SUPREME COURT.

New Zealander, Volume 3, Issue 178, 12 February 1848, Page 3

SUPREME COURT.

(Adjourned Sitting in Banco.) Thursday, February 10, 1848. Soon after 10 o'clock this morning, His Honor, <h3h 3 Chief Justice entere i the Court, and having taken hu seat upon the bench, intimated li's readiness to hear any further arguments of Couniel in the application for Manda nun in the mitter of Graham and another v. Tye.— Mr. Bartley rose in continuation. He would proceed to shew chut the Governor possessed no riglK to interfere in the manner that His Excellency had done The Chief Justice observe! that he vroull trouble the learned Counsel jut.t th'?n, only upon one point. That was as to the mode which the Court of Quee .'s Bench would lollow in applications similar to the present one. Mr. Bamxey said that pei haps no ca'e precisely limilar couid be adduced in which a Governor had in terpoaed to stop the course of lave. His Honor ha I takun note of his> (the learned Counsel's) 1 objections on this head — inasmuch as the case out of which the present application arose differed from all precedenii. There were two c'aMis of dittu c'ive case* to be considered—one where ihf judge had, the othf-r where the judge had not a controlling power over tht« officers of his court. Where a ju'ge of an inferior court had no controlling power, it would bs idle of the superior coutt to command what the inferior jud.e could not enforce. Where the judge hud the appiint mem of the miniittrial officers of his own court, there the mandamus would lie to the jud^e and not the ministerial officer, the judge being /espouiible for the acts of his appointees, but not so if no cueh control li'"S po.ar existed, for it is a principle not only of common law but owt'er of common sense that, whsie reason ceases, the effect ceases. Ths English rractice was for the judges to appoint the ministeiiil rfficerb of tlMr respec'ive courts. Lord Coke tajs " the judges have ever apoomted their own clerks/—and cv n if the King ( Vol 2, of Bacon's abridgement i . 899 letter, £ ) grant a court to a corporation to hold pleas* though there bs do clause to ths effect, it is incident tv *uch court to appoint bailiffs to do certain acts, fjt otherwise (says this authority) " they cannot huldi court"— but yet they cwinot quite their bailiff* issue fiual proceia

without special permission, when a mandamus would* lie. The judges of the Court of Quaen's Bench. have the discretion to determine who i» responsible* and to issue their mandamus accordingly, and that mindamu* t> issue to ministerial officers when such officer* are not created by or amenable for particular acts to 'he inferior judges, and he had authority to prove that writs of tn indamus do issue to nrin steri/il officers. In Bai'on, Vol. 5. letter D, pa«e 271, it is hid down that a mandamus lies to the Registrar of a Bishop or Jtutices of Session to register a certain act. There ttio principle is clearly decided that a mandamus lies to the ministerial offic r of tin inferior court. It is- not to the biahop, asjudi^e, that the w< it is to be addressed, but to the registrar— the ministerial officer of the hurt ops' c urt. In 2d vol. cf LJeoon's abridgment p 479 it it stated that the Court of King's Bench, as the highest court of common law, " hath not only p<)wer to reveree all judgment! of, but to punish all interior ma.istia'aj and all other officers for perversion" &c &c. It would be needless lor him to multiply imotaiious to shew the extensive principles of mandamus. The leading princple is distictly recognized, that justice thou'd not be delayed. 111 1 wm dearly agreed that the Court of Queeu'i Beich having control over inferior courts and officers* m*y by the plenitude of its powers, not only correct enors, but punish exira-jud cial acts. Now whether of ! not the Governor of a Colony directing un officer not to do his <Jut\"— Chilf Justice.— Where is the Governor's direction b j Counsel.— Tye says so. It is tworD in Mr. Conj roys affidavit that when pressed to issue a *uininong at the sun of the coupl&insnt, he pointed to tun notice posted on the cufsidr of the door as hie p.»thonry foe | refusing. And this nutice purponed to b the Governor'^ direction. The Court of Queen 't Bench wou!A punish tendencifs to turbulence, ."-edition, oi the like-" but he (the learned counsel) knew of noilnnj: so likely to excite public indigiatiou and even turl'uleius <is ihis attempt of the Governor tosxercUt- u power with wlucfa the law did not invest him. Though -Jusiiej follows the King (Chitte en prerogative) yet no man can k* a judge in his own causr The Crown cinnot avo' 1 tk'; law. If it could, then tbe Crown would be above ilus Uw, and the property of the subject be left deinice less. He (Mr. Bartley) would contend that the Court of Requests of this Province is m existence jutt ns perfectly at the present moment as if the Governor hie! 1 never interfeied. Ec thought however that thi Governor should hardly have altsmpivd to do, whu\ the Queen would not venture upnu. Suppose the Qpeeis were to call the Lord Chief Justice of England to her, and ny "My Lord Denman, «hut uj) your Court"— what would Lord Denman do or «ay .Wvould be ?o home and order his Court to be shut up, because tue Quern commanded him ? Chief Justice.— You are departing from the point to be considered. You are assuming thai such and such an act was done— -of which there is no iufficict evidence before the Cjurt, Tbe one point to be Ue» tennined it as to the particular practice of the Coutt of Queen's Bench in applications of the present nature. Mr. BARTLnY—Suomitted that he had cited ona authority at least clearly establishing the fact that, a mandamus does issue to officers of interior courts, tml ihe defenJant's ca*e he considered to come precisely within that rule. The Got'r h*d appointed. the defendant to his office, and .the commissioner as judge of the court had nothing to do witu that appointment, nor any business to control the defendant in the exercise of bis duties. Suppose a writ of mandamus was directed to Mr. Berry (the Commissioner)— would it not be perfectly nugatory ?— a writ from the Sup. ems Court commanding Mr. Berry to command a Clerk above command ! who mitfhc turn round and gay — '• Sir, I hold my appointment fiom the Gjvernor, I will not obey your command' 1 ! ! Again suppose it directed to Mr. Berry and clerk, would it not bs open to a chatge of misdirection, and on lhatgioundbe quashed ? Ha apprehended that h would — and concluded by urging that the writ of Mandamus as applied for, should issua to the proper party waom he considered to be the ce> fendant Tye. The Chief Justic« said he was much obliged to, Mr. Bartley for the pains and industry he had shewn in collecting authorities, and would pronounce hit decision early next wetk, of which due notice would ba previously given. Tbe Court then broke up.