SUPREME COURT. (In Banco Regine.)

New Zealander, Volume 3, Issue 177, 9 February 1848, Page 2

SUPREME COURT. (In Banco Regine.)

Monday, Fe'truaty 7, 1848. His H,nor tho Cniet Justice having taken his seat upon the Bench shortly afier ten o'clock thu moinm?, proceeded to hear affiiU'vl sand arguments in support

of a motion — Exparte in the matter of R. and D. Graham, v. Tye, for a mandamus compelling the defendant, as Clerk ef the Coutt of Requests, to issue a summons out of that Court against one Jonah Crowther, of Auckland, at the suit of R. and D. Graham, for a debt of £4 10s., aMeged to be owma: by the said Crowiher to them ; which act the defendant Tye had refused to peiform. Mr. Merriman proceeded to read the affidavit of Mr. T. E. Conroy, Solicit >r, which ttaied th»t in the 3rd session of the Legisla'ive Council of New Zealand, an Act, No. 8. of 1834. was passed, constituting and regulating Courts of Requests within the colony, agreeably to which Act the defendant had been duly appointed Clerk of the said Court •, that in such cipacity it was his duty to issue summonses ; that the complainantt, R. and D. Graham, had, by the deponent, as their Attorney, applied to the said defendant to issue a summons a;ninst one Crowther, for a sum of jtH 10s., being the unliquidated balance of an account for goods sold and delivered to the said Crowiher by them; that the defendant had declined to do so, saying he bad been directed by P. Berry, Esq., the Commissioner, not to issue any more summonses ; that Mr. Berry was applied to, who declined ; that Mr. Beckham, Resident Ma isti.ve, was then applied to, who also declined ; that Alt. Outhwaite, the Registrar, likewise declined ; and Mr. Tye, the defendant, when finally applied to, refused, and referred the deponent t:> a certain notice posted on ih*» door of the Court, notifying for public information, that the Court of Requests would be closed after a certain day since passed, and the causes be determined by the Resident Magistrate; in consequence of which, the complainants were left without thu means of recovering their debt. A fuither affidavit slated the dua service of notice of action upon the defendant. Mr. Bartley followed on the same tide.— He (the learned Counsel), did expect to have seen someone prepared to oppose tl\s motion then before the Court. .However, the apposition, were any to be at'empted, could not fail to be slight; for the application for a mandamus appeared to him so clear, that his Honor, he conceived, would feel little difficulty in acceding to it. Thire was evidence, on affidavit, that a debt exifated ; that a Court of Requests had existed ; that the defendant, William Tje, held the office of Clerk in that Court; that appluation had been made to him for a summoni, which summons he had refused to issue, and which refusal left the complainants (R. and D. Graham) without remedy. The Commissioner, he contended, had no power legally to inteifere with, or control the Clerk in the dis"harge of the duties imposed upon him by his appointment, which appointment, he c intended, the Cli-ik held independently, and the Governor, he maintained, was not justified in interposing hU,auihonty. The learned Chief Justice enquired how the Governor's interposition had been shewn in the affidavits produced. So far as they disclosed, the stoppage of the Court might have proceeded from ciicumstances affecting the Commissioner. The Commissioner might have resigned, or died. Mr. Baitley contsidered tlißt the notice posted outside the Court-house, as sworn to, sufficiently established the Govern >r's interposition — and even supposing the Commissioner had resigned, that, he considered, would not necessarily involve a suspension of the Court. If, for instance (what would certainly be a matter of deep and universal regret), his Honor's death occurred, such a melancholy event would not necessarily shut up the Supreme Cuurt. Mr. Tye's defence rested entirely on the notice emanating from the Governor— but he conten led that was no defence at all. The Court of Requests he considered still exists — and whatev-r the G >vcrnor did or mi<ht do, it was not in his power to abrogate it. That Court, he contended, could not legally be superseded but by a positive enactment of the Legislative Assembly. The Governor's attempt to arrogate to himself the powers otthat Assembly, he held to be unconstitutional, unjustifiable, and illegal. The learned Counsel then proceeded to quote from Blickstnne, page 185, relative to Acts of Parliament which cannot be amended, repealed, or in any way altered, by any authority short of that which created them— -contending tnat if the Governor could shut up the Court of R«quest3, which had been established by an Act of Council, by his personal authority, legally— there would be no reason why he might not shut up the Supreme Court also. It w,is «n infraction of Magna Chaiia— of that great constitutional bulwark whi h provided that ju>tce should not be denied to any one, nor delayed.* It was ' not in the power of the Crown to alter an Act of Parliament. Parliament alone could do that. This was clearly laid down in Blackston j , page 267, — but the fact was so well established, «.nd indeed the constitutional principles aieso well known, tlut he did nol think it necessary to say more. There were the only points in the case that he thought it necessary to dwell upon. The Chief Justice said that when the affidavits reached liim on Saturday, he had r-sad them over very carefully, when several difficulties presented themselves. These he would state in order, and the learned Counsel could dispose of them as he best might. In the hrst place, his Honor was not aware of any wnt of mandamus issuing to an officer acting in a ministerial capacity, such as a Clerk in the Court of Requests. Mr. Bartley •■aid hecould shew from Bacon' a abridgement, letter P, in relation to corporation?, that such writs would issue. The learned Judge held the cases about to be referred to by the Counsel, js irrelevant to the matter before the Court ; and suggested whether the same work did not furnish matter explanatory of the practice of the Court of Queen's Bench, in applications for mandamus auaiosi Officers of inferior Courts. Mr. Hartley said he was unproviJed with direct precedents, and could only call in bupport of his position those cases from Baton, letter F., relative t'> Corporations, and which he held to be analogous in the present case. The Chief Justice thought that more direct cases were to be found in the books, as to the mode which governs the Court of Queen's Bench in /elation to an inferior Court. He had taken note* of the learued Counsel's argument, and to &flud time for further inference, would adjourn to Thursday next, when he (Mr. •Hartley) would be at liberty to pursue it, if he thought proper. There being no other motion on the paper, the Court adjourned accordingly to Thursday next (10- morrow) at the usual hour. * Nulli negabimus, antfldifieremus, justitiam vcl rectum, &c. &r. Mag. Chait. c. 39.