Letter from:

George Maclean Commissary Officer Hobart Tasmania to James Sutherland Mitchell

Hobart Town, 13 January 1851

My dear Sir

I deem it due to you before quitting the Station for England to express the satisfaction I have derived from observing the able and zealous manner in which you conducted the correspondence work of my office since your transfer from the accounts Department in July 1849

If it is in my power to be of service to you at any time you have only to write to me and I can assure? you with great sincerity that I should be much gratified to have an officer of your talents experience and gentlemanly bearing, associated with me in the public service at some future period, if circumstances again require my employment necessary

I have not failed to mention you particularly to Mr Bishop and will do so to Sir Charles Trevelyan when in London

.. with best wishes

ever faithfully from

Geo Maclean

Sir George Maclean KCB (1795-1861) was a Commissary General in the British Army. In about 1840 he was posted to Hobart, Van Diemen's Land (Tasmania) at that time a British convict settlement

Sir Charles Trevelyan KCB (1807 – 1886) British civil servant and colonial administrator. On return to Britain from India in 1840 he was appointed as assistant secretary to HM Treasury and served in that role until 1859

MARRIAGE

On Thursday, the 3rd instant, at St. Lawrence Church, by the Rev. W. H. Walsh, James Sutherland Mitchell, Esq., of the Commissariat department, Sydney, to Elizabeth Carter, second daughter of the late James Laidley, Esq., Deputy Commissary General.

INTERCOLONIAL TASMANIAN PRESS ASSOCIATION COPYRICHT. NEW SOUTH WALES. SYDNEY, TUESDAY. - Mr James Sutherland Mitchell, formerly one of the most prominent business men in the city, died today. Wednesday 12 July 1893

The late Mr James Sutherland Mitchell, whose death is announced in our Sydney telegrams, says the Brisbane Courier of Thursday last, was a very old Australian colonist, and connected to some extent with Queensland also. He was originally, in the ‘forties’ in the Commissariat Department at Hobart and married a daughter of Commissary James Laidley who died at Sydney in 1835.

Mr. Mitchell was consequently a brother-in-law of Messrs. T S Mort and Henry Molt. He subsequently became manager of a fire insurance company in Sydney and in the year 1856 the managership of the Kent Brewery was offered to Mr N Bartley of this city, and on his declining it in favour of the then brighter prospects of the projected new colony, Mr. Mitchell was offered and accepted the position, and died extremely wealthy.

He was a director of the Joint Stock Bank and Peak Downs copper mine in 1872 and visited Queensland in 1863 with Mr. Abraham Fitzgibbon, the projector of the first local railway from Ipswich to Toowoomba. After the death of his first wife Mr. Mitchell married a sister of the late Sir George Wigram Allen, Speaker of the New South Wales Assembly.

He was a gifted and scientific man, and author of some very valuable experiments on the strength and tenacity of Australian timber : while as a wood carver, his amateur efforts in the way of gigantic picture frames reproducing birds, fruits, and flowers with marvellous fidelity, would almost vie with the masterly productions of artists like Grindling Gibbons.

He was a genial and large-hearted man, and leaves a stainless record behind him as one more of the now fast sundering links left with the Australia of the ‘quiet forties’

NEW SOUTH WALES.SYDNEY, Monday. The difficulty between the wool brokers and wool sellers has been amicably settled. The stamp duty amounting to £18 was paid to-day on the will of the late Mr James Sutherland Mitchell

RE J. S MITCHELL

His Honor gave judgment on a petition for advice in the matter of the trusts of the will and codicils of the late James Sutherland Mitchell, Darling Point, Sydney. The question the Court was asked to determine was whether, under the trusts of the will and codicils, the trustees were bound forthwith to realise on certain new ordinary and preference shares in Tooth and Co, Ltd.

His Honor decided that it was the duty of the trustees to realise both on the ordinary and preference shares. Costs of the application were ordered to come out of the estate.

LAW REPORT. HIGH COURT.

(Before the Chief Justice, Sir Samuel Griffith, Mr. Justice Isaacs, and Mr. Justice Duffy.)

TRANSACTIONS IN SHARES.JUDGMENT ON TEST CASE.

The reserved judgment of the Court was delivered in the case of Isabel Sutherland Mitchell appellant, and Edith Maria Hart the Perpetual Trustee Company and James Kidd respondents.

The case was argued at the May sittings of the High Court, on appeal from the judgement of Mr. Justice Harvey, sitting in New South Wales Equity jurisdiction, on December 2, 1913. The case came before Mr. Justice Harvey by way of an originating summons between the Perpetual Trustee Company, plaintiffs, and Edith Maria Hart, defendant. The Equity Court was asked to decide the rights of the beneficiaries under the will of the late James Sutherland Mitchell in respect to three issues of shares in Tooth and Co., Ltd.

The appeal to the High Court was on the grounds that, in declaring the bonuses, Tooth and Co. did not intend to pay any sum as dividend; that the respondents (Perpetual Trustee Company and James Kidd) had no option but to take the said bonuses in a capitalised form and that the shares so issued are held as corpus of the estate, free from any charge thereon.

It was stated that the issues to be decided affected a large number of estates.

Sir Samuel Griffith said the Supreme Court Judge had held that the shares were an accretion to capital, but that the persons entitled to the income of the estate are en-titled to a charge upon them for a sum which, although in form a dividend upon existing shares, was never actually paid as such, but was accepted by the company in full payment for the shares, which were of much greater value. The transactions in question were not unfamiliar. Having accumulated large funds of surplus profits, after payment of ordinary dividends, the company proposed to distribute those funds amongst its shareholders by an issue of new shares, accompanied by a distribution, by way of a bonus, of an amount exactly equal to the amount payable in respect of the new shares. The question was whether the amount of the bonus is to be regarded as income, or as an accretion to capital. If the company determined to convert undivided profits into paid-up capital upon newly-created shares, then these shares were capital, but if it were determined to make a distribution of profits, accompanied by an option to the shareholders either to accept their proportion of the fund in cash or to apply it in the purchase of new shares, then the amount so distributed may be regarded as income, whether it is actually paid and repaid or not. ' From the resolutions creating the issues of the new shares, it appeared that the only substantial option left to the shareholders was, in each case, whether their proportion of new capital, which was to be created at all events, irrespective of any option on their part, in the form of fully-paid up shares, should be taken by them in the form of shares, or 'in the form of money, representing their proportion of the proceeds realised by a sale of the new shares not taken by shareholders in specie. The question was, after all, one of the construction of the will.

In his Honour's judgment, the benefit which accrued to the -Trustees under the schemes in question was not income in the sense in which that term was used by the testator. The appeal should, he held, be allowed, and the order should be varied by omitting the declarations that the tenants for life are entitled to a charge on the shares, and that the amount of the charge should be raised by sales of a sufficient number of them.

THE MAJORITY VIEW.

Mr. Justice Isaacs pronounced the judgement of himself and Mr. Justice Duffy. Their Honors said it was essential that the distribution of the profits must be so as to increase the capital, and that by force of the act of the company itself, leaving no room for discretion in the matter by the recipient of the profits as to their ultimate destination. The profits to become capital must be paid for capital stock. And before being so paid they must in law be the property of the applicant for that stock. The next postulated was that when 'profits were distributed, they belong absolutely to the recipient, and cannot be clogged with a condition binding in law to return them or apply them to the payment of shares. In the strict legal sense, there is always an option to retain the profits, and refuse to take the shares which the company desires to be taken, and paid for by means-of tho profits. But It was the substance of the transaction which governs the relations if tenants for life and remaindermen. The company may so frame its resolve to issue new shares, and to distribute the profits, as to bind the two Into one transaction from a practical standpoint. But to accomplish this, the bonus or dividend must be so offered that the ordinary instincts of human self-interest of a reasonably prudent man will naturally and instantly direct the money back into the coffers of the company in exchange for the new shares contemporaneously offered, notwithstanding that these are legally refusably by the shareholders. Under such ' terms and circumstances, the benefit offered by the company is simply the net difference between the actual value of the shares and the price asked. In this case, tho company had stopped short of irrevocably linking the distribution of profits with their return. They had not supplied the want of a legal compulsion with a practical one. What the company had done left a full and free option from a business standpoint, and as neither law nor self-restraint can be said to compel the repayment of the profits distributed, they have not been capitalised and remain income. Their Honors held that the order made by Mr. Justice Harvey shouldstand, including the declarations respecting the charge upon the shares for the amount of tho bonuses. The appeal was dismissed. The costs of all the parties are to come out of the funds from the sale of the shares.

ETHAM ESTATE: - Raine and Horne, by order of the trustees in the estate of the late James Sutherland Mitchell, will offer the balance of the well known Etham Estate, Darling Point, next Saturday afternoon. There are 14 choice building blocks, having an easterly aspect, and embracing views of the harbour. The title is Torrens and the terms of purchase extend over four years.

Torrens title is a system of land title where a register of land holdings maintained by the state guarantees an indefeasible title to those included in the register. Land ownership is transferred through registration of title instead of using deeds. Its main purpose is to simplify land transactions and to certify to the ownership of an absolute title to realty. It has become pervasive around the countries strongly influenced by Britain, especially those in the Commonwealth of Nations and has spread to most countries.