SUPREME COURT.

Evening Star, Issue 2997, 26 September 1872, Page 2

SUPREME COURT.

IN BANCO. Tins Dav. (Before Injustice Chapman.) Tiff; pouch: STRIKE. Coneys v. Weloo v.—His Honor delivered judgment. He said be bad come to the conclusion that no cause of action had been disclosed, and therefore that the demurrer must be allowed. He agreed with the principle laid down by Mr Macassey as determining cases of this kind, and he thought the defendant as Commissioner, had no immunity from action if he departed from the duties imposed on him by law. The general rule wss, as Mr Macassey stated, that where the law'.c'agt upon a public officer a duty, any non-feasance, by Which a person was injured, would er title that person to a right of action against that officer, 0« that ground, Custom douse officers were continually sued for illegal seizure. The whole question turned, therefore, upon whether Mr Macassey had succeeded in bringing the defendant within the rule, and he (the learned Judge) thought he had not. The question resolved itself into two branches : —First of all, what duty was cast upon the Commissioner; secondly,

whether the declaration showed a breach of that duty 7 It might be granted that if the duty contended for by Mr Macaesey was cast upon the defendant, then the declaration was sufficient. But that would mainly turn upon this question : whether ’the plaintiff was entitled io the notice or information, as it was called in the ninth paragraph of the declaration, which plaintiff claimed. Prhna facie, the statute had no express requirement thabnotice of the notice to the Superintendent shoul Ibe given to the person dismissed. It seemed that the Commissioner could, on any cause or complaint, summon a constable before himself, and, after investigation, dismiss ; but on dismissing the man, notice thereof must be sent to the Superintendent. J here was no averment that the dismissal in the present case was not so reported. It seemed that in this case no injury occurred from the want of notice, and the right of appeal to the Superintendent was given to the plaintiff whether he had notice or not. On the instant the Commissioner pronounced to him the word “go,” the right of appeal accrued ; but it did not appear that the appeal must necessarily be before dismissal. It had been said that the plaintiff had not been allowed to appeal; but there was nothing in the declaration—although he (the learned Judge) had looked through it carefully—that indicated that he had been impeded or hindered by any positive act of the Commissioner. There was uo such averment, nor any words from which he could gather that inference. “ Not permitted to appeal.” There was no permission or allowance rendered necessary under the statute. Maintiff was at liberty to appeal whether such notice of notice to the Superintendent was given him or not. It was to be observed that if the Commissioner had wrongfully dismissed him without giving previous notice that that seemed to he a condition precedent to dis--missal: that itself might be aground of appeal, and might have induced the Superintendent and Executive Council to have restored him to office, as was done by the Privy Council in the case of Mr Justice Willis, of Victoria, In that case, the Privy Council reversed the decision of the Government of the Colony, because it was a mere mistake of procedure; but they said, “Inasmuch as the conduct of the party appealing has been such as to justify his dismissal, we ricommend the Crown to dismiss him,” That was the course pursued by the Privy Council in that case. The proceedings in t ic Colony had been wholly irregular, he having been dismissed by the Executive Council without being called upon to urge his defence. The Privy Council allowed the appeal, which gave Mr Wild* his costs and salary up to the time of appeal; but on the me its of the case they recommended the Queen to dismiss him, on account of his conduct Something o‘ the sort might have happen.d hero. The result might have been to restore plaintiff, which probably would have given him some title to compe jsation under the regulations, or might have put him in a better position than he now occupied, bub he did not appeal ; and so far as the circumstances were concerned i e (die .fudge) did not see that the conduct of the Commissioner ip any way interfered with his right to appeal, or that that right was in any way affected by the absence of the information which he claimed by his declaration. He thought he could not read the tenth paragraph alone, nor that lie could single out that paragraph and say that it constituted a ground of action, because the pai agraph itself referred to the previous one, and it was impossible to keep out of sight the fact it referred to, viz., the plaintiff having been ignorant of the notice having been given to the Superintendent. The case seemed to turn upon that; and that he considered not a sufficient cause of action. The demurrer would therefore be allowed, aud judgment would be for the defendant. ’ °