SUPREME COURT. Wednesday, Fedruary 16, 1848.

New Zealander, Volume 3, Issue 180, 19 February 1848, Page 2

SUPREME COURT. Wednesday, Fedruary 16, 1848.

His Honor the Chief Junice entered the Couit this morning at a few minutes to 10 o'clock, and proceeded to pronounce his decision in tli3 ruatUr of the applic -tiou of Counsel in behalf of Mes*r*. R. & D. Graham, for u writ of Mandamus directing Mr. VV. Tye as C'leik of the Court of Requests, to issue a summon 5*5 * for alleged debt again3t a certain defendant at thtii suit. The argument s raised by Mr. Bartley on the 7th and 10th instant m Uus case, may be gathered (i from our previous numbers of the 9th and 12th of the present month. After -I Cow prefatory remarks, His Honor went on to siy .— The only point to be considered ]«, whether tlii'i Coui t ou':h f , on thji day, to grant n. Wilt of Muidn* mus. Whether a Summons ought to have been issued by Tye on the Glli of Januaiy, is quite adillerenf question, and one with winch we liavs nothing to doTo the granting of the Wut, there are obvious objections. In (he fi st place, ir does not appeir t»> be tlic practice of tlia Court of Qu en's bench to direct such a Writ to any ministerial officer of an inferior Court of L'i\v. The reason is given in "Bacon's Abridg. (Man • damus D.) in these words : — for the Superior Couit to interpose m obliging such interior offii cr would be to usurp the authority of the Court, which has a proper juiisdiction over its own ofliceis, and which alone is answerable to the supeiior Court for the execution of such nutlnrity." This mle was acted on in the King v. Bri.tow (6 T. R. 168.) In a mart i event case, King v. Jeyes (3 Ad. & Ell. 416) a rule wns obtained against the Town-treasurer of Northampton, calling upon him to shew cause, why a Mandamus should not issue to command him to pay the expenses of a prosecution, in obedience to an order made by a Judge of Astue under Stat. 7, Geo. 4, c. 04. The Statement contained a soeciul direction to the officer fo pay. Lord Dcmnan said — "As to the propiiely of a Mandamus, the fn&t question is -whether this Court should inteifeie by that piocess in the case of an inferior officer nmuidhle to others. We are not to cany this iemcily by Mandamus so far as to issiis the Writ wherever any officer has> neglected his duty ; this Court ought nut to be called upon in evciy case of that kind. " And Mr. Justice Patterson referring to th« cuic just cited, satd, "In Ktn<j v. Bristow, the Court decided agam-t granting the Writ, on the broad gtound that the patty applied ugain'-t was a ministerial officer.'' The rule was discharged accordingly. Ths only appearance of authority the other way is f mnd in ccrtJ'iw c ises, referred to in Bacon's Abridg. (Mandamns D. 271.) in which it was held that a Mandamus would lie to the Registrar of a .Bishop or the Justices at Sessions, to register the certificate of a place of meeting for Protestant Dissenters according to the act of Toleiation. The Act to be done was, certainly in one sense, ministerial. It w«s so with reference to the Act of Parliament, It wa> an Act prereojptorily required by a Statute ; and as to the doing of which no discretion was left to the persons required to do it — • Butituainot uunis'eiiftt in the sense in which the word is used in the rule we are considering. It was not an act forming pait of the procedure in any action, or suit ; it was no part of any legal proceeding at all. In this sense it would have been absurd to speak oftha Justices, who ate the Judges of their own Court, as acting ministerially. The context fully explains the meaning : "Jhe Court was of opinion, that, in registering and recoiding the certificate, the Justices were merelynnnister.nl; and that alter a meeting -house had been duly registeied, still, if the persons resorting to it did not bring themselves within tlie Act of Toleiation, such registering would not protect them from the penalties of the law," (King v. Justices of Dei byshire.) I find therefore nothing to justify me in departing from what appears to be the English rule. — • Much indeed has been said, in the cour.se of the argument, respecting the colonial ci actment by which the Cleric of the Court of Requests is m-ide removeable, not oy the Commissioner, but by tbe Governor alone. 1 refer to those remai Us, not that I deem tliera matonal to the matter boloie U 3 : but simply to say, that Ido not assent to them. I see nothing extraordinary in that piovision. In the Courts lecently consututed. throughout England for the recovery of *umi not exceeding XJ2O,X J 20, notwithstanding the superior qualifications, of the Judges, the Cleiks of the Cowls are not removedbld by the Judgea alone They are not reinovcable without the approval ot the Lord Chancellor. I take the opportunity of saying that for my own uart and ur far ah I am concerned, 1 greatly prefer such aa arrangement as tint. Theie are doubless some duties ot winch the performance may need to lie enforced by a power oi summary dismisbal. But the duty of issuing the pr»c?ss and recording the proceedings of a Court of Justice, is so serious and responsible that it appears to me vciy reasonable that the Officer entrusted with the perfoimance of thai duty should not be wholly dependent even upon the Judge of the Court. It sueuis to me tlut the Legislature gives to such an officer no extravagant amount ot protection, when it buys that be shall not be removed by the Judge singly, but that the consent of the Governor shall be accessary,

It cannot oe presumed that any improper person will be retained in such an office, after his untitness shall have beeu shown. On the other hand, I cannot brings •»yself to think that any Officer of an English Cour of Justice will be one whit the less inclined to comply with all lawful directions of the Judge of the Court, ior the mere reason that it may not be in the power of that judge to oust him lummanly from Ins office.— Certainly the facts of this particular case furnish no ground for such an apprehension. For how does this case stand? Mr. Corny say* in his affidavit, " that the said Wm. Tye stated he wonld not issue the re quired summons, and, on being questioned the reason of his refusal, the said Wm. Tye stated that he had been verbally directed bv Percival Berry, Esq., the Commissioner of the said Court, not to issue any more summonses." This was on the 6th of January. It was on the 2nd February, that the deponent again applied to Tye, and then for the first lime we hear of ITvc referring to the Government notice. So thnt the Charge against Tye comes to thw :— ihat this Officer (whose rebellious tendencies have been somewhat strondy represented by the learned Counsel) chose to disobey the Ordinance in order that he might obey the Commissioner; and I urn asked to presume that the very same man would tin n round and disobey the Commissioner, in case the requiiement of the Commission - er should happen to coincide with that ol the ordinance. The question to which I have thus fat adverted, relates chiefly to the procedure of the Court : but over and above this, there is a difficulty which lies in the very substance of the application. Though the affidavits do not dbclose as fully as might be desired, the circumstances under which the issue of process out of the Court of Requests came to be discontinued— yet they contain enough, to make it clear that a Mandamus cannot be properly granted. Mr. Berry has ceased to act as Commissioner, and the Government notica very distinctly implied that no new Commissioner will be appointed. Now, this Court cannot forbid the Commissioner to retire irom his office— nor can it require the appointment of a sucressor. The Mandamus, then, would be of no use to the parties who ask for it, and according to the well-known rule, where it is seen be-foie-hand, that the act of the Court could not be followed by any result, it is the duty of the Court not to act at all. On this ground, then, independently ot the former, the Mandamus must be refused- The Court of Requests being no longer in operation, there are open to Messrs. Graham legal means of recovering what ever may be due to them upon their demand. If the modes of proceeding which now remain, are found less convenient than that which was afforded by the Court of Requests, the remedy must be sou» lit elsewhere. It is the right and the duty of this Court to huperinte nd all other Courts of Law, so long as they are in operation: but it cannot go faither. It cannot, directly, or indirectly, assirne to itself a function which belongs to the Government of the country. Mandamus t efused.