SUPREME COURT.

New Zealander, Volume 9, Issue 756, 13 July 1853, Page 3

SUPREME COURT.

Monday. July 11, 1855. Before His Honor Chief Justice Martin. Mi*. Whitaker appeared on behalf of Mr. William Brown, one of the Candidates at the election of Superintendent for the Province of Auckland, io make application for a .Mandamus requiring Thomas Beckham, Esq., as Returning Officer for the City of Auckland, the Suburbs of Auckland, and the Northern Division, lo make a return declaring that the election had fallen on Mr. Brown. In a speech of considerable length Mr. Whitaker commented on the Proclamation for Regulating* the Elections, which he described as very complicated, and as admitting of the opening up of very many questions. He reviewed the proceedings of the. Returning Officer up lo the point at which, after a show-of-hands (which was taking place in favour ofMr. Brown) had a poll was granted on behalf of the other candidate, Colonel Wynyard,—admitting, so far as the purposes of the present motion was concerned, that up to that point all had gone on regularly. But, there, he contended, the regularity ceased, the poll not having been duly demanded. In support of this statement Mr. Whitaker read the following affidavits and affirmation (Copy.)

William Brown, of Auckland, in New Zealand, Merchant, makelh Oath, and saith, that the Nomination of Candidates for the office of Superintendent of the Province of Auckland, was held at Auckland aforesaid, on the 20th day of June last, and that Thomas Beckham, Esq., the Returning Officer for the Districts of the City of Auckland,the Suburbs of Auckland, and the Northern Division presided at the Meeting held for the purpose of such Nomination. That at the said Meeting this deponent was duly proposed and seconded as a Candidate for the said office. And that Lieutenant-Colonel Robert Henry Wynyard was also duly proposed and seconded as a Candidate for the same office ; and that no other Cand date was proposed ; that the show of hands taken after the said Robert Henry Wynyard and this d< ponenl had been proposed and seconded as aforesaid, was declared by the said Thomas Beckham to be in favour of this deponent, and this deponent was then declared by the said Thomas Beckham to be the person on whom the election for Superintendent had fallen. And this deponent further saith, that no poll wasthereafterdemand d by either of the said Candidates, hut that William Connell, Esq., who had proposed the said Robert Henry Wynyard, demanded a poll on his behalf, hut as this deponent verily believes no other elector demanded a poll on his behalf. And this deponent further saith that he stood close by the said Returning Officer during the whole of the proceedings at the said Nomination, and did not hear any other person than the said William Connell demand a poll, and verily believes that it was impossible any person coaid demand a poll after the said Candidates had been proposed and seconded, and the show of hands taken, and before the close of the proceedings at the said Meeting without this deponent hearing the same. And this deponent further saith, that on Friday the eighth day of July instant, he, this deponent, requested the said Thomas Beckham as such Returning Officer as aforesaid, to make a return declaring that he, this deponent, was the person upon whom the election at the said Nomination had lallen, hut that the said Thomas Beckham refused to make such return. William Brown. Sworn at Auckland aforesaid, this ninth day of July, One thousand eight hundred and fifty-three, before me, Thomas Ohthwaite, Solicitor Supreme Court,

(Cox>y) Robert Schultz, of Auckland, in New Zealand, Accountant, maketh oath and saith that he attended the meeting held on the 20th day of June, last, at Auckland aforesaid, for the purpose ef nominating candidates for the office of Superintendent of the Province of Auckland. That William Brown, Esq., merchant, was proposed for the said office. That Lieutenant-Colom 1 Robert Henry Wynyard was also proposed at the said meeting. That the show-01-hands taken thereat was in favour of the said William Brown, and he was declared by the Returning Officer, Thomas Beckham, Esq., to be the person on whom the election had fallen. That William Connell,Esq., demanded a poll on behalf of the said Robert Henry Wynyard, but this deponent did not hear anv other person make such a demand, although

this deponent was close to the said Returning Officer during the whole of the proceedings, and verily believes that it was impossible such demand could have been n ade without ibis deponent knowing of the same. t nd this deponent verily believes that no other elector than the said William Connell did demand a poll at the said meeting, after the said candidates had been proI osed and the proceedings at the said meeting had terminated. Robert Schultz, Sworn at Auckland aforesaid, this 9th day of July, One Thousand Eight Hundred and Fifty-three, b fore me, Thomas Outhwaite, Solicitor, Supreme Court, (Copy.l John Makepeace, of Auckland, in New Zealand, general dealer, solemnly and sincerely declares and affirms that he attended the u eeting, held on the 20th day of June last, at Auckland, aforesaid, for the purpose of nominating candidates for the office of Superintendent of the Province of Auckland. That William Brown, Esq., merchant, was proposed for the said office. That Lieutenant-Colonel Robert Henry Wynyard was also proposed at the said meeting. That the show-of-hands taken thereat was in favour of the said William Brown, and he was declared by the Returning Officer, Thomas Beckham, Esq., to be the person on whom the election had fallen. That William Connell, Esq., demanded a poll on behalf of the said Robert Henry Wynyard, hut this affirmant did not hear any other person make such a demand, although this affirmant was close to the said Returning Officer during the whole of the proceedings, and verily believes that it was impossible such demand could have been made without this affirmant knowing of the same. And this affirmant verily believes that no other elector than the said William Connell did demand a poll at the said meeting after the said candidates had been proposed itnd the proceedings at the said meeting Lad terminated. John Makepeace. Affirmed at Auckland, aforesaid, this ninth day of July, One Thousand, Eight Hundred and Fiftythree, before me, Thomas Outi.w ote, Sollciior, Sn ( i. in j Com'. Mr. Whitaker left it to the Court to decide whether it was (he more proper and formal course that a Mandamus should immediately issue, or that a Rule Nisi should be granted,; urging that, in the Salter case an intimation should be given to the Returning Officer, who had announced by advertisement that he would declare publicly die slate of the poll, from the hustings, on the next day (Tuesday), so as to prevent his doing so, and thus placing the question in a new position. His Honor staled that he would take the day to consider the application, and give his decision at ten o'clock on Tuesday morning. Tuesday, Jury !2.

This morning the Chief Justice entered the Court at the appointed lime. The interest of the subject bad attracted a large audience. His Honor proceeded to read the following decision : This is an application for a rule nisi for a Man • damns against Thomas Beckham, Esq. as Returning Officer for three electoral districts in this province, namely, the city of Auckland, the suburbs of Auckland, and the northern division, to require him to return the writ under which he is acting as such officer, with an endorsement or declaration thereon that Win. Brown, Esq. is elected. The affidavits and affirmation in support of this application are very scanty, stating certain facts which occurred at the polling place at Auckland on the day of nomination, the 20th of June, with this addition only in Mr. Brown’s affidavit, that “ on the Bth of July Mr. Brown requested Mr. Beckham, as such Returning Officer, to make a return, declaring that Mr. Brown was the person upon whom the election at the said nomination had fallen, but that Mr. Beckham refused to make such return.” As to anything that passed between the 20th Juno and the Bth July, the affidavits say nothing; neither do the affidavits disclose (as is required by the practice of the Courts at Westminster) the grounds on which it is understood that the claim is resisted, nor define the mode In which the applicant will be injured by the refusal of the officer to act as he was requested to do. This application has for its object, not to compel a Returning Officer to make a return where he has failed to make one at the proper time, but to pi-escribe to him, beforehand, the precise return which he is to make. The Court is asked to substitute itself for that officer, and lo take to itself his function before he has made any default. No authority has been produced to justify such an exercise of the power of the Court. Moreover, in this case, the Court is asked to do this without any evidence before it as to the state of facts at the time of applying to the Court,without anything more in the way ofevidence than what I have mentioned. It is clear that under these circumstances the application ought not to be granted. It is, therefore, unnecessary to enfer into the question of the alleged irregularity on the part of the Returning Officer on the 20th June, although this is really the only point as to which any facts are put in evidence. I only say that, giving the fullest credit to the statements made in the affidavits and affirmation, I yet think those statements wholly insufficient to show that the Returning Officer erred, or failed in his duty.— Indeed, Mr. Brown himself does not appear to have urged the point, or taken any practical steps about it, at the time. The claim now made, if good at all, was good on the 20th June. It is rested entirely on the transactions of that day, on transactions which were within the knowledge of Mr. Brown, as his own affidavit shews. But it is not stated that Mr. Brown put forward any claim on tliis ground. After all the proceedings in the interval between the 20th June and the Bth July, the claim was brought forward for the first time (as far as the evidence shews) on the Bth July.— tt is to be observe' 1 , that there is in the proclamation of the sth March, a special provision relating to the return to be made in respect of each electoral district. It forms the 50th clause, and runs thus : “ The Returning Officer for each electoral district, at the election for the office of Superintendent, shall insert in, or endorse upon the writ, the state of the poll when the voting in the district closed; and such writ shall then he returned by him to the Governor within the time by which such writ may be returnable.” On the whole, it is clear that there ought to be no rule. The Court then immediately rose.