In Special trust of all his Effects, fair, because it was done with the priority of his principal Creditor in this Colony, and equitable because it was not exclusively confined to the benefit of that Creditor only But …… generally imbraced and had a view to secure the contingent Interest of every other Creditor
Second Thats to moving upon the firm Basis of Equity and Justice Appellant humbly submits the Validity of such Deed cannot be controverted nor its Operation defeated
Third Because that according to the known and established Custom of Merchants when Bills are returned for Non acceptance it is necessary that the whole set should be returned, otherwise it is within the reach of probability that some one of the outstanding Bills may from unforseen circumstances be …… accepted, this Case differs materially from where the Bill is accepted and returned for want of Payment as it is not likely that two Bills of the [indecipherable] tenor and date should be accepted
Fourth Because, if the property now charged in Execution (vast and immense as it is) was to be sold by Auction in the present State of the Colony when Money
is
[Page 245]
is so scarce And the Markets so overstocked, It would not fetch one twentieth part of its prime Cost nor indeed would any person be found to purchase it except The Plaintiff or his Agent And as no deposit would be required from them no possible difficulty could attend such purchase on their part And perhaps in a few Months they would realize by such Purchase One thousand per Cent
Fifth Because such an Advantage unreservedly lodge in the power of any Individual So repugnant to the Interest of a Body of Creditors who are by equity intitled to a [indecipherable] distribution of Effects of this description [indecipherable]
of Justice and Equity with which the English Law [indecipherable] so wisely framed and so liberally qualified and constricted to [indecipherable]
Sixth Because the plaintiff now comes forward to recover the whole of his Claim to the exclusion of every other Creditor whom Appellant had previously Secured, when in fact this Claim of which he is now the Copart in so far as any was provided for and secured by the Deed in question in common with the other Creditors, the Equity of the Case was therefore as much in favour of the Claim now before Your Excellency as any other And it was expressly [indecipherable] First that every Creditor should be let in for a participation of the Effects without any preference.
Seventh Because Law and Equity uniformly favour and sanction an equal distribution of Effects, hence the salutary tendency of the Bankruptcy Laws in England which ever in this remote Colony may be adverted to, where the Circumstances of the Case apply to them and where it is furthering the Ends of Justice to keep in view some of their Salutary qualifications.
Eighth Because the property if sold at prime last would be more than sufficient to Answer the full Claims of every Creditor besides securing a Surplus for the benefit of the Appellant
Sydney Decr. 26th 1801
All which the Appellant most humbly Submits
(Signed) Geo Crossley
[Page 246]
[continued from page 244]
first instructed the Protest & to the best of his recollection, the Bills appear to be protested for non-acceptance, & only two parts out of three of each Set of Bills are as the Pltff. admitted in Court returned & as the sd. Bills do not appear to have been presented for payment after Due Your Memorialt. humbly conceives the Pltf cannot recover & that he is aggrieved by the Decision of the court that your Memort is indebted to Govt. in grain & to divers Persons in this Colony who are injured by the Sd. Decision.
That your Memort. humbly hopes your Excelly. will grant him relief, your Memort. protesting against the Decision of the Court for the reasons aforesd. & others, That if your Memorts. Effects were now Sold, the same would fetch but a small Part of their value & your Petr. would be thereby utterly ruined. That it appeared to your Memort. that in seeing out the Execution, That there is great Oppression, as to the Execution of it, because the Shop of your Memort. is a Public Shop, & tho’ your Memort. offered to deposit any Money paid, for Goods Sold, the Trade was ordered to be Stopt & no Goods Sold.
Your Memort. humbly hopes that your Excelly will take such Steps for his relief as in your Wisdom shall seem just, & that further Proceedings on the sd. Execution may be Stay’d & your Memort. restored to the Possession of his Property -
The Civil Court of Jurisdiction appears to have acted perfectly consistent with the established Practice always followed in deciding on cases of this kind, consequently the Appeal cannot be heard until the Security required is given
Decr 19th 1801
Mr Wentworth in reply
To the Memorial presented to your Excelly. by Mr. Crossley, the Respondt has little to answer, he will not pretend to say what reason Mr Crossley might have for entering into a partnership with Mr Devine, a man whom it is well known could add nothing to the Stock in Trade, nor will he presume to even guess at what your Excelly’s opinion in that Subject may be, but wishes to submit to your Excellency a plain Statement of Facts. That Mr. [indecipherable] Master of the ship Friendship sold to the Appellant a certain Quantity of goods to the
Amount
[Page 247]
amount of £1500 for Payment of which Sum he gave Bills on a Person in London, who on the Bills being presented refused Payment, not having any Effects in hand, the sd. Bills were regularly protested & sent back to the respondent by Messrs. Mangles & Co to recover Value for them from Mr Crossley.
The Bill of Mr. Muirhead’s for £306 underwent the same fate & awaits your Excellency’s Decision thereon, That it appears by Messrs. Mangles & Reed’s letters as well as from other concurrent Circumstances that Anthy. Schell the Person on whom those Bills are drawn, is a Man apparently not possessed of any Property whatever, living in an obscure Court in St Martins le Grande & from every Appearance not likely at any future period to answer the Amount of the several Bills, so that the only Prospect the Injured Parties have to recover their Money is from the Appellant Geo Crossley, who has at this time (as he is informed) sufficient property to cover the Demands on him by my Principals. That the sd. Property is now in the hands of the Provost Marshall, & the respondent humbly prays your Excelly will order rhe same to be Sold to pay the Amt. of sd. Bills & Expenses incurred thereon in such manner as to your Excelly may seem just & equitable.
That Mr Crossley having stated to your Excelly the Probability that the Respondt. will purchase the Goods directed to be Sold, for the Payment of the sd. Protested Bills, he hereby pledges himself to your Excelly. that he will neither directly or indirectly, bargain for or purchase either by himself or any other Person any part of the aforesd. Property & that he is ready & willing to enter into a Bond or any other security that yor. Excellency may think proper for the due Performance of the sd. Promise-
(signed) D’. Wentworth
Agent to Messrs Mangles & Co
26th December 1801. Before the Governor.
George Crossley, Appellant
&
D’arcy Wentworth Esq)
Atty to Balmain Esq)
Respondent
The Appellt being called upon to produce such original Papers in Support of the Appeal as he may be in Possession of, exhibits
No 1 Proceedings of the Civil Court
No 2 Memorial of the Appellant
No 3 Documents purporting to be Articles between Appellant & Nichs. Devine
No 4
[Page 248]
No 4. the same
" 5. further Memorial of Appellant
" 6 Rough Inventory of Appellant’s Effects
The Respondent being asked what Papers he has to produce delivers in
No. 1 Protest amp; letters of Atty., with the 2 Sets of Bills for £1886.0.0 & two Correspondent Letters.
Articles of Co-partnership being produced to Nichs. Devine & Devine being interrogated upon Oath as to what Property he was possessed of prior to his entering into such Articles says he has no Property. except his Salary & Farm & what little Stock he was possessed of, nor has he become possessed of any Property since, except the implied Property that might arise from the Effects after Payment of all the Debts & Incumbrances thereon.
Devine being asked if such Articles were executed before any official Person or entered in the Register Books, pursuant to the general Orders on that Head, Devine says they were drawn out by Crossley himself & executed at his house, that they were witnessed by Michl. Robinson, who being asked if he attested them officially as Clk. To the Judge Advocate, says he did not, but witnessed them as an Individual.
Devine being asked if he had given any Collateral security to Crossley not to make him responsible for, or liable to him for any sum above £8000 in case the effects should when sold exceed that Sum says he has not but has given Notes payable Two years after Date for £3000 or £4000 being the consideration for his Moiety of the Concern.
Devine being further asked if in the Event of the Premises being destroy’d by Fire & the Effects consumed, he considers himself liable to participate in & suffer by such Loss, he says such a circumstance never occurred to him.
Crossley being asked if he considered Devine liable , says he should certainly look to him for Payment of his Note.
Devine being asked as to what Provision he could make in such an event of Loss by Fire or Accident, to pay such Notes, says he has no private Property or expected Possessions, equal to answer them, having only what he has stated before.
Jany 2d. 1802
The Court being opened & the Memorials of the Appellant, dated the 18th Decr. & the 26th of the same Month being publickly read, the Respondent was directed to make any reply to them he might think necessary on the Case & be ready with the same on Wednesday next the 6th inst at 10 o’clock in the Forenoon, when the further hearing of the Appeal would come on
Jany. 6th 1802
The
[Page 249]
The Court of Appeal sat
The Respondent delivered in a Paper numbered 2 replicatory to the Statemt. of the Appellant, which contained his reasons for the Appeal. The same was read.
Question, to the Respondent. Have the Owners given any security for the forthcoming of the remaing. 2 sets of Bills?
Answer. I have received no Advice on that head, but am ready to give Security on the Part of my Principals that they shall never come against the Appellant.
Question. What security can you give equal to the Sum for which those Bills are given, on your own Property & a joint Security with you?
Answer. I presume I can give enough Security in that head
To be settled at the Judge Advocate’s Office
Stands over till next Saturday
Jany 9th 1802
The Court being open the Bond required from the Respondent being produced properly executed with two Sureties, Respondt. in £1000 & his two Sureties in £500 each, Respondent & Appellant being asked if either of them had anything further to advance, and each declaring they had not.
Duplicate
New South Wales
Cumberland to wit
By &c, &c, &c
Whereas the Patent for establishing the Court of Civil Jurisdiction in this Colony expresses "That if either of the Parties engaged in a Suit at Law, do find themselves aggrieved at the Decision of such Court, that they are authorized to appeal to the Govr. (whose Award shall be final) in any sum not exceeding £300" – an Appeal having this day been brought before me by
George Crossley
emancpt Convt. Appellant
Agt.
Mr D’arcy Wentworth
Assist. Surgeon Respondt
When after truly & impartially hearing and weighing the Evidence & Testimony of such Witnesses or Documents, as were brought forward by the Parties in this Cause, it appeared that the Appellt. has given four sets of Bills of Exch. to the Amt. of & £1886 & upwards in Payment for Sundry Articles of Merchants. Two sets of which bills are returned properly protested to respondent, as
Agent
[Page 250]
Agent to the Merchants in whose Favor the sd. Bills were drawn by Appellt. that the Person on whom those Bills were drawn appears totally incapable of ever having it in his Power to discharge the remaing. two sets of Bills That prior to those Bills being received it appears that the Appellt. had admitted into Co-partnership with him a Superintendent of Convicts, possessed of no Property besides his salary, & a poor Farm with very little Stock on it, which Partnership was evidently formed for the purpose of Collusion, & of which no further notice can be taken as it appears a most iniquitous Transaction for Purposes which I am ignorant of, It also appearing from the Inventy. of Appellt’s Effects, & now in custody of the Provt. Marshall by verdict of the Civil Court, that were they to be sold for a very small Advance above prime cost they might produce the sum in question, I am of opinion that Situated as this colony is with respect to the great abundance of all kinds of Goods, Two Facts are evident, First that there is not Money in the colony to Purchase them, & next from the low price of the articles with which this Settlement is Stocked, it is certain that most of the Effects belonging to the Appellant would not bring half their first Cost if sold by Auction, & consequently the Merchant in whose Favor the Bills are drawn would become the eventual Sufferer.
I do therefore award that the Appellt. and Respondt. do jointly & severally appoint each one good & sufficient Person as Trustees to Appellts said Estate & another person to be appointed by me, on the joint recommendation of the Appellant & Respondent, which Trustees assisted by Appellt. and Respondt. are to cause an exact inventory of all the Appellt’s Effects, to be taken, & after entering sd. Inventory in two Books, one to be delivered to Appellt & the other to Respondt. The sd. Appellt is then to continue the sale of his Effects, To deliver Weekly accounts of his sales & to pay the Money Bills or other considerations, approved of by Respondt arising therefrom, after the Appellts. Debts due to the King are Dischgd. into the hands of Respondt. at least once a Month, in liquidation of the Debt until the whole be Paid, & should any Collusion be proved on the part of the Appellant, then & in that case the whole of the Effects are to be immediately sold by public Auction. The Term limited for the Trustees acting to be 12 months, from this Date, after which the Effects are to be sold By Auction unless the Parties mutually Pray for the term being further extended. The Appellt to be allowed the weekly sum of Three pounds Sterling, for the maintenance of his Family from the Amot. of the sales
Given
[Page 251]
Given &c this 9th day of January 1802
(signed) Philip Gidley King
To the Judge Advocate & Provost Marshll.]
Of His Majesty’s Territory of New ]
South Wales & all others whom it may ]
Concern
Parramatta July 30th 1802
Sir.
Mr Wentworth having represented to me that Geo. Crossley is making away with the Property entrusted to him, contrary to the Tenor of my Award in the case of Wentworth v. Crossley you will request the Lieutt. Govr. to convene a full Bench of Magistrates tomorrow (causing the Trustees to be present) Calling on all persons & requiring such books as may be necessary to enable you to give me your joint Opinion whether Crossley has or has not complied with the Tenor of my Award
I am Sir &c
(signed) Philip Gidley King
NB. Mr Chapman will give the original Award, which is to be returned him when the Magistrates have done with it
(signed) P.G.K.
Richd. Atkins Esq J.A.
Sydney 31st July 1802
Dear Govr.
Inclosed are the Proceedings of the Magistrates respectg. Mr Crossley. It does not appear to me that he ever intended to act otherwise than what he has done, Viz not to account for any thing unless compelled to it. Mrs P. joins me in Compts to Mrs King - .
Your’s truly
(signed) Willm. Paterson
Bench of Magistrates convend by
Order of His Excelly 31st July 1802
Present The Lieutt. Govr.
The
[Page 252]
The Judge Advocate
John Harris Esq
The Revd. Mr Marsden
Jas. Thompson, Esq
Chas Grimes, Esq,
This bench being convened for the purpose of investigating a Complaint of Mr D’arcy Wentworth, as Agent for certain merchants, agt. Geo Crossley for not complying with the Tenor of the Govr’s. award of the 9th Jany last.
Mr Thomas Smith, Provt. Marshll. being sworn deposeth that he attached the Goods, Effects, & credits of Geo. Crossley & also the Farm & a Crop thereon at the Hawkesbury pursuant to a warrant of Execution from the Civil Court, & which remained in execution until the Govr’s award was confirmed & the trustees entered upon their Trust.
Henry Kable being sworn, deposeth that he seized upon the Books of the sd. Geo Crossley in common with his other effects when the Warrant of Execution was levied.
Mr Wentworth complained that he had recd. no Account weekly or otherwise from Crossley, nor any Monies from the Sale of the Effects.
We are unanimously of opinion after deliberating on the Circumstances which have come before us in the Course of this Investigation, that the Tenor of the Govrs Award has not been complied with by Geo Crossley in any Instance whatever-
Signed
Wm. Paterson
Richd Atkins
Saml. Marsden
J. Harris
C. Grimes
Jas. Thompson
Registered between noon
And 1 o’clock July 31st
(signed) P.G.K.
Parramatta July 31st
Dear Colonel
I received your’s with the enclosure. I transmit the enclosed Order to the Provost Marshall, which you will be so good to direct him to carry into immediate execution. I have ordered Mr Arndell to put a Constable in Possession of the Farm at Hawkesbury.
You will be so good to [indecipherable] the Judge Advocate to order his Clerk to be more circumspect in designing the Titles of Officers for
which
[Page 253]
which purpose I have returned you the Proceedings. I sent you also two General Orders which I will thank you to insert in the General O. Book. I propose going to Hawkesbury on Monday if the Weather or something else does not prevent. We are tolerably well, & join in our kindest remembrances & best wishes to yourself and Mrs Paterson. I shall write by the Returning folks tomorrow & am your’s truly
(signed) P G K
Memorand. (copy)
Whereas Geo. Crossley has broke my Award Crossley & Wentworth, This is to command you to seize & take into your Possession all the sd. Geo Crossley’s Goods, Chattels, Farm at Hawkesbury Book Debts & Effects of every Sort & sell the same by Public Auction without Delay, pursuant to my Award Given under my Hand and Seal at Governt. House Parramatta this 31st July 1802
(signed)
Philip Gidley King
To the Provost Marshall
&
New South Wales
To wit
Geo Crossley came in his own proper Person into the Court of Civil Jurisdiction on the 17th day of Jany. In the year of our Lord 1803 & exhibited to the sd. Court now here, the Complaint of him the sd. Geo. against Thos. Smyth Esq, D’Arcy Wentworth & Patk. Clancy, in a Plea of Trespass, For that Whereas the sd. Thos, D’Arcy and Patrick on Sunday the 1st day of August in the year of our Lord 1802 at Sydney in the Coy. Of Cumberland, the Dwelling house of him the sd. Geo situate at Sydney aforesd. in the Coy. aforesd. did break & enter with Force & arms, & continued the sd. Trespass on divers other days & Times from the sd. 1st day of August in the year aforesd. until the 22nd day of September then next following & between the sd. 1st day of Augt. & 22nd day of Sept. aforesd. they the sd. Thos. D’arcy and Patrick, did unlawfully take & carry away divers goods, Chattels of the sd. George then & there found & being, to wit, 7 Pieces of (stuffs called) [indecipherable], 44 Pieces
pint
[Page 254]
of Worsted binding, 24 dozn. pieces of Bobbins, 72 Furniture Brushes, 64 Clothes Brushes, 176 Scrubbing Brushes, 175 Hair brushes, 164 Scrubg. Heads, 63 Broom heads, 43 Hearth Brooms, 78 Dusting Brushes 182 Tar brushes, 181 Paint Brushes, 6 Dozn. Comb Brushes, 3 dozn. Buckle Brushes, 24 bottles of Anniseed, 36 Augurs, 77 Falling axes 47 adzes, 32 Cooper’s Axes, 29 Broad axes 19 Shipwrights’ Axes, 3 Gross Lieuts. Uniform Coat Buttons, Six Gross Lieuts. Uniform Breast Buttons, 4 gross Midshipman’s Uniform Coat Buttons, 6 gross Midshipmans Uniform Breast Buttons, Twenty Gross double Gilt Coat Buttons, 40 Gross double Gilt Breast Buttons, 16 Gross Gilt Coat Buttons, 30 Gross Gilt Breast Buttons, 6 Gross plated Coat Buttons, 12 Gross plated breast Buttons 20 Gross white metal Jacket Buttons, 2 Gross Gilt new Pattern Coat buttons 8 Gross Gilt new Pattern Breast Buttons, 4 Gross Pearl Coat Buttons 8 Gross Pearl Breast Buttns. 72 Gross Shirt Buttons, 15 Dozn. Pr. Silver Sleeve Buttons, 6 Gross Wire Shirt Buttons, Twenty Gross Button Moulds, 12 Bung Bours, 58 Bell Clamps, 4 Bell Pulls, 128 Brads, 8 Dress Bonnets 36 Chip Bonnetts 1 Back Gammon Table, 2 Pr. of Spare Dice & boxes, 12 Pr. Boots’ Tops, 3 wheel-barrows, 300 foot of Battens 39 Pr of Plated Buckles, 4 large Tea Canisters, 24 Bottles of Caraway, 120 yards Black Crape, 108 Caulking Irons, 58 dozn. of Chissells, 13 Butcher’s Cleavers 14 dozn Commode handles, 2 Sets Desk Furniture, 21 yds. Blue Cloth, 190 Pieces of Calico, 226 Calico Shirts, 7 Pieces of China Silk Handkf. 48 lbs of Cotton, 6 dozn. Iron & Brass Compasses, 18 dozn. Cupboard Locks, 12 Gross Curtain Rings, 12 dozn. Razor Cases, twenty four dozn. Cast-Steele Razors, 6 Gross Split Buck Table Knives & Forks, 4 Gross Split buck Dessert Knives & Forks, 20 Dozn. best Buck Table Knives & Forks 30 Dozn. Black Wood Table Knives & Forks, 30 Dozn. Silver handled Table Knives & forks, 6 Dozn Silver handled Dessert Knives & Forks, 10 Dozn. plated Table Knives & Forks, 5 Dozn. Plated dessert Knives & forks, 39 Dozn, prest Wood Table Knives & Forks, 11 Dozn. Prest Wood Dessert Knives & Forks, 55 Dozn. [indecipherable] handled Table Knives & Forks, 10 Dozn. [indecipherable] handled Dessert Knives & Forks, 38 Dozn Green Bone Table Knives & Forks, 24 Dozn. Green bone Dessert Knives & Forks, 24 Dozn. White Bone Table Knives & Forks, 18 Dozn. White Bone Dessert Knives & Forks, 12 pr Silver [indecipherable] Blk Wood Carvers, 12 pr. [indecipherable] Silver Ferrelled Carvers, 18 Pr. White bone Carving Knives & Forks, 56 Silver Mounted Table
Steels
[Page 255]
Steels, 6 Pr Silver Mounted Green handled Knives & Forks, 18 Dozn Concave Razors warranted 76 Dozn. Razors, Twenty two Dozn. Split buck [indecipherable] knives, 5 Gross Stag Pruners, 6 gross Knife Cases, 24 Dozn. Clasp Buffalo Pruners 36 Dozn Buffalo [indecipherable], Twelve dozn. fluted Wood Table Knives & Forks, 6 Dozn. Fluted Wood Dessert Knives & Forks, 13 Dozn. White Ivory Table Knives & Forks, 6 dozn white Ivory Dessert Knives & Forks, 9 dozn white bone [indecipherable] Table Knives & Forks, 4½ dozn. white [indecipherable] dessert Knives & Forks, 9 dozn [indecipherable] [indecipherable] Table Knives & Forks, 4½ dozn. [indecipherable] [indecipherable] dessert Knives & Forks, 6 dozn blk Wood fluted horn Table Knives & Forks, Four dozn. Blk Wood fluted horn dessert Knives & Forks, 4 Dozn. high finished Ivory Table Knives & Forks,
6 dozn. high finished Ivory Dessert Knives & Forks, 4 Dozn. high finished Blk Wood handled Dessert Knives & Forks, 16 Dozn. White Split bone Table Knives & Forks, 8 dozn. white Split bone Dessert Knives & Forks, 8 Gross common small Pocket Knives, 2 Gross Buffalo handled Pen knives, 2 Gross small Buffalo handled Pen knives, 20 dozn. double bladed Pen knives. Eighteen dozn. four bladed Knives, 7 dozn. high finished Clasp Knives, 9 dozn. Pr. large Scissors, 24 dozn. Pr of House Scissors, 24 dozn. Pr of Polished Scissors, 3 Gross flat Shank Scissors, 6 Gross Stamped Shanked Scissors, 33 dozn. Plain Shanked Polished Scissors, 13 Dozn. Hair Scissors, 4 Gross of Common Scissors, 3 Gross polish’d Barrell Cork Screws, 1 Gross polish’d Work’d Cork Screws, 3 Gross Cut Bow Cork Screws, 1 Gross Button & Boot Cork Screws, Two Gross of Steel Screws with Wood heads 29 Screws with Wood heads and brushes. 3 dozn. China Soup Plates, 2 dozn. China Table Plates, 2 dozn. China dessert Plates, 12 Tea Cups, 6 Wash hand Basons, 6 Chamber Pots & Covers, 12 mugs, 6 Pr Butter Boats & Stands 6 Sugar Dishes & Covers, 6 Tea Pots, 13 pr Salts, 6 Pint Basons, 10 Pr. of Staffordshire Dishes, 106 lbs of Candles, 221 Gross Corks, 600 feet of [indecipherable] boards, 18 logs of [indecipherable], 2lbs Sewing Cotton, 1 Stock & Centre Bit, 4 Dozn. large Tooth Combs, 26 dozn. of Combs, 160 pounds of [indecipherable], 184 yds. of Dimity, 20 Pieces of Dungaree, 100 lbs of Doll [indecipherable], 36 pieces of Silk [indecipherable], 32 dozn. Files, 23 [indecipherable] Fish-hooks, 3 German Flutes, 1 Duck Frock, 36 Pr. of Grains, 40 dozn. Gouges, 124 dozn. small plain Wine Glasses, 60 dozn. large double Flint Wine Glasses, 60 dozn. engraved wine Glasses, 40 dozn. large engraved Wine Glasses, 40 dozn. Pint Tumblers, 80 dozn. ½ Pint Tumblers, 70 dozn. Smaller Tumblers, 25 Pr of Quart Decanters, 23 Pr. Quart double Flint Decanters, 30 Pr. pint
Decanters
[Page 256]
Decanters, 20 Pr. Pint double Flint Decanters, 68 dozn. double Flint Cruetts, 40 dozn. common Cruets, 6 dozn. Pr. Cut Glass Salts, 18 dozn. common Salts, 6 dozn. blue Glass mugs, Cream Mugs, 36 Pr. Cut Glass Pickle Urns, 83 dozn. plain Goblets, 51 dozn. engraved Goblets, 51 dozn. engraved Goblets, 90 Glass Mustard Pots, 60 very Strong double Flint Mustard Pots, 100 common Mustard Pots, Forty Six Butter Coolers, Forty two Finger Glasses, 60 double flint Blue Glasses, 26 dozn. double Flint Ale Glasses, 26 dozn. small ½ Pint & Pint Tumblers, 5 dozn. Ale Glasses, 27 Dozn. double Flint Wine Glasses, 100 Square Window Glass, 11 large Looking Glasses, 27 large looking Glasses with Gilt Frames, 63 Looking Glasses, inlaid Wood Frames, 85 looking Glasses with inlaid Frames & Stays, 20 dozn. round & oval Glasses with Gilt Frames, 10 dozn round & oval looking Glasses, in large Square Gilt Frames, 36 Gown Patches, Chintz Pattern 5/4 wide, 42 Gown Patches Chintz Pattern 4/4 Wide 7yds. each, 26 do. do. 4/4 do 6 ¼ yds ea. 140 yds. Gingham, 36 yds. Printed Gauze, 146 lbs. of Ginger, 39 Pr. of Pot-hooks, 72 Grubg. Hoes, 72 broad West India Hoes, 26 Shark hooks, 66 Boat hooks, 6 Pr. large [indecipherable] Hinges, 288 Pr. of Hinges, 280 Pr. Box Hinges, Ten dozn. Brad-Awls, 456 Claw Hammers, 43 Rivetting Heads, 22 dozn. Brass Butt hinges, 10 Pairs Bandana Handkerchfs. 14 ½ dozn. Pr. White Cotton Hose (Men’s), 14 Dozn. Women’s White Cotton Hose, 4 Pr. Mens Patent Silk Hose, 3 dozn. Pr. Girls White Cotton Hose, 8 dozn. Pr Women’s Blk Worsted Hose, 7 ½ Dozn. Pr. Men’s White Worsted Hose, 11 Dozn. Men’s & Boy’s Worsted Gloves, 7 Dozn. Men’sMarbled Worsted Hose, 3 ½ dozn. Men’s Marbled Cotton Hose, 4 ½ dozn. Patent rib’d Cotton Hose, 27 Pr. Plain Dark Worsted Hose, 40 Pullicat Hanks, 16 Pocket Hanks, 48 dozn. Hooks & Eyes, 33 Men’s Hats, 25 lbs of Spanish Indigo, Twenty lbs Indigo Blue, 28 Pieces Irish Tabinett, 38 Pieces [indecipherable], 11 Pieces Irish Linen, 2 Wind-up [indecipherable], 6 Gross Jew’s Harps, 30 Door Knockers, 6 Dozn. Drawg. Knives, 29 yds Blue Kerseymere, 280 yds. Blk Lasting, 31 Seaming ladles , 39 Cook’s Ladles, 12 doorlocks, twenty four Brass Door Knob Locks, 20 Bag Locks, 46 dozn. Padlocks, 48 Dozn. Box & Trunk Locks, 18 double bolted Spring Box Locks, 2 pieces of Brown linen, 14 dozn. Cod lines, 28 dozn & [indecipherable] Fishing lines, 72 lead lines, 65 deep sea lines, 100 double hand lines, 87 single hand lines, 84 [indecipherable] lines, 2 dozn Marlin lines, 8 chalk lines, 811 Thread lace edging, 10 gross striped Manchester laces, 19 gross White cotton laces, round & flat, 12 dozn. Flat & round silk laces, 72 Pr. Ladies Shoe-Roses, 35 yds. Tambour Muslin, 557 yds Muslin, 440 Muslin Hanks, 39 Printed Muslin Shawls, 12 yds. Marseille quilting, 6 dozn
Pair
[Page 257]
Pair Ladies Mitts, 68 mops, 84 dozn. Bottles of mustard, twenty four Lady’s Netts for Bonnets, 10 pieces Broad Nankeens, 34 [indecipherable] Whitechapell needles, 36 common needles,2700 roping & sail needles, 8 gross needle cases, 1 [indecipherable] organ, 33 Galls. Linseed oil, 33 galls. Sperm oil, 22 jars, 3 jars of Olive oil, 60 Galls. Seal oil, 20 Galls. Shark oil, 2 quire blotting paper, 32 long planes, 90 double iron’d Trying planes, 81 Jack planes, 103 Smoothing Planes, 6 Plough planes, 36 Grooving Planes, 60 Rabbitt planes, 6 [indecipherable] Philister Planes, 84 O.G.’s, 96 Bede Plains, 86 [indecipherable], 42 Pr. Snipe Bills, 76 Quarter rounds, 2 sets of Hollow & rounds, 20 dozn. Plane irons, 30 pr. Pincers, 172 lbs Black Paint, 160 lbs White Lead, 226 lbs red Lead, 280 lbs Yellow Paint, 2 dozn. Blk lead pencils, 12 pr. Ladies Pockets, 69 lbs best Pins, 4 dozen Caulking pins, 4 dozn. Middling pins, 3 dozn. Minikin pins, 6 dozn. Lilikin Pins, 60 lbs Black Pepper, 2 ½ Gross Palm Irons, 2 large Iron Pots, Seven Small Iron Pots, 600 Quills, 573 Pieces of Ribband, 6 Gross Blk Silk Shoe-Strings, 14 dozn. Rasps, 10 dozn. Rules, 20 lbs. Raisins, 60 Galls. Bengal Rum, 6 dozn. Bottles of Shrub, 50 Silk Sashes, 134 yds. Broad Sash Ribband, 180 Scrapers, 28 lbs of Solder, 56 lbs Spanish Juice, 32 Steel Rat Traps, 72 Spike bits, 39 Saw Sets, 176 saws (different Sorts), 24 Butcher’s Steel’s, 17 lbs 2 oz Sewing Silk & twist, 76 Pr. Snuffers, 12 dozn. & 10 Snuffer Trays, 64 Minute ½ & ¼ Minute Glasses, 200 lbs salt, 3 Pr. Copper Scales & Beams, 2 Sugar Scoops, 1 pr. Large Steel-yards, 1 pr Scales & large Beam, 1 Wire screen for Wheat, 74 Norwich Shawls, 205 printed shawls, 4 boxes Stationary, 16 Reams Foolscap Paper, 8 Reams Gilt Post Paper, 6 Reams Thin Post Paper, 6 Reams Quarto Paper, 6 Reams Octavo Paper (Gilt), 6 Reams Octavo Paper, 49 Papers Ink Powder,16 Boxes Wafers, 4 lbs Pounce, 8 lbs Steel Filings, 12 Ivory Pounce Boxes, 18 Ivory Foulders, 60 Reams Picked Paper, 30 Reams Best Paper, 24 Reams common Paper, 6 lbs Sealing Wax, 20 Gross Pewter Spoons, 10 Gross Pewter Tea Spoons, 6 Gross Teutonia Table Spoons, Six Gross Teutonia Tea Spoons, 10 Gross Iron Tin’d Spoons, 14 Gross Iron Tin’d Spoons, 12 pr. Men’s Shoes, 32 pr. Women’s Shoes, 10 pr. Spanish Leather Shoes, Sixty Linen Shirts, 24 Gross Shoe Strings, 1 chest Hyson tea, Thirty lbs Souchong Tea, 6 bags of Sugar, 88lbs sugar candy, 8 lbs Snuff, 8 galls. Split Pease, 60 Pr. Sugar Nippers, 36 Dozn. Temple Spectacles, 6 Gross of Cases.
eight
[Page 258]
Eight Gross best Paper Snuff Boxes, Twenty four Gross Tin Boxes, 93 Tobacco Boxes, 180 lbs Castile Soap, 4 cwt 1 qur. Bengal Soap, 100 Sugar Bags, 3 pr Large Garden Shears, 12 pr. Sharp Shears, 200 lbs of Sheet Iron, 165 yds of [indecipherable], 14 Cards of Necklaces (12 on each), 22 Cards of Wire chains (12 on each), 42 Medals in Gold jointed Cases, 20 Medals in double Gilt Cases, 12 Cards of Gold Wire chains, Seven dozn. Gilt Medals, 12 dozn. Cases with Blanks, 10 Dozn. Watch Chains, 4 Pr. Gold Locket Bracelets, 11 Cards Gilt Necklaces, 11 Pr. Gold jointed Ear-rings, 87 Pr. double Gilt Ear-rings, 53 Pr. double Gilt Ear-rings, 4 Hair Sieve Bottoms, 12 Bags Shot, 6 Spice Boxes, Twenty four [indecipherable] Cases, 40 Dozn. Iron Skewers, 12 Sieves, 30 Tap Borers, 66 Tormentors, 6 Tea Trays, 1 Tea Tray (large), 1 Tea Urn, 13 lbs of Whipping Twine, 11 lbs Shoemakers Twine, 6 red Morrocco Thread Cases, 6 red Morrocco Thread Cases with Silver Locks, 140 lbs Shag & Short cut in tobacco, 60 lbs Negro-head Tobacco, 170 lbs Brazil Tobacco, 570 lbs American. Leaf Tobacco, 6 dozn Manchester tape, 72 pieces of French tape, 12 Gross of Brass Thimbles, 10 Gross pinch-beck thimbles, 6 Gross Thimbles, Silvered Steel Tops, 12 Gross Taylor’s lined Thimbles, 6 Dozn. Red Tapes, 6 Dozn. Diaper Towells, 18 Yards Thicksett, 64 lbs Stitching Cold. & Brown Thread, 100 lbs Scotch Thread, (from No. 10 to 38), 290 Sheets Best double Tin, 4 Dozn. Table Matts, One trunk, 4 Violins, a Parcel of Violin Strings Cost 4 [indecipherable] 30 yds. Velveteens, 160 Galls. Vinegar, 50 lbs Wire, 3 dozn. & 9 Japannes Waiters, 16 Waistcoat Shapes, 40 Weights from 56lbs. to ½ an Oz. English, 2 Gross Watch Glasses, 2 ruled Account Books, 10 lbs Thrumbs, 6 dozn. Down Hair puffs, 1 Two Gall. Copper Measure, 1 One Gall Copper Measure, 6 Wheat Sieves, 1 Long Ruler, 1 piece of Tiffeny, 12 Hat Stretchers, Twenty Measures, 10 Funnells, 6 Tables, 1 Chest of Drawers, & 1 Chest or Set of Drawers, 1 Counter, 6 Cedar Chairs, 8 Goats, 2 Pigs, 3 Turkeys, 22 Fowls, 20 Ducks, 1 piece of Gaith Webb 2 long Tables, 6 rush Bottom Chairs, 100 Empty Casks, 1 Shew glass, 6 Locket Cases, 6 China Pots & covers, 60 Empty Boxes Cases & Trunks, 2 Copper Pans, 6 dozn. Empty Bottles, 1 Wash hand Stand, Fire Irons, 6 Hat Irons, 10 Locks & Keys, One Hundd. Pieces of glass & China Ware, 1 Baking Trough 2 Wire Sieves, 10 Bushels Wheat, 20 Bushels of Corn, 2 Bushels Barley, 1 Cask of Brine, 1 one Bushel Measure, 9 empty Jars, 40lbs Chalk, 1 Copper Pump, 1 Knife Box, 50 Printed Books, 2 Tea Boards, 1 Wooden Tea Board, 1 Writing Desk, 10 brass Cocks, 6 Iron Pots, different signs, 8 Kettles (Tin & Iron), 3 Coppers, 8 Tubs &
Buckets
[Page 259]
Buckets, 6 Writing Books of Accounts, 1 Day book 1 Ledger, 1 Bill Book 1 Waste Book, 1 Sale book & 1 bought Book of the Sd Geo. Crossley of the Value of £10,000 & converted & disposed of the same to their own use, & other Injury’s to the sd. Geo then & then there [indecipherable], to the great damage of the sd. Geo & against the Peace of our Lord the King his Crown & Dignity to the Damage of the sd. Geo of £12,000 & therefore he brings Suits &c.
(Signed) Geo Crossley.
New South Wales (to wit) Geo Crossley comes in his own Proper Person into the Court of Civil Jurisdiction, on the 17th day of Jany in the Year of our Lord 1803 & exhibited in the sd. Court now here his Complaint in Writing, agt. Thos. Smyth Esq. & D’Arcy Wentworth in a Plea of Tresspass on the Case, For that Whereas the sd. Thos. Smyth & D’arcy Wentworth on the 11th day of Jany. In the Year of our Lord 1809, at Sydney in the Coy. Of Cumberland, did unlawfully falsely & maliciously, confederate to conspire & agree, to injure, oppress, damnify & ruin the sd. Geo Crossley & forceably to put out & remove the sd. Geo & Crossley of & from certain Missuages or Tenements, in the occupation of the sd. Geo Crossley then & there being in the Peace of God & our Lord the King (to wit) at Sydney aforesd. & him the sd. Geo Crossley from his Possession aforesd. to expell put out & remove, & with strong hand thereas to hold, & the sd. Thos. Smyth being Provost Marshall of this Colony, the sd. Thos. Smyth & D’arcy Wentworth did unlawfully, falsely & maliciously Confederate Conspire Combine & agree that the sd. D’arcy Wentworth [indecipherable], & the sd. D’arcy Wentworth did agree & the sd. Thos. Smyth did agree to accept the Promise & Indemnity of the sd. D’arcy Wentworth to the Value of £5000 to indemnify the sd. Thos. Smyth against any Damages that might arise to him the sd. Thos Smyth, by reason of his unlawfully & unjustly under Color of his Office or otherwise, to put out & expel & [indecipherable] the sd. Geo Crossley out of the Possession of the Dwelling house & [indecipherable] the Premises of him the sd. Geo Crossley in his the sd. Geo Crossley’s Possession & occupation, then & those being as aforesd. And the sd. Thos. Smyth & D’arcy Wentworth in Prosecution of the Agreemt. Aforesd. then & there unlawfully made did then & there forceably & unlawfully enter, & the sd. Thos. Smyth
Then
[Page 260]
being Provost Marshall as aforesd. did unlawfully enter the sd. Missuages or Tenements of him the sd. Geo Crossley situate at Sydney aforesd. in the Occupation of the sd. Geo Crossley to with at Sydney aforesd. & him the sd. Geo Crossley did forceably & unlawfully expel put out and remove, & with strong hand unlawfully out of such Possession hold to the damage of the sd. Geo. Crossley of £500 & against the Peace of our Lord the King his Crown & Dignity.
And whereas the sd. Thos. Smyth & D’arcy Wentworth, he the sd. Thos. Smyth excercising the Office of Provt. Marshall, intending to ruin oppress, damnify aggrieve & injure the sd. Geo Crossley in his reputation & credit afterwards to with on the 13th day of Jany 7 aforesd. in the Year aforesd. at Sydney aforesd in the County aforesd. did falsely unlawfully, maliciously & libellously make & print & Publish a certain false scandalous & malicious libel o cause & procure to make Print & Published a false, scandalous & malicious libel, to wit a Libel to the Tenor of effect followg. "To be Sold by Auction by the Provost Marshall meaning the sd. Thos Smyth on Tuesday next the 18th of this Inst. Jany. 1803. By Virtue of an execution at Sydney, a Dwelling house & Premises situate at Sydney lately occupied by Geo Crossley Dealer, also a small Tenemt. & Garden contiguous thereto, the Premises may be viewed on Monday preceding the Sale, & further Particulars known by Application to the Provost Marshall & on Saturday followg will be Sold by Auction at Parramatta under the same Execution, a House Garden & Premises at Parramatta, lately called or known by the name of the Yorkshire Grey, also two Farms called Pleasant Farms, in the Neighbourhood of Parramatta, late in the Possession of Richd. Jno Robinson & Anne his wife, Particulars known by Inquiry of the Provost Marshall "(meaning the sd. Thos Smyth,) By reason of the Printing & Publishing of which sd. False, unlawfull, & malicious Libell, of the sd. Thos. Smyth & D’arcy Wentworth, he the sd. Geo Crossley is greatly damnified in his reputation, & Credit, & hath received Damage to the Value of £500 & therefore he brings Suit &c.
(Signed) Geo. Crossley
Feby. 15th 1803 The Court Sat
Crossley v Wentworth Esq & others on a Capias for £10,000 on a Tresspass & [indecipherable]
The
[Page 261]
The Pltff appeared in Court & exhibited a Paper marked No. 1, containg. His Complaint or Cause of Action in Writing, & prayed the Court to grant Subpanas against certain Persons whose names were included in a Paper delivered to the Court.
The Defts. Severally pleaded "not Guilty."
Same v Smyth Esq Pell & Wentworth Esq.
On a Capias for £500 on a Tresspass. The Pltff also delivered a Paper No. 2. contg. His Cause of Complaint in this Suit.
The Defts severally plead not Guilty.
The further hearing of this Cause adjourned to Monday the 21st inst for the Production of Witnesses.
(Signed) Rd. Atkins
Wm. Moore
Jas. Mileham
Feb21st. 1803 The Court Sat.
Present, the Judge Adv;
Lieutt. Moore &
Mr. Mileham
Crossley v Wentworth Esq & others
On a Capias for £10,000 Tresspass & [indecipherable]
At Issue for an illegal Entry on Sunday the 1st Augt. 1802 & Proceeding illegally to Sell Effects to the Amot. Of upwards of £8000 the Property of the Pltff.
The Pltff stated that a Debt of Trust was executed the 19th Jany. 1802. betw. Himself of the one part, the Deft Mr. Wentworth of the 2d. Part, Mr. Palmer Mr Thompson & Mr Moore (the latter 3 as Trustees under the Govrs. Award) of the 3rd Part.
(See Deed of Trust)
The Plt recapitulated the Proceedings taken by the PM under H Exy the Govrs Warrant, beginning with "[indecipherable], Whereas Geo Crossley, has broke my Award in a Cause &c, &c," & Stated that he entered on Sunday the 1st of August, during the Time the Plt was at Parramatta, about 2 o’clock in the afternoon, when Mrs Crossley was at Dinner with Mr. Devine & continued in Possession until all the Goods were removed, not only
the
[Page 262]
Goods contained in the Schedule annexed to the Deed of Trust but also various other Goods, not inserted in the Schedule the Property of the Plt. The Plt. Having stated his Case, proceeds to call
Thos. Hopkins – who being sworn is asked by Plt
Questn. Was you at my house at Sydney at any time when the PM came there with Quin & others to take Possession of the Effects?
Answr. Yes.
Qu. What day of the Week was it on?
A. On Sunday
Qu. About what time of the day?
A. About 4 o’clock in the Afternoon, as near as I can guess.
Qu. Did he go over the Premises or what did he do?
A. Mr. Smyth went into the House & over the Premises, he went up Stairs & down into the Cellar, & after going into the Cellar the Door was locked, but who the Key was given ti, I don’t know. I saw it locked but don’t know who locked it. This was on a Sunday.
Qu. Who was with Mr. Smyth?
A. Mr Redmond & Quin
Qu. Did they go any where else?
A. Into the Cellar out in the Yard, Mr. Smyth ordered me to draw the Staple the Key could not be found. Mr. S. went in. there were some Casks of Tobacco in the Cellar, which were left, nothing removed.
Qu. Was Mr. Devine in the house at the Time?
A. Yes, Mr. D. had been at Dinner, & I had just cleared the Cloth, I Saw Quin & Redmond go into the House.
Qu. Who was left in Possession when Mr. S. went away?
A. Quin
Qu. Was any other Constable left?
A. Another Man came afterwards whose name is King
Qu. Was that on the Sunday?
A. Yes.
Qu. Did they Stay then in Possession from the time?
A. One was continually there.
Qu. Did you ever hear anything before that time, or was any other Person, but the Family in the house, on the Saturday, when I left Sydney
on
[Page 263]
on the Sunday morng?
A. No.
Qu. Then till Mr. S. came on the Sunday there was no Person in Possession?
A. No.
Questn. By the Court. How are you positive that this Transaction took place on a Sunday?
A. Because I cleaned myself & my Mistress had given me leave to go out.
Qu. By the Deft Mr. Smyth. Did you see me & Cleary in Mr. Crossley’s Shop on the Saturday before?
A. On the Saturday I cannot say, I think it was Friday.
Qu. Did you know me to lock up the Shop & take away the keys at that time?
A. No.
Qu. Did you see me shew any Warrant to Mr. Crossley that I brought from the Govr?
A. When you came in you seemed very delicate on the Business, as Mr. Devins was sitting at the Table, at the Time, Mr. Crossley & Mr. Smyth went together in the Bedroom, I saw a Paper in Mr. Smyth’s hands but what the contents were, I don’t know.
Qu. By the Court. You say you have reason to think it was on a Friday, Did any Person Sleep in those Premises on the Friday or Saturday except the Family?
A. No.
Qu. Was you in the habit of locking the Doors & Gates of a Night?
A. Always at Night & gave the Key to my Master.
Qu. Did you lock the gate on the Friday or Saturday night?
A. I cannot say.
Qu? By the Deft Mr. Wentworth. During the Friday or on Sunday did you see me on the Premises at all?
A. No.
It appearing by the Secretys. Certificate that Pat Cleary one of the Defts to this Suit was not out of his time, until Feby 1805. The Court is of Opinion that his name ought to be rescinded, as one of the Defts from this Suit.
The
[Page 264]
The Plt calls Mr. Nick Devine who being sworn is asked
Qu. Was you in my house at any & what time when Mr. Smyth PM came with Redmond & Quin or any other Officers to take Possession?
A. I was.
Qu. Do you recollect the day of the Week?
A. I do.
Qu. What day was it?
A. On Sunday.
Qu. State what passed at the time
A. After the hour of 2 o’clock on the Sunday afternoon, Mr. Smith Redmond & Quin came into the house of Mr. Crossley. & Mr S. shewed a Paper to Mrs. Crossley, & said that was his Authority to take Possession of that House & Effects, & that it was the Govrs. Orders sent to him by Col. Paterson.
Qu. Did you read the Paper?
A. No
Qu. Did you have it read?
A. I heard part of it read, to the best of my knowledge.
Qu. What did Mr. Smyth say at the time?
A. I cannot call to Mind general conversations, Mrs. Crossley said she would leave the House. Mr. Smyth said she need not as her Bed room was open to her, Mr. Smyth then proceeded to examine every thing, & left the Keys of the Cellar & stairs head Door in the Passage (which were locked) with Quin, & left directions with Quin that Mrs. Crossley might have Wine or Spirits which were in the Cellar for her own Use.
Qu. Before Mr. Smyth came that Sunday, were the Doors open in the usual; fashion that they had been before?
A. Certainly they were.
Qu. When previous to this Sunday there was nothing locked, but every thing was under the Control of the Family?
A. Certainly
Qu. You were in the habit of being there daily?
A. I was
Qu. If there had been any previous Possession before this Sunday Do you
think
[Page 265]
think you should have known it?
A. Certainly & suppose it could not have been done unknown to me, I heard of none previous to the Sunday.
Qu. On the Friday or Saturday preceding this Sunday, did you see Mr. Smyth come into the House & shew me any Paper?
A. not to my knowledge or reconciliation.
Qu. Then do you believe there was any Possession taken previous to the Sunday?
A. No not to my Knowledge.
Qu. By the Court. Were you at the house the whole of the day on Friday?
A. I was not the whole of the day from Morng. Till Night
Qu. Do you think it was possible for Mr. Smyth to take Possession without your Knowledge?
A. I cannot say what passed in the hours I was absent I never heard of any.
Qu. You were there on Friday Saturday or Sunday, Did you ever see any Person in Possession, until Mr. Smyth came in with Quin Redmond & others on Sunday?
A. I did not until Sunday after 2 o’clock
Qu. What Part of the Paper did you hear read?
A. Something to the Purport of an Authority from H. Excelly the Govr. To take Possession.
Qu. By the Deft Mr. Smyth – Do you recollect at any time my coming into Mr. Crossley’s Shop with Cleary, at the end door & shew Mr. Crossley a Warrant I had recd. From the Govr. Which I said he was welcome to take a Copy of?
A. Not clearly. It might or might not.
Qu. Do you recollect my locking the Shop up & taking the Keys at any time previous to Sunday, or within the preceding Week?
A. I do not positively recollect.
Qu. By Mr. Wentworth (Deft). During the time Mr. Smith came in to take Possession was I present?
Ansr,
[Page 266]
A. You certainly was not.
Thos Johnston being sworn, is asked by Plt.
Qu. Were you in my house when Mr. Smith came with Mr. Redmond & Quin, or in any part of my house?
A. Yes.
Qu. What day of the Week was it?
A. On Sunday
Qu. Who was left in Possession when Mr. S. went away?
A. Mr Quin.
Qu. Did any Person come afterwards?
A. I saw no more that day.
Qu. You are Sure this was on a Sunday?
A. Yes.
Qu. By Deft (Mr. Smyth) Do you know that I had been at your Master’s House, prior to that Sunday & had lock’d up the Shop & taken away the Keys?
A. You had been there either the Friday or Saturday, but I did not see you lock up the Shop, You had a Paper in your hand I did not see you take any Keys away.
Qu. By The Court. Did you know the Contents of that Paper?
A. I do not but I heared Hopkins my Fellow Servt. Say it was an Execution agt. his Master.
Qu. Did you see or know any Person Sleep in the House on Saturday night/
A. No. There was no Person slept there to my Knowledge.
Adjourned till tomorrow at 10 o’clock
(Signed) Richd. Atkins
Wm. Moore
Jas. Mileham
Feby 22nd. 1803 The Court Sat.
The Court having adjourned to this day for the production of the Debt of Trust. (to which the Plt referred at the Opening of his Case) & which had been mislaid & could not be found, & the Plt pressing to have
Mr.
[Page 267]
Mr. Wentworth interrogated on Oath as to any knowledge of the Paper alluded to, The Court cleared to consider of the Propriety of examing. Mr. W. on Oath, (who was a Deft in this Suit) & being reopened tho Court was of Opinion that they could not examine Mr. W. on Oath as to this point, as he was a Deft in this Suit.
Michl. Robinson, Clk to the J. Adv. Deposed on Oath. That to the best of his knowledge & belief the Copy exhibited & attested by him is a true Transcript of the original Deed of Trust executed by the Parties.
The Court ordered that the Paper now exhibited & sworn to is to be considered as a record of the Court, and that the Plt be furnished with a Copy of the sd. Record, attested by the Court.
The Deed of Trust & Title of the Schedule read to the Court –
John Palmer Esq. Sworn
Qu by the Pltf. You were one of the Trustees appointed in this Business?
A. I was.
Qu. Do you recollect my applying to you the latter end of July saying I was sent for by Mr. Wentworth from Hawkesbury & wishing to know if the Trustees were any way dissatisfied with what was going on?
A. I cannot change my memory with what passed.
Qu. Did you express any dissatisfaction?
A. No I never did.
Qu. Did you conceive that what was transacting was for the general benefit of the Estate?
A. I supposed so.
Qu. Do you recollect my telling you that is the Trustees applied to the Shop, they would find all the Effects there or duly accounted for in the books.
A. Yes.
Qu. What was the reason they did not apply?
Answr.
[Page 268]
Answer. I do not know.
Qu. Do you remember saying there had been no Complaints made to the Trustees?
A. None made to me.
Qu. Did not you consider yourself bound to act after you had executed the Trust Deed?
A. Certainly I did, the Schedule of the Trust deed was shewn to me
Qu. Was a Copy of the Schedule to the Trust Deed left in your Office?
A. There was.
Qu. Previous to the Execution of the Deed of trust. Do you recollect any Statement of the Value of the Effects?
A. I cannot recollect.
A Paper produced to the Court & exhibited purports to be an Account of a Debt due from Mr. Crossley to John Palmer Esq, on accot. Of the Brittania & Greenwich Investmts.
Qu. To Mr. Palmer – Was I on the 1st Jany 1802 indebted to Govt. in £62.17.8?
A. Having been directed by the Govr. To dispose of those Investmts. I considered you were.
Qu. Since that £61.14.6 has been paid off?
A. Yes.
Qu. Does there now remain Due £1.3.2
A. There is.
Qu. You consider that £1.3.2 due to the King?
A. I consider it in that Light.
Qu. By Mr. Wentworth. Do you consider the Brittania & Greenwich Whalers in the Governt. Employ?
A. Not now, but they were when they brought out the Investmts.
Qu. When those Investmts. Were taken into the Store, was Govt. the Purchasers of the whole, or were they purchased on the Terms of return [indecipherable] such as were unsold?
Answer
[Page 269]
Answer. Those Investments were taken in by Order of the Govr & how the Part of them that may not be disposed of are to be applied rests with the Govr.
Qu. Do you know whether the Cargoes were purchased on Accot. Of Govt.
A. I receive them by Order of the Govr. & dispose of them according to his Directions.
Qu. Who do you account with for the Articles Sold?
A. To the Govr. & Govt.
Qu. Did you ever read the Govrs. Award in the Cause of myself & Crossley?
A. No, I do not recollect that I ever read it.
Qu. As one of the Trustees did Mr. Crossley ever render to you a Weekly Account of the Sale of his Goods?
A. No.
Qu. Did he ever pay any Money into your hands on that Accot.
A. Not into mine
Qu. Were you present when the Bench of Magistrates assembled on this Business?
A. I was Sent for & was there a few Minutes, but as no Questions were asked of me, I came away.
Qu. Did you object to any Proceedings that were then taking?
A. I neither objected or approved, for I was not consulted.
Qu. Did Mr. Thompson one of the other Trustees, never complain to you that Crossley was acting improperly in regard to the Goods?
A. Mr. Thompson said he suspected it & I told him to endeavour to find it out, had I suspected it, I should have taken Steps accordingly.
Qu. Were you present when the Inventory of Mr. Crossley’s Effects was taken?
A. Once or twice, but my Clerk attended for me.
Qu. By the Court; Do you know if the Investmts. Of the Brittania or Greenwich were sent out by Govt. or by Merchants?
A. I cannot speak positively.
(Signed) John Palmer, Commissy.
Mr.
[Page 270]
Mr. Saml. Barnes, Sworn, & a Paper produced to him, is asked by Plt. If that is his Hand Writing?
A. Yes
Qu. Did you see me & Mr Devine Sign and Seal it?
A. No I did not.
Qu. Did you see Mr . Devine Subscribe to it?
A. I think I saw Mr. Devine subscribe it, but am not certain.
Qu. Was I present at Mr. Devine’s when you subscribed this Paper?
A. You was.
Qu. Did you do it at our Joint request?
A. I was asked by Mr. Devine to sign the Paper, & at his request I did so. Mr. Crossley at this time was sitting in a Corner of the room.
Qu. Then you mean to say that Mr. Devine & I were present in the Room when you signed this Paper?
A. Yes.
Qu. By Mr. Wentworth. I think you observed that soon after you had signed this Paper, you felt uneasy & regretted you had done so?
A. Yes, I did.
Robt. Campbell Esq Sworn (called by the Plt) is asked
Qu. I believe you are in possession ot two Deeds, marked No. 3 & No. 4 (Deeds of Copartnership between Crossley & Devine)
A. I am (produced them)
Qu. Did I not offer to make some Assignment for the benefit of the Bill Creditors?
A. Yes, I declined it because I did not wish my name to appear in a Deed with Mr. Crossley, but I recommended to Mr. Crossley if possible to execute such a Deed as would being in all the Creditors alike, & these Deeds came into my Possession some time afterwards.
Qu. By the Deft. Mr. Wentworth. Has not Mr. Crossley frequently expressed his Expectation that the Bills he received from you had been paid in England?
A. He has, & from the length of time I was led to hope it might be the Case.
Qu. Has he not frequently done so, since the last Bills came back
protested
[Page 271]
protested?
A. Not since your Bills came back.
Mr. Michael Robinson, Sworn,
Qu. By Plt. Did you see the Deed (No. 3) executed
A. I did.
Qu. By Deft Mr. Wentworth. Did you sign that Paper in your Public Institution as Clerk to the Judge Advocate?
A. I signed it as an Individual at Mr. Crossley’s House.
Qu. Was there not an Order that Papers of this kind should be regd. In the Judge Advs. Office?
A. Yes there was.
Mrs. Anne Robinson called & Sworn is asked by Plt.
Qu. Have you at any time had any conversation with Mr. Wentworth concerning any Property of mine, & when to the best of your recollection?
A. In the latter part of May – Mr. W. came to me with some Writings, I told him those Writings were none of mine, he said my Place was made over to him for £300. I said it was no such thing, he came some time afterwds. to me again, & I went to Mr. Wentworth’s to ask him how I was to be paid for my Place if it were made over as the Bills were not answered. Mr. W. said he did not care a Curse about that, he would have it & what Crossley had besides.
Qu. Did he say anything about a Sale of any of my Property?
A. No he did not.
Qu. Did he say he would have all the Property I had?
A. Yes he said he would have all you had. This was at the latter end of May.
Qu. By Me. Wentworth. Did I not go to your House, on accot. of your denying being indebted to Crossley in £45 as a Book Debt?
A. Yes, you certainly did.
Mrs. Mary Warner Sworn is asked by Plt
Qu. You have been frequently about my House, State as near as you can the Effects that I had there?
A. I have seen a great Quantity of various Effects you had then, Carpenter’s Tools, & Men & Women’s Apparrell Hosiery, & cc & I have heard
Mr.
[Page 272]
C say to Mrs. C. that they might be worth 10 or 12,000 £
John Redmond, Chief Constable, Sworn, is asked by Plt.
Qu. I believe you were applied to by Mr. Smyth on Sunday the 1st of August for some particular purpose respecting my Affairs?
A. I cannot say with Safety on what day, I went in with Mr. Smyth to Mr. Crossley’s, as it did not concern me I did not keep it in my Memory, nor did Mr. S. send for me on any particular Occasion, he met me in the Street as he was going to Mr. C’s as I believe asked me to walk in with him.
Qu. Was it on a Sunday?
A. I cannot positively Speak as to the Day.
Qu. Who was there when you went in with Mr. Smyth?
A. Mr. Devine & Mrs. Crossley were in the Front room which I suppose to be the Shop.
Qu. The Doors were open then?
A. I cannot speak to that.
Qu. What passed when Mr. Smyth went into the Shop?
A. I do not recollect the Words.
Qu. What did you do when you were there?
A. I stood in your Shop.
Qu. Did you go nowhere else?
A. Yes.
Qu. Where?
A. I went up Stairs with Mr. Smyth & we went into the Cellar.
Qu. When you came down Stairs or came out of the Cellar, who locked the Doors?
A. I cannot answer to that.
Qu. Was any body else with Mr. Smythe?
A. I believe there was & I fancy it was Quin.
Qu. Did Mr. Devine go into the Cellar with you?
A. He did & I spoke something about some Spirits.
Qu. Did not Mr. D. say there was some Wine or Spirits belong
to
[Page 273]
to him in the Cellar?
A. I believe he did.
Qu. Was Quin left in possession?
A. I cannot say.
Qu. Have you never said that this was on a Sunday?
A. I might give it as my private Opinion, but I never said I would Swear it was on a Sunday.
Qu. By the Deft Mr. Smyth. Did it come within your knowledge that any Execution was in y hands agt. Mr Crossley, prior to the day you went in there?
A. It was the Talk amongst the People but I cannot say that I knew it from you.
Qu. Did you see Mr. Crossley in the house the day you went in with me?
A. I did not.
Qu. Did I not take you as a Witness to see Quin take Possession of the Effects I had previously taken Possession of before?
A. I cannot tell what Transactions took place.
Qu. Who was in the House besides you & me?
A. I saw Mr. Crossley & Mr. Devine in the Front room, when we came out into the yard, there was Thos. Hopkins with Johnson.
Qu. Who was left in Possession when I came away?
A. I cannot say.
The Plt here required that Mr. Smyth will produce his Books & Papers, pursuant to a Notice given him for that Purpose. Mr. S. applies to the Court for their Directions in this respect.
The Plt requires a Book purporting to be "Stock, taken under a Deed,13th July 1801," all the other Books of Accounts Papers, Securities, Deeds, & Writings, taken out of his House from the 13th August to the 22nd of Sept. 1802. Ordered by the Court that Mr. Smyth do produce the above Papers to the Court.
Mr.
[Page 274]
Mr. Nicks. Devine Sworn by the Plt.
Qu. Look upon that Paper (No. 2) & this (No. 3) are those respectively your Signatures?
A. They are my signatures.
Qu. Previous to the Execution of this Deed of the 29th. May (No. 2) was there any Conversation between you & me respecting a Partnership between you & me?
A. There was. (the Indenture read)
(The Plt also read another Indre dated 13th July 1801)
Qu. Have you the Notes in your Possession given as a consideratn. For One Moiety of the Effects made over to you in consequence of this Partnership?
A. I have.
Qu. Were those notes to the Value of one half of the Estimated Effects?
A. They were (The notes ordered to be produced)
Qu. What is the Amot. Of those Notes?
A. There they are, they amount to £4050.
Qu. Then under this Deed of the 13th. July the Goods were estimated at £8100?
A. They were.
Qu. And the Notes were given for one half of that Value?
A. They were.
Qu. There was a fair Trade carrying on & except what was Sold & accounted for, you suppose the Goods remained on the Premises?
A. I have reason to think to the Contrary.
Qu. Previous to the Sunday on which Mr. Smyth came into Possn. Were not the Keys to the Till, Cases &c, either in my Possession or Mrs. Crossley’s?
This Question deemed inadmissible as it was answered Yesterday on Mr. Devine’s Examination.
Qu. By Mr. Wentworth to Mr. Devine. In Case the Effects you gave your Notes for to Mr. Crossley when you entered into Partnership, had been
destroyed
[Page 275]
destroyed by Fire, what means had you of paying those Notes?
A. I had no other means but what I was worth here, such as my Salary, Farm &c.
A Paper No. 4. exhibited to the Court & read.
At a Quarter before 3 the Court adjourned to Thursday next at 1 o’clock.
(Signed) Richd. Atkins
Jas. Mileham
Wm. Moore.
Feby 24th. 1803 The Court Sat.
A Copy of the Deed of Trust which was ordered to be recorded, being read to the Court, the same was certified by the Court as a true Copy of such Record, & delivered to the Plt. pursuant to his request.
The Plt. exhibited a Paper purporting to be Interrogatories to be put to Lieutt. Col Paterson, which was received.
The Defts. Applied to the Court for leave to administer Cross Interrogatories to the same Gentleman which the Court granted.
The Plt called in Henry Kable who had acted in the absence of the Provt. Marshall, to produce a Paper subscribed by the Trustees, requiring him to quit Possession of the Plt’s Premises.
The Paper produced & left in Court
Henry Kable Sworn is asked the following Questions by Plt.
Qu. You recd. This Paper from Mr. Thompson?
A. I did, Mr. Moore being present.
Qu. In consequence of this paper you quitted possession of the Premises.
A. Yes.
Qu. Do
[Page 276]
Qu. Do you recollect when Mr. Smyth took possession of my House & Premises.
A. I do not.
Qu. By Deft. Mr. Wentworth. Were you not appointed to act as P. Marshall, when the Plt’s Goods were first Seized, by Order of the Civil Court?
A. For that Cause only.
Qu. Did not the Court order you to seize the whole of the Effects on the Plt’s Premises?
A. Yes.
Qu. You seized his Books with the rest by Order of Court?
A. Yes.
Thos. Hopkins called again & Sworn.
Qu. By the Plt. Were you on the premises the first day of the Sale of the Plt’s Effects in August last year?
A. I was.
Qu. Did you see Mr. Wentworth there?
A. Yes.
Qu. Was he giving Directions about the Sale?
A. I cannot say.
Qu. Did he go backwards & forwards with the Parties who were disposing of the Effects?
A. Mr. W. was there & stood by like another Gentleman.
Qu. Did he bid for any thing?
A. Several Things.
Qu. And several Things were bought by Mr. W.
A. Yes, they were knocked down to him.
Qu. Was Mr. W. there the 2nd day of the Sale?
A. I do not recollect.
Qu. The 3rd Day?
A. I don’t recollect, he was more than one day there, he might be there about 3 days.
Qu. Did he buy Goods on the Days he was there?
A. I cannot Speak to every day, he did buy on two days.
Qu. Was any Inventory taken previous to the Sale?
A. not
[Page 277]
A. Not that I saw.
Qu. Did you hear me disapprove of there not being an Inventory taken?
A. I heard you say an Inventory should be taken before the Things were Sold, & I think Mr. Smyth said there had been an Inventory taken before.
Qu. Did not Mr. Smyth say he would not take an Inventory?
A. I did not hear him say so.
Qu. Did he not say it was not necessary?
A. I did not hear him say so.
Qu. Did you ever see any Inventory previous to the Sale?
A. No.
Qu. You were employed by Mr. Smyth to put down Things as they were sold.
A. After the first day, the first day Mr. S. did it himself
Qu. After Things had been knocked down where they not delivered twice over?
A. Not to my knowledge.
Qu. Were never any Observations made, respecting Mr. Cleary going out in an improper Situation, his Pockets full?
A. Observations were made by you, but generally Clarey took a Constable in & out with him, I was not there at all times, I told you if you suspected any thing improper, you had better set a Constable to examine him.
Qu. Did not Clarey take the entire Charge & direct the Constables?
A. Of course when Clarey came in he generally called to the Constables to come into the Shop with him, & he has called me frequently, & I have helped Clarey & the Constable to count the Money several times.
Qu. Did I not say I suspected some Pieces of Calico were gone & not paid for?
A. Yes, you did, but at the same time, I did not See them.
Qu. Did I not complain of other Goods being gone?
A. Yes, but I never saw anything of the kind & upon my
soul
[Page 278]
Soul I don’t think there was any Person there that would take that mean Advantage of you.
Qu. By the Deft. Mr. Wentworth. You Say you were present at the Auction when several Articles were knocked down to me?
A. Yes
Qu. Do you think those Articles would have fetched so much Money if I had not bid for them?
A. I am certain they would not, & after you had bid once or twice you told Mr. Crossley to go into the Shop & see after the Disposal of his Goods.
Qu. Did I not go into the Room & say to Mr. Crossley that I was surprised he did not go out and see after the disposal of his Goods, for as an Individual interested I recommended him so to do?
A. As near as I can guess.
Qu. By the Deft Mr. Smyth.
Qu. Did I not put you to take an Accot. of the Sales , & to be a Check on the Auctioneer in my Absence?
A. You spoke to me the first day & told me you would sooner place me there than a Stranger, being a Servant to Mr. Crossley, to keep a Check on the Auctioneer, & I said I would, & Mr. Smyth said in the presence of Mr. Wentworth that he would satisfy me for my trouble.
Qu. Did I not desire you to compare the day’s Sales with Clasey when the Auction was closed for the day, & after so doing to bring your papers up to me , & not top suffer them to go into any Person’s hands whatever, that I might lock them up?
A. You did & it was done.
Qu. Did you hear me order Clary to give Mrs. Crossley a Copy of each day’s Sales?
A. I did.
Qu. Did not Mr. Crossley & Mrs C. assist in bringing the Goods forward for Sale?
A. Yes
Qu. Do you recollect at any time of the Auction, when there was
no
[Page 279]
no Sale for certain Articles, that others were introduced by Mr. Crossley & sold in Order that the Property should bring the most?
A. Yes.
Qu. By Deft. Mr. Wentworth. You lived Servant with Mr. Crossley, previous to this Execution being put into his House?
A. I did.
Qu. Have you never seen me accompanied by Mr. Moore or Mr. Thompson come to Mr. Crossley’s house, & demand an Accot. of the Goods Sold & the Monies arising from them previous to this Execution?
A. I recollect your coming one day with Mr. Moore, and to the best of my recollection you said that Mr. Crossley was not going on right, & you told Mr. Crossley you should certainly acquaint the Govr. & would take such steps as he (Crossley) would not approve of.
Qu. By the Court. During the Sale, did Mr. Wentworth appear to you to be a Manager of the Sale, or did he come as an individual to bid?
A. As an Individual to bid.
Thos. Jamison Esq. Called & Sworn. Asked by the Plt.
Qu. Did you ever hear Mr. Wentworth say on any Occasion that he would give Mr. Smyth £5000 Indemnity in my Affairs?
A. I did not hear Mr. W. say that he would be the Security, I heard him repeat that there was very good Security for Mr. S. to the Amot. I think he said of 5 or 6000 £ & advised him to proceed in his Customary manner legally.
Qu. By the Court. At the time you heard this were you not sitting here as a Magistrate?
A. I think I was.
Qu. Had you not heard that Mr. Crossley’s Effects had been sold prior to this Conversation?
A. I had heard so & they were Sold a length of time previous.
Bryan Riley called, does not appear. Plt. waves his Evidence.
The Plt says he has no further Evidence to produce, until the Interrogatories administered to Col.
Paterson
[Page 280]
are recd. With the Answers.
Till these Interrogatories are recd. With the Answers, the Court adjourns.
(Signed) Richd. Atkins
Jas Mileham
Willm. Moore.
25th. April 1803. The Court Sat.
Mr. Wentworth one of the Defts not being present the Court adjourns till the morrow morng at 10, when if the Deft (Wentworth) does not attend, the Court will consider it their Duty to proceed, according to their Established Custom in such Cases & from which they cannot without good & sufficient reasons depart.
(Signed) Richd. Atkins
Wm. Moore.
Jas. Mileham.
26th April 1803. The Court Sat.
Lieutt. Coll. Paterson (examined on Vivâ Você Evidence) Sworn, is asked by the Plt as follows,
Qu. The last Week in July & the first in August, so you Sir recollect if His Excy. The Govr. Was at Parramatta?
A. He might be there about that time but I cannot take upon myself to say exactly.
Qu. On the Sunday the 1st August, did you receive any Letter, from the Govr. With Authority to seize any of my Effects?
A. I did not.
Qu. Did you receive any Warrant, purporting to be a Warrant or Authority for Seizing any Effects of mine?
A. I recd. An Order from the Govr. in a Letter to that Effect.
The Plt. calls upon Mr. Smyth P. M. to produce that Order.
A Paper produced by the Plt. & shewn to the P. M. the P. M. says that to the best of his Knowledge & belief it is a Copy of the Order under which he entered the Plt’s Premises,
The Paper exhibited & Subscribed by the Court, beging.
Memo
[Page 281]
"Memo. Whereas Geo. Crossley has broke my Award, "& ending "pursuant to my Award" dated [indecipherable] Augt. 1802. Signed P G King.
Qu. Do you recollect a Meeting of a Bench of Magistrates at your house on this business?
A. I do, but cannot speak to the day.
Qu. At that Meeting was Mr. Wentworth there?
A. I do not recollect, he may or may not
Qu. Have you not heard Mr. Wentworth say he was there or admit he was there?
The Court cleared to deliberate on the Propriety of the Coll answering this Question, & being reopened they are of the Opinion that Mr. Wentworth being a Deft & not upon Oath, no cognizance whatever can be taken of anything he expressed in the Court.
Qu. You heard from any of the Defts that this Meeting was the last Saturday in July?
A No
Qu. Was the Letter you recd. from his Excelly. before or after the Meeting of the Bench of Magistrates?
A. It was after.
Qu. Is it within your recollection that a Deed of Trust was mentioned before the Magistrates?
A. It was
Qu. Was that Deed read?
A. I think some part of it was read.
Qu. Do you recollect Mr. Wentworth denying such a Deed?
A. I recollect Mr. W making some Observations about it.
Qu. By the Court. Did those Observations tend to a Denial of the Deed?
A. I think they did.
Qu. By Plt. Was the original Deed produced?
A. I cannot take upon myself to say.
Qu. Did Mr. Palmer the Commy. attend you upon that Occasion?
A. He was present, but made no Application or Observations
that
[Page 282]
that I recollect.
Qu. Then except you have reference to the Minutes you cannot speak positively to the Day of the Meeting of the Bench?
A. I cannot.
Qu. By Deft. Mr. Wentworth, Does it come within your recollection whether that Bench was convened by an Order from the Govr.?
A. Yes, it was.
Qu. Did you know if Mr. Moore & Mr Thompson were Trustees acting in this Business?
A. I had heard so.
Qu. Were they not present that day?
A. I think they were.
Qu. Did not you observe Mr. Thompson acting particularly at that Meeting?
A. I remember Mr. T being very warm on the Subject of the Papers that were produced, before the Bench.
Qu. Was the Govrs. Award produced?
A. It was.
Qu. Did not the Bench give it as their Unanimous Opinion that Mr. Crossley had broke the Award?
A. They did.
Qu. Was not that Opinion officially transmitted to the Govr. by you?
A. It was.
Geo Bowers called.
The Deft. Submits that the Plt can adduce no further or fresh Evidence, as he was not contained in the former List of Witnesses.
The Witness is asked if he has been present at any Stages of this Business before. he says he has not.
The Court cleared, is of Opinion that his Evidence is admissible.
Geo Bowers Sworn, asked by Plt.
Qu. Was you at my house on the Sunday Morng the beging. Of Augt.
A.
[Page 283]
A. Yes I was.
Qu. I am speaking of the day on which Possession was taken of my Effects before the date?
A. On a Sunday the beginning of August but I will not be positive as to the day of the Month, I went with my Woman to your House with some Linen, & Stopt there till Church was over. I left my Woman there when I came away,. At that time I saw the Servants going about the House as usual.
Qu. Did you see any Strangers there at that time?
A. I saw none but what usually belonged to the house, the Servants & Mrs. Crossley.
Qu. Was I at home?
A. No, the Servants informed me you were gone to Parramatta that Morng.?
Qu. Did you go there again in the Eveng of that Day?
A. Between & 5 I went to your house for some Sugar & Tea, when I went there, Quin the Constable, was there & asked me my Business, I told him for some Tea & Sugar, he said I could have none, for he was in possession of the House.
Qu. Did you learn from him or from any other Person the time they came in?
A. I learnt from the Servants of the house that they had come in on the Afternoon of that Day.
Qu. In the morng. when you were there, there was no Person in Possessn.
A. Not to my Knowledge, every thing was as usual under Mrs. Crossley’s care.
Qu. Are you sure that this was on a Sunday?
A. Yes, I spoke to a Man who had been a Sheriff’s Officer & asked him if it was legal to take Possession of a Sunday, by which means I am positive it was on a Sunday.
Qu. by the Court. Have you at any time had any conversation with Mr. Crossley on this Subject?
A. Not at all.
Qu. by the Deft. Will you take upon yourself to Swear positively that
there
[Page 284]
there was no Person in Possession when you went there on the Sunday Morng?
A. No I will not.
Qu. by the Court. Did you at any time on the Sunday Morng. see any Constable, Quin, Clarey or any others in the house?
A. I did not.
Question, by Deft Smith. Had you never heard that I & Clarey, were there on the Saturday preceding the Sunday,
Answr. I never did.
Elizabeth Hill, called & Sworn is asked by the Plt.
Qu. Was you at my house on Sunday morng previous to your Seeing Constables in Possession there?
A. I was there on Sunday morng. & there were no Constables in Possession in the House.
Qu. Did you go there with Geo Bower?
A. Yes.
Qu. Was it the same Sunday that Bower came home in the Afternoon & said that Constables were in Possession?
A. Yes the same Sunday.
Qu. Relate what you did that Sunday Morng at my House?
A. I washed the Shop & Bedroom as usual & I stopt to assist Mrs. Crossley to dress.
Qu. How long did you Stay?
A. I left the House about 3 o’clock.
Qu. Was the Doors, Cases, Keys & every other Place in Possessn. of Mrs. Crossley as usual?
A. The same as usual.
Qu. All open & unlocked as usual?
A. Yes.
Qu. When you went away did you leave any body in the Shop with Mrs. Crossley,?
A. Mrs. Crossley & Mr. Devine were dining together at the time I went away in the Shop.
Qu. Was
[Page 285]
Qu. Was any Constable or other Person in Possession at the time you went away?
A. There was no Constable or Person in possession when I went away.
Qu. If these had do you believe you must have known it?
A. I must have known it as I was all over the Place.
Qu. Had you any reasons for Sending Geo Bower in the Eveng to the House?
A. I wanted some Tea & Sugar which I sent for, & Bower came back without it, & said he could not get any as Constables were in Possn.
Qu. After you went away on the Sunday afternoon, when did you go again to the House?
A. On the Tuesday morng. after the Sunday I have been speaking of.
Qu. Did you then see any Constables in Possession?
A. Tow, one named Quin, the other Harry King.
Qu. by Deft Smith. Did you ever know Mr. or Mrs. Crossley to have two Keys to any Door or Case in the House?
A. I never knew it.
Qu. Did you ever hear any Person say I was there the Saturday before?
A. I did not.
Qu. by the Court. Did you ever have any Conversation with Mr. or Mrs. Crossley on this Subject, or with any other Person
A. I never had.
Qu. Was you ever directed what to say when you came into Court
A. No, never.
The Evidence on the Part of the Plt being Closed. the Defts request the Court to indulge them with time to prepare their Defence, Granted to this day Week, to which Day the Court adjourns on this Business.
(Signed)
[Page 286]
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham
May 24th 1803 The Court Sat.
The Deft Smith produced to the Court a Paper (No. ) purporting to be his Defence to this Suit.
The Deft. Wentworth addressed a Paper to
Richd. Atkins Esq. Judge Adv. (No. 3) requiring to know from him as the Law Officer, whether any matter in this Suit had affected him so as to make it necessary for him to enter upon any Defence.
The Judge Adv. declined giving any Advice on this head, whereupon the Deft Wentworth presented a Paper (No. ) purporting to be his Defence to this Suit.
The Deft Smith calls Patrick Clary
The Plt. excepts to this Witnesses Testimony bec. he was originally a Deft in this Cause, but on accot. of his being a Crown Prisoner, the Court could not admit of his being a Deft from the local Circumstance of this Colony. The Plt alledges that as he would have been a legal Deft, if those local Circumstances had not intervened, he cannot be examined as a Witness in this Cause, because his Evidence may go to discharge himself.
The Court cleared to deliberate on this Question,
re-opened
The Court is of Opinion that agreeable to the uniform Practice of the Courts in this Colony Pat Clary, a Prisoner is admissible as an Evidence, but under the peculiar Circumstances in which he comes forward in that Capacity, the Court will very maturely weigh & consider the purport of his Evidence in the Verdict they may give.
Patrick Clary called & Sworn
Qu. by Deft Smyth to this Witness. Did I not take you with me
after
[Page 287]
after receing. a Warrant of Execution from the Lt. Govr. to the house of this Plt on Saturday the 31st July, saying as the same time that your going with me, was in order to be present at my making the Levy?
A. You did, & you shewed me a Paper subscribed "Philip Gidley King" which you told me was the Warrant of Execution.
The Court direct this Warrant to be produced.
The Deft Smyth says he has not that Warrant in his Possession & that it was given back to the Govr. by the Govrs Order, but produces one to the Court, which he says was given by the Govr. to him after the Auction was closed.
At 12 o’clock, the Court adjourned to 10 o’clock to morrow morng.
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham
June 20th 1803. The Court Sat.
The Judge Adv read a "Letter from his Excelly the Govr. respecting the Warrt. of Execution, under which the Levy was made, dated 25th May 1802.
At the instance of the Plt who applied to the Court for a Copy of this Letter, the Court directs a Copy to be furnished to him.
The Deft Smyth calls, Patrick Clary who being Sworn is asked by sd. Deft
Qu. When you went with me to Mr. Crossley’s house on Saturday the 31st July who was in his House.
A. Mr & Mrs. C. & to the best of my belief Mr. Devine,
Qu. Did you see me give him the Warrant of Execution & Mr. Crossley take a Copy of it?
A. I saw you give him a Paper which appeared to me to be in Mr. Mann’s hand writing & signed by the Govr.
Qu. Did you not by my Orders lock the Doors of the Shop, the Cellars, Stores & c, & all on the Premises except the Bedroom, & shut the Windows, & deliver me the Keys?
A. I
[Page 288]
locked the Desk of my own Accord, & I went down into the Cellar & locked it, I put part of the Keys into the Shop & gave you the Key of the Shop.
Qu. Was the Key of the Stair Case given into my Possession?
A. Certainly it was.
Qu. Did I not direct you to secure everything as my Bailiff,
A. You did & I did it as far as I thought Sufficient.
Qu. Did I not, previous to my taking Possession, desire you to be a Witness to what I was about to do?
A. You did.
Qu. by the Court, Do you positively Swear, that the Transactions as Stated in your Evidence took Place on the Saturday?
A. It was on Saturday & no other day.
Qu. by the Plt. What Saturday & what day of the Month did these Transactions take Place?
A. It was the Saturday prior to that Sunday, which Mr. Crossley alludes to & it was certainly the 30th or 31st of July.
Qu. What time of the day?
A. It was in the Afternoon, but I cannot be particular to the Hour, it was before Sun Set.
Qu. How long before Sun Set.
A. I cannot speak particularly.
The deft Smyth being Provost Marshall to this Territory, & having Public Duty to attend to under his Excellys. direction, & having Evidences to call who are not present, prays the Court to indulge him until day Fortnight. to produce such Evidences, namely
Chas. Williams Thos Biggers Sr. H Hayes Thos. Hopkins This. Johnson
Edwd. Quin Auderly Appleyard Mr. D D Mann & Mr Devine.
The Court therefore grant the Defts Prayer & adjourns accordingly the 4th July next
(Signed)
[Page 289]
(Signed) Rd. Atkins
Wm. Moore
Thos. Mileham
July 4th. 1803. The Court Sat ( ½ past 10)
The Deft. calls Thos. Biggers. who being Sworn is asked.
Qu. Did Mr. Crossley apply to you for a Horse to go to Parramatta & when?
A. Mr. C. & Mr. Kearnes came to me, whilst I was with Sr. Henry Hayes in the Prison, & asked for my Horse, I believe it was on a Saturday the 31st July – he said he was ruined - & was going to the Govr. I did not let him have the Horse, but Kearnes let him have one, I believe it was on Saturday or Monday, but am positive it was not Sunday.
Qu. by the Plt. what time of the day was this?
A. It was in the afternoon I believe.
Qu. Will you swear it was past 2.
A. I cannot undertake to say the exact time.
Qu. Was it not between the hours of 11 & 2?
A. I cannot positively tell what time of the day it was, I believe it was the Evening.
Qu. Did I not meet you in the Walk between my House & Coll. Paterson’s with Kearnes?
A. Yes, you met me & Kearnes together & asked Kearnes for his Horse.
Qu. Was not this as you was going to the Goal to Sr. Henry Hayes?
A. I cannot recollect whether it was the same day.
Qu. Was this the time that Kearnes lent me a Horse?
A. I don’t recollect.
Qu. Did not Kearnes say that as you had promised me the Horse if you did not lend me one he would?
A. I can’t recollect what he said, but I know he lent you his Horse.
Qu. Was not this Horse to go to the Hawkesbury?
A. You
[Page 290]
A. You said that you were going up to the Govr. that all you had, had been seized by Mr. Smyth, but where the Govr. was I did not know.
Qu. In Consequence of this Application did Kearnes lend me a Horse?
A. I believe he did.
Qu. And this was when you said I should have yours?
A. I cannot speak as to the Time.
Auderley Appleyard, Called & Sworn.
Qu. Did Coll. Paterson send to my House while I was absent at the Farm, on the Saturday Eveng. & how often?
A. Yes, he sent 3 times.
Qu. Did I go into my own house until I had waited on Coll. Paterson?
A. You did not.
Qu. Where did I go to after you saw me come out of Coll. Paterson’s?
A. To Mr. Crossley’s
Qu. What did I tell you I had been about at Mr. Crossleys’ when I came in to Dinner?
A. making a Levy in Mr. Crossley’s House.
Qu. What house was this?
A. I can’t justly say, it might be about 4 o’clock.
Qu. by Plt to this Witness. Was you at Mr. Smyth’s Farm when Col. P. sent?
A. No I was not.
Qu. Where was you.
A. at Mr Smyth’s House at Sydney
Qu. How many times did Coll Paterson send after Mr. Smyth?
A. Three times.
Qu. How long distance of time was there betw each time that Coll. Paterson sent after Mr. S.?
A. Very little time, it was as near as I can recollect 3 times within half an hour.
Qu. What did you inform the Messenger that came?
A. That Mr. Smyth was at his Farm.
Qu. Did you tell the Messenger so the first time he came?
A. Yes, I did.
Qu. When he came the 2nd time what did he say to you?
A. He asked if Mr. Smyth was come home, that the Coll
wanted
[Page 291]
wanted him immediately
Qu. How long was that after you told him that Mr. Smyth was at the Farm?
A. As near as I can guess about 10 minutes.
Qu. When did the Messenger come again?
A. In a very little time after.
Qu. What Message did he bring then?
A. He asked if Mr. Smyth was come from his Farm yet?
Qu. What did you do in consequence of these Messages from Col. P.?
A. I did nothing until Mr. Smyth came home.
Qu. Did not you send for Mr. Smyth?
A. I did not.
Qu. Did any body send for Mr. Smyth?
A. Not from our House.
Qu. Have you heard any body sent for Mr. Smith?
A. I did not.
Qu. What time of the day was this?
A. I cannot justly say, but I believe it was about 2 o’clock when the Coll. first sent.
Qu. How long was it after Coll. P. first sent until Mr. S. came home?
A. It was some time but I can’t say how long.
Qu. When Mr. S. came home who was in the House with you?
A. I was by myself.
Qu. Who was with Mr. S.
A. He came home by himself.
Qu. Who went out with him after he came home?
A. He went out by himself.
Qu. How long was it before he came back?
A. Some time but I can’t say how long.
Qu. Who came home with him?
A. He came home by himself
Qu. How long was it after Mr. S. came home that you went to Dinner?
A. I can’t say how long?
Qu. But
[Page 292]
Qu. But it was before you went to Dinner?
A. Yes it was.
Qu. What time might you dine that Day?
A. Very late in the Afternoon.
Qu. Was it light?
A. Yes.
Qu. How long before dark?
A. I can’t justly say.
Qu. Was it before Sun-Set?
A. Yes.
Qu. To the best of your remembrance how long before Sun-Set?
A. I can’t say.
Sir Henry Hayes called & Sworn.
Qu. by the Deft Smyth, Did Mr. Crossley come into your Apartments whilst you were in Prison, & ask Mr. Biggar who was there for a Horse? & on what day of the Week was it?
A. I recollect the Circumstance of Mr. Crossley’s asking Mr. B. for a Horse, but I can’t speak to the day.
Qu by the Plt. Can you recollect nearly the time of the Day?
A. It was about the middle of the day, between the hours of 11 & 2.
Charles Staples called & Sworn.
Qu. Did you see me go into Mr. Crossley’s house on Saturday?
A. I saw you go into the Gate.
Qu. What day was this?
A. I can’t say to the Day but it was not on Sunday.
Qu. Did you see Clary go in with me?
A. I can’t say who was with you, there wea Several.
Qu. You heard there was something the matter?
A. Yes, I understood so.
Qu. by the Plt. Then you know neither the day of the Week or the Month?
A. No, I do not.
Here the Evidence on the part of the Defts closed, The Plt requires the Indulgence of the Court till Thursday to prepare his reply. The Court adjourn to Thursday at 10 o’clock accordingly.
(Signed)
[Page 293]
(Signed) Rd. Atkins
Wm. Moore
Jas. Mileham.
July 7th. 1803. The Court Sat.
The Plt addressed the Court in reply to & commenting on the Circumstances that had been adduced in Evidence & on the Evidence No. 6.
At 12 the Court adjourned till to tomorrow at 10 o’clock
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham.
July 8th. 1803. The Court Sat.
The Plt proceeded with his Comments on the Evidence adduced in Support of his Case, & occupied the attention of the Court until half past one, when the Court adjourned to Monday Morng at 10 o’clock.
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham
July 11th. 1803. The Court Sat.
The Plt proceeded with his Reply.
At ½ past 11 the Court adjourned to Monday next to deliberate & to return their Verdict.
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham
July 18th. 1803. The Court Sat, & being cleared to deliberate & being re-opened after mature deliberation, are of Opinion that under the Circumstance of this Case, they do acquit the Deft. Wentworth, but find a Verdict for the Plt agt. Mr. Thos Smyth the Provost Marshall in the Sum of £10 with Costs of Suit.
(Signed)
[Page 294]
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham.
New South Wales} This Indenture Tripartite made the 19th. day of Jany in the year of our Lord 1802, Between Geo Crossley of Sydney Dealer of the first Part, D’Arcy Wentworth of Parramatta Esquire of the 2nd Part, & John Palmer of Sydney Esquire, Jas. Thompson of the same Place Esquire, & Thos. Moore of the same Place, Master Boat Builder of the 3rd Part, WHEREAS the sd. D’arcy Wentworth on the 17th day of Decr. last recovered in the Court of Civil Jurisdiction held in this Territory, against the sd. Geo Crossley the Sum of 1886 £ Debt besides Costs, being the amot. of Sundry Bills of Exchange, drawn by the sd. Geo Crossley on Anthy Schell Merchant in London which sd. Bills were returned to this Colony protested for non-acceptance. And Whereas the sd. Geo Crossley thinking himself aggrieved by the Decision of the sd. Civil Court in the Verdict given in the sd. Suit made an Appeal (pursuant to the Charter of this Colony) to the Govr. thereof, & the Goods Chattells & Effects of the sd. Geo Crossley were ordered by the sd. Court of Civil Jurisdiction, to be & remain in the hands of the Provost Marshall of this Territory, & stand as security for the sd. Geo Crossley’s prosecuting the sd. Appeal, AND WHAS the sd. Appeal came on to be finally determined by & before the Govr. on the 9th day of Jany inst. when His Excelly was pleased to award that the Appellt. & Respondt. do jointly & severally appoint each one good and sufficient person, as Trustees to Appellant’s sd. Estate, & another Person to be Appointed by His Excy. on the joint recommendation of the Appellt. & Respondt. which Trustee assisted by Appellt & Respondt. are to cause an exact Inventory of all the Appellts. Effects to be taken & after entering sd. Inventory in two Books, one to be delivered to Appellt. & the other to Respondt the sd. Appellant is then to continue the Sale of his Effects, to deliver a Weekly Accot of his Sales & to pay the Monies Bills (or other considerations approved of by Respondt) arising therefrom after the Appellts. Debts to the King are Discharged into the hands of Respondt. at least once a Month, in liquidation of the Debt until the whole is paid, & should any Collusion be proved on the Part of the Appellt. then & in that Case the whole of the Effects are to be immediately Sold by Public Auction, the Term limited for the Trustees acting to be 12 Months
from
[Page 295]
from this Date, after which the Effects are to be Sold by Auction unless the Parties mutually pray for the Term being further extended, the Appellt. to be allowed the weekly Sum of 3£ Sterling for the maintenance of his Family from the amot of the Sales, as by the sd. Award under the Hand & Sealg His Excelly Philip Gidley King Esquire, bearing date the 9th day of Jany. inst. Reference being thereto had will appear, AND WHAS pursuant to the Tenor of such Award the sd. John Palmer, Jas. Thompson & Thos Moore have with Approbation of His Excelly. the Govr. been appointed Trustees in the Premises, for the Special Trusts & Purposes in the sd. Award mentd. & directed which Trusts they the sd. Jno Palmer Jas Thompson & Thos Moore, have accepted (testified by their executing these presents) & hereby pledge themselves faithfully & daily to perform, NOW THIS INDENTURE WITNESSETH that in pursuance of the sd. Award by conformable to the Tenor thing & also for & in consideration of the Sum of Ten Shillings, in hand to the sd. Geo Crossley well & truly Paid, by the sd. John Palmer Jas Thompson & Thos Moore, He the sd. Geo Crossley hereby assigns, transfers & makes over unto them the sd John Palmer Jas Thompson & Thos Moore their Heirs, Assigns ALL AND SINGULAR the sd. Goods Chattells & Effects in the Hands of the Provt. Marshall under & by Virtue of the Order of the sd. Court of Civil Jurisdiction as aforesd. & which sd. Govr. Chattels & Effects are forthwith to be Scheduled & Inventories & duly entered in two Books & Signed & Subscribed by all the Parties to these Presents, One of which sd. Books is to be delivered to the sd. Geo Crossley, & the other to the sd. D’Arcy Wentworth upon Trust in the first Place to permit & Suffer the sd. Geo Crossley to continue in Possession of all the sd. Scheduled or Inventoried Goods, Chattells & Effects for the purpose of date thereof to the best Advantage for the Term of Twelve Months from the Day of the Date of the sd. Award, he the sd. Geo Crossly continuing from Time to Time during the sd. term to deliver a Weekly Accot. of Such Sales, & to pay the Monies Bills or other Proceeds thereof to the sd. D’Arcy Wentworth or his Assigns once every Month (after the Debts due from the sd Geo Crossley to the King are discharged & paid & not before) & until the whole of the sd Debts due from the sd. Geo Crossley to the sd. D’Arcy Wentworth is paid & discharged according to the Tenor of the sd. Award, & in Satisfaction of the sd. Verdict of the sd. Court
of
[Page 296]
of Civil Jurisdiction, THEN upon further Trust that the residence of the sd. Scheduled or Inventories Goods & Chattels, shall belong to & be the Property of the sd. Geo Crossley his Executors or Administrators, & rest & remain to & for his & their Use, [indecipherable]& benefit AND the sd D’arcy Wentworth for himself his Executors & Administratr. doth hereby covenant promise & agree to & with the sd. Geo Crossley his Executr & Administrators, that he will accept such Scheduled or Inventoried Goods & Chattels in Satisfaction of the sd. Verdict as they shall be Sold, & an accot. & the Proceeds rendered as aforesd, conformable to the sd. Award, & that when the sd. Debts & Costs are duly paid & Satisfied, that he will deliver up to the sd. Geo Crossley his Exors Admors or Assigns, the sd. Several Sets of Bills on which the sd. Verdict & awards have been given, & made, AND it is further understood declared & agreed by & between all the Parties hereto, that the sd. Geo Crossly shall & may retain in his hands, the Sum of £3 Sterling per Week, out of the Sales of the sd. Effects towards the maintenance of himself & Family, according to the Provisions & Directions in the sd. Award PROVIDED ALWAYS that if any Article of Goods in the Shop shall or may at any time be bartered away or exchanged (the same being duly & regularly noticed in such Books) for any necessary required in the House (included nevertheless in the sd. Weekly Allowe. of £3) that then the sd. Geo Crossley shall be at Liberty to debit his Accounts at the Prime Cost of such Articles, & account fairly & truly in such Weekly Allowance for the same, in like manner as if he has received it in Sterling Money, AND LASTLY it is mutually & reciprocally declared understood & agreed by & between all the Parties hereto, that the Term, Tenor, Limitation, Purport, Effect & Condition of the sd. Award as herein-before recited are in every Sense to be strictly & fully abided by on the Parts of the Parties hereto, their several Executors & Administrators, & in no wise to be departed from altered or mutilated either directly or indirectly but the same is to be Stand & remain firmly & irrevocably as a Record & Decree according to it’s true intent & relative meaning & Construction, IN WITNESS whereof the sd. Parties to these Presents have hereunto Set their Hands & Seals the day & Year first above written.
Sealed & Delivered (no Stamps being Used in this Settlemt) in the Presence of
(Signed)
Richd. Atkins J. A.
Michl. Robinson, Clk to the J.A.
(Signed) George
[Page 297]
(Signed)
Geo Crossley L.S
John Palmer L.S.
D. Wentworth L.S
Jas. Thompson L.S.
Thos. Moore L.S.
A true Copy from the Original Trust Deed, with which it has been compared (Signed) M. Robinson
Clk to the J.A. & Register for Sydney.
Feby 10th. 1802
Michael Robinson Clerk to the Judge Adv. maketh Oath, that what is contained in this Paper is a Copy of the original Deed of Trust, to the best of this Deponent’s Knowledge & Belief, & that he verily believes he saw the several Parties Sign & Subscribe the sd. Deed, to wit, Geo Crossley, Mr. D. Wentworth, Mr. John Palmer, Mr Jas. Thompson & Mr. Thos. Moore, who executed the sd. Deed at different times at the Judge Advo’s. Office, in the Presence of the Depont. & as he believes in the Presence of the Judge Advocate.
(Signed) Michl. Robinson.
Sworn before the Civil Court this 22nd day of Feby. 1803.
(Signed) Rd. Atkins J.A.
Wm. Moore
Jas. Mileham.
Copy
Mr. Geo Crossley, Dr. to John Palmer Esqr. on accot. of the Britta & Greenwich Investments.
1802
Jany1st to Sundrys as per Bill - £62.17.8
1802
Feby 5th By 18 Bush Wheat at 8/- - £7.4.0
" 26th " 62 " do ‘ 8/- - £24.16.0
March 5th ‘ 82 ‘ do 7/3 - £29.14.6
[Sub total] £61.14.6
Due by G. Crossley to Govt. £1.3.2
(Signed) John Palmer
Commissy.
Exhibited
[Page 298]
Exhibited before the Civil Court this 22d Feby 1803
(Signed) Richd. Atkins
Willm. Moore
Jas. Mileham
THIS INDENTURE made this 29th day of May in the Year of our Lord 1801 BETWEEN Geo Crossley of Sydney in the County of Cumberland in the Territory of New South Wales, Merchant of the one Part & Nichs. Devine of the same Place Gentleman of the other Part WITNESSETH that WHEREAS the sd. Geo Crossley hath for some time carried on Trade in Sydney afored. & is possessed of the Lease of the Premises where he now resides & carries on such Trade, & hath a very large & considerable Stock of Goods & Implements used to carry on such Trade of Great Value AND WHEREAS it may be to the Advantage of the sd. Geo. Crossley in his Trade to enter into Co-Partnership with the sd. Nichs. Devine upon such Agreements Terms & Conditions as hereafter mentd. NOW THIS INDRE WITNESSETH that for & in consideration of the Sum of Five Shillings in hand paid by the sd. Nichs.
Devine, the receipt whereof he the sd. Geo Crossley doth hereby acknowledge, & also in consideration of the Trusts, Agreements, Declarations & Covenants herein- aftermentd. They the sd. Geo Crossley & Nichs. Devine, do declare themselves Co-Partners in Trade, under the Terms & Agreements herein-mentd. & in consideration thereof, he the sd. Geo Crossley HATH bargained Sold Assigned & made over by these Presents DOTH bargain Sell assign & Set over, unto the sd. Nichs. Devine, his Exors & Admors, as well the Lease of the sd. Premises, where the sd. Geo Crossley resides & the Trade is carried on as the Stock of the sd. Trade of every nature & kind, & implements used to carry on the same upon trust, nevertheless that the sd. Geo. Crossley use & occupy the sd. Leasehold Premises & sell & dispose of the sd. Stock ion Trade until the 25th day of June next ensuing, & until an Inventory of the sd. Leasehold Premises, with the Erections, buildings & Improvements made thereon, & the sd. Stock in Trade & Implements as aforesd. be made estimated & Valued, at the like Price, first or Prime Cost, each respective article Cost the sd. Geo Crossley, or as near thereto as can be made, such Inventory
& a
[Page 299]
and a duplicate thereof to be made & entered in Books to be kept between the Parties, for one half of the Value of such Premises so to be made & estimated as aforesaid, the sd. Nichs. Devine Shall secure Payment thereof the sd. Geo Crossley in Sterling Money at the days & times, & in manner to be expressed in such Securities & after such Inventory made & Payment of such Moiety or Security for the same, then as to one half part of such Leasehold Premises, Stock in Trade & other Effects to be the undivided Property of the sd. Nichs. Devine & Geo Crossley & other Moiety of such Premises Stock & Utensils, to be the undivided Property of the sd. Geo Crossley & Nichs Devine, That is to say the whole of the sd. Premises to be a joint concern, but with respect to the Increase & Profit to be made by the Trade, 2/3 parts of such Increase is to be & hereby declared to be the Property of the sd. Geo Crossley his Exors. and Admors. & Assigns, & the other 3rd Part of such Increase to be & is hereby declared to be the Property of the sd. Nichs. Devine his Exors Admors or Assigns, And it is hereby declared & agreed that neither of the sd. Parties shall be at Liberty to assign his moiety or part of the Premises or any of them, but in the regular Way of their dealing in Trade or Barter, & that for ready money or other Goods brought into such Trade & for the benefit thereof, & upon the joint account & Proportions of Profit as aforesd. & that all Goods bought for the Purpose of Carrying on such Trade shall be Paid for out of the joint Stock or Increase thereof, & be the joint Property & for the Profit of the sd. Parties, according to the Proportions of Increase as before mentd. & that books shall be fairly kept & Entries made daily of the Articles sold with the respective Price of such Sale & for what consideration & the Cash Book of receipts & Payments to remain open for the inspection of the Parties, & every Night such Money as may be received for retail Articles in the Till, counted & entered in such Cash Account, & it is declared that the Expenses of carrying on the sd. Trade shall be joint & paid in equal Proportions out of such Stock, & that twice in every Year an Account shall be taken of the State of the Trade, & Divisions of Profits in the Proportions before-mentd. And each of the sd. Parties do agree & Covenant to be just & faithfull in all their dealings & Transactions to the other of them, & to make true Entries daily of all receipts & Payments & of all Sales of Goods, Purchases & barters for other Goods,
And
[Page 300]
and it is agreed that this Co-partnership shall Continue for the Term of Two Years from the Day of the Date of these Presents, that there shall be no benefit of Survivorship, & in case of the death of the sd. Geo Crossley, his Part or Share of the sd. Premises & Stock & the increase & Profit thereof, & also the future Increase & Profit, shall devolve & become the Property of Anna Maria Crossley his Wife, under the same Terms as contained in this Indenture, with respect to the sd. Geo Crossley’s share or Interest therein, & in case of the Death of the sd. Nichs. Devine, his Share or Interest in the sd. Stock & Premises, & increase thereof, to be Valued & ascertained, & after deducting out of such Valuation, such money as remain unpaid of the Moiety of the Effects hereby assigned on Security (if any then remain unpaid) then & in such Case if the sd. Geo. Crossley shall pay the residue of the Value of the sd. Nichs. Devine’s Moiety of such Premises, Stock & other Effects, the same is to become the Property of the sd. Geo Crossley, or in case of his Death, the sd. Anna Maria Crossley, but in Case that before such Death happen, all the Money for the Valuation of such Moiety of Effects hereby assigned to the sd. Nichs. Devine shall have been fully Paid, then the whole of such Moiety or the Value thereof, shall be delivered or Paid for immediately, after the Co-Partnership accounts are Settled, for the Settling which Accounts Six Months shall be allowed after such Death happen, & it is declared & agreed that neither of the Co-partners or the Co-partnership Stock, shall be answerable for any private Debt of the other Party, & any Cash Notes that may necessarily be issued, shall be made for the Purpose of Carrying on the Trades & for Effects brought into the joint concern, or for change of the other good Bills, & daily entered in the Co-partnership Books of Accts. And in that case only the Co-partnership Effects to be answerable to pay such Cash Notes. AND WHAS in Feby 1800 the sd. Geo Crossley drew a Bill on Mr. Anthony Schell his Agent, for £319 & although no Advice had been received that such Bill was not duly paid, A Court held for this Colony ordered a Deposit of £400 to be made, to indemnify the Indorse of such Bills, AND WHAS the sd. Geo Crossley hath drawn other Bills in favor of Robt. Campbell Esq. for the amot. of £1730 & other Bills to Capt. Hugh Reid for £1500 & a
Bill
[Page 301]
Bill to Mr. John Muirhead for £386 of which no Advice have as yet been received, & in consequence of two Sets of Bills drawn on the same Agent, having been returned, one of which the sd. Geo Crossley hath Paid & the other he means to pay before the 25th. of June herein-before mentioned in order to satisfy his Ability & desire to indemnify against the return of any such Bills, he did some time past make application to the sd. Robt. Campbell & proposed to Secure payment to him the sd. Hugh Reid & John Muirhead in case of the Return of such Bills or any of them, out of his Effects in this Colony, which at prime Cost far exceed the Value of such Bills, & any Debt whatever due from the sd. Geo Crossley, upon condition that the sd. Geo Crossley should act as Agent in the concern, first set apart Monies to pay the Bill now returned, & the Sum of £300 to redeem the Lease deposited under the Order of Court as Security for that Sum, & £300 to trade with & to pay all the Monies recd. from Sale of Goods as a Security to indemnify & Pay each of the sd. Bills, if unpaid in England at a proportionate part with respect to their Value, & the rest of the Money or Goods after such Payment, (on such event happening) then the residue of such Effects to the sd. Geo Crossley his exors admins or assigns, but the sd. Robt. Campbell did not then think fit to act for the sd. Hugh Reid & John Muirhead, & the sd. Geo Crossley is desirous that such Bills be all put on one footing of Payment, & no preference given & in order thereto, it is declared & agreed that this Indre or a Copy thereof, shall be delivered to the sd. Robt. Campbell, & in case he thinks it will be detrimental to any of the Persons holders of such Bill or Bills, in case they are not paid in England, then the sd. Nichs. Devine at any time within Fourteen days after the Date hereof, agrees to join in any conveyance, in terms of the sd. Proposals in case the sd. Robt. Campbell require the same, & in case that if within the sd. space of 14 days, such Alteration shall not be made at the request of the sd. Robt. Campbell, This Indre shall be deemed & taken to be made with the Knowledge & consent of all the Payees
in
[Page 302]
in the sd. Bills, & lastly it is agreed that the sd. Geo Crossley & his Wife, shall have the sole Occupation, possession, disposal, & management of the Premises, Stock in Trade & Trade, subject to the Covenants & Agreements herein-contained, In Witness whereof the sd. Parties have hereunto Set their Hands & Seals the Day & Year first above written.
(Signed) Geo Crossley L.S.
Nichs. Devine L.S.
Signed Sealed & delivered (no Stamps being used in this Colony) in the Presence of (Signed) Saml. Barnes
Exhibited before the Court, this 22nd of Feby 1803 (No. 2)
(Signed) Richd. Atkins
Mw. Moore
Jas. Mileham
THIS INDRE made this 13th day of July in the Year of our Lord 1801, Between Geo Crossley of Sydney in the Territory of New South Wales, Merchant of the one Part, & Nichs. Devine of the same Place one of the principal Super-intendants of the other Part, Whereas by Indre bearing date the 29th day of May last past & made between the sd. Geo Crossley of the one part & the sd. Nichs. Devine of the other Part, it is witnessed that the said Geo Crossley has for some time, carried on Trade in Sydney aforesaid, & was possessed of the Lease of the Premises where he then and now resides, & a considerable Stock of Goods & Implemts. used to carry on such Trade, & that it would be for his Advantage to enter into Co-partnership with the sd. Nichs. Devine, It was by the sd. Indenture witnessed that for the consideration therein mentioned, they the sd. Geo Crossley & Nichs. Devine, did declare themselves Co-partners in Trade, & in consideration whereof the sd. Geo Crossley by the sd. Indre bargained, Sold assigned & made over unto the sd. Nichs. Devine, as well the Lease of the Premises where the sd. Geo Crossley resides, as all the Stock in Trade & Implements used to carry on the same, upon the Trusts therein expressed, but 2/3d parts of the Increase & Profit was to be the
Share
[Page 303]
Share of the sd. Geo Crossley & the remaing 3d part of such Increase & Profit to be the Share of the sd. Nichs. Devine, after the time therein expressed, & an Inventory of part of the Stock has been, but it is necessary that a correct & perfect one & valuation of the Premises should be made, without delay, & the sd. Geo Crossley & Nichs. Devine have agreed & by these Presents doth agree to alter the sd. agreement of Co-partnership in some respects, agreeable to the Terms & regulations herein-after declared, AND WHAS the Stock in Trade & other Effects on computation doth amount in Value to £8100 of one Moiety or half part of which shall from & after the date of execution hereof be considered, deemed, & taken to be the Property of the sd. Geo Crossley, & the other moiety the Property of the sd. Nichs. Devine as their respective Shares of the sd. Co-partnership Stock, but in respect of the increase & Profit of the sd. joint Trade, 2/3 parts of such Increase & Profit is to be the Share of the sd, Geo Crossley, & one part only to the sd. Nichs. Devine & the sd. Geo Crossley & Nichs. Devine have agreed & by these Presents do covenant & agree with the others, that they the sd. Geo Crossley & Nichs. Devine shall & will be & remain & become Co-partners, for one year certain to be computed from the day of the Date hereof, if they so long live, after which the sd. Co-partnership may be dissolved, or discontinued upon 6 Months Notice, to be given in writing under the hand of either of the sd. Parties, And in case there be no such Notice given then the Co-partnership shall continue during their lives, & shall not in the mean time discontinue or break of, or be given over unless it be by 6 Months Notice to be given as aforesaid, or by the consent of all Parties in Writing, under their hands, & for the maintaining & continuance of the sd. joint Trade in Co-partnership, the sd. Parties have agreed & do hereby agree that the present Stock shall at their next Settlement hereby agree that the present Stock shall at their next Settlement hereinafter mentd. be reduced to the Value of £4000, which Sum of £4000 is £ shall be their Capital Stock to be by them used in the sd. Trade £ Merchandizing, £ shall be divided £ proportioned into equal shares
or
[Page 304]
or Parts, but the Profit is to be the 2/3 to the sd. Geo Crossley & 1/3 to the sd. Nichs. Devine, that the sd. joint Trade & Co-partnership, during the Continuance thereof shall be carried on, kept, driven & managed, in the now Dwellg house of the sd. Geo Crossley, situate in Sydney or in such other Place or Places as the sd. Parties to these Presents shall at any time hereafter think fit & mutually agree upon in Writing under their hands, and that the sd. joint Stock or the Produce thereof or any part thereof hereafter, shall not be converted to any use other than the sd joint Trade without the consent of the sd. Co-partners as aforesd. ITEM it is further agreed between the sd Parties that all Profits & Losses that shall any way arise happen or accrue upon accot. of the sd Stock or any Part thereof to be had made or sustained during the Continuance of the sd. Co-partnership, shall be upon accot. of Thirds, whereof the sd. Geo Crossley his Exors Admors or Asss. shall have & bear 2/3 parts & the sd Nichs. Devine the other 3d Part, according to the true intent & meaning of these Presents. And it is covenanted concluded & agreed by & between the sd. Parties to these Presents, that the repairs & other necessary Things to be done on the Premises or to the Building where the Trade is carried on, & for the Payment of Servant’s Wages & House – keeping & other Expenses about the same shall be Paid out of the Joint Stock, previous to any Allowance or Accot of Profit & Loss being concluded & be taken & deemed as a Payment in the Way of Trade & out of the joint Stock thereof. And it is further agreed that no Servant or Apprentice shall be taken to be employed in the sd. Trade without the Consent of both parties, & that all Bills Bonds Specialities Letters Bills of Parcels & Receipts that shall be given or taken by either of the aforesd. Parties shall be in the name of Geo Crossley or Crossley & Co. or Divine & Co. but upon the joint Account of the sd. Co-partnership, until the sd. Parties shall in Writing agree on any other Firm or name, Item that true just plain & perfect Books of Account & reckng. shall be kept by the Parties in the common Place where the Trade is carried on, & that each of the sd Parties shall from time to time, fairly enter or cause to be entered therein a true & particular Account of all Monies received & paid by them, & all other Things by them
respectively
[Page 305]
done concerning the sd. Partnership & that the sd. Books & Accounts & all Bills Specialities, Bonds, Letters & writings concerning the sd. joint undertakings shall & may be ready at all times to be seen perused & Copied by both or either of them the sd. Parties their Exors or Admors & each of the sd. Parties to these Presents for themselves their Exors or Admors doth Covenant promise & agree to & with the other of them their exors & admors by these Presents in manner & Form followg (Vizt.) that all the sd. Parties shall & will yearly & every year during the sd. Co-partnership upon the 25th day of July or within one Month next before or after the same, unless the sd. Parties agree to defer the same to more convenient time & signify that their Agreemt in Writing join with the other of the sd. Parties & perform, & do whatsoever unto him belongs or in him lies to make & set down between them, a true & perfect Accot. & reck'ning in Writing of for & concerning the sd. Co-partnership, & of all & every such Sum & Sums of Money Goods Wares & Things as are or shall belong to or be Employed in the sd. Joint Trade, & also all the Profit & Increase, charges & Losses, thereby happening & of all Debts which shall be due & owing unto & from the sd. Parties by or to any Person or Persons by reason of their Partnership & joint Trade, by which Account it shall & may appear plainly to each Party in what State & Condition [indecipherable] they shall then be by reason of their Co-partnership, & what or how much the Part or Share of either of them shall amount into in neat & good Estate, as they shall then esteem it upon finishing such Account which sd. Accounts the Parties account current in the Partnership’s Ledger shall be credited for his Proportion of the Gain by Trade & is any Loss shall happen, then each Party shall be made Debtor for his share of the same, it being covenanted & agreed by & between the sd. Parties that at the finishing of the sd. Accounts the Companies Stock shall yearly or as often as they balance their Books be to the original Stock of £4000 Sterling or ad near thereto as may be, the first of which Accounts shall be made Settled & finished by the sd. Parties as aforesd. upon the 25th day of July in the year of our Lord 1802. or within one Month before or after, unless
[Page 306]
sd. Copartners agree to some other time, & the same Accounts after being finished & settled shall not be called in Question or Controversy unless it be for or upon some special error & mistake therein committed & plainly appearing & so as the same shall be found out & in Dispute in the Life time of both the sd. Co-partners & not otherwise, ITEM it is declared & agreed between the sd. Parties that either of them may if he think fit occupy any Farm or Set up any Manufactory he may think proper out of his private & respective Stock, & at his own pleasure & risque. AND it is agreed that none of the sd. Parties shall become Bound Bail or Surety with or for any other Person or Persons whatsoever for any Debt matter or Thing whatsoever except for themselves, for matters relating to the sd. joint Trade, without the Licence & Consent of the other Party to these Presents to that Intent first had & obtained in Writing or do any other matter or Things whereby or by means whereof the sd. Stock or any Part thereof or the proceed thereof, shall be arrested attached seized or taken in execution or otherwise charged or incumbered for the particular or private Interest Debt duty or Affair of either of the sd. Parties which shall not concern the sd. joint Trade & that each of the sd. Parties as far as conveniently they may or can shall or will from time to time during the sd Co-partnership desire & take the advice & consent of the other Partner in & concerng. every such Monies, Goods, Wares & other Things whatsoever belonging to the sd. Joint Stock, as he shall either deliver out or take upon Trust Credit or otherwise (for necessary House-keeping excepted) AND that if it shall happen any of the sd. Partners shall trust or deliver out upon Credit any of the Goods Wares Monies or Estates of or belongg. to the sd. joint Stock or Trade to any Person or Persons whatever of whom the other of the sd. Parties shall nameing the name or names of such Person or Persons, preadmonished or warn the other of them not so to trust, that then so often from time to time either of the sd. Parties that shall so trust & deliver out upon Trust any of the sd. Goods, Wares, Money or other Estate to any such Person or Persons pre-admonished or forewarned as aforesd. shall & in will in lieu thereof always within Six Months next after such Trust & Credit & request made by the other Partner, answer & Satisfy unto the sd. Joint Stock, so much Lawful Money as the Goods,
Wares
[Page 307]
Wares Moneys or Estate by him or them shall be so trusted out (& delivered as aforesd. as shall amount unto if in the mean time the same shall not be satisfied unto the sd. joint Stock by the Party to whom the same was trusted & delivered upon Trust as aforesd. & then such of the sd. Parties so making satisfaction thereof as aforesd. to have & take to his & their own use the benefit of the sd. Goods Monies & Estates so trusted out & for which they shall make Satisfaction as aforesd. AND it is also covenanted granted concluded & agreed by & between the sd. Parties to these Presents & the sd. Geo Crossley & Nichs. Devine for themselves their Exors & Admors doth covenant grant conclude & agree to & with the other of them by these Presents, in manner & Form followg. (Vizt) That by the Space of One Month before the Expiration of these Articles or within one Month next after the Death of either of the sd. Parties which shall first & next happen, each of them the sd. Parties their Exors or Admors shall make render yield & deliver up at or in the House aforesd. or in any other House or Place where the sd. Joint Trade shall be used & occupied a true full plain & perfect Account & reckoning in Writing unto the sd. other of them his Exors or Admors for all things which they should or ought to be accountable to each to the other or others, & shall timely account & reckon each of them with the other of & for the sd. Joint Stock, & Trade & the Proceed Gain & Interest thereof, & of & for all the ready Money Goods Chattels Wares & other Merchandizes that shall come in or belong to the sd. Joint Stock Trade & Co-partnership, And it is also agreed that in Case of the Death of either of the sd. Parties, before the determination of the sd. Co-partnership that the Goods Wares & Merchandizes then belonging to the sd. Joint Stock shall within one Month next after the Decease of either of the sd. Parties be Valued & appraised by two Indifferent Persons to be chosen by the Survivor of them & the exors or admors of the sd. Deceased Partner, & that after such Valuation & appraisement made by the Surviving Partner shall after the Debts due from the sd. Co-partnership are deducted, pay to the exor or admor of the dead Partner within a reasonable time next after such Valuation & Appraisement what shall be
found
[Page 308]
found to be his or her Part Interest or Proportion in such Goods & Merchandizes PROVIDED ALWAYS that in case of the Death of the sd. Geo Crossley in the Life time of Anna Maria Crossley his Wife the Part or Share of the sd Geo Crossley in the sd Joint Stock & every Interest the sd. Geo Crossley hath or ever had therein or in the Profit or Increase of the sd. Trade shall immediately become Vested in & the Property of the sd. Anna Maria Crossley her exors Admors & Assigns, & it is hereby declared & agreed that the sd. Goods Chattels & Effects are hereby directed upon such event to be deemed taken & to be absolute Property of the sd. Anna Maria Crossley her exors admors & assigns & in Case of the Death of the sd. Geo Crossley or Nichs. Devine or either of them before the end & determination of this present Partnership (except as aforesd.) that the Debts & adventures then belongg. to the sd. Joint Stock shall as soon as received by the surviving Partner be divided & Paid to the exors or admors of the deceased Partner according to the Share or Proportion in such Goods & Merchandizes PROVIDED ALWAYS & it is the true intent & meaning of these Presents that in case of the Death of either of the sd. Parties, it shall be lawful for the Survivor before any Dividend shall be made of the ready Money Goods Chattells, Wares, or Merchandizes, or of the sd. Dues or Adventures belongg. to the sd. Partnership to deduct & retain thereout so much as will fully pay & Satisfy all such Debts as shall be by the sd. Parties then owing in the sd. Joint Trade. AND it is also covenanted Granted concluded & agreed upon between the sd. Parties to these Presents & each of them for themselves his exors & admors doth hereby covenant grant conclude & agree to & with the other of them by these Presents, in manner & Form followg. (that is to say) That from immediately after the Date & execution of these Presents as well the sd. Leasehold Premises as all & every part of the Stock in Trade, Goods & Chattells shall be & the same & every part of the Stock in Trade, Goods & Chattells shall be & the same & every Part thereof is hereby declared to be Vested & to be deemed, taken & considered as Vested in the sd. Nichs. Devine his exors & admors upon the hereafter named Trust (Vizt) That he the sd Nichs. Devine his exors & Admors hold the same upon Trust as to one half thereof to his own Use
according
[Page 309]
according to the agreement herein contained, & as to the other half thereof in Trust for the sd. Geo Crossley during his life & after the Death of the sd. Geo Crossley in the Life time of the sd. Anna Marie Crossley his Wife then upon Trust for the sd. Anna Marie Crossley her exors admors or assigns, & it is agreed by & between the Parties that without delay an Inventory & Appraismt. shall be made of all the sd. Stock in Trade & Implements for carrying on the same & the sd. leasehold Premises & Buildings & Improvements therein at their first & Prime Cost or Costs of such alterations & Improvements made as near as such Valuation can be justly ascertained & such Schedule or Inventory shall be fairly entered in a Book & Duplicated Copies made & signed one Copy delivered to the sd. Geo Crossley one to the sd Nichs. Devine & the other to the sd. Anna Marie Crossley, which Inventory & Valuation of such Premises & Stock as aforesd. shall be deemed & taken to be the sd. Stock in Trade & for one half of such Value the sd. Nichs. Devine shall pay or secure to the good liking of the sd. Geo Crossley, with Interest in two Years from the Date hereof if the same shall not be previously disposed of & it is agreed that as to the Money that the sd. Nichs. Devine shall not pay for his Moiety of the sd. Stock, the sd. Geo Crossley shall in the Sales made set apart & enter in a Book & keep the Money until Payment of such Valuation made as aforesd. & it is agreed that the sd Geo Crossley or his Wife the sd Anna Marie C. shall have the management of the sd. Trade, & it is declared & agreed that as soon as conveniently may be after the Valuation & Appraisemt. made as aforesd. the sd. Geo Crossley shall call in all his Cash Notes & pay all hid Servants & Workmen’s Wages, & redeem the Lease now deposited for 300£. & from the Piece of the Valuation of Goods so made shall deduct what he may Pay out of the sd. Trade, & deduct the same from the Valuation of such Goods & strike a Balance & That all future Cash Notes to be given shall be on accot. of the sd. Joint Trade, & for no other Cause to be entered in Books kept for the Purpose, & that no Notes or Bills shall be given for any Cause matter or Things but on accot. of the sd Joint Trade & that no Private debt whatever of either of the sd. Parties shall attach or be construed deemed or taken in sny wise to
attach
[Page 310]
attach, incumber or charge the sd. Property hereby assigned save only such Notes or Bills as shall or may be issued by them or either of them (after the Date & execution of these Presents) for Goods as may be bought upon Credit & brought into the Joint Stock & entered as such in the Co-partnership’s Books & it is declared & agreed that if any Dispute shall arise between the sd. Parties, the same shall be referred to the award arbitrament final end & determination of two indifferent Persons the one to be chosen by the sd. Geo Crossley & the other to be chosen by he sd. Nichs. Devine, & in Case the sd Arbitrators cannot agree as to their Award in seven days after such their Appointment then such Arbitrators shall appoint an Umpire & if they refuse to make such Appointment then the sd. Partners shall appoint such Umpire by each naming one Person & drawing a Lot which of the two Persons shall be such Umpire, & if either of the sd. Partners shall refuse to name a Person to be so drawn for by the Space of two days after the other Partner has given in the name he chuses, for an Umpire then for such default or neglect the Person named by the other Partner shall be sole Arbitrator & Umpire & the Award made by such Arbitrator or Umpire, as the case may be shall be final & conclusive of all Disputes & Differences between the Parties to them referred & each of the sd. Parties for himself his exors & admors doth agree to perform obey & abide by such Award or Umpirage, AND it is agreed that the sd. Geo Crossley shall continue to exercise the same Trade & dispose of the Effects therein in the Way of Trade until such Inventory or Valuation as aforesd. is made. & the Money for the sd. Nichs. Devine’s moiety of the Effects paid for or Security given for the same, & that if either of the sd. Parties shall at any time out of his own private Stock of Cash advance or pay any Money on account of the sd Co-partnership Trade greater or more in Value than the other Partner then & in such Case such Money so advanced shall bear and pay legal Interest out of the sd. Trade to the Person or Partner so advancing such Money as aforesd. & the Partner’s Share of Stock in whose Favor such Money is advanced shall be debited for such Interest & such Interest as well as Principal carried to the Credit of the Partner advancing such Money & be paid out of the first Monies received in such Trade in preference to any Division of
Profit
[Page 311]
Profit or Payment to the other Partner, IN WITNESS whereof the sd. Parties to these Presents have hereunto Set their Hands & Seals the day & year first above written.
(Signed) Geo Crossley L.S.
Nichs. Devine L.S.
Signed Sealed & Delivered (no stamps being used in this Colony in the Presence of (Signed) M. Robinson
(Exhibited before the Court this 22d Feby. 1803)
(Signed) Richd. Atkins.
(No. 3)
Copy. No 1393 W.N.C. £1000
I Promise to pay Mr. Geo Crossley or Bearer the Sum of One Thousand Pounds, with Interest on the 13th day of July 1803.
Sydney Novr 28th 1802 No. 1 (Signed) N. Devine.
Copy No 1394 W.N.C. £1000
I Promise to pay Mr. G. Crossley or Bearer the Sum of One Thousand Pounds Sterling with Interest on the 13th day of July 1803
Sydney Nov 28th. 1802 No 2 (Signed) N. Devine
Copy Sydney Nov 28th. 1802
No. 1385 W.N.C. £550
I Promise to pay Mr. G. Crossley or Bearer the Sum of Five hundred & Fifty Pounds Sterling with Interest on the 13th day of July 1803
No. 3 (Signed) N. Devine
Copy No 1386 W.N.C. £500
I Promise to pay Mr. G. Crossley or Bearer the Sum of Five hundred Pounds Sterling with Interest on the 13th day of July 1803.
Sydney 28th Nov. 1802. No 4. (Signed) N. Devine
Copy Sydney Nov 28th. 1802.
No 1387 W.N.C. £500
I promise to pay Mr G. Crossley or Bearer the Sum of Five hundred Pounds Sterling with Interest on the 13th day of July 1803.
No. 5 (Signed) N. Devine.
Copy
[Page 312]
Copy Sydney Nov 28th. 1802
No 1388 W.N.C. £500
I Promise to Pay M G. Crossley or Bearer the Sum of Five hundred Pounds Sterling with Interest on the 13th day of July 1803.
No 6. (Signed) N. Devine.
Feby 22nd 1803 Crossley v Wentworth Esq & others
The Plt having required the Court to order Mr. Thos. Smyth the Provt. Marshl. to produce certain Books & Papers necessary for the Support of his Case (to wit) a Book purporting to be Stock taken under a Deed 13th July 1801 All the other Books of Accounts Papers Securities Deeds & Writings taken out of his House from the 1st August to the 22d Sept. 1802.
The Court hereby order & direct Mr. Thos. Smyth the Provost Marshall to produce the above mentd Books & Papers to the Court accordingly.
(Signed) Richd Atkins
Jas. Mileham
Wm. Moore
Mr. Thos Smyth
Provt Marshall
a true Copy
(Signed) Wm. Paterson.
July 13th 1801
Whereas by Indentr. bearing even date herewith & made betw Geo Crossley of the one part & Nichs Devine of the other part being Articles of Co-partnership of Trade the sd. Geo Crossley assigned the Premises & Stock in the sd. Indr. Specified for one half of such Premises & Stock the sd. Nichs. Devine was to pay or secure Payment thereof to the good liking of the sd. Geo Crossley & altho’ the sd. Deed is executed no Appraisement or Valuation of the Premises & Stock therein mentioned or is the Inventory or Schedule thereby directed yet made, now it is declared that such Inventory & Valuation shall be made as soon as conveniently may be agreeable to the Provisions of the sd Indre for one full Moiety or half part of such Premises Stock & effects immediately after such Value ascertained It is agreed the sd. Nichs. Devine shall secure Payment of to the sd. Geo. Crossley by the Promissory Notes of Hand of him the sd. Nichs Devine payable to the sd Geo Crossley or Bearer in Sums not
[Page 313]
not exceeding £300 each & to the full Amot. of such half part of such Valued effects, to be payable as aforesaid with Interest at any time not exceeding two Years from the day of the date hereof & for collatorally in securing such payment the sd. Nichs. Devine is to execute a Deed of Assignmt. with a confession of Damages to the Value of his Share of the Stock Premises & Effects expressed & assigned by the sd. Indre, or intended so to be under which the last mentd. Assignt. Possession is to be retained, until such Notes are Paid, & as the Money for Sale of Goods shall be got in, as often as the sd Nichs Devine’s Share or Part will pay one of such Notes a Balance to be struck & such Notes delivered & discharged, & if the sd. Geo. Crossley before the last of such Notes is Paid shall be required to advance any Money for newly purchasing any Goods such Money is to be secured with Interest to be paid, & such Deed for collaterating such Security is to be in force for securing such Payment. WITNESS our Hands this 13th day of July 1801
(Signed)
N: Devine
Geo: Crossley
Witness
M. Robinson
Exhibited before the Civil Court this 22d Feby. 1803
(Signed) Richd. Atkins
Jas. Mileham
Willm. Moore
(Copy receipt)
28th Novr. 1801. Received of Mr. Nichs. Devine Six Promissory Notes for Four Thousand & Fifty pounds, being for one half of the Stock & Premises in Terms of the annexed Agreement & Deed referred to.
(signed) Geo. Crossley
Memom.
Whereas Geo Crossley has broke my Award in Crossley & Wentworth, this is to command & authorize you to seize & take into your
Possession
[Page 314]
Possession all the sd. Geo Crossley’s Goods Chattells Farm at the Hawkesbury, Book Debts & effects of every Sort & sell the same by Public Auction without Delay pursuant to my Award, Given under my Hand & Seal at Govt. House Parramatta this 1st day of August 1802
(signed) Philip Gidley King
To the Provt. Marshall & all others
Exhibited to the Civil Court the 23rd April 1803 & admitted by the Provt. Marshall to the best of his Knowledge to be a Copy of the Warrant under which he entered.
(signed) Rd. Atkins
Willm. Moore
J. A. Mileham
To the Provost Marshall & all others whom it may concern.
Geo Crossley Appellant )
D’arcy Wentworth Esq Respondt )
The Deed of Trust & Inventory being duly unexecuted, we the Trustees do require you to quit Possession of the Appellant’s Effects, pursuant to Indre. dated the 19th Jany. 1802, under which we are appointed Trustees. Witness our Hands
(signed) John Palmer,
Jas. Thompson
T. Moore
Exhibited before the Civil Court this 24th Feby, 1803
(signed|) Richd. Atkins
Jas. Mileham
Wm. Moore
Rec’d from H. Kable
R.A.
Crossley
v.
Wentworth & Smyth Esqs
Defence of Thos. Smyth, Provt. Marshall
Gentlemen of the Court
If I understand the drift of this Suit it is for an illegal entry on the Plt’s Premises under a Warrant of Execution. The pretended or presumed illegality of which rests upon the levy being made on a Sunday
but
[Page 316]
are some forms which we must necessarily dispense with. & we must be content to take Custom for our Guide. On the present Occasion I shall make it appear to you that I actually entered the Plts Premises on Saturday, That I then produced a Warrant under the hand & Seal of His Excelly the Govr. that the Plt. himself was present in the Shop when I entered & levied, That he asked me for & I suffered him to take minutes of, or extracts from the Warrant, That I actually proceeded to lock up several cases & took away the Keys, leaving the Bed-room open from a Principal of Tenderness & Humanity to the Family - And Gentn. You will pause for a moment to consider how unlikely it is that I should have given the Plt. a Copy or even extracts from the Warrant at any other time but when I entered & levied on the Effects & on the Sunday he himself says he was at Parramatta. The Plt has produced his Copy & the Contents (excepting the Date which I protest against as incorrect & which I insist has been purposely altered) are in Substance & effect nearly the same as the origl.
Gentlemen, I am the Provost Marshall of this Territory my Official Duty is to execute all Warrants, Precepts & Mandates, legally directed to me. Gentn. this was a Warrant from the highest Authority, & highly unbecoming would have been in me to question it’s legality or pause in the execution of it. It is not my province to combat the Intricacies of the Law or to expouse them, I have done my Duty & you Gentn. will support me in it.
(signed) Thos. Smyth
Recd this 24th May 1803
(Signed) Rd. Atkins
Wm. Moore
Jas. Mileham
Sir
I beg leave to call upon you as Judge Advocate of this Territory & as the chief Law Officer whose province it is to interpose your advice between Party & Party, to inform me whether any matter has been addressed in the
course
[Page 451]
And far be it from me Gentlemen to endeavour to hurt the Fortune of any Individual in this Colony, by attempting to recover large damages, on my private account; for any personal Inquiry to me, or to exact from a small helpless Family that which they have a just right only to – I trust Gentlemen that my known character in this Colony is such as will refute any Idea that may be sedulously attempted to be made, saying Revenge and Gain is what I aim at. I can with truth assure you that nothing but the recommendation of the Magistracy to enter this prosecution; as well as to deter others from again endeavouring to asperse characters so infinitely their superiors could have obliged me to have taken the Trouble I now do in bringing forward Mr. Cubitt – Nor would my Damages (had it been for the Contempt that I hold his Assertion to be in) laid at a less Sum than £1000 Sterling and which I might with much Justice claim. To Your Superior Judgements, Gentlemen, I most respectfully submit my Case knowing that you will fulfil the old Adage "Do as you would be done unto")
(Signed) J. Harris
Novr. 8th 1805
To the Honourable Court of Civil Jurisdiction
Gentlemen
This Action is brought by John Harris Esqr. For defamation wherein he declares he has sustained damages to the Amount of £10 by reason of a Memorial I wrote to His Excellency, wherein I asserted that his horse and Truck conveyed a quantity of Spirits after Sun Set to the house of Mr. Driver in Chapel Row contrary to a local Order on that head (a Copy of which is hereto annexed) and which the Plaintiff admits was the case, although the Bench which investigated the business, said there was no such Order – Gentlemen it will be proved by Evidence that such an Order was given by Governor Hunter, and that Spirits were seized and detained in consequence of such Order, and it is not for me to know whether such an Order was put in the General Orderly Book or not, but this I know, if I should presume to disobey any Order, given by His Excellency Governor King, by alledging that they are not legal, or not put into the General Orderly Book I should be severely punished for such disobedience – Gentlemen, Had this action been brought by any person of an equal Rank with myself, I should not have thought it worth Reply, as it is impossible for the Plaintiff to prove by any Evidence whatever that he either has or shall sustain damages by any assertion in any Memorial to His Excellency, nor are there any Expressions in it that an Action can be grounded on – Gentlemen it must appear to you, as well as felt by me, that the Plaintiff has brought this Action to gratify his Invetteracy, and from this and the advertisements in the Gazette I have no doubt all my sufferings have arisen – Gentlemen, it is not long since from his unfounded Prejudice against me, I was locked up
in
[Page 452]
In a Cell for six days and nights by Order of the Plaintiff, and at length released by him without any hearing, and it is not more than six weeks ago that I had been prevented from obtaining a Permit to land some Spirits from the Ship Brothers in payment for live Hogs at the Rate of 20/ - per Gallon –
Gentlemen, I can adduce no reason for being deprived of that Indulgence unless from the misrepresentation of my Conduct in keeping a Gambling House, whereby His Excellency the Governor thought me not worthy of it, yet my opposite neighbour was constantly supplied with Spirits, and an Officer’s Horse Truck and Servant conveyed the Cask at the time alluded to in my Memorial to the Governor, to that licensed house wherein it was disposed of at the Rate of Two Pounds, eight shillings pr. Gallon – Now Gentlemen, consider my feelings when I heard of this Transaction, by the person whom I have every reason to believe from the very scandalous and infamous reports circulated prior to my Memorial to His Excellency the Governor prevented me from obtaining the Spirits from the Ship Brother whereby I could have cleared upwards of Twenty Pounds, which would have enabled me to support my large Family, And, Gentlemen. I have been since deprived of my Licence, and publicly slandered in the Gazette, as keeping a disorderly house, although I have requested an impartial Investigation for such false aspersions, which I could not obtain, but have been prevented without knowledge for what cause, of following a calling to procure a support for my Family, I never knew that a Licence was in England to carry on the Butchering Business, I know that no person there can be deprived of any Licence he has held for any Time unless it is proved that he has disobeyed some Regulations attached to such Licence as it is well known that no Man is to be prevented from getting an honest Livelihood. But I am sorry to say that is not the case here at present, for if a Person in Office takes an Antipathy against any man in any situation he is certain in a short Time to be ruined, Gentlemen, I am sorry to have trespassed so long on your Time, but this being absolutely the Case with me, I hope this Honorable Court will after impartially hearing and weighing the Evidence advanced give a Verdict in my favour with Costs of suit as well to convince His Excellency the Governor, and the Public in general that I have not merited the Representation given of me in the Public Papers –
I am Gentlemen &c , &c , &c
(Signed) Danl. Cubitt
Nov 16th. 1805
28th Novr.. 1805
Bench of Magistrates .. Judge Advocate – John Houston Esqr.
Danl. Mc. Coy Sworn … Quest: by John Harris, Esqr..
2. Did you on or about the first week in October meet with others at the House of Daniel Cupitt a then licensed Butcher in Chapel Row and
play
[Page 453]
Play at cards or any other Game whereby considerable sums of money or other Property were lost or won? …. Ans. Yes, I did.
Que. 2d. Was Daniel Cubitt present, or was it with his knowledge or Sanction? … Ans. Yes.
Que 3d…. What sum of Money or Bills did you lose at Cubitt’s house? …. Ans. As nearly as I can recollect £100 and upwards.
Matthew McDonnagh Sworn…. Que. By J. Harris Esq…
Que… Did you about the first week in October see gambling going on at the house of Cubitt? … Ans. Yes, I did; I saw a good many Bills on the Table; McCoy having lost all his money I lent him two Bills.
(signed) Rd. Atkins
I Houstoun
In the Court of Civil Jurisdiction
John Harris Esqr)
Dabl. Cupitt ) £10 Difamation
The Plaintiff giving delivered into Court No. 1 closes his Prosecution
The Defendant produces the Paper No. 2 read by the J.A.,
The Plaintiff admits that a cask of Spirits containing 40 Gallons or upwards was taken with his horse and truck from his house after sun set to the house of Mr. Driver with a permit.
Mr. Lord sworn – Qu by Defendant
Qu. – Had you ever a Cask of Spirits seized as it was coming from Mr. Mecan’s at Farm Cove between Sun Set and Sun rise and which was deemed by the Governor a legal seizure? .. Ans. I had a Cask of Spirits seized as it was coming from Mr. Mecans’s to my house between 8 and 9 o’Clock at night, it was detained from me and the Constables got it.
Qu.… Do you recollect having seen any Order prohibiting the removal of Spirits from Sun Set to Sun Rise?.. Ans. I do recollect an Order to that Effect.----
Qu. by the Court
Qu. Do you conceive that Order still in force? … Ans. I conceive all Orders in force until cancelled.
Patrick Waling Sworn - Qu. By Defendant.—
Qu. Do you recollect, when you was a Watchman at Sydney, seizing a Cask containing a quantity of Spirits belong to Mr. Lord and coming from Farm Cove?.. Ans. I do recollect seizing such a Cask but cannot say whether it belonged to Mr. Lord or Mecan; It was coming from Mecan’s. – It was considered as smuggled Spirits and no permit with it.
Henry
[Page 454]
Henry Kable sworn … Qu. By Defendant –
Qu. .. Do you recollect a seizure being made of some Spirits by Pat. Waling, then a Constable, coming from Mr. Mecan’s house at Farm Cove to Mr. Lord’s in Sydney?.. Ans. I recollect a seizure being made on the hill leading from Mr. Mecan’s to Mr. Lord’s at the time the Ship Walker was here.-
Qu.. For what reason was it considered a legal seizure?.. Ans. Governor Hunter told me it was for it’s having been removed after hours.
Qu.. By the Court
Qu.. Was there ever a written Order to that Effect?.. Ans. I cannot say. The Deponent states that at the time Waling came to him as chief Constable, he informed him that some spirits was removing from Mecan’s to Lord’s. –
Qu. By Defendant –
Qu… Do you recollect a seizure being made opposite my house in Chapel Row, the 4th July 1800 of a quantity of Spirits at the time you was Chief Constable, by some of the Sydney Watchmen? and explain to the Court why it was not considered by the Governor as a legal Seizure… Ans. I recollect a Cask containing a quantity of spirits being seized which I saw opposite the defendant’s house, and on being sent for by the Governor to know at what time it was so seized… on my answering about three quarters of an hour after Sun rise, he was of Opinion that it was not a legal seizure, and ordered it to be returned to the Owner.
Qu. Do you not conceive the local Order prohibiting the removal of Spirits between Sun rise and Sun set was a local regulation of the Colony?
Ans… When I was Chief Constable; If a Constable had seized any Spirits in the Interval of those times, I should have detained it until the Governor’s or Magistrates Opinion was taken as to the legality of seizure and that in consequence of what Governor Hunter had said to me on that head.
Verdict for Plaintiff £10.—the Defendant having totally failed in substantiating the charges exhibited against then Plaintiff in his Memorial to His Excellency the Governor.
(Signed) Rd. Atkins
Saml. Marsden
Thos. Jamison
A true Copy
(signed Richd. Atkins . J.A.)
New South Wales)
Cumberland to wit) By Philip Gidley King, Esqr. &c , &c , &c
Whereas &c , An Appeal having this day been brought before me
By Daniell Cupitt…………..Appellant
against
John Harris Esq. ……….Respondent
When after truly and impartially hearing and weighing the Evidence and Testimony of such Witnesses or Documents as were
brought
[Page 455]
Brought forward by the Parties in this Cause , it appears that Appellant actuated by a Motive of Retaliation against Respondent, Magistrate charged with the Police of Sydney for having detected Appellant’s unlawful practises in encouraging gambling within the (Appellant’s) dwelling, exhibited to me a Complaint in writing against Respondent charging him with having acted contrary to the local Ordinances of this Colony which Appellant pledged himself to prove, And on it’s being investigated by a Bench of Magistrates it appeared that Appellant totally failed in substantiating any appearance of a Breach of the said Regulations and Ordinances on the Part of Respondent – who in consequence conceiving it a malicious Accusation commenced an Action of damages to the Amount of Ten Pounds Sterling against Appellant in the Court of Civil Jurisdiction for Defamation – which Action of Respondent avers he instituted for the Ends of Public Justice and not for pecuniary advantage, - When Appellant not proving the Charge he had exhibited to me against Respondent – The Civil Court gave a Verdict of Damages and from which Verdict, Appellant made this Appeal – When on hearing this Appeal, it appears Appellant’s Charge against Respondent was totally false and groundless, in as much as no Order of this kind existed which Appellant pledged himself to produce.
I do therefore award that Appellant pays forthwith to Respondent the Sum of Ten Pounds Sterling according to the Verdict of the Civil Court, which I do hereby confirm and direct Appellant to pay all Costs of Suit otherwise Execution to proceed.
Given &c. Sydney 19th Decr 1805
(signed) Philip Gidley King (S.S.)
To the Judge Advocate and
Provost Marshall &c, &c
New South Wales)
Cumberland To wit) By His Excellency Philip Gidley King &c, &c
Whereas &c, &c, An appeal having this day been brought before me
Mr. Thomas Smyth – Appellant
Against
Mr. James Williamson – Respondent
When after truly and impartially weighing and examining the Testimony of the respective witnesses and such papers and Documents as were adduced in the above Cause it appears by the Evidence of John Archer before the Civil Court that previous to Mr. Williamson’s departure for England in October 1800 he and Mr. Smyth at the latter’s desire compared their respective Accounts when an Objection was made by Smyth to two Government Bills said to be advanced by Williamson
to
[Page 456]
To Smyth which Smyth denied ever giving any Order for or receiving.
That all Smyth’s Orders in Williamson’s possession were examined and found to correspond with their respective Accounts Debtor and Creditor except the two Bills in question which Williamson said he had in his Bill Book and would send an account of them to Smyth, which was never done – the Account was then signed by the Parties and witnessed by Simeon Lord, Agent to Williamson with a reservation as to those two Bills No. 244 and 245 being produced – On Archer’s being cross questioned by Williamson he admitted that Smyth remarked Williamson would be in his debt that there was an Objection to 20 Bushells of wheat which was referred to farther recollection, and that the objection to the two Bills in question then arose – On the part of Williamson John Brennon proved that he received an Account Current between Williamson & Smyth from Lord the former’s Agent, and says that some little time before Williamson left the Colony in October 1800 that Williamson and Smyth went together to his house and then there appeared to be £3-1-1 coming to Mr. Smyth at which time it appears the account was signed by the parties and witnessed by Lord with the reservation respecting the Bills in question – Williamson produced his Bill Book and two other Account Books, to the correctness of which, excepting common Errors, he made Oath – and also averred that he had repeatedly advanced considerable Sums without any other Security than entering them as advanced in his Day Book – And on this Evidence the Civil Court gave a Verdict for the Respondent Williamson – From which Verdict Smyth appealed, objecting that notwithstanding the settling these Bills were left open for the Term of two years till Respondent could produce the Orders or Receipt for those Bills, yet that no such Vouchers were produced or forthcoming to prove those sums were drawn for Appellant and answers by Respondent, and urging further that no such transaction took place [indecipherable]
On examing Respondent’s Books, sworn to before the Civil Court it appears that the following Entry is made by Respondent on a Register of Bills, delivered by him to different people
No. Date
244 Augt 6) Mr Smyth in advances 163.13.0 paid
245 1798) 35.3.0 paid
And notwithstanding Respondents averment that he has repeatedly advanced large sums of Money without other Security then entering them as advanced in his Day Book, yet it appears by a Reference to the Day Book that no Entry of so considerable a sum advanced Appellant is made, but that regular Entries are made in the Day Book about that Period of Notes and Money Transactions with different persons of Sums from £200 to six shillings – On examining Respondents Ledger on the 8th September following an entry is made, as follows – To Cash paid
Mr.
[Page 457]
Mr Smyth [indecipherable] Order No 244 and 245 - £218.16.0 but the name of Smyth is evidently inserted instead of another name erased and the Sum £218.16.0 is substituted for another Sum also erased and not drawn across by a Pen as is the custom of Merchants – These being the only Documents and the Opinion of the only respectable Merchant here being that Entries under such circumstances were irregular and liable to much doubt. Respondent prayed that the decision of this Cause might be postponed till the return of Mr. McArthur who might be able to speak to receiving the Bills in question from Appellant which occasioned a further delay of near Two Years – when Mr. McArthur had no recollection or Proof to adduce of his having any knowledge of receiving those particular Bills.
I am therefore of Opinion that Respondent was remiss in not keeping or procuring an Order or Receipt for the Amount of the two Bills in question, at least until the settlement took place, previous to Respondents quitting the Colony as the necessary and indispensable Voucher for the advance of so considerable Sum – Nor can I have any other Opinion of the subsequent circumstances than that Respondent having no Order or Receipt to produce as a Voucher and the omission of a regular Entry in the Day Book and Erasures in the Ledger are the most presumptive Proofs of Appellant’s Assertion that he never received the Sums in question from Respondent-
I do therefore award and decree that Respondent pay to Appellant’s Administrator the sum of Two hundred and Eighteen Pounds Sixteen Shillings Sterling and the Sum of Three Pounds One Shilling and Two Pence Sterling making together the Sum of Two hundred and Twenty One Pounds Seventeen Shillings and Two Pence with Costs of Suit which payment to be made and rendered within six months from this date otherwise execution to issue against Respondent.
Given &c.. Parramatta this 5th day of February 1806
(signed) Philip Gidley King (L.S.)
To the Judge Advocate and)
Provost Marshall &c, &c)
New South Wales) Unto His Excellency Philip Gidley King Esqr. &c , &c
Cumberland To wit)
Appeal between Mr John Wilkinson – late Master of the Ship Commerce ) – Appellant
And
John Palmer Esqr – Agent to Mr. Robert Campbell & Co or otherwise) – Respondents
And W Austin Forrest, Master and part Owner of the Ship Sydney) – Respondents
Most respectfully set forth
That the Reasons why Your Excellency’s Appellant
appeals
[Page 458]
appeals are as follows viz
1st. Because the Court below have only given a partial Verdict when it ought in Law and Equity to have been general and unqualified by reason of the Bond or Agreement No. 1 produced to them which ought to operate fully as well for the Penalty as for the Fifty Tons of Oil, or be made void altogether, for if it is considered valid for the 50 Tons of Oil, it surely ought to be for every other part thereof; but if void surely the Verdict ought to be for all the Oil and Whale Bones shipped and not partial for 59 Tons only, when it appears in Evidence that 70 Tons were received on Freight by the Orders of Captain Forrest the only part Owner of the Ship Sydney in this Colony who it is reasonable to presume must have more power than any acting Agent
2d. Because the Court below have not given any decision or Order how the other Twenty Tons of Oil and the Whale Bone are to be settled for which have been shipped and relanded and unaccounted for in any why whatever although it plainly appears in Evidence that it all was shipped on Freight in good condition for England and proper Receipts given by the Chief Officer of the aforesaid Ship Sydney as appears by Paper No. 8 produced in the Court below
3d. Because the Court below have only given it as their opinion that the Premium of Insurance would be returned as the intended voyage to England is contrary to the Charter of the East India Company which I submit ought to have been guaranteed by the Respondents in the Court below as it plainly appeared in Evidence that they were the sole cause of the Oil and Whale Bone being shipped and of having the Insurance written for as appears by the letter and Copies marked from No. 2 to No 7. Exhibited in the Court below, and also the sole cause of their being relanded and I certainly am of Opinion that if Insurance has been made the Risk will be to the Underwriters, and in that Case this suit will become theirs altogether for whom I am obliged to act as the only person concerned here. My reason for saying the Risk will be to the Underwriters is that most Policies are all Risks, and their Risks commence from the shipment of the Goods as in this Case, whether through Deviation in Masters or Owners of Ships or otherwise as it is well known that the Casks of Oil were Rafted on shore, rolled on stoney Ground and intermixed with a great number of other Oil Casks landed in the same manner, whereby the salt water will rust their hoops and occasion a great leakage as well as departing from the Agreement and thereby making void the Policy of Insurance.
4th.. Because Respondents set up is Plea that it was not legal for the Ship Sydney to proceed to England, as will appear by Mr. Palmer’s letter and Your Excellency’s Answer dated 19th March 1806 (marked No 1 & 2) but surely that plea cannot in any way whatever, do away my lawful claim in behalf of myself, my Owners, Underwriters or others whom it may concern, as it appears that the Oil and Whale Bone were shipped more than a month prior to that application and that a large Quantity of Government Timber was on board for the purpose of being conveyed
to
[Page 459]
To England – If the Respondents have deceived themselves as well as prevented me from shipping any Oil and Whale Bone in the Ship Ceres (Captain Sharp) which I can prove should Your Excellency think necessary by Interrogatories – surely I, my Owners, or Underwriters are not to suffer by their Neglect or improper Conduct, nor do I believe the Law of Great Britain will admit of any Cause or Plea of such a nature –
5th. Because that the Court below have not concluded Mr. Austin Forrest in their Verdict, not otherwise said, at what or whose Risk the other Twenty Tons of Oil and21 ½ Ct of Whalebone were to be accounted for although it is proved by Mr. Robson’s (the Chief Mate of the Ship Sydney) Receipt as well as by his Evidence that the Oil and Whale Bone were received on board to be conveyed to England, and that the said Oil and Whale Bone has been by Captain Forrest’s Orders reloaded without any Consent or any Security being given of any nature whatsoever but on the contrary refused to sign Bills of Lading or any other Document for me, which is clearly proved by Mr. Wood’s Evidence, and have reason to fear as been allowed to quit this Colony without leaving any person or Property to my knowledge to answer in the premises; and if the Master and part Owner of the Ship Sydney is not liable for all or any damages Losses, or Expenses either by leakage, Loss of Market, Insurance, Interest of Money, my Detention and Expenses in this Colony, as well as and every other Expense that may arise (save Freight and other Incidental charges on the arrival of the said Oil and Whale Bone in England) by reason of his, and of Mr. Palmers breach of Agreement or Deviation in Rafting and Relanding the said Oil and Whale Bone, I must confess I am at a loss to know who is to be answerable to me, my Owners, Underwriters, or whom it may concern – These and numerous other Causes in Law and Equity arising, are Your Excellency’s Appellant’s Reasons for appealing against the Verdict of the Court below and pray Your Excellency will be pleased after perusing and impartially weighing all the proceedings, papers, Documents, Evidences, and Circumstances, thereto relating, to reverse the Verdict of the Court below, and award a real security to bear Your Excellency’s Appellant, his Owners and Underwriters harmless, together with the Penalty prescribed in the Agreement No. 1 aas well as all and every Expense that have or may arise in the Premises which Your Excellency’s Appellant will ever gratefully acknowledge &c , &c ,
(signed) John Wilkinson
Late Master of the Commerce
Sydney New South Wales
April 11th 1806
Vides Bond
Marked A
[Page 460]
In an Appeal
John Wilkinson Esqr..Appellant
And
John palmer Esqr.. Respondent
The Respondent most humbly submits to the Consideration and Judgement of Your Excellency in the Court of Appeal in Reply to the matters and things assigned as Causes of Appeal by the Appellant
Because the Agreement No.1 produced and read on hearing the Cause in the Court of Civil Jurisdiction amongst other things states
That the said John Palmer thereby agrees and binds himself to receive and take on Freight onboard the Ship Sydney commanded by Captain Forrest Fifty Tons of Oil to be forwarded to the Port of London on the conditions therein set forth-
Whereas since the signing of the said agreement it has been discovered by some Information from England in the last Ships which have arrived since the date and signing that Contract, that the Contract is utterly void in Law.
Because by some Charter or Act of Parliament of the British Legislature the sending of Oil or other sort of Merchandize from this Port to the Port of London in the Ship Sydney, is by some Act of the British Parliament for Regulations of the Navigation or of the South Sea Fishery, or some Clause in the Charter of the East India Company, confirmed by an Act of Parliament such Trade from these Seas to the Port of London in Vessels under the same Circumstances as the Ship Sydney is absolutely prohibited and such trade would be deemed an illicit Trade and subject both the ship the Cargo and the Oil so imported to be forfeited for which reason every agreement for such illicit Trade is absolutely void in Law.
Because the Trade being deemed illicit, the Respondent ought not to be charged for any default nor can any refusal to perform such a void contract be received as Evidence of damages in any Court of Law or Equity nor can any such Contract for a Trade to be carried on contrary to Law be binding and received in Evidence.
Because if the said Ship Sydney had proceeded on the Voyage to the Port of London with such Oil or Freight, she would on her arrival with the Oil and other goods she carried into that Port have been subject to Seizure and Confiscation, But which Law was not known to the Respondent when he entered into such Contract.
And by reason of such Trade being deemed illicit no Penalty or damages could or ought to be allowed in any Court of Law or Equity.
That the Prohibition of such a ship sailing into the Port of London with such goods or Freight having come to the knowledge of the Respondent was the only Inducement on hearing of the Cause to make an Offer to the Appellant in Court and which appears on the minutes of the Court as a proposal accepted by the Appellant by the same being made a part of the Case and in these words -
"Mr Palmer offered before the Court to ship the 50tons of Oil
the
[Page 461]
The first Opportunity and pay for the Policy" as by Reference to the Minutes of Court of Record and delivered in by the Appellant as part of the Evidence on which he supported his Action may appear.
The Respondent most humbly submits to the Consideration and Judgement of Your Excellency in the Court of Appeal that save only for such proposals the Court in Justice could not have given any Sentence or decree to perform a Contract contrary to Law or have given any damage or forfeiture whatever for the non performance of such a Contract which if carried into Effect would not only subject the Respondent or those he acted for to the forfeiture of the Ship, but the Appellant to the Forfeiture and Confiscation of the Oil or other goods he was to deliver on Freight to the Port of London in the said Ship.
For these Reasons the Respondent most humbly submits to the Judgement of Your Excellency that this Agreement and every other matter of Damages ought to be decreed void in Law and the Appellant dismissed as seeking damages for a thing the doing of which is prohibited or against the Law of the Land.
All of which the Respondent most humbly submits to the Judgement and Consideration of Your Excellency in the Court of Appeal
("signed") Jno. Palmer
14th May 1806
New South Wales
To all to whom these Presents shall come, I John Palmer Esqr send Greeting – Whereas an Action in the Court of Civil Judicature was brought by Mr. John Wilkinson late Master of the Brig Commerce against Mr. Austin Forrest Master of the Ship Sydney and John Palmer Esqr in which Cause a Verdict was given by said Court and from which Verdict the said John Wilkinson has appealed to His Excellency the Governor NOW know Ye that I the said John Palmer do hereby bind in myself my Heirs and Assigns in the penal sum of Two thousand Pounds to abide by the decision of the Judge of the High Court of Appeal in which John Wilkinson is Appellant and Austin Forrest and John Palmer Respondents reserving to myself as well on my own part as on that of the said Austin Forrest the Right of Appeal agreeable to the Charter of this Colony. In witness whereof I have hereunto set my hand and Seal this seventh Day of April in the year of our lord 1806
(signed) John Palmer (S.S.)
Sealed and delivered in the presence of (signed) Richd Hughes
[Page 462]
Sir,
In compliance with Your Excellency’s Wish that I an Appellant in an Appeal between me and John Palmer Esqr. Respondent and Agent to Mr Austin Forrest also a Party in this business, should state in writing any Suggestions relative to the Agreement No.1 referred to in the proceedings of the Court below the following are amongst numerous other Ideas relative to the Agreement alluded to. Viz.
That is John Palmer Esqr. Commissary of this Territory and Agent and Representative of such a house as Messrs Campbell’s & Co of Calcutta, should employ his own Lawyer to make agreements with Penalties attached to them, when forfeited, should become invalid for such Penalty, but still be valid in Respondents favor for the Fifty Tons of Oil specified as appears by the Verdict of the Court below – If this is to be the case, I must confess I am at a loss to know what Intent or motive such agreement was required from me who was an utter Stranger in this Colony and studiously avoided breaking it in any one point, but have fulfilled my part according to its true Intent and meaning with respect to the other Twenty Tons of Oil and the Whale Bone that were shipped on Freight, certainly in Law and Equity I ought to be guaranteed from any Loss or Damage, inasmuch as they were received on board on Freight as appears by Mr. Robson’s Receipt and Evidence in the Court below. Nor does the agreement say that no more than fifty Tons shall be shipped, but to pay Eleven pounds [indecipherable] Ton for the Quantity delivered, and I am certain Mr. Palmer understood the quantity would exceed Fifty Tons and that that quantity was only mentioned by me to prevent my agreeing for more than I might have as it is clearly proved that Captain Forrest went in the Sophia to the Straits for more Oil to make up his Cargo.
Relative to the Agreement standing good on account of the legality of the Sydney proceeding to England, I cannot be answerable for that part, as I was certain that the Lady Barlow was gone to England under more favourable circumstances, as I had been informed that the Sydney was a Prize Ship and had been nominally sold in this Colony for the purpose of proceeding to England, and that Your Excellency had sanctioned her going by putting a large quantity of Government Timber on board her which circumstance alone would have been sufficient to remove all doubt on my side
I am with high respect &c
(signed) John Wilkinson
Sydney May 15th 1806
His Excellency
Governor King &c, &c, &c
[Page 463]
May it please Your Excellency
To allow me to reply to some of the Respondent’s assertions in his Reply to my Appeal which I cannot pass over in a silence with Justice to myself, my Owners, Underwriters or whom it may concern, wherein he states that as if the Oil I freighted in the Ship Sydney was an illicit act in Trade carried on by me and would invalidate the agreement and that I had agreed to a Proposal made by him to freight the Fifty Tons to London by the first Opportunity and it was made a Record of – both of which please of his selling up are fallacious and groundless but to the contrary I was believed by Mr. Palmer and required to sign that agreement which was his own Diction and by that means prevented from forwarding my Oil by the Ship Ceres nor can there be any one single Act of mine in the Business made appear either irregular or unlawful in as much as the Oil and Whale Bone I shipped on board the Sydney were procured by me in the Snow Commerce and would have been conveyed to England in her had she not proved unseaworthy and been condemned by a regular survey, under Your Excellency’s surveying Order upon my Application for the same, therefore that part of her Cargo I have shipped on board could not be an illicit Trade and if the Respondents have deceived themselves as well as me by supposing her a free Ship to go to England surely my Owners and me are not to be put to a Loss of several thousand pounds by their neglect or misconduct, nor could I be supposed to know that the Ship would not proceed to England after being informed that she was a Prize Ship and came for the purpose of conveying a Cargo to England and more so whilst it appeared in the Sydney Gazette that a large quantity of Ship Timber consigned to the Navy Board was actually on board her which circumstance alone was sufficient to convince me that there could be no impropriety in my shipping Oil and whale Bone in her – therefore pray Your Excellency will be pleased to award me a real security as well as the Penalty attached to the Agreement for all damages losses and expenses that may in any way arise by reason of the said Oil and Whale Bone being relanded without my Consent or knowledge at the time.
Your Excellency’s Compliance will ever be gratefully acknowledged by &c, &c
(signed) John Wilkinson
Sydney May 29th.. 1806
[Page 464]
By His Excellency Philip Gidley King Esquire &c, &c,
Whereas &c, An appeal having this day been brought before me, by John Wilkinson, late Commander of the late Commerce British South Whaler belonging to the Port of London - Appellant
against
John Palmer, Agent to the House of Messrs. Campbell & Co. of Calcutta and this Place in the Absence of the Resident Copartner Robert Campbell and Austin Forrest. Master and part Owner of the Ship Sidney belonging to Campbell & Co – Respondent
When after truly and impartially hearing and weighing the Evidence & Testimony of such witnesses or Documents as were brought forward by the Parties in this Cause it appeared to be the Intention of Respondents that the Ship Sydney belonging to the House of Campbell & Co registered and cleared out from Calcutta for this Port should have proceeded to the Port of London with a quantity of Government Timber taken on board as Ballast consigned to the Navy Board under a sealed Bond not to require or sue for any other recompense for Freight than such as the Navy Board might chuse to give and it was equally known that the quantity of Oil and Whale Bone shipped by Appellant together with a quantity of Oil belonging to the Richard and Mary South Waler and a greater Quantity of Oil Seal Skins and other production of the Colony belonging to Campbell & Co should also be exported in that Ship to the Port of London for which purpose the above Lading was shipped and would have proceeded at the Risque of Campbell & on a similar clearance to that given the Lady Barlow had not an Account of that Ship being seized in the Port of London being received by the Ships Tellicherry and the Star afterwards confirmed by the William Pitt Therefore I am of Opinion that neither the Agreement of this Government respecting the Timber or these of the Master of the Richard and Mary or Appellant (even had the latter’s Agreement been legally executed which it is not) ought to have been obliged Respondents to subject the Ship Sydney and her whole Cargo to Confiscation by proceeding to England nor was it the duty of this Government to grant a Clearance when it became known that such an act was contrary to the Rights of the Honorable East India Company as secured by Charter.
And although the condition of the imperfect agreement made by Respondent Palmer to Appellant appeared possible at the time of making it Yet the late acquired knowledge that an exhisting Act of the Law rendered it’s being carried into Effect impracticable by reason of it’s illegality whereby it appears to me that the Obligation or Penalty of the Agreement exclusive of it’s Imperfection ought to be saved to the Respondent Obligor.
No doubt appears that if Respondent had not received Information of the Lady Barlows’ being seized in the Port of London
that
[Page 465]
That the Sydney would have proceeded on the Voyage and it appears equally evident that Respondents Obligor was as anxious to have the Oil shipped on board the Sydney as the Appellant Obligee was to put it on board.
It is obvious by the Mate of the Sydney’s receipts that a certain number of good and bad Casks Said to contain about seventy Tons of Oil and about Two thousand One hundred and fifty pounds of Whale Bone were taken on board the Sydney on verbal Orders from Respondent Forrest and it also appears that the said Oil and Whale Bone with the rest of the Sydney’s Cargo was relanded and stored in the Premises of Campbell & Co without any Communication with the Appellant who alledges that this act has greatly injured the Casks containing the Oil while Respondents aver that many of the Casks were unfit to contain that Article.
I do therefore confirm the Verdict of the Civil Court with the following Exceptions.
1st . – That instead of Respondent Obligor sending only Fifty Tons of Oil and Whale Bone to England by the first Conveyance that he gives Security to send the whole seventy Tons and the Whale Bone which was Bona fide received on board the Sydney by the first British registered Vessel it can be received on board.
2nd – That previous to the Oil being reshipped that Respondents and Appellant do at their Joint Expense and Trouble replace such Casks as are not deemed fit to contain Oil with sufficient good Casks to reship and preserve the property – The Decision of the Court respecting the Premium of Insurance and the Leakage to remain undisturbed.
Given under my hand & Sydney 3d June 1806
(Signed) Philip Gidley King (LS)
To the Judge Advocate and Provost Marshal &c, &c
May it please Your Excellency
To allow me to give Notice of my Intention to appeal to His Majesty and Council in England from an Award and Decree made and pronounced by Your Excellency on the third day of this Instant, June in a Matter of Appeal John palmer Esqr. And Mr Austin Forrest Master and part Owner of the Ship Sydney were Respondents and myself in behalf of my Owners Underwriters or whom it may concern Appellants, and that Your Excellency may not for a Moment conceive that such appeal is dictated by, or founded on frivolous, vexatious or unworthy Motives, I have taken the liberty to suggest with humble deference to Your Excellency’s Wisdom and Judgment, the Reasons I have for finding myself on this Occasion aggrieved by Your Excellency’s Decision; and when those appear in solemn and deliberate Review I respectfully trust, Your Excellency will rest satisfied with their Importance and Efficiency, and will believe
me
[Page 466]
Me when I declare that acting as I am for my Owners, Underwriters, or whom it may concern who have confidently committed their Concern to my charge and Fidelity I cannot consistent with Justice to myself and my Duty to my Owners Underwriters or whom it may concern, take upon myself to abide by the Tenor of a Decree, which affords me no other Redress than having the Oil and Whale Bone shipped for England, by the first British registered Vessel on which they can be received, and also to be at a further Expense in furnishing Casks and coopering them prior to their second shipment, and that the Verdict of the Court below is to stand undisturbed relative to the Premium of Insurance, which appears to me to be neither one Thing or another as it says "We are of Opinion from the Authority we have consulted that in the Event of all or any part of the Oil having been insured that the Premium must be returned on the Principle that the intended Voyage of the Sydney to England is contrary to the Charter of the East India Company and which seem to me as only a matter of Opinion and cannot be binding on any Insurers, therefore I am no nearer the Point or Object I originally set out with, but that of having my Oil and Whale Bone shipped or sent to England by the first Opportunity, which may happen in one Month, or perhaps not these two Years to co come, in such a Colony as this, as I have been waiting here these six Months past for a Passage, and have now no more Appearance or Likelihood of procuring one than I had the day I sold the Snow Commerce – and as all I wanted originally was no more than what by Law and Equity I was entitled to, a real Security to bear me, my Owners, Underwriters, or whom it may concern harmless from all Losses, Damages and Expences that might arise by reason of the Respondent’s Nonperformance of their Agreement and refusing to sign proper Bills of Lading, and for having without my knowledge or Consent relanded the Oil, and by rafting the Casks in which it was contained on Shore, as well as rolling them over stony Ground and improperly stowing them in Mr Campbell’s Stores, will be the means of the greatest part of The Oil leaking out as well as damage the Casks, which I beg leave to say was fully proved by Evidence in the Court below, and by Mr. Robson’s Receipt that They were in good Condition and found fit for the Voyage, had they not been removed, save four or five which are referred to in the Receipt and which also appears by the Report of Your Excellency’s Surveyor.
In Your Excellency’s Decree it appears, that the Agreement entered into by me at the Instance of the Respondents and under the Direction of Mr Palmer and registered in the Judge Advocate’s Office is in perfect and void it is astonishing to me that the Commissary of this Colony, and Agent and Representative of Messrs. Campbell & Co. of Calcutta and a Resident in this Colony for upward of Five Years, should have an agreement made on behalf of such a respectable House, that was imperfect; without he had some Motives or Views that were improper, as it was not in my Power (being a Stranger here) to know whether the Agreement was imperfect or not – but after it had been registered in the Judge Advocate’s Office agreeable to Your Excellency’s Order on that head. No doubt remained on my side and it was done previous to the Commencement of this suit
I cannot see how this Suit can have any reference to the Lady Barlow,
or
[Page 467]
Or to the Richard and Mary, or even whether the Ship Sydney was at Liberty to proceed to England or not, in asmuch as I was prevented from shipping my Oil and Whale Bone in the Ship Ceres Capn. Sharp, tho being bound in the Agreement to ship them in the Sydney or forfeit Five Hundred Pounds Sterling, and after having shipped them in the Sydney and wrote for Insurance by two Conveyances, surely the moment the Oil and Whale Bone were removed by the Respondents without my Consent or Knowledge, they from that Instant became responsible for all Losses, Damages, or Expenses that might arise, by reason of such Removal. – I never once required the Respondents to forward them in the Sydney or to risk their Ship or Property on my Account. – All I originally applied for was, to be indemnified from all Damages Losses and Expences that might happen by reason of such Deviation – With respect to the Ship Sydney’s proceeding to England, I was informed (after the Arrival of the Tellicherry) and it was known that the Lady Barlow was seized, that the Sydney was under different Circumstances to her, and could proceed with Safety – But this I could have nothing to do with – All I conceive I have to do is to look to the Agreement and the Receipt for the Oil and Whale Bone, which were agreed to be delivered in London at Eleven Pounds Sterling Freight pr Ton – therefore if Captain Forrest and Mr. Palmer have deceived themselves, by letting the Ship Sydney to Freight, and receiving such Freight on board, and afterwards deviating therefrom, the Freighters certainly can have nothing to do with the Legality or Illegality of either of their Proceedings; but give me leave to say, suppose for a Moment, that they had the Freight of Government Ship Timber, it would have been efficient Authority for her to proceed, and I was assured by Mr. Palmer that she was a Prize Ship and furnished with such papers that Your Excellency could not refuse giving her a Clearance to proceed – These and numerous other Reasons in Law and Equity, I submit are sufficient for my appealing to His Majesty in Council against the Decree Award or Verdict of Your Excellency and humbly hope Your Excellency will be pleased to order me Copies of the Proceedings and of all the Papers relative thereto, that I have not already received, and allow them to be properly attested, in Order to enable me, my Owners, Underwriters or whom it may concern to prosecute the Appeal, which will much oblidge, &c
(signed) John Wilkinson
Sydney – 13 June 1806
New South Wales
2nd June 1806
Unto His Excellency Philip Gidley King Esquire &c, &c, &c
Appeal between
William Sutton – Appellant
And
W. H. Humphrey – Respondent
Most respectfully sets forth
That your Excellency’s Appellant by a regular Process issued from the Court of Civil Jurisdiction instituted an Action against the Respondent for the seduction of Harriott Sutton his daughter from his Service and for a Breach of Promise of Marriage when the Appellant laid
his
[Page 468]
His Damages at £280… That the Cause being called on the 26th of May Instant, and Parties present, Your Excellency’s Appellant produced before the Court his Charges in writing entitled No. 1 to which he submissively refers on the separate heads of Seduction and Breach of Promise of marriage – And Evidence being admitted and duly sworn – Reference to the first, being John Houstoun. Esqr. Laid before Your Excellency will amply bear, the latter part of which does credit to that Gentleman in that Capacity as well as being a Magistrate; as to the Cross Examination of the Respondent to this Gentlemen the Appellant humbly believes it would be unnecessary for him to again advert upon, Because the Testimony of John Palmer Esqr. Will more fully elucidate the answers thereby required.
The second Evidence admitted was Elizabeth Bedford, Servant to John Palmer Esqr. By which it is evident that she accompanied Harriett Sutton to meet the Respondent at the Grove, and that three weeks previous to her Elopement; And that at such Meetings or either of them the Respondent used every persuasive Language to induce Harriett Sutton to leave Mr. Palmer’s house and to live with him, And that he was with her at the Grove on a Night previous to her Elopement from till 12 at night.
Your Excellency at this stage of the business will readily see how the Respondent held forth Temptation and Inducements to Harriett Sutton to seduce her from her Situation by unmeaning Language, Swearing by Heaven and the Moon that he loved her and would never forsake her. If such language cannot be called Seduction to an unthinking Female, none can be such a competent Judge as Your Excellency, And when she asked the Respondent if he would marry her; or if she would take the steps he advised, what her Father would think if he did not marry, there can be no doubt but his Language was suitable to his Inclination; and that he treated that awful Ceremony with Indifference and Contempt; And when asked by the deluded girl how the Respondent could protect her in his House he answered with a smoothing Tongue that he would conceal her, and which no doubt he has done. The Conversation of this Evidence positively says that the subject of her Testimony alluded to took place three weeks previous to the Elopement of Harriett Sutton.
From the 2nd Question by the Respondent to the 9th The Appellant with Submission to Your Excellency, consider them unworthy of Notice, and only a more subterfuge to cover his own premeditated Designs. The 10th Question by the Respondent evidently implies his own Guilt and proves his previous Correspondence and views of Seduction – The 11th Question is also a Subterfuge and what could not be affirmed; as the [indecipherable] Tongue of the Respondent was more than sufficient to prevail on this poor deluded Female to evade the vigilance of the Deponent or even a hired Attendant. The 12th Question is already answered. The 13th and 14th Questions are without Effect. And as for the 15th, however the Answer may be construed, there is no Doubt but Mrs Palmer had the most undoubted Right to chastise and reprove Harriett Sutton either for any Impropriety she committed; But by the Testimony of this Witness the Cause is not assigned – As to the Determination of the 16th Question it is without Effect or Meaning – The 17th Question tends more to confirm than to exterminate the Guilt of the Respondent – The 18th Question is only meant to extenuate and unworthy of Notice, and the 19th Quesrion cannot have any Allusion to the Appellant’s Charge.
The Third Evidence being George Stacey he admits to have seen
Harriett
[Page 469]
Harriett Sutton and the Respondent together very familiarly when the Respondent was throwing his hat at her and kissing her and such familiarity he discovered about three weeks previous to her Elopement and particularly swears that it was the Respondent that was kissing Harriett Sutton, because he passed them several times. Your Excellency will be pleased to comment on this Testimony and by comparing it with the preceeding it will clearly demonstrate the views of the Respondent and corroborate his Intentions of seducing Harriett Sutton from her comfortable Situation, merely to gratify his own vicious Inclinations.
The 4th Witness adduced was John Palmer Esqr. who admits that he would protect Harriett Sutton until she was married, and might have continued there had she behaved herself, and that it was his Intention as well as Mrs. Palmer’s to make a Provision for her at her Marriage if married from the Family as she was not considered altogether as a Servant.
The first Question suggested by the Respondent to this respectable Gentleman, is only a presumptive Idea of being honest, But the Appellant humbly suggests to Your Excellency; That had the Respondent any Regard for Principles of Honour or Gratitude for unmerited Hospitality, instead of encouraging the deluded Object of his Views to remain in his house, he ought to give Mr. Palmer immediate notice of her Elopement that he might pursue such steps as a Master or a Father of Children, in such cases would do, - The second Question to Mr. Palmer is answered y him, suitable to the Dignity of his Own Character and as the World in general will believe – And the third Question is without Effect.
As the Evidence of John Palmer Esqr. will generally appear before, Your Excellency by perusing the Proceedings, it would as the Appellant humbly conceives be unnecessary for him to comment or expatiate thereon; as the Appellant is well convinced Your Excellency as Supreme Judge of this Colony sitting in Equity will readily desern The ambiguous Conduct of the Respondent and his far fetched Questions.
The Evidence of Mr Lewis is most express, when he declares that the Time the Appellant applied to the Respondent for his Daughter he the Respondent pointed to the Room in which she then was, observing that it was locked and that he could not get in, but if she would open it, he would not impede her going, and the Respondent as the presumed Master of the House refused to exercise his Authority altho’ required by Appellant to open the Door which he refused; But admitting that the Respondent did not consider himself justifiable in "breaking a Door" in his own house, was it not then his province to apply for legal Authority so to do, and more especially as he the Respondent previously pledged his Honor to Your Excellency that he would not harbour or secret the Appellant’s Daughter.
The last Evidence closed on the part of the Appellant for the first Charge when he produced and lodged in Court a Letter from the Respondent marked No. 2 to which he humbly refers.
Your Excellency’s Appellant being permitted to call Evidence i=on the second charge "Breach of Promise of Marriage" The Revd. Mr. Marsden was sworn whose Testimony is clear and decisive and fully establishes the Breach of Promise and the more effectually to confirm
it
[Page 470]
It the Appellant immediately applied to Your Excellency for a Licence to solemnize the Marriage which you was pleased to grant And in pursuance of such Licence the Respondent accompanied Harriett Sutton to Parramatta for the performance of it’s Intention, when of a sudden he declined it. Such Conduct was not only inconsistent with the British Constitution; but trifling and wantonly sporting with the wounded Feelings of a Parent; previously communicating by Lieu. Oxley that he would pay the expence and make some Recompense to his Daughter – As to the Respondents Honor mentioned in Mr. Oxley’s Deposition it is humbly submitted that he has not exercised much of that true Particles on the present Occasion – Here it becomes necessary for the Appellant to represent with every possible respect that the Promise of Marriage is more fully established by the last Testimony, and if the Appellant is rightly informed the Laws of England are particularly severe in such cases and subject the Party making the Breach to remunerate the other party with half of his or her Fortune and as the Respondent holds himself forth as a Man of Eminence and a Man of worth, it is to be hoped he will be found liable in the Damages claimed, and as he was to make the voluntary Offer, it would not blotch the Escutcheon of his Father’s Carriage in as much as it does to refuse it.
The Evidence of Lieut. Oxley is generally recited, And the Evidence of Doctor McMullen and Lieut. Moore tending to exculpate the charge of Seduction renders them unnecessary of Comment.
George Smyth, Servant to the Respondent was next called, the former part of whose Testimony can bear but little weight, but by the Appellant’s Questions to him it is fully proved the Stratagem practised by the Respondent to convey Harriett Sutton to Parramatta by disguising her in a Man’s Apparel, and in Consequence of a Representation made to Mr. Marsden of their arrival, and by Virtue of Your Excellency’s General Order that day announce, that Gentleman intended to secure Harriett Sutton, when the Respondent interfering assured Mr. Marsden that he intended to marry Harriett Sutton and wished him to communicate such Intentions to Your Excellency; and the Respondent dreading the Consequence of disobeying the General Order, he sent his Servant George Smith the following day to the Appellant to acquaint him that he might see his Daughter at Parramatta, and to this he was actuated , and fearful of the Consequence only, how far it may affect him the Appellant will not presume to say.
The Evidence being closed the Respondent craved time from the Court to prepare a Defence which being granted he produced a Defence which form part of the Proceedings, on the following day, intended as he says to save his purse and to resist the charge of seducing the Body, But Your Excellency will see that no such Charge was made, it was for seducing Harriett Sutton from a comfortable and permanent Servitude, and also for a Breach of Promise of Marriage, both which charges the Appellant humbly contends he has fully established.
The Respondent in his address to the Court lays greatest Stress on 2 Letters sent by the Appellant, One dated 24th April, demanding his Daughter and desiring that the Respondent would provide for her future support, unless he would marry her, in default of which the Appellant signified his Intention of applying for Redress by Law – Your Excellency it is hoped will consider such a a step by the Appellant as the first part of
his
[Page 471]
His Duty, And as it was natural to suppose that Harriett Sutton would have Issue unless the Respondent married her he was certainly bound to make a Provision for such Issue.
Subsequent to the date of this Letter a Treaty of Marriage was set on foot and the necessary measures were adopted for it’s Solemnization which the Respondent declined and consequently the Appellant considered it necessary to write a second letter dated 5th May requiring a provision to be made for his daughter, which he himself proposed thru’ the Medium of Lieut. Oxley; and Your Excellency’s Appellant having already a mind foreign to Litigation he was resolved to try every other measure calculated to avoid it – But the Respondent wishes to construe such Letters to a very different Purpose, and Your Excellency who presides as Supreme Judge of the High Court of Equity will consider such Intentions as a mere Subterfuge only – The Respondent attempting to deny the validity of the Promise of Marriage as it was not reduced into writing is erroneous and unsupported by Law or Equity, and the Court of Civil Jurisdiction was certainly of that Opinion by pronouncing their Verdict in favour of the Appellant – By some part of the Respondent’s Defence he pleads how inferior in Life Harriett Sutton was to him, and by chance he discovered that her Father had been a Prisoner transported hither – If her Father had been a Scavenger, it would be immaterial; it can have no affinity to the Breach of Promise of Marriage, and Your Excellency’s Appellant regrets with every due Deference, that some Restriction should not be laid on Individuals who so unfeelingly reproach a fellow Creature with past Misfortunes and in England it is well known that such Reproach subjects the Party so accusing to Damages; altho’ the Judge Advocate was not very sparing in Open Court by imitating the language of the Respondent.
The Court having considered the Evidence adduced, the Charges of the Appellant, and the Respondent’s Defence; they pronounced their Verdict in favour of Appellant awarding to him One Shilling Damages.
Against which Verdict and all proceedings had in the Cause the Appellant then and there appealed and now most humbly appeals to Your Excellency as such Verdict is illegal and improper.
Illegal. Because the Charge of Breach of Promise of Marriage has been clearly established.
Improper – Because the Court considering the Evidence sufficient, that instead of awarding only One Shilling they ought and should award to Your Excellency’s Appellant the full sum of £280 as claimed, and under such Circumstances, The Appellant prays that Your Excellency will be pleased to revise the proceedings of the Civil Court and ordain to the Appellant the full sum of £280 with Costs.
Most Respectfully &c, &c
(Signed).. William Sutton
[Page 472]
His Majesty’s Territory called New South Wales
By His Excellency Philip Gidley King Esqr. &c, &c, &c
Whereas &c, An appeal having this day been brought before me, by
William Sutton -- Appellant
Against
W. H. Humphrey Esqr – Respondent
When after truly and impartially hearing and weighing the Evidence and Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause, it appears that about three weeks before Harriett Sutton’s Elopement from Mr. Palmer’s house, she had two Interviews with Respondent and in support of that Fact two Evidences have been [indecipherable] [indecipherable] to the Elopement and that Respondent did not seduce Harriett Sutton, no other Proof appears than that the different Witnesses examined on that part state on the Hear Say alone of Harriett Sutton that Respondent had not seduced her, but whether this means that he had not seduced her by Carnal Knowledge or seduced her from her Service is an Explanation she appears to have reserved in her own mind until the exhibition of an Interrogatory in answer to which she clears Respondent of seducing her in the first Instance.
Respecting Respondent’s Breach of the implied Promise of Marriage it does not appear that any such Obligation took place by the joint application of both Parties, but the Girl’s Father applied to me verbally in Respondent’s Name for a Licence which I granted with the Clause of providing for the Consent of both Parties.
I am therefore of opinion that altho’ Harriett Sutton was equally debased in Body and Mind before she eloped from Mr. Palmer’s protection and Service, Yet it is no less my Belief that Respondent was not averse to Harriett Sutton, leaving the respectable Service she was placed in by her Father, otherwise, it was Respondent’s duty in every relation not to have [indecipherable] her in his house – and by Respondent’s entertaining and harbouring her all night I can have no hesitation in considering that he has either directly or indirectly been [indecipherable], aiding or [indecipherable] in the seduction of Harriett Sutton from her Service and of her becoming an Expence to her Father. – I do therefore award that Respondent pays to Appellant, the sum of Ten Pounds Sterling, and in failure of which [indecipherable] be levied
Given &c.. Sydney 12th June 1806
(signed) Philip Gidley King (LS)
To the Judge Advocate and Provost Marshall &c, &c
New South Wales in Appeal August 22nd 1804
Rule of Court
In addition to the Fees in Appeal before the Governor of the 15th September 1802. The following Fees are allowed to the Clerk of Appeals…. Viz
Residing every three Pages of Seventy Words, each Two Shillings or in proportion to be paid with other Costs at the Close of Appeal.
A Copy, or Exemplification of any Record whatever, as it stands recorded for every Line, not less than nine words, one with another One Halfpenny
to
[Page 473]
To be paid by the Party requiring such Copy on delivery, Searching any Record whatever One Shilling and Sixpence, Copy of Award Five Shillings if required on being pronounced.
(Signed) Philip Gidley King
Memo.
Sydney Dec 26th 1805
In consequence of D. D. Nann’s improper Conduct on the 24th Instt. Which occasioned my dismissing him from any further attendance in the Secretary’s Office, you will cancel and return my Order to you in his favour dated 28th Sept. last
(Signed) Philip Gidley King
To Mr. Commissary Palmer
Civil Court
David Dickenson Mann .. v .. John Palmer Esqr. as Commissary
Capias for £194.5.0 and upwards
Paper No. 1 read – With His Excellency’s Verdict for Defendant
Notice of Appeal – a true copy
(Signed) Rd. Atkins. J. A.
Gemtlemen
This Action is brought to recover the sum of One Hundred and ninety four Pounds and upwards from John Palmer Esqr Commissary General of this Colony which sum I consider myself entitled to by an Order given to him the said John Palmer Esqr from under the hand of His Excellency the Governor in Chief, of which the following is a Copy – viz
"Memorandum
David Dickinson Mann Clerk to the Secretary having been of the utmost public Service in that Department during the last five years in which Situation it will be necessary to retain him from his local knowledge, and as I have made application for his being allowed a Salary equal to your Clerks, you will give to the said D. D. Mann an Order on some of those who owe Debt to the Crown to the Amount of three years Salary at £60 pr Annum from the 28th September 1802 – This salary to continue permanent, but subject to further Regulations until it is sanctioned from England"
(Signed) "Philip Gidley King
Sydney Sept 28th 1806"
"Mr. Commss Palmer"
I therefore submit to the Judgement of this honorable Court my right of Claim up to the 23rd day of December last when I resigned that situation, at the same time I beg leave to state, that I never would have brought this matter forward, were my circumstances such as would
allow
[Page 474]
Allow me to give up so large a sum, altho’ I consider myself justly deserving and entitled thereto
I have the Honor to be &c
(signed) David Dickinson Mann
Sydney June 2nd. 1806
To Richd. Atkins
John Harris
W. Rowland Hassal
The Members composing the Court of Civil Jurisdiction, now Sitting
---
New South Wales
Cumberland To Wit
To His Excellency Philip Gidley King Esquire &c, &c, &c
An Appeal between
David Dickinson Mann .. Appellant
And
John Palmer Esqr. Commissary, Respondent
Respectfully sets forth,
That Appellant brought an Action in the Court of Civil Jurisdiction on the 10th Inst. June against John Palmer Esqr as Commissary for the recovery of One Hundred and Ninety four Pounds and upwards due to Appellant under the following Order.. viz
(Copy)" memorandum &c… Vide last copied Letter
And altho’ such was given by Your Excellency, the Court below from some reason or other gave a Verdict for Respondent, from which Verdict Appellant appeals.
That Respondent to whom the said Order was addressed admits his having received the same from Appellant and made a regular Entry thereof in his Public Account as Commissary and at the time of such delivery thereof he offered to give Credit to your Excellency’s Appellant for the amount thereof then accrued due in the Colony, or to cause the same to be paid in England.
That Respondent admits the following conversation to have taken place between him and Your Excellency’s Appellant after Appellant had come to a determination to let the growing salary to be paid in England, viz. "That Appellant wanted the Money due upon the said Order to enable him to discharge the Debt, he owed in this Colony and as he thought he might dispense with the Annual Stipend as it should become due, and he never wishing to be a rich man he would give it to a Widow Woman in England, whose goodness and attention to him whilst in Jail there claimed from him every sense of Gratitude and that he felt himself highly pleased in being circumstanced so as to be able to assist a good Woman whose present situation in Life might be rather indigent or dependent" Notwithstanding all which the Respondent has refused paying the amount due to Appellant from such Warrant under the hand of Your Excellency which appears to Appellant to be contrary to Equity and the invariable Rule of Official or Individual Conduct, and bears hard on a breach of good faith in his Public Capacity which Your Excellency is besought to direct to have rectified by his either literally performing the tenor of said Instrument or returning the same to Appellant, it having been the remuneration for past Services.
That for the Reasons herein truly assigned and the evident Declension on the part of Respondent to perform what he is strictly bound
to
[Page 475]
To do to Appellant, he humbly appeals such his Case to Your Excellency and doubts not but Justice and Equity will be done in the Premises.
(Signed) David Dickinson Mann
Appellant
James Larra Administrator of all and singular the Estate Debts and Effects of Thomas Smyth Esquire deceased who died intestate ( late Provost Marshal of This Territory) Appellant
and
Garnham Blaxcell Esquire, Provost Marshall..Respondent
To His Excellency Philip Gidley King Esquire &c, &c, &c
The Appeal of James Larra,
Against the Judgement of Decree of the Court of Civil Jurisdiction made in a Cause depending before the said Court in which the said Respondent was Plaintiff and the said Appellant Defendant which Verdict or Decree was given by the said Court in the said Cause on the fourth day of July 1806 in these words
"4th July, Court met
The Court of Civil Jurisdiction finds a Verdict that Garnham Blaxcell Esquire as P. M. is entitled to a priority of Payment of the Effects of the late Thomas Smith Esquire in the Sum of £440.17.6 ¾ if so much remains in his James Larra’s hands unadministered pursuant to a Decree of the High Court of Appeal subject to any Deduction that may hereafter by received by the said Garnham Blaxcell Esqr. on account of the Estate of the late Thos. Smith Esqr. deceased
(Signed) R. Atkins
J. Harris
B. Hassall"
By which said Verdict or Decree Your Appellant is aggrieved and doth appeal from such Decision of the Court of Civil Jurisdiction to Your Excellency as Governor of this Territory as directed by the Charter by which the said Court is authorised or created in this Colony.
The Appellant most humbly presents to Your Excellency’s Consideration the Reasons Matters
and Things set forth to the Court of Civil Jurisdiction in the Pleas and Pleadings of the Appellant
filed in the said Court in answer to the said Action and the Causes and Suggestions filed in Reply to the Evidence given by the Respondent, and the Evidence produced by the Appellant in Support of his Defence and the Suggestions in that Reply –
The Appellant says that he did not in the first Instance apply for the Letters of Administration as his own Act, but he was appointed Administrator by the Recommendation of the then Members of the Court of Civil Jurisdiction in the following Manner – Two simple contract Creditors whose debts appeared very considerable that is to say John Palmer Esqr Creditor for £410..12..1 and Mr. Simeon Lord a Creditor for £358..19..0 each of them separately applied to the said Court to have Administration granted to them, but the Court in their Discretion
taking
[Page 476]
Taking into their Consideration that by the Act of the Court in granting the Letters of Administration such Administrator would have a Priority of Claim to his own Debt, in Exclusion of other Creditors and which many of the Creditors did oppose, the said Court refused such Letters of Administration to either of the said persons applying for them as aforesaid and the Appellant being a small Creditor was sent for into Court, and by the Recommendation of the then members of the said Court, Your Appellant on the Nomination of the Creditors in general was induced to accept the said Letters of Administration, and in every Act done by the Appellant under such Letters of Administration he has acted by the Direction of the major part of the Creditors, who are the only persons interested and for his own Indemnity he also acted as far as he could by the Authority or Sanction of the said Court of Civil Jurisdiction or had a desire so to do.
That shortly after the Commencement of the present Court of Civil Jurisdiction, all the Claims of the Intestate’s Creditors were laid before the said Court and by public Advertisement and the Appellant submitted to act as the Court should direct, and while the accounts were taking by, before and under the Order of the Court and while the different Claims or debts demanded were under Enquiry and Investigation before the said Court and the said Court had as many of such Claims heard or in part heard Evidence of their Validity but had made no Decision or given any Directions as to Debts having priority of Payment, and altho’ there was a Debt said to be due to Our Lord the King of £110..17..2 and claimed by the Commissary which the Appellant prayed of the Court he might be ordered by the Court and was ready to pay by or under the Direction of the Court, the Court did not decide upon the Priority of the said Crown or any other Judgement or Specialty Debt, but they granted Process to Respondent for a Claim of £736 and upwards but which was by the Verdict reduced to £440..0..0 and which Sum far exceeds the Effects in the Appellant’s hands after Payments in due Course of Administration allowed. Nor did the said Court by any Judgement, Order or Direction allow your Appellant to pay the said Crown Debt or any other specialty Debt first or disallowing the Claims for the Debts.
By which Proceedings the Appellant conceives he may be liable to be charged with the said Crown Debt and such specialty Debts to be paid out of his own separate Effects the said Claims of such Crown and specialty Debts laid before the Court being Notice previous to the Action of the Respondent brought, and the Money (if any) due to the Respondent is not as Your Appellant avers of the Nature of a specialty Debt or a Debt or Sum having priority in payment.
The Appellant most humbly submits for the Reasons given in the Pleadings in the Court of Civil Jurisdiction and which will appear by those Pleadings filed in the Cause and by the Papers read by the Court in Support or Proof of the said Respondent’s Cause of Action against the Appellant, that the Respondent had no cause of Action at the Time of the Death of the Intestate, nor did he act for any Person having such Cause of Action and was entitled in Law to support the said Action before the said
Court
[Page 477]
Court of Civil Jurisdiction. As Your Appellant most humbly submits to Your Excellency’s Consideration on the hearing of the said Appeal.
The Appellant with the greatest Respect and Deference submits to the Consideration and Judgement of the Court that it does not appear in Evidence in the said Cause nor is there in fact any Judgement or Decree of any Court having Authority to hold Plea in such Case or as mentioned in the Verdict aforesaid by which to give any Officer whatever Authority to make the Warrant or Process which the Respondent produced to the Court or alledged as his Right of Action, on which he grounded his Claim but the same is void.
That one of the Causes of Appeal (and Defence set up in the Court of Civil Jurisdiction) being the lawful Operation of the Papers produced by the Respondent, which Papers being the act of Your Excellency or signed as such the Appellant submits, that the Legality of those papers can only be enquired of by and before some other Court or Judge having Jurisdiction in the Cause.
Your Appellant most humbly prays Your Excellency to make such Decision or Decree as the Nature of the Case may require and to Your Excellency may deem meet.
And the Appellant will ever pray &c , &c
(Signed) James Larra
Sydney, July 10th 1806
In an Appeal
Crossley .v. Smyth & Others
By His Excellency Philip Gidley King Esqr. &c, &c, &c
Whereas from the sudden demise of the late Provost Marshall Thos. Smyth Esquire it appears that a certain sum of Money had been [indecipherable] by him in virtue of my Awards and Warrants to him directed, viz The Awards dated 9th January 1802 and 17th February 1804 and the Warrants dated 31st. July 1802 and 14th March 1804 which he had not paid into the hands of the Commissary and ultimately to me for the purposes stated in the said Warrant dated March 14th. 1804 – And as the Civil Court of Jurisdiction have granted Letters of Administration of the Estate of the said Thomas Smyth to James Larra – You are hereby required and directed to claim and recover from the Estate of the said Thomas Smyth late Provost Marshal the Amount of the money so received paying the same into the Hands of the Commissary & me, as required by my Order dated 14th March 1804.
And whereas divers of Money remain from Individuals for Articles purchased at the Sale of George Crossley’s Effects consequent on the above Awards and Warrants you are hereby required and directed to take the necessary Steps for the recovery of the same by Virtue of your appointment as Provost
Marshal
[Page 478]
Marshal in which Office the unexecuted Warrants directed to the late Provost Marshall remain with you to carry into Execution
Give &c – Sidney &c 19th Feby. 1805
(Signed) Philip Gidley King (L.S.)
To Mr. Garnham Blaxcell
Provost Marshal
Court of Civil Jurisdiction
The Memorial of James Lara, Administrator of Thos. Smyth Esqr. deceased late Provost Marshal of this Territory who died Intestate Presented to the Judge Advocate and others the Members of this Court
Most humbly
Submits to the decree Judgement and Consideration of the Court the following Case and Observation on debts and claims and other matters & prays the Direction of the Court in respect thereof
The Administrator submits to the Court that a debt of £39.2.3 due to him on Balance of Accounts from the Intestate he aught to retain the preferable debt and prays the Allowance thereof from the Court
The Administrator has paid out of the Effects to Robt. Campbell Esqr the sum of £254.14.0 due on an Assignment & which he claims to have allowed in Account
The Administrator has paid in due course of Administration the sum of £379..8..5. The Particulars of which is set forth in the Paper annexed marked with a Letter (A) and prays the same to be allowed.
The Administrator is Expenses of attending the Sales of the Intestate Effects and the Courts in Respects of the same, a much larger Sum of money than £ 50 viz many times at Sydney, at the Hawkesbury, and leaving it to the Court to allow what they think reasonable,
The Administrator has received or is accountable for the following Moneys, The Amounts of Sales by Auction in Mr. Lord’s £ 852.2.7 Bill’s received £ 12..11.7 making together the sum of £ 864..14..2 & there is due from Jas. Williamson Esqr. which is decreed to be paid at a future day the sum of £ 224 or thereabouts, which when received the Administrator will account for in due course of Administration
There are Claims brought in, in all amounting to the Sum of £ 3052..18..6 the Particulars of which are set forth in the Paper annexed marked with a letter (B)
But the Administrator craves to observe to the Court the following Remarks on some of those Claims, which may as he most humbly submits be deemed preferable debts and submits those Claims and their Right and Priority to the decree of the Court, viz,
John Palmer Esqr on Account of Government has claimed a Debt of £ 110..17..2 ¾ & which appears to the Administrator to have a priority of Payment and which if the Court are of that Opinion the Administrator is ready to pay out
of
[Page 479]
Of the Effects in hand under the direction of the Court & submits it to their Decree
There is a Claim delivered by Mr. Geo. Crossley for £72., remaining due to the said Geo Crossley by the said Thos. Smyth for monies levied as Provost Marshal in a Cause in which Judgement was signed in this Court to the said Crossley against Wm. Burgess, and under Warrant to him to levy the same, the said Thos. Smith levied £97. – but £25 part of that money is admitted to have been resd. by Goods bought at the Sale under the Execution and the remaining £ 72. the said Geo Crossley demands as a Debt of Record in preference to other Debts priority of Payment the Administrator to the Judgement direction & decree of the Court and will act as the Court pleases to order.
By a letter G. Blaxcell Provost Marshal dated the 25th Feby 1805 the said G. Blaxcell states that holding an Appointment as Provost Marshall in the room of W. Thos. Smyth deceased and the Execution of Judgements, & Awards of the Civil Court of Jurisdiction & the High Court of Appeal which were not returned or completed at his demise – Directed me the said G. Blaxcell by virtue of this Office and stating that a Warrant dated Feby 19th 1805 Directing him to carry into Execution the Warrants under which the late Provost Marshal acted in the Cause Crossley against Smyth Wentworth & others and that the Sum arising from the sale of Crossley’s Effects by virtue of the Governor’s Award & Warrants as Judge of the High Court of Appeal, directed to the late Provost Marshal amounted to £ 883..9..3 ¾ and that the Sum of £ 147..5..6 thereof was paid into the Governor’s hands by virtue of His Excellency’s Warrant as Judge of the High Court of Appeal dated March the 14th 1804 alledging that it appeared by the Documents amongst the late Provost Marshal/s papers as well as the declarations of some of the Vouchers of the above sale that he had received a further considerable Sum, which together with the whole proceeds of the sale, had not been paid into the Governor’s hand, in Obedience to the Warrants he had for that Purpose.
The said G. Blaxcell did by Virtue of his Office as P.M. claimed from Your Memorialist as Administrator the full Amount of the Proceeds of the late Provost Marshal’s Effects according to Priority of Payment, Established by Law.
Your Memorialist as Administrator, Most humbly submits to the Court that if this Claim of the new Provost Marshal be to the Amount claimed & have Priority – Your Memorialist, as Administrator has not Effects in hand sufficient to discharge the same.
And most humbly submits to the Decree of the Court – That as the Parties in the suit if any do not assert any Demand, that such claim of the Provost Marshall cannot be maintained as a Debt of Record, because the Provost Marshal can only claim against Parties in the suit of Effects not levied by former Warrants – Yet as Your Memorialist is desirous to act in the due course of Administration of the Effects under the Indemnity of the decree of the Court – Your Memorialist submits to pay any Money that may
after
[Page 480]
After former payments of Expenses are deducted, remain in hands unadministered - To such Persons and in such Priority, parts of Proportions as the Court may please to decree –
And most humbly submits to act in such way and manner as the Court may please to order & prays the directions and decree of the Court for his Indemnity in the Premises &c
May 12th 1806
(Signed) Jas. Larra
Civil Court 24th June 1806
G. Blaxcell Esqr. as Provost Marshal
V
Jas. Larra as Administrator of the Effects of Thos. Smyth Esqr Capias £736..3..9 ¾
Read – The Authority given the Provost Marshal by His Excellency Governor King to claim the above Sum from the Defendant – No 1.
The Provost Marshal delivered into Court the Amount of Sales of George Crossley’s Effects amounting to £883..9. 2 ¾ - No 2
The Provost Marshal produced the Account current of Thomas Smyth with the Sales of Crossley’s Effects which appears to reduce the Claim against James Larra, Administrator to £440..17..6 ¾ - No 3 The Administrator read the Paper No. 4 and the letter marked A in the said Paper.
The Administrator says that the Evidence of D’Arcy Wentworth is essentially necessary – Ordered by the Court the said D’Arcy Wentworth do attend as soon as his present Indisition will permit.
The Defendant delivered into Court and read No. 5 and calls D’Arcy Wentworth Esqr.
Q.. Did you not as Agent to the Merchants in England Messrs. Mangles & Co have an Execution on the Effects of George Crossley? – Ans. Yes I did.
Qu. Had you or not received part of the Money arising from that Execution? A. Yes
Qu. What was the Amount taken out of your hands arising from Crossley’s Effects? Ans. I believe between £170 and £180.
Qu 4th. Did not the Governor altho’ you was Agent for the Merchants & had your Claim for Expence, &c Order you to pay the Amount of what you purchased at Crossley’s Sale, prior to your leaving Port Jackson for Norfolk Island? Ans. He did
Qu 5th – If you had met with no hindrance in getting the money from the said Thos. Smyth Esqr. in his life time, Should you have got payment? – Ans. I should certainly have sued Mr. Smyth for the money, but I had no Authority after the Governor had ordered me to pay the Money into the Chief Constable’s hands.
Q 6 – Who hindered you, and for what Reason? Ans. The Governor.
Q 7 – Was not the Demand of the Money arising from the sale of Crossley’s Effects taken from you in the life time of the Intestate? Ans. It was during his life time.
John
.
[Page 481]
John Palmer Esqr. sworn
Qu. 1 - Were you with any other Person, & by whom appointed to take an Account of the late Thos. Smyth’s Effects & Papers? Ans. I was, and by the Governor.
Qu. 2 – Did you with others take such an Account? Ans. . Yes..
Qu. 3 – Were the Papers relative to the Concern of George Crossley singled out separate from the others, and to whom were they delivered? Ans. They were; They were sealed up and given to the Plaintiff.
Qu. 4 – Has or has not the Plaintiff, G. Blaxcell Esqr. acted in all Concerns in demanding Payment and recovering the money owing for Goods purchased at the sale of Crossley’s Effects by the said Thomas Smyth in his lifetime, as you have heard and believe? Ans. He, Mr. G. Blaxcell has demanded payment
Qu. 5 – Has not the Plaintiff sued divers Persons for recovery of those Money’s in his own Name and not in the Name of the Administrator? Not to my knowledge.
William Evans sworn
Qu. 1 – Has not the Plaintiff sued divers Persons for recovery of those monies in his own Name And not in the Name of the Administrator? Ans. He has, as Provost Marshall
The Plaintiff read the Paper No. 6 and Enclosures A B & C
The Court of Civil Jurisdiction find a Verdict that Garnham Blaxcell Esquire as Provost Marshall is entitled to a Priority of payment of the Effects of the late Thos. Smyth Esquire in the sum of £440..17..6 ¾ if so much remains in his James Larra’s hands unadministered pursuant to a decree of the High Court of Appeal, subject to any deduction that may hereafter be received by the said G. Blaxcell Esqr. on account of the Estate of the late Thomas Smith Esquire deceased
(Signed) Rd. Atkins J.A.
J. Harris
Rowld Hassal
Notice of Appeal
A true Copy
(signed) Rd. Atkins J.A.
A
His Majesty’s Territory
Called New South Wales
Whereas His Excellency the Governor on the 17th day of February 1804 was pleased to give his Award on the Cause of Appeal between George Crossley emancipated Convict against Thomas Smith Esquire late Provost Marshal deceased and Mr. D’Arcy Wentworth – I do by virtue of the said Award and Warrant under His Excellency’s hand require every person to make good their Payments to me without loss of time of all and singular the Debts contracted with the said George Crossley’s Estate from the 9th day of January 1802 and also the Debts owing on the sale of the said George Crossley’s Effects by Auction by His Excellency’s Warrant of Execution bearing date the 31st day of July 1802.
(signed) G. Blaxcell Provost Marshal
Sidney Jany. 5th 1805
[Page 482]
B
Sydney New South Wales
January 10th. 1805
Gentlemen
With this I transmit you by Governor King’s directions the duplicate of a Letter he wrote you in August last, Also a Copy of a letter he has directed me to write to his Agent Mr. Sykes for your Information - [indecipherable] the Circumstances of the late Provost Marshall’s having died suddenly the Charge of levying the Sum of Money due on the Execution and the Governor’s Award has devolved on me to pay the same into the Court of Appeal as it is received, Measures for which have been already taken but no money has been received since the Consolidation of the Copper Coin which principally makes the Sum of £147..5..9 now remitted to me. –
I am &c
(signed) G. Blaxcell
Provost Marshall & Secretary
Messrs Mangles & Co
London
C
Sydney New South Wales
10th January 1805
Sir
By Direction of Governor King I enclose you as his Agent the first of a sett of Bills for £147..5..6 drawn on His Majesty’s Treasury, for Grain supplied the Public Stores in favour of the late Thomas Smyth Esquire Provost Marshal being a part of the Money recovered by him on his Excellency’s Warrant of Execution dated 31st July 1802 and by His Warrant dated 17th February 1804 consequent on his Award of that date in the Appeal of Crossley against the Verdict of the Civil Court of Judicature in the Cause between him Crossley and the Provost Marshall and Mr. D’Arcy Wentworth and others which sum of £ 147..5..6 His Excellency requests you to place in the most advantageous Public Funds immediately on your receiving it at the Treasury in the following Name &c
"Philip Gidley King Esquire as Governor in Judge in the High Court of Appeal in New South Wales In trust for the final Decision on the Cause pending between George Crossley against Thomas Smyth late Provost Marshal of the Territory of New South Wales, Mr. D’Arcy Wentworth and others" – You are also instructed to add the Interest to the Principal as it may become due, I request being informed of what you occasionally do in this Transaction And to advise you that Mr. D’Arcy Wentworth in this Transaction is Agent for Messrs Mangles who are informed of this Measure.
I am &c
(Signed) G. Blaxcell
Provost Marshall & Secretary
John Sykes Esqr
No 22 Arundell Street
London
New South Wales
Amount of all the Goods Chattells and Effects of George Crossley sold by Auction Auction at Sydney by Virtue of a Precept and Warrant under the hand and Seal of His Excellency Philip Gidley King Esquire to Mr. Thomas Smyth, Provost Marshal for this Territory as pr Inventory £883.9.3 ¾
[Page 483]
Dr. Mr. Thos. Smyth (late P.M.) in acct. curt with the Sales of Geo Crossley’s Effects
[Debit side]
To amount of Goods sold by Auction £883.9.3 ¾
[Credit side]
By Fee due on Warrt of Execn - £1.2.0
By Levy on £883.9.3 ¾ - £32.10.0
By Auction [indecipherable] [indecipherable] - £44.3.6
[Sub-Total] - £77.15.6
By Cash paid Governor King - £147.5.6
By do. Mr. Commissy Palmer - £86.0.7
Debts due on Account of the Sale which I have received
D. Wentworth - £24.11.9
Michl. Hayes - £2.7.6
Lieutt Bailey - £ 8.14.10
Willm Miller - £0.17.1
Lieutt Hobby - £7.4.6
Wm Baker Store Keeper - £10.10.11
Mr Moore Builder - £2.1.5
I Nichols - £10.6.0
D. D. Mann - £3.0.0
Thos. Rickaby - £0.10.0
Geo. Salter - £1.4.8
H. B. Hayes - £2.0.0
I. I Grant - £1.1.4
Dr. McCullam - £8.19.3
Michl. Robinson - £44.18.3
Orphan School - £2.0.0
Thos. Abbott - £1.2.6
[sub-total] £131.10.2
Cash due to Balance - £440.17.6 ¾
[Total] - £883.9.3 ¾
James Larra Administrator
At the Suit of
Garnham Blaxcell Esqr. Provost Marshall
The said James Larra as Administrator of Thomas Smyth Esquire late Provost Marshal of this Territory, Deceased and who died Intestate, (for Pleas says)-
That the said Thomas Smyth in his lifetime and at the time of his Death was not indebted to the said Garnham Blaxcell Esquire in the sum of £736..3..9 ¾ or any part thereof & this he is ready to verify –
And that save & except the sum of £483..16..1 the said James Larra has fully administered all the Effects & Estate of the Intestate that have come to his hands as to be administered, And with respect to the said sum of £483..16..1 the said James Larra says the sum of £110..17..2 part thereof he prays the direction of the Court to John Palmer Esquire; so much being demanded by him on account of a debt due to our Sovereign Lord King, the Proceedings for which claims are now before the Court for their direction, and with respect to any other Judgement Creditor there is now before the Court a Claim of a Sum due by the Intestate to one George Crossley for money levied by the Intestate as Provost Marshal, Under an Assignment and Execution
Against
[Page 484]
Against the Effects of one Wm. Burgess & remaining in the hands of the said Thos. Smyth at the Time of his death, unpaid over to the Plaintiff in that Suit, and after making such allowances for those payments as the Court may please to direct out of the said Sum of £483..16..1 the said James Larra as Administrator says he is ready to pay the Balance of Money in his hands as the Court may direct in due course of Administration.
And in support of the first Plea the said Administrator most humbly says that as he accepted his Office of Administrator, at the request of the Creditors, or some of them, his own debt being small./ Being indemnified by by the decree of the Court, he can have no desire but to pay the Balance of Money in hand, it being equal to him, whether he pays to one person, or to another under the directions of the Court-
But the principal Simple Contract Creditors having applied to him as Administrator to refuse the demand set up by the Plaintiff, as an illegal demand, and having given it as their Opinion, that they mean to refuse it to the Ultimate State of Enquiry in Law if it should be necessary.
The Administrator mentions this Circumstance only to assure the Court that whatever their decision may be, if he was acting in his own Right, he should chearfully submit to the decision of this Court be what it might.
But as those Creditors have applied to him in case of necessity to use his name to investigate fully such Claim for which they pledge themselves to indemnify the Administrator feels it his duty to mention these Circumstances to the Court in Order that they may see he acts in no other Capacity than Administrator and is ready to execute the Trust for the general Benefit of the Creditors under the direction of the Court. –
In support of the first Plea the Administrator will endeavour to shew to the Court by a letter signed by the Plaintiff dated Feby 25th 1805 and which he prays to be read as Evidence (marked with the letter A)
The Plaintiff can have no lawful Claim on the Estate of Effects of the Intestate, because by that Evidence the Plaintiff states the Claim if any such there be did not accrue or grow due before the Death of the Intestate, for the Plaintiff says he claim the money as Provost Marshal, and he was not appointed to that Office until after the death of the said Thomas Smyth,
And if any money be due to any Person on account of the Transactions mentioned in the said Demand it can only be due to the Person on whose Account the Intestate received such monies to his Death, if any such there be, but which Matters and Things the Administrator submits to the Judgement of the Court in the Premises.
And prays this his Plea and State of the case to be filed on Record as the Administrator’s Answers to the Plaintiff’s cause of Action in the Premises
(signed) Jas. Larra
[Page 485]
To The Court of Civil Jurisdiction, assembled
Garnham Blaxcell … Provost Marshal
against
James Larra Administrator to the Effects of the late
Thomas Smyth.. Provost Marshal
Gentlemen
I should not have felt it incumbent on me to reply to the defence set up by the Defendant in this Cause had not some Arguments which he has judged necessary to mak use of been in themselves of such an extraordinary nature, that the situation which I have the honor to hold compels me to trespass a few moments on your Attention.
I beg leave to revert to my letter to the Defendant marked A and which is made a Record of Court, for the Reasons and Authority which I possessed for demanding the Sum for which this Action was brought on the 14th of March 1805 when defendant praying the Time allowed by Law to an Administrator the Court ordered it to stand over till that period had elapsed.
Had it been then discussed the same documents would have been filed by me as now are, & the Balance due from Defendant to me as Provost Marshal would have appeared to have been £736.3.9 ¾ subject to a set off of £77..15..6 the Amount of Fees & Expences which he would have been authorized to retail from that Period to the present, I made application to various persons who stood indebted to the sale of George Crossley’s Effects & procured from them £ 131..10..2 which with £ 86.0..7 now in the hands of the Commissary paid to him by the late Provost marshal reduced the Claim I had upon the Defendant to £440..17..6 ¾ as by a reference to the Paper No. 3 will more clearly appear. – This was the Claim Gentlemen I submitted to you at the recommencement of the Suit for such priority of payment as the Law in cases similar to the present might allow – The Documents which are filed in support of that Claim I trust sufficiently substantiate it’s validity & all that I conceived was for the Court’s determination, Whether such Claim had or had not a priority to their Claim upon Defendant as Administrator to the Effects of the late Provost marshal and in what degree?
Resting a Case which appeared so clear and unembarrassed I must confess my astonishment was not a little excited when the defendant disavowed the debt & declared it an illegal demand, asserting (to use his own expressions) that the simple Contract Creditor had instructed "him so to do, and of their Intention to repel it to the ultimate state of Enquiry in Law if it should be necessary"
Gentlemen, possessed as you are of the various Documents, I hold in support of this Claim, I respectfully submit for your Consideration whether the language of the defendant is a subject matter of your Consideration – to me it appears the resolution of a man anticipating a Verdict in my favour, yet determined to resist it’s Effects until duly compelled by a Tribunal in England resorted to perhaps for the purpose of protracting time and keeping from the right Owners the amount of their property – I shall no longer trespass on your Time, Gentlemen, than by respectfully offering the following Documents
viz
[Page 486]
Viz, An attested copy of my Advertisement in the Sydney Gazette of 6th January 1805 (A) My Letter to Messrs Mangles (B) and one to James Sykes of London to place the sum of £147..5..6 received by His Excellency Governor King from the late Provost Marshal in the most advantageous Funds (C) and which I request may be filed as a Record of Court to be offered against any Impression that appears to have been attempted by the Defendant for an unnecessary delay in receiving those Amounts and applying them to their lawful purposes –
I have the honor to be &c
(signed) G. Blaxcell P.M.
Sydney New South Wales
3d July 1806
New South Wales
Cumberland to wit
By His Excellency Philip Gidley King Esqr &c, &c, &c
Whereas &c, An Appeal having this day been brought before me by James Larra (Administrator to the Effects of Thomas Smyth Esqr late Provost Marshal of this Territory, deceased) – Appellant
against
Garnham Blaxcell Esqr, Provost Marshal of this Territory – Respondent
When after truly & impartially hearing & weighing the Evidence & Testimony of such Witnesses or Documents as were brought forward by the Parties in this Cause It appeared by a Reference to my Awards & Judgements in this Cause of Appeal dated the 9th day of January 1802 and the 17th day of February 1804 as well as the Documents & Causes which produced them That the then Provost Marshall Thomas Smyth (whose Office in this Territory is guided as near [indecipherable] [indecipherable]as the locality of Circumstances allows, by that of a Sheriff in England) as the legal Officer of that Court of Appeal, was directed by Warrants under my hand to carry it’s [indecipherable] & Judgements into Execution, And on his death the same Powers devolved on his Successors, whose legal & bounden duty it became to recover from Appellant Administrator such sums as had been received by the late Provost Marshal in Execution of his Warrant and not paid into the Court of Appeal previous to his Demise as adjudged & decreed by my Awards dated as above.
I am therefore of Opinion that this Appeal is fraught with that litigious and vexatious spirit which unfortunately for the Credit & Stability of the rising Commerce of this Colony, pervades a number of that Class of the Inhabitants who have fortuitously or otherwise, become released from the Censure and Fetters of the Law, and who not being satisfied with the Affluence several of them have by various means attained Do in unformity to their former character, omit no means of availing themselves of the liberal Allowance of Appeal to retain and finally wrest from the true Proprietors their just due by every artifice which Fraud & Chicanery can suggest.
I do therefore confirm the Verdict of the Civil Court of Judicature And do further award and direct that the Appellant, Administrator, be accountable & do pay in addition to the Sum of Four Hundred & Forty Pounds Seventeen Shillings & six pence three Farthings, the legal Interest of this Territory, being £8 pr Cent pr Annum from the date of the Verdict given by the Civil Court on the 4th July 1806 to be levied in fourteen days from this date if no further Appeal is interposed, with all costs of Suit hitherto had herein
Given &c , Sydney &c , 22d day of July 1806
(signed) Philip Gidley King (L.S.)
To the Judge Advocate and Provost Marshal &c , &c
[Page 487]
In the High Court of Appeal
James Larra Administrator to the Effects of Thomas Smyth Esquire late Provost Marshall of this Territory – Appellant
Against
Garnham Blaxcell, P.M. of this Territory, Respondent
Whereas James Larra the Appellant in the above Cause did at an unseasonable hour last Evening enter Government House and demanded that his Appeal to the King in Council should be received without giving the necessary Security for prosecuting that Appeal & answering the Condemnation Money and costs of Suit in Case the Verdict of the Civil Court of Hudicature and my decree of the 22d. July 1806 should be confirmed; And as the Time limited for that Appeal being received expired this day at Noon – you are hereby required and directed to warn the said James Larra once more that if he does not give Security on such part of his property in this Colony as I may deem sufficient to the Amount of double the sum sued for viz £440..17..6 ¾ or so much as remains in the hands of the said James Larra according to the Verdict of the Civil Court of Judicature of the 24th June 1806 and my Awards of 17th Feby 1804 and 22d July 1806, Then and in that Case you will proceed forthwith to levy an Execution on the Effects and Estate of the said James Larra and sell so much or the whole thereof by public Auction as may be sufficient to discharge the Amount of your Claim as Provost Marshal by Virtue of the above Instruments, and the Interest due thereon tendering to the said James Larra any residue arising from such Sale and taking care that due Notice of the time of sale beginning in the ensuing Gazette.
Given &c, &c, &c this day of 1806
(signed) Philip Gidley King
To G. Blaxcell Esqr.
Provost Marshall &c, &c
New South Wales - Know all Men by these Presents that I James Larra of Parramatta Administrator of all and singular the Estates Goods & Chattels and Effects of the late Thomas Smyth Esquire late Provost Marshal deceased am held & firmly bound to His Excellency Philip Gidley King Esqr. & his Successors in the Sum of Eight Hundred & Eighty Pounds Sterling to be paid by the said Governor King or Successors and where as I stand possessed of a certain Lease situate at Parramatta in this Territory bearing date the Ninth day of September 1803, I do by these Presents transfer and make over to the said Governor King and His Successors the said Lease together with all Houses Out Houses and all buildings of whatsoever nature the same may be as a Security for the due performance of the undermentioned Obligation, Sealed with my Seal this fifth day of August 1806.
The condition of this Obligation is such that if the said James Larra do & shall appear before our Sovereign Lord the King His Heirs and Successors in Council
within
[Page 488]
Within One Year after the said Appellant shall be transmitted to England, provided the same shall be duly notified to the said James Larra, and prosecute with Effect an Appeal by him made to His Majesty in Council in a Cause lately depending in Judgement before His Excellency Governor King, Governor of this Territory of New South Wales, by Appeal from the Judgement of the Court of Civil Jurisdiction and abide by such Judgement Sentence or Decree as shall be given on hearing the said Appeal then this Obligation to be void and of no Effect – otherwise to remain in full force and virtue
Signed
James Larra
Taken before me
This fifth day of August 1806
(signed) Rd. Atkins J.A.
Registered in the Judge Advocate’s Office
No. 1071
Eastern Coast of New South Wales (To Wit)
In a Matter of Appeal
Between James Larra, Administrator of the Effects of Thomas Smyth Esquire, late Provost Marshal of the Territory, deceased - Appellant
And
Garnham Blaxcell Esquire Provost Marshal of the Territory – Respondent
To the King’s Most Excellent Majesty in Council
The Appeal of James Larra Administrator of the Estate Debts and Effects which were of Thomas Smyth Esquire deceased against the Judgement or Determination of His Excellency Philip Gidley King Esquire; Captain General and Governor in Chief in and over His Majesty’s Territory of New South Wales and it’s Dependencies, made in a matter of Appeal, depending before the said Governor in Judgement, against the Judgement or Decree pronounced by the Court of Civil Jurisdiction in for the Territory made on the fourth day of July 1806 by the said Court of Civil Jurisdiction and which said Judgement, or Determination of the said Governor King was made in the said Cause on the 22d day of July aforesaid
By which Judgement or Determination of the said Governor King so aforesaid made in this Cause on the said 22d July aforesaid in the Year aforesaid the said James Larra Administrator as aforesaid doth find himself aggrieved.
Because the said Thomas Smyth in his Lifetime and at the Time of his Death was not indebted to the said Garnham Blaxcell in and sum whatever.
Because if any Monies or Effects had been levied by the said Thomas Smyth as Provost Marshal by any Authority of any of the Courts of this Colony and remained in his hands unpaid over at the Time of his death, to the Plaintiffs in these Suits, the right of Action for the recovery of such Money, that had been received by him was vested in the Plaintiff in such suits or their legal Representatives and they only could recover payment of the same from the Administrator as Your Appellant most humbly submits.
Because the Evidence produced by the said Respondent in the said Court of Civil Jurisdiction and read in the said Cause in the said Court by the said
Garnham
[Page 489]
Garnham Blaxcell to maintain the said suit and filed of Record in the said Court is in the words or to the Effect following.
In an Appeal Crossley, v. Smyth and others, By His Excellency Philip Gidley King Esquire, Captain General and Governor in Chief in and over His Majesty’s Territory of New South Wales and its dependencies &c, &c, &c
Wheras from the sudden demise of the late Provost Marshal &c. see Page 472
Because the said Warrant is and void in the Law & besides that Objection the sued Thomas Smith never levied any Goods of the defendant George Crossley under the Judgement or Decree of the Governor in the said above recited papers of the 9th January 1802 and 17th February – (called Awards) –
Because the said Judgement of the said Philip Gidley King made made the 9th day of January 1802 aforesaid is a Judgement or Determination of the said Governor King made in a Cause of Appeal then pending before him on the 9th day of January 1802 in a Cause wherein the said George Crossley was Appellant and one D’Arcy Wentworth the Respondent against a Judgement or decree of the Court of Civil Jurisdiction made in the said Court on the 17th Day of December 1801 in a Cause in which the said D’Arcy Wentworth was Plaintiff and the said George Crossley Defendant and in which Action in the said Court the said D’Arcy Wentworth had recovered a Verdict in the said Court of Civil Jurisdiction against the said George Crossley for the Sum of £1886. And from which Verdict the said Appeal was interposed and the said Court of Civil Jurisdiction had on the said 17th day of December 1801. Ordered that the Goods Chattels and Effects of the said George Crossley should be & remain in the hands of the Provost Marshal of this Territory and stand as a Security for the said George Crossley’s prosecuting the said Appeal
And because after the said Governor King had on the 9th of January 1802 made his Judgement or determination as to the matter of the said Appeal as by reference to the said Judgement signed and delivered under the hand and seal of of the said Philip Gidley King in that Cause, that is to say, on the 19th day of Jany. Last aforesaid in the Year last aforesaid being ten days after making the said Judgement or Determination of the said Governor King in the said Court of Appeal before him, the said George Crossley and D’Arcy Wentworth came to an agreement about the said last above mentioned Suit and of and concerning the payment of the said sum of £1886 – recovered by the said Verdict in which the said Appeal last mentioned was interposed and by Indenture made the said 19th day of January 1802 Between the said George Crossley of the first Part, D’Arcy Wentworth of the second part and Jno. Palmer Esqr. Jas Thompson Esqr. and Thomas Moore of the third part –
After reciting the said Verdict of the 17th December then last, the said Appeal by the said George Crossley to the said Governor King, the Execution against the Effects of the said George Crossley (as aforesaid) and the Judgement & Determination of the said Governor King made the 9th Day of January aforesaid and that the said John Palmer Esqr. James Thompson Esqr. & Thomas Moore had with the
Approbation
[Page 490]
Approbation of the said Governor have appointed Trustees in the Premises, which Trust the said John Palmer, James Thompson and Thos. Moore had accepted, testified by their executing the said Indenture & thereby pledged themselves faithfully & duly to perform, It is by the said Indenture witnessed that in the Consideration of the sum of ten Shillings in hand to the said George Crossley paid by the said John Palmer, James Thompson and Thomas Moore, He the said George Crossley thereby transferred and made over unto them the said John Paler James Thompson and Thomas Moore their Heirs and Assigns, all and singular the said Goods Chattels and Effects in the Hands of the Provost Marshal under by Virtue of the said Court of Civil Jurisdiction aforesaid, and which said Goods Chattels and Effects forthwith to be scheduled or Inventoried and duly entered into two Books and signed and subscribed by all the Parties to the said Indenture, One of which said Books was to be delivered to the said George Crossley and the other to the said D’Arcy Wentworth upon trust in the first place to permit and suffer the said George Crossley to continue in possession of all the said Scheduled or mentioned Goods, Chattels and Effects for the Purpose of Sale thereof to the best Advantage for the Term of Twelve Months from the said ninth day of January last aforesaid, he the the said George Crossley continuing from time to time during the said Term to deliver a weekly Account of such Sales and to pay the Monies Bills or other proceeds thereof to the said D’Arcy Wentworth or his Assigns once every Month after the debts due from the said George Crossley to the King are discharged and paid and not before and until the whole of the said Debts due from the said George Crossley to the said D’Arcy Wentworth was paid & discharged according to the Terms of said Award and in satisfaction of the said Verdict of the said Court of Civil Jurisdiction, then upon Trust that the residue of the said scheduled or Inventoried Goods and Chattels shall belong to and be the property of the said George Crossley his Executors or Administrators and rest & remain for their Use [indecipherable] & Benefit.
And the said D’Arcy Wentworth for himself his Executors & Administrators did (by the said Indenture) Covenant, promise & agree to and with the said George Crossley his Executors & Administrators that he would accept such scheduled or Inventoried Goods and Chattels in satisfaction of the said Verdict as they should be sold and an Account and the Proceeds rendered as aforesaid conformable to the said Award and that when the said Debt and Costs were duly paid and satisfied that he would deliver up to the said George Crossley his Executors Administrators or Assigns the several setts of Bills on which the Verdict and Award had been given and made, And it was further declared and agreed by and between all the Parties thereto, That the said George Crossley should and might retain in his hands the sum of three Pounds Sterling pr. Week out of the sale of the said Effects towards the maintenance of himself and Family according to the provisions & directions of the said award by reference to the said Indenture may amongst other things more more fully and at large appear.
That
[Page 491]
That after making the said Indenture the said D’Arcy Wentworth, John Palmer and James Thompson and Thomas Moore did discharge the said Provost Marshal out of Possession of the said Goods and Effects and the same were delivered to the said George Crossley for the sale upon the Trust, in the said Indenture expressed and the said George Crossley continued in the actual possession of all the said Inventoried Goods and proceeded in the Execution of the same Trusts by and with the Approbation of the said Trustees without Molestation until on or about the 31st day of July 1802 when the said George Crossley for the reason therein expressed wrote a letter to the said Governor King in these words – that is to say –
May it please your Excellency
Since Your Excellency’s Award between me and Wentworth a Deed of Assignment was made by the Judge Advocate in Effect containing a Shedule of certain Goods assigned by that deed to Messrs Palmer Thompson & Moor as Trustees – the draft of this deed I never saw, but was required to execute and no alteration permitted, otherwise many necessary was on such Occasions I should have suggested The Deed thus produced and executed by all Parties then upon Trust in the first place to permit to continue possession of the Inventoried Goods for the purpose of Sale for Twelve Months with directions that I should deliver a weekly Account and pay the Monies Bills or other produce to Mr. Wentworth Monthly (after the Debts due from me to the King was paid and not before) and also until the debts due from me to Mr. Wentworth was paid, and after the payment the residue of the Goods should be and remain my property.
By this deed Mr. Wentworth covenants to accept such scheduled Goods in Satisfaction of the Verdict, as these shall be sold and an Account of the Proceeds rendered and when the debt was paid to deliver up the several sets of Bills on which the Verdict and Your Excellency’s Judgement of Appeal was given and by the Deed it is declared that I should retain £3 pr week, and Government debt far exceeds any money that has been actually received – And since the Execution of this Deed both myself & wife have exercised ourselves in the most attentive and laborious manner to increase the Estate and not One Shilling has been spent or lavished to increase it – That I considering no part of my Effects except those contained in the Schedule to belong to the Trustees I caused a Farm at the Hawkesbury not contained in the Schedule my property to be cropped with the wheat, Barley and other things and a small house to be erected thereon and paid money debts to Workmen there but on Occasion either of my own private property or otherwise have I disposed of embezzled or confiscated any part of my Trust Estates and I trust by my Assiduity and Care my Estate since the 9th of January last is more valuable by £300, than it then was.
With respect to the scheduled Effects they are all regularly accounted for. In the first place I have paid to Government near £70 which in the Deed was directed to be first paid and only £1..2..7 ½ is now due by me to the King and which
would
[Page 492]
Would have been paid long since but 90 Bushels in coming round from the Hawkesbury were damaged and I was obliged to compel the Boatman to give me his Note for the Value and Season.
This I did by the direction of Mr. Thompson one of the Trustees and on advising with the Judge Advocate
This day the Magistrates on some representation of Mr. Wentworth by Order of Your Excellency met and in consequence of my having taken up certain printed Cash Notes with Goods and out of my Shop without looking at the Deed Trust they were of Opinion I had not acted in Conformity to Your Excellency’s Award
I beg leave to represent that when the unfortunate Business happened I had in circulation some small Cash Notes to the Amount of near Two Hundred Pounds and when the Shop was open for Sale under the Trust deed, I represented to the Trustees that I could not proceed unless I could take those Notes in payment, this they allowed and I thought necessary altho’ the Deed did not require me to make any Return till the Crown debt was paid, to give Mr. Wentworth a Copy of my proceedings and therefore I did deliver him a return of Goods sold and the notes taken in payment
This Day the Magistrates an I understand have adjusted this on breaking the Award on my part – I most humbly that these Notes being sanctioned to be issued under the Direction of Your Excellency’s Order of printed Notes might be deemed a preferable Debt to others and in point of payment equal and immediately after any Government Debt, besides the Trustees being privy to my acting in this matter and the necessity of the Things when I paid those Notes, it was mentioned that I would hold myself responsible at the end of the Year to pay the value at prime Cost of the Goods to take them up and until after the Notes were come in and actually paid no objection was made by any person.
I most humbly beg leave to request of Your Excellency to peruse the Deed of Trust and Schedule executed by all parties (true Copies of which I inclose) and that if I have in any wise not complied with the Deed Your Excellency will refer it to the Trustees and allow a reasonable time for me to set it right and deliver the [indecipherable] any other Direction Your Excellency may be pleased to give I shall be ready to comply with
I am &c
(signed) George Crossley
Sydney July 31st 1802
To His Excellency Governor King &c, &c, &c
As by these said Settlers in the possession of the said Governor King and a transcript as filed in the Record in the said Court of Appeal in the cause of George Crossley Appellant & Thomas Smith Esqr. & D’Arcy Wentworth Respondents & which is the same Cause of Appeal mentioned in the proceedings in which the said Governor King made his Judgement or Determination (and which is called an Award) dated the 17th day of February 1804 may on a Reference appear.
And because the said Governor King had notice by the said Letter of such Indentures and previous to the date of Execution thereof he by hearing the
Draft
[Page 493]
hearing the draft of the said deed laid before him for approbation & the Copy thereof inclosed in the said Letter, the said Governor King had notice that the said Parties had settled and agreed the said Cause, yet the said Philip Gidley King without any Application by the said Trustees, or hearing the said Parties on any legal Evidence or Enquiry to authorise him to act in the Premises on his own Motion without any application of the Trustees or hearing them or the Parties in the Case as by Law is required made an Order or Warrant in these Words
Memo..
Whereas George Crossley has broke my Award, Crossley & Wentworth this is to command you to seize & take into your Possession all the said George Crossley’s Goods Chattels Farm at Hawkesbury Book Debts & Effects of every sort and sell the same by Public Auction without delay pursuant to my Award,
Given under my hand & seal &c
Parramatta 31st July 1802
(signed) Philip Gidley King (L.S.)
To the Provost Marshal &c
As by the Warrant or a Copy thereof affiled in the Court of Civil Jurisdiction in the said Cause of Crossley against Smyth & others may appear
And the said Thomas Smyth by such Order of the said Governor King last above copied on or about the first day of August in the year aforesaid to possession & removed all the Goods & Effects of the said George Crossley of a large Value, and by the said Governor King’s Orders at the same time sold the same, And the said Governor King in the Proceedings thereon declared he would save harmless & keep indemnified the said Thomas Smyth his acting under such Order & the Appellant believes the said Thomas Smyth accounted for the said Goods as hereafter mentioned.
And the said George Crossley on the 15th day of February 1803 bought his Action against Thomas Smyth D’Arcy Wentworth & another, and filed a declaration of his Cause of Action in Tresspass & [indecipherable] for Goods of a large value, (To wit) of the value of £10,000 alledged in the said suit to be taken & sold or removed by the said Thomas Smyth under Colour of the said above recited Warrant or Order and such Order or Warrant or a copy thereof was produced read & filed of Record in the said Court in the said Cause and an attested Copy thereof delivered the Appellant
And the said George Crossley in the said Cause of Crossley against Smyth & others (being the same Cause in which the said Warrant or Authority dated the 19th day of February 1805 is made) examined his Evidence. The said John Palmer Esqr. one of the Trustees, whose Evidence is entered of Record in the said Court in the said Cause and who in answer to the following Questions or Interrogatories put by the said George Crossley amongst others, the said John Palmer being sworn in and before the said Court to the following Interrogatories (on the 22 day of Feby 1802) deposed and gave Evidence as appears on record in the said Cause in the said Court – viz. -
Question
[Page 494]
Questioned by George Crossley
Do you recollect my applying to you the latter end of July, saying I was sent for by Mr. Wentworth, from the Hawkesbury & wishing to know if the Trustees were any way dissattisfied with what was going on? Ans. I cannot charge my Memory with what passed.
Qu. - Did you ever express any dissatisfaction? Ans. No, I never did.
Do. – Did you conceive that what was transacted was for the general benefit of the Estate? Ans. I supposed so.
Qu. Do you recollect my telling you that if the Trustees applied to the Shops they would find all the Effects there or duly accounted for in the Books? Ans. Yes.
Qu. What was the reason they did not apply? Ans. I do not know.
Qu. Do you remember saying there had been no complaint made to the Trustees? Ans. None made to me.
Qu. Did not you consider yourself bound to act after you had executed the Trust deed. Ans, Certianly I did, The Schedule of the Trust deed was read to me.
Qu. Was a Copy of the Trust deed left in your Office? Ans. There was.
On Cross Examination by the Defendant D’Arcy Wentworth
Qu. Did you ever read the Governor’s Award in the Cause of myself & Crossley? Ans. No. I do not recollect that I ever did.
Qu. Were you present when the Bench of Magistrates assembled on this business? Ans. I was sent for & was there a few minutes, but as no question was asked me I came away.
Qu. Did you object to any proceedings that were taking? Ans. I neither objected nor approved, for I was not consulted.
Qu. Were you present when the Inventory of Mr. Crossley’s Effects were taken? Ansr. Once or twice my Clerk attended for me.
As by reference to the said Award may appear –
And the said Thomas Smyth deceased upon the 24 day of May 1803 in the said Court on Trial of the said Cause being directed by the said Court to produce the said Warrant by which he took possession of the said George Crossley’s Effects made the following reply (which reply is inserted on the record of the said Court of Civil Jurisdiction in the said Cause in these words, viz . "The Court directs this Warrant to be produced" "The Defendant Smith says he has not the Warrant in his possession, that it was given back to the Governor by the Governor’s Order but produces one to the Court which he says was made & given to him by the Governor after the Auction was over" – Which said produced Paper or second Warrant so produced & validated was in the words & figures, or to the Effect following, (that is to say
New South Wales (to wit).. By His Excellency Philip Gidley King Esquire &c &c
Whereas at a Court of Appeal held before me on the 26th December 1801 and the 9th of January 1802 on the Appeal of George Crossley, against D’Arcy Wentworth it was directed by my Award on the 9th of January that the Appellant and Respondent do jointly and severally appoint each one good & sufficient Person as Trustees to Appellant’s Estate and another Person to be appointed by me on the Joint Recommendation of Appellant & Respondent, which Trustees assisted by Appellant and Respondent
to
[Page 495]
To cause an exact Inventory of all the Appellant’s Effects to be taken and after entering said Inventory in two Books, One to be delivered to Appellant and the other to Respondent. The said Appellant is then to continue the sale of his Effects, to deliver a weekly Account of his Sales, and to pay the Bills Monies (or other Consideration approved by Respondent) arising therefrom, after the Appellant’s debts to the King are discharged, into the hands of the Respondent at least once a Month in liquidation of the debt until the whole be paid. And should any Collusion be proved on the part of Appellant, then and in that Case, the whole of the Effects are to be immediately sold by Public Auction. The Term limited for the Trustees’ acting to be twelve Months from this date, after which the Effects are to be sold by Auction, unless the Parties mutually pray for the Time being further extended. The Appellant to be allowed the weekly sum of Three Pounds Sterling for the Maintenance of his Family from the Amount of Sales – And it having been this day determined by a full Bench of Magistrates on the Complaint of the Respondent D’Arcy Wentworth ) in the presence of the Trustees that the Tenor of my Award has not been complied with by the said George Crossley in any Instance whatever – You are therefore hereby required and directed to attach the Goods Effects & Credits of the said George Crossley and also of a Farm & Crops thereon at the Hawkesbury, keeping the same in Execution and proceeding to the Sale thereof by Public Auction agreeable to the Tenor of my Award of the 9th January last, for which this shall be your Warrant – Given under my hand &c Parramatta 31st July 1802
(signed) Philip Gidley King (L.S.)
Mr Thomas Smith
Provost Marshal
And upon these facts stated and appearing to the Court the said Court adjourned and did not meet to proceed in the said Causes of Crossley against Smith & others, until the 20th day of June then next (as will appear by the record thereof) on which 20th day of June the Judge Advocate produced and read in the said Cause & filed of record in the said Court in the said Cause a Letter the Judge Advocate had received from the said Governor King in these Words, viz.
To Richard Atkins, Esquire. Sydney May 25th 1803
Sir – In answer to Your’s of this date involving an extract from the proceedings of the Civil Court of Judicature in the Case V. Wentworth I feel it necessary to state the following Circumstance On the repeated Complaint of Mr. Wentworth of George Crossley not having complied with the most material & leading part of my Award of the 9th January 1802 I directed the Lt. Governor yourself and all the Magistrates of Parramatta and Sydney to enquire into the validity of those Complaints. On the31st July 1802 being then at Parramatta on public business I recd. a letter from the Lieutt Governor dated Sydney 31st July inclosing his and the Magistrates’ report of the same date stating that they were unanimously of Opinion that the Tenor of the Governor’s Award had not been complied with by George Crossley in any Instance whatever – In consequence of which & it’s being represented to me (joined to my thorough belief) that there was much danger of Crossley’s making away with the property if not immediately prevented, I considered it necessary for the security of the Creditors that all his Effects should
be
[Page 496]
be attached and sold by Public Auction according to the Condition contained in my Award of the 9th January 1802 for which purpose I immediately wrote a Memorandum which I considered sufficient to enable the Provost Marshal to proceed until my return to Sydney where my Papers were, when I intended to make it a more formal paper by annexing the material part of my Award to the Memorandum – that Memorandum dated the 31st July I inclosed in my letter of that date (July 31st 1802) to the Liett. Governor of Sydney requesting him to deliver it to the Provost Marshal for immediate Execution – Public Business detained me at Parramatta and it’s Neighbourhood till the 7th of August when I returned to Sydney and on the same day sent for the Provost Marshal and directed the Authority by which he acted to be made in a more formal & regular manner by stating the Substance of the Award which joined to the Substance of the Memorandum (I sent from Parramatta) was written by the Clerk in my Public Office and bearing date the same day as the Memorandum (July 31st) was signed by me and delivered with the Memorandum to the Provost Marshal in the morning of the 8th August who observed he had no occasion for both the Memorandum was then cancelled and I believe destroyed.
Of the Authority of these Transactions, the date of the Magistrate’s Proceedings, and my Letter to Lieutt. Governor Patterson inclosing the Memorandum are unequivocal Proofs of the date of the Memorandum and that of the Order being the same – And respecting the Import of the Memorandum wrote on the necessity of the moment at an Out Settlement and the regular Order or Warrant wrote at Sydney when I had access to the Award and other Papers being virtually the same (i.e.) for the Provost Marshal to attach & sell Crossley’s Effects in consequence of his not having complied with the Condition of my Award of the 9th of January 1802) I conceive no better Proof can be adduced than the Tenor of my letter to the Lieutt. Governor of the 31st July 1802 inclosing the Memorandum, The Provost Marshal’s Proceeding to Execution and the Time of my returning to Sydney August 7th 1802. I remain &c
(signed) Philip Gidley King
To Richard Atkins Esquire
As by be reference to the said letter affiled of Record in the said Cause and an attested Copy of the Record of the same may appear –
That by the letter marked B affiled of Record in the said Cause and signed by the Respondent dated Sydney New South Wales January 10th 1805 and addressed to Messrs Mangles & Co in which the Respondent says "With this I transmit &c (See the said letter marked B copied Page 477)
That by the letter to in the above and said to be a letter Governor King wrote to the said Messrs Mangles & Co in August last year signed by Governor King is as follows and which the Appellant prays may be read as part of this Case of Appeal, viz.
Gentlemen
I have received your’s of the 8th June 1803 inclosing one from Mr Wentworth to you of November 12th 1802 with Copies of two different Affidavits and a letter from you to the Lords of the Treasury – Although I have not the pleasure of being personally known to you I hope when you have reperused my Awards
when
[Page 497]
when sitting in a Court of Civil Equity, That it will appear to you that I have not only acted impartially but that I have been guided by the Injury you have suffered in being kept out of your Property by the fraudulent Litigations of your unprincipaled Opponent – nor do I conceive that you will have any reason to consider yourself aggrieved when you consider the Causes Times and Considerations that unfortunately occasioned those decisions which I presume you have received from your Agent Mr. Wentworth who I cannot doubt has sent you my Awards of January 1802 and February 1804
As the Tenor of those Awards required no present Comment from me, having fulfilled a very disagreeable part of my duty and the responsibility attached to my situation in those Causes, you must well know that I could by no means refuse any Person Resource here in all Civil Matters allowed by the English Legislation of appealing first from the decision of the Civil Court to the Governor and those if the sum exceeds £300, from the Government division to the King in Council
You will have learned that after my Award in February 1804 both Awards being given in your favour, Crossley appealed from my Decisions to the King in Council.
that found it necessary for presenting the Appeal in a limited time
If Mr. Wentworth transmitted you the other documents you will observe I directed the monies to be lodged in my hands as it could be received until I might receive an answer to the inclosed directions.
Should it then appear necessary that the
To the King in Council without giving the necessary Security it will then come to that Issue – But until that matter is decided my acting otherwise would be irregular and unsafe
I inclose the Provost Marshall’s Accounts of the state of those accounts as they now stand and I hope he will be able to realize all the Mony due on my last Award before the End of the present year.
There is one Circumstance I must correct in Mr. Wentworth’s letter to you will observe is contradicted on the face of my last Award namely Mr. Wentworth says – a good Farm and his Book debts very considerable
If you peruse my Award of February 1804 with Attention you will find that this Farm and the Book Debts not being in continued or accepted by Mr. Wentworth was his own fault and no other person’s because it was in the Civil Court’s Verdict and on my Awards – I could not do such an act illegally as to arrest from Crossley what Wentworth did not require in consideration for the debt awarded him
Respecting the Capper money in Consequence of my Award of February last as part of it has been consolidated (£147..5..6) and I shall endeavour to get as much more as possible consolidated this & the next Quarter
But the Bills must necessarily remain in my hands until it is decided whether Crossley’s appeal to the King in Council from my Award can be allowed under the preceeding Circumstances.
I have received no direction from the Lord’s of the Treasury on
your
[Page 498]
Your Application – The Colonial Regulations militate against it.
I am &c
(signed) Philip Gidley King
Messrs Mangles & Co
London
As by reference to the said Letter may appear
That by the letter above copied that the said George Crossly had appealed from the Judgement or Determination of the said Governor King made on the 17th February 1804 in the Cause of George Crossley Appellant and Thomas Smyth Esqr & D’Arcy Wentworth Esqr Respondents, but it does not appear how such Appeal to the King is disposed of.
The said Appellant further submits to the Consideration of Your Your Majesty that the suit brought by the said George Crossley against the said Thomas Smyth & D’Arcy Wentworth was in Trover as aforesaid and that by the Judgement of the Court Civil Jurisdiction the Court acquitted the said D’Arcy Wentworth and gave £ 10. Damages against the said Thomas Smyth and it will appear by the Evidence in that Cause that the Goods taken under the said Governor King’s Order were of the Value of £ 8,100..0..0 and had cost the said George Crossley that sum and the said Governor King on the Appeal acquitted the Defendant Smyth on that suit
The Appellant further begs leave to submit to the Consideration of your Majesty on hearing of this Appeal that altho’ the said Respondent has not proved the Authenticity of my demand yet he had delivered into Court an Account or pretended Account Current which was neither proved by Evidence or admitted in the said Cause but denied by the Defendant in which Cause the Appeal interposed by which said Paper delivered into Court the said Respondent says
Dr. Mr. Thos Smyth PM in Account with the Sale of Crossley’s Effects
To Amount of Goods sold by Auction £883..9..3 and then he gives or pretends to give Credit for sums said by the said Thomas Smyth to be accounted for amounting to £442..11..9 in different sums, and then claims the Balance of £440..9..3 for which the said Court gave this Verdict as aforesaid
It is come to Appellant’s knowledge that exclusion of the sums so given Credit in the Account, the said Governor King on the 20th of October 1803 received from the said D’Arcy Wentworth in Government Bills & other Sterling money the Sum of £186..13..6 other part of said money and for which a Receipt was given to the said D’Arcy Wentworth in these words.
£186.13.6 Received from D’Arcy Wentworth Esqr. the sum of One hundred and Eighty six Pounds thirteen shillings and sixpence being a part of the amount of the Sales paid to him by Mr. Thomas Smyth Provost Marshal delivered to me into the Court of Appeals, Crossley agst Wentworth and others in Trust for the result of that Appeal
(signed) John Rediman
Sydney October 20th 1803
Approved (signed) Philip Gidley King
And the Appellant has given Evidence in the Cause in which this Appeal is interposed letters of Administration granted to the Appellant all the papers
of
[Page 499]
Of the said Thomas Smith deceased that related to any of the Acts done in the Affairs of the said George Crossley by the said Thomas Smith as herein before mentioned were selected & taken away by the Respondent and never came nor did any of them came into the possession of the Appellant and the Appellant saith it is probable that other monies may have been paid other than the said £186..13..6 and not accounted for as there appears no account of the Receipt, And it is most probable from these Circumstances that whatever money or Effects had been actually received by Mr. Smyth in these matters were accounted for and paid but as the papers have been with held from the Appellant by the Respondent he is unable farther to explain or set forth the same But the said Appellant suggest that it might appear by Inspection of the said Papers that Governor King having long before the death of the said Thomas Smith claimed or demanded all such Monies to be paid than what was actually received were paid accordingly
The Appellant feels great Concern that by the Judgement or Determination of His Excellency Governor King made in this Cause and filed of Record, the said Governor King amongst other things says
It appears by a reference to his Awards and Judgements in that Court of Appeal dated 9th January 1802 and the 17th February 1804 as well as the Documents and Causes which produced them, that the then Provost Marshal as the legal Officer of that Court of Appeal was directed by Warrant under the said Governor’s hand to carry it’s decree & Judgements into Execution and on his Death the same Power devolved on his Successor whose local & bounden duty it became to recover from the Appellant Administrator such sums as had been recovered by the late Provost Marshal in Execution of his Warrant & not paid into this Court of Appeal previous to his demise adjudged and decreed by His Excellency’s Award dated as above.
The said Governor King then states by his said Judgement or Determination – he was therefore of Opinion that that Opinion was fraught with that litigious and vexatious Spirit which unfortunately for the credit and stability of the rising Commerce of this Colony pervades a number of that Class of the Inhabitants who have fortuitously or otherwise became released from the Censure & Fetters of the Law and who not being satisfied with the Affluence several of them have by various means attained; do, in conformity to their former Character omit no means of availing themselves of the liberal allowance of Appeal to retain – and finally wrest from the true Proprietor their just due by every Artifice which Fraud and Chicanery can suggest
The Appellant most humbly submits that upon Inspection and Consideration of the Papers and Documents set forth in this Appeal to Your Majesty and the Evidence given in this Cause in which the Judgement or Determination of the said Governor King was made on the 17th day of Feby 1804 that the said Cause in which the Judgement or Determination of the said
Governor
[Page 500]
Governor King was made on the 9th January 1802 being finally settled between the Parties on the 19th day of the same Month of January aforesaid
And the Appellant avers it will appear to Your Majesty in the Court of Appeal that the Cause mentioned in the Decree of the 9th January 1802 being so finally settled & discharged by the Parties to that Suit as mentioned & set forth in the said in part recited Deed of Trust under their hands & seals duly executed long before the said Governor King made the Memorandum and Warrant as set forth in the Appeal and said to be respectively dated the 31st day of July 1802
And the Appellant avers that there is not any Judgement Decree or Order of any Court whatever or of any Court having legal Authority to authorize the said Governor King or any other Person to make such Memorandum Orders or Warrants.
And that the said Warrants or Orders so made and purportong to bear date the said 31st day of July 1802 for the Reasons in the Appeal alledged are void in Law – that with respect to the litigious and vexatious Spirit, Artifice, Fraud and Chicanery mentioned in the said Judgement or Determination of the said Governor King in the Cause, The Appellant most humbly submits that the same does not apply to the Appellant in any wise, he having acted merely in Conformity to the direction of certain interested Creditors and for their benefit to resist a demand which they adjudge to be illegally set up supported by Power & Influence which will best appear on view of the Facts in the Proceedings and by all the Papers referred to in this Cause and in the Causes mentioned in the said Judgement or Determination.
That with respect to any Persons availing of Opportunities to wrest from the true Proprietors their just due by Artifice Fraud or Chicanery if these Appellations are meant to apply to the Parties in that Cause, the Appellant most humbly submits to the Consideration of the Court of Appeal before Your Majesty on view & consideration of all the Papers and Documents in Proof in the Causes referred to by the said Judgement or Determination of the said Governor King aforesaid and the facts appearing in view of all the Papers set forth in this Appeal to Your Majesty it will appear to whom this Appellation of Fraud Artifice and Chicanery best appertains
That by the Laws of that Realm no Person of any degree can or ought to assume to make any Law, or alter or dispense with the Laws in being but by Authority of Parliament, and there is not any Authority in this Colony to make Local Laws for which reason the Laws of England are the only existing Laws of their Territory, the Colony being formerly inhabited by Savages having no Law or Religion until planted by Your Majesty’s Subjects.
That the said Governor in one of the said Letters recited says I hope when you have perused my Award when sitting in a Court of Equity &c
By the Patent the Court of Appeal before the Governor is a Court of
Review
[Page 501]
Review of the proceedings of a Court of Law, viz. of the Court of Civil Jurisdiction and the Words of the Patent that gives the Court Authority are, That any Person aggrieved by the Judgement of the Court of Civil Jurisdiction may appeal to the Governor who is empowered and Authorized to hear and determine the same & to issue the like process of Execution as the said Court of Civil Jurisdiction is thereby directed and empowered to issue.
The Appellant most humbly pray’s Your Majesty to allow the said Appeal and that the said Governor King or the Governor of this Territory for the Time being may return to Your Majesty in Council under Seal of this Colony, true copies or a Transcript of the Records of all the Matters and Things before mentioned and set forth and as well the proceedings in this Cause in the said Court of Civil Jurisdiction and Court of Appeal on the Appeal before the said Governor as the Proceedings in the said Cause of George Crossley against Thomas Smyth and others referred to by the proceedings in this Cause and by the Judgement and Determination of the said Governor in the said Court of Appeal in this Cause, and also the said Indenture and the Schedule or a Copy thereof from the said Record the said Memorandum or Warrant herein before recited to be dated the 31st day of July 1802, the said Letter from the said Governor King to the Judge Advocate herein before mentioned to be dated the 25th May 1803 the said Letter or a Copy of the Letter written as aforesaid by the said Governor King to the said Messrs. Mangles & Co. dated the 14th August 1804, the Receipt of the said John Redman approved by the said Governor King for the said £186..13..6 herein before set forth and that the said Governor may certify whether such money were or not paid and in whose keeping the same now are, and all other the Documents and Papers referred to in the said Cause or any of them, and that Your Majesty will be pleased to hear and determine the Matter of the said Appeal and reverse the Judgement or Determination of the said Court of Civil Jurisdiction and Court of Appeal before the Governor of this Territory with Costs, and make such Order or Decree in the Premises as to Your Majesty may seem meet
And the Appellant shall ever pray &c
(signed) James Larra
4th Augt. 1806
[Page 502]
July 14th 1806 Court of Civil Jurisdiction
Mr Simeon Lord
&
Thomas Jameson Esqr ………..£400
Robert Reid Sworn says That Mr. Bass took thro Mistake One trunk containing Hats and left in Room of it another Trunk containing Norwich Shawl Dimity &
Q by Mr. J. Did You see the trunk of Hats alluded to redelivered to either Mr Bass or any of his Officers?
A. I do not recollect it.
Q Do You know the No. of the Trunk and the quantity of Hats it contained?
A. I do not.
Q. by Mr Lord Was not the Bale No 1 containing Blue Cloth Sent on board the [indecipherable] from my warehouse?
A. Yes – the whole of the Bale
2. Did You make a Memorandum at the top of the Book that it was sent on board?
A. Yes
3. Was it erased out Since Mr. Jamieson had it in his possession?
A. It was
Thomas Carey Sworn
Q. by Mr Lord. Did You not attend 3 days to make out his Account satisfactorily to Mr. Jamieson?
A. I did attend three days
2 At the time I was present closing the Account with Mr. Jamieson Did he not then Say that he was satisfied with the Account provided that the Court were satisfied
A. He did
3 Are any of the Items charged in the Warehouse Ledger ever charged in any former Account of mine against Mr. Bass?
A. Not to my knowledge
4 Have You not had possession of all my Books both in the Warehouse and Shop ever since You lived with me?
A. I have.
5 Were any Erasures or Alterations made in those Books for any particular Purposes?
A No
[Page 503]
Q. by Mr Jamieson Was You at Mr. Lords Warehouse at the time that the Items constituting the Accounts in the Ledger delivered to Mr Bass?
A. I was not
2. Do You Know of any of those Articles being delivered to Mr. Bass?
A. No
3 Is the Entry in Mr Lords Ledger Your Hand writing?
A. Only one the 16th February 1803
Mr. Driver Sworn
Q. by Mr. Lord Did You not call at my Warehouse for [indecipherable] piece of Blue Cloth when You was informed it was No 1 and Sent on board the Venus
A. I was informed so
2 Did I know anything of the Circumstances until within these form Month
A. I do not th you did
Q. by Mr Jamieson Who told You the Bale was sent on board?
A. Mr. Bass and I believe Mr. Reid
Mr Lords Account rendered on the 5th February 1803 wherein the balance appears to be £0..1..4d and read Mr. Bass’s Letter wherein he desires that no Account shall be paid until the Ship after he was gone
Read the paper No 1 and 2 and Account Current.
From the best Evidence attained it appears that the Trunk No 1 containing Hats and the Bale No. 2 containing Blue Cloth were sent on board the Venus Captain Bass The Court do therefore find a Verdict for plaintiff in the Sum of £356..15..3¼ Subject never the less to a deduction of £17.4..0 which is to be returned to Mr. Cox’s Estate or to be given to Mr. Jamieson – Notice of Appeal
(Signed) Rd. Atkins
J. Harris
R. Hassal
A true Copy
(signed) Rd. Atkins J.A.
To the Honorable Court of Civil Jurisdiction
Gentlemen
This Action is brought by me to recover the Sum of £366.14.6 due on Account of Messrs. Bass and Bishop of
Thomas
[Page 504]
Thomas Jamison Esqr Agent to the said Bass and Guardian appointed by His Excellency of the said Bishops person and property a declared Lunatic The Case is as follows Mr Bass in the Year 1802 left a quantity of Merchandize in my Warehouse for Sale on Commission which Articles were entered and priced by the said Bass and Bishop with Orders to apply to the said Bishop from time to time for further Instructions who was 7/16 Owner And had a power of Attorney from the said Bass conjointly with the said Thomas Jamison Esquire to receive all the Money arising from the Sales of such Goods And in a short time after Mr. Bass’s departure from this Port – Some of Mr. Cox’s Bills were returned which caused a Quarrel between Captain Bishop and Mr. Jamison when I also had some words with Mr. Jamison – Soon after I received a most extraordinary Letter from Mr. Jamison which I answered and ordered him to take out of my Warehouse a Quantity of Merchandize his private property brought here with the Ship Atlas At the same time informing him If it was not for the respect I had both for Messrs Bass and Bishop I should order the residue of their Investment away also – in consequence of which Mr. Jamison soon after took both his own and Bass and Bishops Property away – My Clark called on him for a Settlement but after waiting on him several times and altering the Account (by his directions) he was not satisfied but said it would be the most proper Method to debit myself with everything received and charge everything returned or had by any of the Concern – this I submitted to – I have lost near £100 by deficiencies and Goods sold at reduced prices which loss if Mr. Bass had been here; I should not have been at as he would make necessary just allowance – After attending myself for 3 days and having the Accounts arranged as they now stand by his own request he then said he would pay the Balance due on its being sanctioned by the Court which Sanction was necessary to be has in order to indemnify him as he was only acting for others or most probably for the Underwriters And that he had no objection to any of the Accounts but wished I would prove before the Court that the Bale of Cloth No 1 And the Trunk of Hats No 3 were sent & taken on Board the Venus which I submit has been clearly proved And that there was a Remark written in the Invoice Books at the time relative to the Bale of Cloth No 1. Being on board And which remark has been defaced or taken out
by
[Page 505]
by some person since I delivered it to Mr. Jamison. It has also been proved that the Hats alluded to were sent on board and a Trunk containing three times their Value left in lieu which was given up to Mr. Jamison But Gentlemen I am rather Surprised to find after having the Accounts altered and made out agreeable to his own directions and every article charged at Messrs Bass and Bishop’s first price should attempt to set up a plea that some of the Articles Sent on board the Venus were sold in my Warehouse or how he can attempt to after [indecipherable] any such thing when it is impossible to prove it nor can it have anything to do with it as it appears that if the Court are satisfied that the Bale No 1 was sent on board the Account Sales can have nothing to do with it As I have given Credit for all I received and can bring further proof if necessary is Support of this Statement therefore hope that this Honorable Court will after impartially hearing and weighing the Evidence give a Verdict for the full amount and Costs of Suit
I have the honor to be
Gentlemen
Your Most obt Sert
(signed) S. Lord
Sydney
14th July 1806
Gentlemen
I shall not trespass on Your time by introducing any unnecessary address, I will confine myself to State briefly to the Court the various Circumstances as they have occurred with my remarks on the Evidence given – In the first place I beg leave to state my Objections to the recent and Secondary Account rendered by Mr. Lord against Mr Bass which arises from a Letter Mr Bass wrote me on the departure of the Venus from this Port and Sent it by the Pilot wherein he says "Pay no demands on the Ship after I am gone without written Order, but note down all such Claims" – next in speaking of Mr. Lord, he says I have paid Mr Lord a Bill Value £149..18..4 of Mr. Williamsons drawn on Mr Chapman Should Mr Lord not be able to get that Bill paid please insist immediately and procure other payments from Mr Williamson" – Had Mr. Bass stood indebted to Mr. Lord in the Sums
he
[Page 506]
He has so recently claimed I presume he would have been equally punctual in having directed me to discharge it – the reverse is evidently the Case as he had Settled all his Accounts And positively desires me to pay no Claims on the Venus after he is gone but points out what he thought right for my Observation in other [indecipherable] and orders me not to pay any of the Venus’s Debts The two Bales alluded to and rendered by Mr Lord amounts for £118.2.10 ½ which appears has not been attended and I can produce his Settled Account up to the 5th February 1803 where the Balance appears to be 1s/4d which renders the Account undicesive as Mr Bass sailed on the 7th same month
The next object of Remark is the Trunk No. 3 containing Hats to the Amount of £55..3..0 And which Mr Lord and his Clerk admits to have been received into Mr Lords Warehouse – Mr Reids Evidence goes in the first instance to say that it was sent on board But on his Cross Examination he says that he never saw it delivered to Mr Bass or any of his Officers Then further says that he neither knew its Number or Contents This testimony can only be considered Supposition And therefore Negative Evidence And I leave to the Court to make their own Comments on the contradictory Testimony given by this Witness – I have only to add on this Subject That I hold documents rendered by Mr Lords Clerks of the Sales of all the Hats delivered him by Mr Bass except 15 and the Trunk above alluded to containing 33 Of course the plea Set up must fall to the Ground The documents are ready to be produced to the Court And here it may be necessary to observe that I have received no payment for any part of the Contents of that Trunk
My last Object of Remark is the Bale No. 1 which contained Eight pieces of Blue Cloth 261 Yards amounting to £162..15..3 which Mr Lord and his Clerk also admits to have received into the Warehouse but contend that it was returned and W Reid takes on himself to Swear that it was delivered to Mr Bass’s Officers and sent on board the Venus – I here beg leave to observe that this Bale was sent to the Warehouse amongst the first Articles Every piece is regularly post markd and the different prices of each piece cast up and extended into the Money Column And no remark made against it by Mr Bass either in the Original Entry Book or in that As to Mr Reids remark he says he made above it; it can have no weight
as
[Page 507]
As it is Evident nothing could be wrote on that time of the Book And a very particular Circumstance occurs in this page of the Book which is that Mr Bass strikes out the price Articles at foot of that page then Scarlet Cloth and says on board and how no money is carried out for extended And it is a Circumstance worthy observing Mr Bass would have been equally particular in noting Bale No. 1 as he has been in the other Case before recited And throughout the Book he has marked it in the other Matters It therefore appears to me that the Bale could not have been sent on board or he would have mark’d it to be so as well as others All he marked I have regularly admitted and I must here observe that I do not entertain the best Opinion of some of Mr. Lords former Clerks I even cautioned Mr. Lord at the time and told him I had Information that they were robbing the Warehouse Their Extravagance is notorious to many And it is also well known that they live far above the small salary allowed them by Mr Lord And I apprehend if the Question was put to him concerning the Cause of Mr R’s leaving the Warehouse, it would elucidate in some Measure what I have stated but would not redound much to that Individuals Credit I now beg leave to remark that the 24 pieces of Blue Cloth which Mr. L contends he has only retaind contains no more than 665 ½ Yards at the same time he renders the Account of Sales of 736 ½ Yards which makes a Surplus of 71 Yards equal to two pieces and five Yards being all that more than is charged against him Exclusive of Bale No. 1 From this Circumstance I submit it is Evident that part if not the whole of that Bale must have remained at the Warehouse particularly as I can make it appear by Mr. Lords Books that he had no Cloth of that quality in his Warehouse which it could have been mixed with as it appears from the Books that there were two pieces taken from Mr Bass’s Investment for Mr Lord’s retailing Shop nor is it at all probable that Mr Bass would have countanced to purchase the same kind of Cloth from Mr Lord from time to time until the instant of his departure if he had received the Bale on board alluded to And I submit it that this last Observation is equal to proof as Evident to common Reason – I lastly
beg
[Page 508]
Beg to observe to the Court I presume this cannot be with held as the Books of all Merchants who keep Warehouses are deemed goods and full Evidence I now conclude impressed with the idea that You will give this Case a mature deliberation And from all those Circumstances I can entertain no doubt but the Court will give a Verdict in my behalf
(signed) Thos Jamison
July 5th 1806
Anxious to meet the Wishes of the Court I prepared a Statement of the Case Altho’ the time limited was Short Yet I accomplished it so far as to be ready to submit it to Your inspection at the time appointed but the Court having adjourned has afforded me a further Opportunity which I availed myself of in recapitulating some part of my observations before recited and applying the rest in order to elucidate the Matter still further to the Court I have here to remark that I had endeavoured to Settle Mr. Bass’s Account with Mr Lord at different times Some difficulties arising prevented the completion During those Attempts no mention of the secondary accounts was made And they were only preferred about six Months ago as the Articles are only marked in Mr. Lords Book and no prices attached thereto or extended I have every reason to conclude that they were never entered in Mr Bass’s Schedule And that they were struck off to prevent a Multiplicity of Accounts, At all Events why did not this claim appear from the first Surely under its present Shape it renders this Matter very obscure and doubtful particularly as the balance is struck of 1s/4d on the 5th February 1803 two days previous to Bass’s sailing from this Port
The next object of Remark is Mr Cox’s Bill which Mr Lord contends settling altho’ he has retained it in his hands ever since the Creditors Signed the Deed of Trust which is near three Years I believe that it is a period which far exceeds the time limited for retaining Bills that are either to be returned or protested It is also well known that the Treasurers has paid fifteen shillings in the pound and that they have advertised a further dividend of two and Sixpence under some certain Conditions which makes the 17s/6d per pound which I claim Still I do not wish Mr Lord to sustain any loss thereby As I shall hold myself
responsible
[Page 509]
responsible for the two and sixpence provided it is not paid at all Events I contend that Mr Lord has a right to account for the dividend as far as paid by the Trustees And that he has no right to make any Stoppage or to pay any Debts on Account of Bass and Bishop as the sole responsibility attaches to me and I can admit of no debts being paid until they are regularly established I next beg leave to animadvert on the Situation which Mr R. stands in as a witness It is a well known fact that many frauds have been committed on Mr Lords Warehouses and other Stores And it will I presume be readily admitted that all those concerned are materially interested in preventing detection how far it may apply in the present instance I leave others to judge But it is notorious that there are a certain description of Individuals in this Colony who have but small Salaries altho’ they live in a very extravagant Manner and think nothing of Spending four or five pounds of a Night This Extravagance must require considerable resources and frequent Supplies which are not easily obtained here without adopting improper Measures I shall consider this part of my Observations by requesting that the Members composing the Court will be so good as to examine the records of William Walls Suit preferred against me wherein if I mistaken not they will find that Mr. R. when cross examined contradicted the greatest part of his former testimony this together with the recent Circumstance now before the Court (I beg to submit to their Opinion) if they do not conceive it sufficient to set his Evidence aside Should it fall short of that I presume it must at all Events render it of little importance particularly as no Part Bill or receipt can be produced from either Bass or his Officers of Bales No 1. Being sent on board
I shall lastly remark to the Court that I have been induced to give Six Months Credit on the Sale of the Effects further benefit of Mr Bishop as the Members of the Court well know the numerous difficulties which attend collecting Debts in this Colony I have to request they will allow me at least twelve Months to settle the Accounts of that Concern
(signed) Thos Jamison
July 14th 1806
[Page 510]
High Court of Appeal
Between Thomas Jamison Esqr. Committee of the poor of Charles Bishop a Lunatic and also Attorney – jointly for Mr George Bass and the said Charles Bishop – Appellant
Mr Simeon Lord – Respondent
To His Excellency Philip Gidley King Esquire Governor and Commander in Chief in and over His Majesty’s Territory of New South Wales and its dependencies
The Memorial of the Appellant Thomas Jamison Esqr.
Sheweth
That an Action at Law for recovery of the Sum of £400 was sued out against Memorialist as Agent to Messrs Bass and Bishop by the Respondent Mr Simeon Lord in the present Civil Court in this Territory and the same having been therein adjudicated as Memorialist conceives unwarrantably both as to fact and Law thereby aggrieving Memorialist in his aforesaid Capacity of Agent or as Attorney for said Bass and Bishop and eminently applying to an illegal diminution of their property Memorialist in Consequence thereof and in due discharge of the trust reposed in him and the responsibility attached to such his Appointment in the aforesaid relation Makes this his Appeal to Your Excellency praying Your revision of the proceedings and Evidence had on trial of said Action And Your Excellencys reversal of the Decree of said Court therein
That the Grounds on which said Actions commenced are briefly as follows – In the Year 1802 Messrs Bass and Bishop invested in the hands of Respondent Simeon Lord a considerable quantity of Woollen Cloth and various other Goods imported by them into this Colony to be disposed of by him upon Commission for their joint Account.
That of the Goods thus deposited on Commission it is asserted and attempted to be proved by the Respondent that a Bale of Blue Woolen Cloth marked No. 1 containing 261 Yards was returned to Mr Bass from the Respondents Warehouse Accounting in price to £162..15..3 As was also in like Manner a trunk of Hats marked No. 3 containing 33 in Number
And
[Page 511]
And amounting in price to £56..3..0
Respecting these two Items Memorialist States that the [indecipherable] and attempted proof of the Respondent is untenable, evidently imformed and contradictory to fact and the face of the transaction a was stated by himself And first as to 24 pieces of Blue Cloth which he admits to have received and retained It amounts to the Quantity per his Account and return of Sales of 736½ Yards Altho’ the real Contents thereof was 665½ Yards returned and charged by Bass and Bishop thus leaving a Surplus of 71 Yards equal to two pieces and 5 Yards over what he actually received for in such Case where the Respondent obtain the said Overplus of 71 Yards if it did not make part of that Bale It being proved that he had no other such Cloth on Sale And further corroborative of this latter fact Mr. Bass subsequent to the time it is affirmed he had that Bale No 1 returned to him on board the Venus continued to purchase at retail price from the respondent quantities of such Blue Cloth An improbability tantamount to proof positive that he Mr Bass had no such Cloth in possession Otherwise would any Man of the Acknowledged Acconomical prudence make purchase at an exorbitant retail price of what he was then in possession of at prime Cost? That he has made such purchase is proved by the Respondents Books But there had been no part of the price or Amount of said 71 Yards of Cloth which comes to £42..2..11 paid or accounted for by the Respondent he having duly made
return of the Quantity at the same time withholding the Value thereof And in like Manner respecting the Trunk of Hats asserted to contain 33 in Number and to have been also returned to Mr Bass the very Circumstance atandent thereon refutes this Charge for the respondent by his Account of Sales rendered has disposed of all the Hats put into his possession by Bass and Bishop 15 excepted And therefore in like Manner as the quantity of Cloth precedingly explained the whole trunk of Hats must have remained with the respondent Otherwise how dispose of and Account for 18 Hats more than he actually received exclusive of said 33 by him averred to be returned ? No part of the price of these Hats has as yet however been paid to Bass and Bishop
or
[Page 512]
Or to Appellant as their representative And the plea Set up as to their being returned must absolutely fail by Reason of the foregoing stated fact Supported by the Documents rendered by the respondents and ready to be produced by Appellant if further refutation hereon should be deemed necessary by recurring to the Evidence of Mr. Reid the then Clerk of the Respondent he in the direct part thereof asserts positively that the trunk of Hats was Sent on board the Venus And on his Cross Examination Says that he never saw it delivered to Mr Bass or any of his Officers nor did he ever know its Contents as to Number It is therefore obvious that this Testimony does not in any point of View go to establish the fact of those Hats having been returned or to invalidate the Appellants assertion that they were retained by the Respondents but that the preponderating Opinion must be in favour of the latter from the Circumstance of the Respondents own Shewing that he accounted for 18 hats more than he now admits to have retained - A Contradiction in Evidence and fact so sufficiently explanatory on the face of it as to require no further Comment for the Establishment of the Appellants deduction therefrom
The Witness Reid further takes upon himself to Swear that the aforesaid Bale of Cloth was delivered out of the Respondents Warehouse to Mr Bass’s Officers and Sent on board the Venus notwithstanding which as proved by the Books of Account Mr Bass continued to purchase such like Cloth at the Respondents Shop at retail prices This Bale No. 1 was sent to the Warehouse amongst the first Articles from the Venus every piece is regularly postmarked and the different prices cast up and extended into the Money Column – against the Entry of this Bale there is no remark made by Mr. Bass of its being returned tho’ such he has done in all Cases wherein the fact was so as subsequently exclaimed and which will result as proof from inspection of the Book Entries This Evidence Reid further Says that he made a remark above the Entry of this Bale of Cloth It is however Evident upon inspection That none such could be made on that line but on the contrary in the very page where this Entry is made Mr Bass in a subsequent Entry of the Items of three pieces of Scarlet Cloth which was actually redelivered to him from the Warehouse writes in the said Entry "onboard" Thus admitting what he actually so received by delivery to him from the warehouse And no price was affixed to or extended against these latter Articles more than was
against
[Page 513]
against the bale of Cloth No. 1 This therefore incredible Almost impossible to suppose That Mr Bass would in adjusting this Account not apply that discrimination generally which he did in one instance to all Goods returned to him or that had he omitted so doing that the Respondent would have submitted to such partial and unjust dealing by him
That there is no Entry produced respecting these transactions in a day Book and that thereof in the Ledger appears to have been entered or copied off on one day by the same hand pen and Ink Except the Entry of the concluding Single Articles sworn to by Casey the Respondent present Clerk of £3 paid to Goff Yet the Civil Court had admitted as Evidence this Book and refused to give similar Credit to Respondents Book of Account of Sales on behalf of Appellant tho’ such was by him on behalf of Bass and Bishop accepted as conclusive on the Settlement of Accounts It is submitted that this Book of Sales which contains the daily Entry of transactions must be at least as good if not better Evidence than a Ledger not supported by the production of a day Book (as in the present instance) which lays over for weeks as it is posted or brought forward That the Evidence of Mr Reid concerning the Bale of Cloth and trunk of Hats Seems In Appellants Opinion a good deal obtained if not totally nugatory – to animadvert upon him as a Suspicious Evidence The Appellant would not necessarily do But when it is considered how many frauds (not say worse Acts) has been committed at the respondents Warehouse and other Stores upon his property it must be obvious that concerned or who by Negligence have permitted such depredations are materially interested in eluding detection And that the extravagant Expenditures of People so ontrusted as those by the Respondent must create Suspicious very unfavourable to their Moral rectitude how far this Observation may apply in the present Case is left to the Superior Judgement of Your Excellency by however adverting to the Testimony of this Witness (Reid) in the Cause of William Wall versus Appellant It will appear that upon his Cross Examination viva-voce he contradicted the greater part of what he deposed on his direct Examination
That on the 5th February 1803 being two days previous to the
latter
[Page 514]
Latter departure of Mr Bass from this Territory her adjusted and finally Accounts with the Respondent Mr. T. Love whereby the balance in his favour appear to be One shilling and four pence No subsequent dealings took place as on the 7th same month the Venus sailed And on that day Mr Bass wrote Appellant a Letter by the pilot wherein he desires that Appellant should pay no demands on "the ship after he was gone without his written Order but note down all such Claims" and adds "I have paid W. Lord a Bill value £149..18..4 of Mr Williamson drawn on Mr. Chapman Should Mr. Lord not be able to get that Bill paid please insist immediately and procure other payment from Mr. Williamson" – had Mr Bass stood further indebted to the Respondent in the Sum he now so recently claims This plain that he would have been equally punctual in directing such to be discharged by or at least have intimated the same to Appellant Nor would the Respondent have been content or considered himself Secure in the mere Entry in his Ledger of the Articles thus contended for without having got a receipt or some other Authentication by the Signature of Mr Bass of their having been returned to him had such been the Case when particularly he noted in his hand writing in the same page those Articles which were actually returned to him
That for a considerable period of time Appellant made frequent Applications for a final Settlement of these Accounts with Respondent Some difficulties which occasionally presented protracted the Completion thereof But no part of the transaction which made the present Subject of litigation was until very recently at all mentioned or brought forward the first Account liquidated in 1803 must be deemed conclusive as to all dealings previously existing between the parties for the very forcible reasons hereinbefore stated as well as being consistent to the invariable Custom in like Cases in all commercial Concerns This secondary Claim or Account now depending and amounting to £118..2..10½ was only broached and demanded about Six Months Since throwing not only Obscurity but Strong doubts approaching as nearly as possible to proven facts respecting the erroneous and highly irregular claim of Credit on that head Otherwise why not makes its appearance long since under an Authenticated Stamp of credibility so easily and so necessary to be obtained at the time it is alledged to have taken place or particularly on
Mr Bass
[Page 515]
Mr Bass’s Settlement with the respondent
The next object attaching to the respondent is concerning a Bill of Mr William Cox paid him by Mr. Bass amounting to £73.12.0 Out of this Principal Sum he admits to have received as dividend of Ten Shillings in the pound when it is well known and an authentic fact That fifteen Shillings in the pound by the Trustees of that Gentlemans Estate has been paid which additional five Shillings per pound if the respondent has [indecipherable] negligently remiss in claiming or receiving, to that cause of [indecipherable] and none other can be attributed such defalcation And therefore he must abide by a consequence solely arising from his neglect his having received any part of that Composition being indemnity to Appellant as the Attorney of Bass and Bishop against all demands thereon for such part as has been hither to paid the other Creditors of Mr. Cox
The Appellant further begs leave to state to Your Excellency that by the Verdict given in this Case for the respondent the Court avers that such Verdict is grounded on the best Evidence that could be obtained on this head The Appellant must however reluctantly differ from that tribunal in as much as the respondents Book Entry under all its Suspicious Circumstances And particularly said by him to exist previous to the final Settlement with Mr Bass Tho’ not noticed or comprised therein or by any Subsequent Instruction from him to Respondent hath attained credit with said Court whilst at the same time the Evidence afforded on behalf of Appellant by the Book of Sale furnished by the Respondent as also Mr Bass’s Letter to him hereinbefore noticed were utterly rejected Thus after a lapse of Three Years without any demand made in that respect notwithstanding a final liquidation of the existing Accounts has the Respondent established this very incorrect irregular and vague demand without the due Support of Evidence either as regulated by law or fact as Appellant apprehends whereby the same should be legally sustained and decided upon
Memorialist therefore prays that Your Excellency will give Judgement in the premises according to those dictates of Justice and Equity which invariably guides Your Excellency’s decision in all Cases
(signed) Thos Jamison
25th July 1806
[Page 516]
Sydney August 4th 1806
Sir
May it please Your Excellency
I hope Your Excellency will not consider me troublesome in declining to submit the business between Mr. Jamison and me to Arbitration after fully proving my Case in the Civil Court and receiving a verdict in my favor
Your Excellency is well acquainted with the Circumstances and knows that it was from the Expectation of what is now the Case that I objected to the property being put into his possession – I have strong and substantial reasons for rejecting any Arbitration which if Your Excellency requires I shall be happy to give – but I fear I shall be under the disagreeable necessity of bringing the business before Your Excellency in another shape
I have the honor to be
With the highest respect
Your Excellency’s most obedient humble Servant
(signed) S. Lord
To His Excellency
Philip Gidley King Esqr
Captain General and Governor of the
Territory of New South Wales
&c, &c, &c
[Transcribed by Michael Brock, John Buchanan, Ray King for the State Library of New South Wales]