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2 corrections, most recently by wendy - Show corrections




This being the first day of term, Sir John Lewis

Pedder, Knt, and Judge Montagu, took their seats, in Banco.      

FISHER v. MORRIS.        

This application had been made before the Chief Justice, in Chambers; the Solicitor General now moved, that the defendant be

discharged out of custody, upon finding com- mon bail. The defendant had been arrested, upon the affidavit of Mr. Fisher, setting forth that he had shipped on board the Francis Freeling, goods to the amount of £191 5s., in charge of defendant, to dispose of for him, at South Australia; that he had not accounted for the proceeds, nor given security for the same and, he, was given to understand, he was about to leave the territory.  

The Chief Justice would wish the So-   licitor General to consider, whether they could issue a mandamus without a special com- mission being sent to Sydney, at which place the plaintiff resided.      

IN RE LEARMONTH v. PATERSON. This was an action upon two bills of ex- change, tried last term, when a verdict was returned for the defendant, and when the So- licitor General made his first attempt to reform the Bench, but most signally failed.

The Solicitor General now moved, for a new trial, upon the following grounds:- 1st That the verdict was against evidence; 2nd, upon the ground of misdirection of the learned

Judge who tried the case ; and, if the Bench   was against him on the 2nd ground, then

3rdly, that the learned Judge who tried the       case, did not call the attention of the Jury, to certain evidence, which he, the Solicitor General, considered important, and, as       plaintiff's counsel, was pointed out to His  

Honor, by him.         In support of his argument, the learned gentleman went on to observe, that his Honor, in summing up, told the jury, that there was no evidence to support the plea of the de- fendant, and that the plaintiff having produced a written contract, it was conclusive upon the subject. Upon the third ground, the Solicitor General cited from Chitty's practice, an edition of 188S, vol. 4,, p39, upon, the practice of the   Law, where it was laid down, that the Court would grant a new trial, even if a verdict was returned according to the direction of a Judge, if he had not pointed certain evidence, which

he was bound to present to the Jury, if pointed out to him by the Counsel of either party.

Judge Montagu - Oral testimony having been given, after the proof of the written contract was put in, and no objection taken at the time, I thought it was admitted. I was of opinion, that the verdict would have been the other way; but oral testimony having been

admitted, which might have been shut out

altogether, I think it is a fit cause to be considered. Chief Justice - Take your Rule.

In Equity.- In the matter of Thomas Cookson, deceased, Mr. Harrison, on the part of the executors, Messrs. Williams and Gilles,

moved that the prayer of the bill by the executors might he acceded to by, the Court. The bill set forth that the executors had paid away, in discharge of debts upon the estate, all the personal estate; there still, however, remained Mr. Isaac Sherwin as a creditor to the amount of £537 0s. 4d., besides others. That the executors could neither sell nor lease the real estate, which was let much under its value; besides being encumbered by mortgage. The prayer of the bill therefore was, that the Court, under the Colonial, enactment, would direct the sale of the real estate, for the liqui- dation of the simple contract, and especially debts upon the estate, and that the widow and children might be made parties to the sale ; and that a receiver be appointed, and a guar- dian to the children, if there should be any surplus.

Mr. Horne, on behalf of the estate, would not oppose the application : they would rather desire to have the assistance of the Court. He thought the most reasonable course would be to allow the decree to proceed.

Chief Justice --This was an application for a decree of the Court, to make the real estate liable for the payment of simple contract debts, the personal property being exhausted, and the application was founded upon an act of this Colony, making the real estate liable, the same as the personal, for the pavment of simple contract debts. It was the first case of the sort that had come before him. The only question was the effect of the act to make the real property liable for simple contract debts, and whether the act was sufficient to grant the application sought. He should wish to con- sider the point,

Judge Montagu had no doubt as to the effect of the act, the intent of which was to pay out of the personal estate in the first instance, and if that was not sufficient, then the real estate was to be made liable ; it was but just and equitable, and he thought the equity and jus- tice of such cases required it ; the Act of Par-

liament was intended to meet such a case as this. He had no doubt upon the case, but as the Chief Justice wished time lo consider the point, they would deliver their judgment at a ' future sitting. He wished to know whether

they pressed that part of the prayer for the appointment of guardians.

Mr. Hone would abandon that portion of the application, as he could mike it aflei wards if necessary, at a small expense.

Judge Montagu.-The Judges can never justly decide in these cases. The prayer of   the bill in every case should be directed to the master, an officer that was not attached to the Court. To whom are the prayers of these bills now directed ? Perhaps to me, in Cham- bers, where I have time fully to consider all the points of the case, and is it likely, ' that after such a decree, deliberately and carefully penned, I should come here and stultify my own deliberate act ? It is not very likely. It is very different to a case at nisi pi ms, u here a Judge is called upon at a moment to decide upon important'"points of law, for which no man is prepared'in every case. It is not only the mischief actually done, but the further mischief which must arise from the time of

the Court being occupied in wading through accounts which could be done by any ac cóuntant or officer of the Court. I do not complain of my own time being so occupitd, for I should be happy toi sit every day in the year, in addition to the little I have already to   do, if it would promote the ends of justice. We have had more chancery cases this year than for the seven years preceeding, and I understand from Mr. Harris, that we are likely to have many more. I shall always protestt in every

case, and every such decree is working injus- tice if the Judges of the Court are to act as masters. I call the attention of the Attorney General to the urgent necessity of a master being appointed, which has become so great that something must be dune, and you «ill, perhaps, represent it in the proper quarter.

Chief Justice.-Not the Attorney General, he is not an officer of this Court The repre- sentation would be better if made by the Judge. , '

Attorney General.-Although not an officer of this Court, I should not be doing* my duty when I beard learned Judges say, that mani- fest injustice was done, without 1 represented

it to the Government. -

It being finally agreed that the Judge should communicate with the Government upon the matter, the Court rose..


This morning the following gentlemen of the legal profession, seated themselves at the table, as usual. Mr. M'Dowell, Attorney General ; Mr. Herbert Jones, Solicitor Gene- ral; Mr. Ross, Crown-Solicitor ; Mr. Perry, Commissioner of the Caveat Board ; Mr.     Browne, Mr. Horne, Mr. Harrison, Mr. Pit- cairn, Mr. Young, Mr. E. Butler, Mr. Sutton, and Mr. Allport. After a most impatient delay of half, an hour, during, which a good deel of sneering took place, as to their Honor's not taking their seats, (who, by the bye, were engaged in discussing in Chambers, points of vital importance to the interests of the Colony, upon which they were that day to give judg- ment,) and a canvassing of opinion was to be seen going on, among the crown officers, with the assistance of Mr. ***** " the Briefless,"

we mean, and the result was communicated to

the subs, who clearly assented by the rubbing of hands and an inward chuckling, to the forcible and witty arguments of the " Reformar of the Bench," so with one accord they arose from their seats, and headed by the crown officers, as a shield in case of danger, they walked out of court briefs and all, " the Brief-]

less" acting as whipper-in, leaving the Sheriff, Registrar, Clerk of the Court, .gentlemenJof the Press, javelin-men, and crier, to" 'amuse themselves as they best might J We'Wver have observed the Bench exercise such'a want' of courtesy towards the Bar, as those mem- bers of the bar, who were present., exhibited upon this occasion, which only arose from'one' or two malignant spirits, who are so igno rantly vain as to suppose, that they are or' dered by their puny efforts to reform that which is so much above their aim, " ne'imf or ultra cfepidam. A more deliberate insult we never witnessed, and one at which every respectable man in the community will point the finger of scorn. Their Honors, of course, did not take their seats. We should tbink this insult would not be allowed to pass un- noticed.- Correspondent.