Willis v. Gipps (Australia)

v MOORE, 378 WILLIS v, G~PPS [ L 8461

sold the cargo, without even expressing any intention, on their part, n o t to apply the

proceeds of the cargo, in conformity svith the directions of Messrs. Dewar, con-

tained in the Ietter of the 4th of January. 1%

appears to tlieir Lordships, that, after such conduct, it is impossible to allow them

now to say, that they did not sell the goods in c o ~ ~ f o r ~ i t y with the d~rec~ ions of

Messrs. Dewar. E3781 Their Lordships are, therefore, o f opinion, that it beconies

unnecessary t o decide, whether, by lien or otherwise, the Respondents could have

claimed to hold the cargo against the Appellants. Either they were conscious that

there was no riglit of Xien, or they did not wish to avail t,kenaselves of it. There is

no evidence, oral or docunientary, that they, a t that time, clainied a Iien. I f the

A ~ p e l l ~ ~ t s Bad declined to agree to the repudiat~on of the cargo, or to refuse to

recognise the ~espondents, as tl-ieir agents, the case mould be very different ; but it is

in evidence, %hat thej- did adopt the transaction, and we are of opinion that it

stands lipon the same footing, as if the direction of Xessrs. Dewar, %Q tho Re-

spondents, t o sell arid remit to the Appellants, had been the dirmtion of the Ap-

pellants. The Judge of the Court below ~ h o u ~ ~ ~ t that? the only evidence of agency,

between the A~?pel l~nts and ~espondents, was the; letters of the 4th and 8%h of

Jan~iary, and that that was insuEcient. !&is might have weight, if there had been

any evidence of dissent; but there is none. Their ~ o ~ , c ~ s h i p s are of opinion, that

the Respondents sold the cargo, and received the proceeds, under the express authority

of Nessrs. Dewar to do 80, and to remit to the Appellants the proceeds, after deducting

the freight, and tha t they did sell the cargo, as the agents of the Appellants. Con-

sequently, the Judge was wrong in d ~ r e c t i n ~ the jury as he did, and the Appel~ants

are eatitled to a. venire de mw’o.

They did not then claim any lien.

pews’ ~ i ~ . t t., cmom-: rrr. APPBALS TO PBIXT C ~ U X C ~ L , 1. S.C. i o 443.

A s to appeals f rom Jamaica, see 0. in 6. of 14th April, 1852 (S ta t R. and 0.

Rev. iv. 334), made under the Judicial ~ o ~ 3 m ~ ~ t e e Ac , 1544 (7 and 5 Irict. o.

69); and cf. aIso 8.4. of Jan7akca v. ~ ~ a ~ e ~ ~ ~ n , 1848, 6

~~~~~~~~~s v. ~ o ~ ~ ~ ~ i ~ ~ ~ ~ ~ ? . ~ ~ ~ 1850-52, ‘i Kw. Y.C. 226. As to new trial for

isd direction (5 Moo. P.C. 378), cf. Doe d. Dcviize v. Fi fson , 1855, 10 Moo. c. 502.j

~3791

JOEIN ~ ~ 7 A ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~ I S , - ~ ~ ~ ~ e ~ ~ ~ ? ~ ~ ; SIR GEORGE GIPPS, ~ n t . , - ~ e ~ o ~ ~ e ~ ~

[June 24 and 25, duly 8, 18462.

OK APPEAL ~~O~ NEW SOUTI3 VVAbES

The Statute, 22 Geo. ILL, ci, 75, empow~~*i i~g the Governor and Council, of a

colony or plantat~on, to amove persons holding patent oEcas, for neglect or

misbehaviour, includes judicial offences. But the GoTerizor and Council of

New South Wales, having amoved a Judge, without giving him notice, or

affording him an opportunity of ~ n s w e r i ~ ~ g the charges brought against him,

and upon vhich the, order of amotion was founded, such order was fleId iliegal,

and reversed.

T‘his was an appeal, against an order of amotion from the office of one of Bey

Majesty’s Judges, of the Suprenae Court of New South Wales, and Resident Judge at;

Port Philip, in the saiiie colony, made by Sir George Gipps, the Governor, and the

Execirtive Council of $,hat colony, presented by John Walpde Wiffis, Esy., the Judge

so removed. Majest,y, to the J u d ~ c i a ~ ~ o n i ~ ~ ~ t t ~ e

of the Privy Council, and arose, under the following c i rc~~in~tances : -

By the Statute, 9 Geo. IV., c. 83, “ for providing for the adniinistration of

justice, in New South Wales and Van Dieman’s Land, and for the more effectual

* Present: The Lord Prwident (the Duke of Bueeleueli), the Lord Ckancetlor

[Lord Lyndhurst], Lord B r o ~ ~ h a ~ , Chief Justice Tindal, Mr. Baron Pwrke, the

Eight Ron. T. Pemberton Leigh, and the Right Eon. W. E. Gladstone.

536

!I%e appeal was referred, by

WILLIS li. GIPPS [1546] V MOORE, 380

goverriment thereof, aiid for other purposes relating thereto,” E3801 Ris Majesty

wah empowered to erect and establish Courts of Judicature in New Sou& Wales,

and Van Dieman’s Land, respectively, aThich should be styled “ the Supreme Court of

Kew SouCh ??-ales,” and .. the Suprenie Court of Van Dieman’s Land ;” arid it Yias

enacted, that each of such Courts should be holden by one or more Judge, or Judges,

not exceeding three; and that the said Judges should, from time to time, be ap-

pointed by His Majesty, his heirs and successors, and that it should be lawful

for his Majesty, his heirs aiid successors, froni time to time, as occasion

niight require, t o remove and displace any such Judge, and in hie place and stead,

to appoint another fit and proper person, provided that, in case of the absence,

resignation, or death of any such Judge, or in case of any such disease or ~ ~ z ~ r ~ ~ i t ~

as shnuld render any such Judge incapable of discharging the duties of his oftjce,

it should be lawful for the Governor of the said colony to appoint some fit and pyoper

person to act in the place and stead of any Judge so being absent, resigning, dying,

or becoming incapable, until such Judge should return to the execution of his office,

or until a successor should be appointed by Eis Majesty, as the case might require.

Aiid. by sect. 3, it was enacted, that the said Courts should be Courts of Record,

and should hase cognizance of all pleas, civil, criminal, or mixed, and jurisdiction

in all cases whatsoever, as fulIy and effectually to all intents and purposes in New

South Wales, and Van Dieman’s Land, respectively, as His Majesty’s Courts of

King’s Bench, Common Pleas, and Exehoquer, at Westminster, or either of them,

lawfully have, or liath, in England ; and that the said Judges, so appointed, slzould

have and exercise such and the like jurisdiction and authority in Kew South

[S$l] W a l q and ?Tan Dieinan’s Land, respectively, as the Judges of the Courte of

King’s Bench, C o m ~ o n Pleas, and Exchequer in England, o r any of tlien?, lawfully

have and exercise, and as should be neccssary for carrying i n to effect the several

~~i r~sdic t io i i s , pornem, and authorities, coniaiitted to the said Courrs respectively ;

and, ‘Cry sect. 24, it vas enacted, that a11 laws tLnd Statutes, in force within the

realm of England, a t the time of the passing of tha t Act (not being inconsistent with

the Act, o r wit11 any charter or letters patent, or order in Council, ahich might be

ed in pursuance thereof), should be applied in the a d m i n i s t r a t ~ o ~ ~ of justice in

the Courts of ?Jew South Wales, and Van Dieman’s Land, respectively, so far as the

same could bc applied within the said colonies.

The Appellant was appointed by Her Majesty, under this Act, to be oiie of the

Judges of the Supreme Court of New South wales, by warrant under Privy Seal and

Sign Manual, and he thereupon repaired to the colony, and received his patent,

under llie seal of the colonv, appointing him to be S L I C ~ Judge.

By an act of the local legislature of New South Wales, passed in the 4th of

Victoria (No. 22), it was enacted, that, it should be lawful for the Governor of that#

colony, for the time being, to appoint, from time to time, one of the Judges of tlie

Supreme Court, not being the Chief cJustice, to reside in the diskrict of Port Philip,

and that the said Judge, whilst so resident, should have. exercise, and enjoy, within

the liinits o f that district, all such, and the l ike powers, jurisdiction, and authority

as was or could be legally exercised by the Supreme Court, and that such resident

Judge should not, whilst so resident a t Port Philip, have any jurisdictioi~ or a~ithority,

in or over any cause or matter i n - ~ ~ g z l - s t i t u t ~ d or pending in the Supreme Court,

before the Judges sitting in Sydney.

By patent, under the seal of the colony of New South Wales, bearing date the

8th of February, 1841, the Appellantl vas appointed resident Judge, for the district

of Port Philip, and the Appellant, in virtue of such patent, repaired to Melbourne,

in that district, and officiated as resident Judge there until the amotion appealed

against.

On the 21st o f December, 1842, the Governor brought before the Executive

Council of the colony, certain ~ o m ~ ~ a i n t s against the Appe~lant, for alleged mis-

behaviour. in his office of resident Judge 04 Port Philip, and the nzatter of such corn-

pIaints was proceeded upon in Council on that day, and on the 16th, 17th, and 20th

of January, 1843.

No ncrtice was given to the Appellant of the accusations preferred against him,

nor of tlie proceedings of the Governor and Council thereon.

On the 24th o f June 1543, during the Appe~lant’s sitting in Court, at Melbourne,

he received a sealed packet, containing a letter from hfr. Superintendent La Trobe,

537

v BOO&€, 389 WILLIS ‘Lt. BIPPS [l846]

dated the same 24th of June, stating, that he (the Superintendellt) had that day

received il d ~ s p a t c ~ , written by the Colonial ~ecre ta ry , by direction of the Governor,

announcirig that it had been deemed expedient to submit to the Executive Council

of the colony, r e p r ~ e n t a t ~ o ~ s mhicb had been addressed t o the Governme~l~, respect-

ing the Appellant, and that, after mature deliberation, the Council had advised that,

in conformity with. the provisions of the Act of Parliament, 22 Gea. III., c. 75, the

Appellant should he forthwithi amoved from the office, not only of resident. Judge of

Port Philip, but as Judge of the Supreme 13833 Court oIf New South TVdes. The

packet contained, in addition to the S u ~ ~ e r i i i ~ e i ~ d e ~ t ’ s letter, a copy of a writ,, isstzed

by order of the Goremor and Council of the colony, and tested the 17th of June,

1543, whereby, after setting forth that it had been s u ~ c i e n t ~ y made to appear, to

the Governor and Council, that the Appellant had misbehaved himself in his o%ce,

the Go%-ernor and &unci1 did revoke the appointment of the ~ p p e l ~ a ~ i t , as resident

Judge as aforesaid, and did also amove the A p p e ~ a n t from the oflice of Judge o f

the Supreme Court of New South Wales. The packet also contained a writ, tinder, the

seal of the colony, issued by cprder of the Governor m d Council, and t c s i d the

same 17th day of June, superseding and iir‘rtibiting the Appellant, froni the exercise

of all power and authority as a Judge of the said Supreme Court.

On the 26th of the same month, the Governor, by a despatch addressed to Ber

Majesty’s Secretary of State for the Colonies, duly reported the removal of the

Appellant, from his office of a Judge of the Supreine Court. On the 2?th, the Appel-

lant also ~ d d r e s s ~ ~ a desi~atch to the Secretary of state: c o ~ i ~ ~ a i n i ~ ~ ~ of his amotion,

and seekring redross. He ~ ~ ~ i ~ ~ ~ d i a t e l y afterwards quitted the colony for this

country.

e. 75, under which &e ~ p ~ e ~ ~ a n ~ vas

amoved, it is enacted, ‘‘ that in case any person or persons so (as therein provided)

amoved shall think hiinself aggriexved thereby, it shall and may be lawful, to and for

the persou vr persons so aggrieved, to appeal therefroni, as i n other casm of appeal

from such colorzy or plantation wherein such amotion aha11 be finally judged of and

d e t e ~ ~ ~ i n ~ d by Kis jest^ in Council.”

The ~ ~ p p e ~ I a ~ i t . availing himself of the right of appeal ~~~~1 tbus given, on the

15th of ~ ~ e b r u a ~ y . 1844, presented his petition of appeal to Her Majesty in Council,

against his amotion, praying Her Majesty to reverse the order and proceedings

of the Governor and Council, in such amotion, and to grant to the Appellant, such

redress and reliel in the premises, as to Her Majesty might seem meet.

The petition of appeal, being addressed to Her ~ a ~ e s ~ y in Council, was, pursuant

tA, thc p r ~ ~ ~ s ~ o ~ ~ s of the Statute 3 and 4 Will. lv., c, -1.1, referred, on the 4th of Marclr,

1844, tcr the Judicial Committee of the Pri.i.y Council. No notice of tliis appeal pas

g i s w by the ~ ~ p e l l a ~ ~ t , to Sir George Gipps, who was still ~ o ~ r e r ~ o r , and rwident

in the colony, Ikor was any notice served on the inembers of tlze Executive Council ;

the fact of the p r e s e n t ~ t i ~ n of such appeal, and of its having been referred to the

J u d i c ~ a ~ ~ o n i n i ~ t ~ e , being first c o m ~ u n i c ~ t ~ to the Governor, in a d~s?atch from

the Colonial Secretary, of &e 18th of Mai-ch X864.

The ellant ant -took none of the usual steps to procure the appearance of Sir

George Gipps, o r the ~ e ~ b e r s of the ~ ~ e ~ u t ~ ~ e Corrucil, by p rsonal service of the

appeal, os notice thereof; but the time having expired f o r an appearance. in the

ordinary course, the ~ ~ p e ~ l a ~ i t procured a final s ~ ~ ~ ~ ~ o n s , from the Council Office,

against Sir George Gipps, only, and affixed the same, according to the usual prac-

tice, at, the Royal Exchange. In consequence of this proceeding, and to prevent the

hearing of the appeal, ea pan%, Sir George Gipps, on the 4th of February, 1846,*

appeared by counsel, and f3S] applied for time to answer the AppeI~ant’s case.

The application was opposed, but their Lordships, under the circumstances, ordered

that the ~espondent should have ten weeks’ time t o prepare and put in his case, on

the terms of his paying t h e cosite uf the a p p ~ i ~ a t ~ o n ,

The Appellant, in his case, submitted that tI1e order

revoking his a ~ ~ ~ o i n t ~ e n t s , a d the wri ts of a ~ o t i o n and super~edeas, c o ~ s e q ~ l e ~ ~ ~

thereon, were null and void, by reason-

-IC. Present: The Lord President (the Duke of Buccletwh), Lord Brou~lzat~i, Zfird

By tho 2nd swi,ion of the Act, 22 Geo.

Both parties lodged eases.

- -~

Cottenham, Lord Campbell, and the ~ r i c e - ~ ~ a ~ ~ c e ~ l o r Knight Bruce.

838

WILLIS v. GIPPS [1846] V MOORE, 386

I. That there was no power in the Governor and Council, to remove him from the

office of Judge of the Supreme Court; and

11. That even if such power existed in the Gorernor and Council, their exercise

thereof, without notice to, and in the absence of, the Appellant, and wlthout afford-

ing him a n opportunity of answering, before the Council, the charges made against

him, was illegal.

The Respondent, on the other hand, submitted, that the Governor and Council

had power to remove the Appellant from the office which he filled at the time of his re-

moval; and that the circumstances of the case justified the exercise of sach power.

The appeal now came on for hearing.

Mr. Dundas, Q.C., and Mr. C. Buller, for the Appellant.-First. The Governor

and Council of New South Wales had no power to remove the Appellant froni his

office. He was appointed by the Crown, by warrant, under Privy Seal and Sign

Manual, under the Statute, 9 Geo. IV., e. 83, t o be a Judge of the Supreme Court,

a t New South Wales, during the pleasure of the Crown. [386] His appointment of

resident Judge, a t Port Philip, was by patent, under the seal of the colony, pursuant

t o the act of local legislation, 4 vict., e. 22, during the pleasure of the Governor

of the colony. The Statute, 22 Geo. III., c. 75, relied on by the Governor and

Council, as their authority for the Appellant’s removal, confers no such power as

that claimed. That Statute was passed under peculiar circumstances, arising from

the relations of this country, a t that period, with America and the West India

Islands. The Statute is intituled, ‘‘ An Act t o prevent the granting, in future, of

any patent office, t o be exercised in any colony or plantation, now or a t any tinie

hereafter, belonging t o the Crown of Great Britain, for any longer term that during

such time as the grantee thereof, or the person appointed thereto, shall discharge

the duty thereof in person, and behave well therein.” And after reciting, that the

practice of granting offices in His Majesty’s colonies and plantations in the West

Indies, to persons resident and intending to reside in Great Britain (in consequence

whereof such offices were exercised by deputy, and have been frequently farmed out

to the best bidder), had long been coniplained of, as a grievance, etc., it is enacted,

“ That, from thenceforth, no office to be exercised in any colony or plantation then,

or a t any time thereafter, belonging to the Crown, should be granted or grantable,

by patent, for any longer term than during such time as the grantee thereof, o r

persons appointed thereto, should discharge the duty thereof in person, and behave

well therein ;” and, by the second section, it is enacted, “ tha t if any person or

persons holding such office, shall be wilfully absent from the colony, or neglect the

duty of such office, or otherwise misbehave therein, i t should be [3$7] lawful for the

Governor and Council to amove such person or persons from every or any such

office.” Now we submit that this Statute has no application to a judicial office.

The office of Judge is never once mentioned in the Statute, or even in the Statute,

64 Geo. III., e. 61, which was passed to amend the 22 Geo. III., e. 75. The words of

a Statute must be plain and unequivocal t o embrace an object not nanied in the

Act itself. Rex v. Gregory (Note, 4 Term Reps. 240). Here they are not large

enough to include a judicial office. The Statute was evidently not intended to

apply to the office of Judge, for a judicial office cannot be executed by a deputy,

Com. Dig., tit. Officer, D. 2. Neither can this Statute have any application to the

office of a Judge, as constituted by the subsequent Sc t of Parliament (the 9th Geo.

IV., c. 83) , for that Act expressly vests the power of appointment and removal, in

the Crown, and gives t o the Governor no other power than to appoint a substitute,

in the case of the absence, resignation, death, or incapacity t o act, of the Judge, until

the return of such Judge to the execution of his duties, or until a successor be ap-

pointed by the Crown. The Governor of a colony has no greater powers, than such

as are vested in hini, either expressly by Act of Parliament, or delegated to him, bv

the terms of his Commission from the Crown. Cameron v. Kyte (3 Knapp’s P.C.

Cases, 332 ; Hill v. Bigge (3 Moore’s P.C. Cases, 466). Here the 9th Geo. ITT., C. 83,

and the Charter of Justice of Van Dienian’s Land (4th March 1831 ; Clark‘s Col.

Law, 653), constituting the Supreme Court, confer no power on the Governor to

remove the Judges, nor does the Governor’s commission from the Crown convey to

him any such power. It is simi-[38$]-lar to the power given to other Colonial

Governors. The Commission to the Governor of British Guiana, only empowers the

539

V MOORE, 389 WILLIS v. GIPPS 118461

Governor to suspend any person from the exercise of his office, not to remove (Clark's

Col. Law, 2?S> ; and the same restriction i s provided by the Royal Instructiolzs, t<>

the Governor of ~ e w f o u ~ ~ d l a n d ( i b d . 4-22), and by the Charter of Justice, of the

Cape of Good Hope f ibid. 476).-[The Lord Chancellor [Lord Lpdhurst].--I should

doubt, whether the Governor could remove a Judge, under the powers of his coal-

mission, but Iie could under the Statute, 22 Geo, III., c. 15. V e have made in-

quiries, and have been furnished, by the Colonial Office, with a form of an appoint-

ment of a Judge, in the co'tonies, and observe, that it follows the words of the Statute,

namely, not to suffer the oBce to be held by deputy, It did not require an enact-

ment, in that$ Statute, expressly to mention judicial offices, for a judicial office

cannot be held by deputy. The only case of amotion, under this Statute, was of the

Appellant himself, from the Bench, in Canada, i n the year 1829, and the very same

point, namely, whether the office was within the Statute, was expressly raised in tihat

case.-The order of amotion then appealed from, was set aside, because the Appel-

lant wm not heard in Canada.]

Secondly. It i s essential to the validity of every removal from oace, for mis-

behaviour, by a functionary having the power of summary removal, that the removal

should be preceded by some inquiry, in which the accused person ha5 an ~ p p r -

tunity of bearing a part. %'e submit, that it was t h plain duty of the Governor, in

this case, to have given the Appellant I3893 notice of the accusations made: against

him, by Mr. Le Trobe, and of the Governor's intention to submit' the same to the

Council, with tho view to the Ap~el lan t~s amotion from office, and the% to have s u b

iiiitted the accusations and the Appellant's answers to the Council. The order of

amotion, having proceeded without the observance of this first rule of justice, and

ex parte, is wholly void. Bagp's Case (11 Go. 99 a); The Ktizag v. Gaskin (8 Term.

Rep. 209); TI.e Queen v. Sm& (5 Q.B. Rep. 614). No question can arise as t~ the

law in force in New South Wales: the Statute, 9 Geo. IT., c. 53, provides, that the

law of England is to apply, until altered. Had the A ~ ~ ~ e l ~ a n t been furnished witb

notice, he would have laid his answers and proofs before the Council, and have

shown the grouiidlessness of the complaink made against. him.--[The Lord Chan-

cellor [Lord Lyndhurst].-If the removal m a s illegal, the Appellant would be ell-

titled to his s& ry from- the time of his removal.]

Xr. Bethell, Q.C., and Mr. Follett, for Sir George Gipps.-The order of ailzoval is

treated by the Appellant, as illegal and void, on two grounds. First, that the

Goxwrnor and Council bad no popirer vested in them, t o remove him, under any cir-

cumstances: and secondly, that, even if they had such power, the order could not

be sustained, hecause no notice or opportLinity was given him, to answer the charges

brought against him. Neither of these grounds constitute a valid objection to the

order.

First. The Governor and Council had power to remove the Appellant, under the

provisions of the E3901 Statute, 22 Geo. III., c. 75. It is emacted by Sec. 2, of that

Statute, '' &at I t shall be lawful for the Governor and Council, in the ease of neglect

or i n i s l ~ e h a ~ ~ ~ ~ u ~ , to amow any person or persons from any oftice." Tbat this

Statute embraces judicial offiws, was decided by this Court, in the year 1829, on the

Appellant's appeal, from an order of amotion from TAB Bench, in Canada. That

Act is in no degree repealed or altered by the Statute, 9 Goo. IT., e. 83. creating the

Supreme Court in the colony. They had also power to refnosre under the Colonial

Act, 4 Vict., e. 22. The commissiou of the Appellant, to be the resident Judge a t

Port PhiIip, was derived from the Governor, and during his pleasure, not from the

Crown. But i~~dependently of the above Statutes, the Governor and Council, as the

executive ~ o ~ e r n ~ ~ ~ e ~ i t of the colony, had power to remove a Judge, or any other

officer, for misbchaviour in his office, if the misbehaviour was o f such a nature as

to endanger the peace and tranquillity of the colony. Here the conduct of the Ap-

pellant was of such a nature, that the Governor and Council, who were actuated

solely by the unhesitating conclusion, which they were conipelled to come to, thought

it their bounden duty to the Crown and to the cohmy, t o remove the A p ~ e ~ ~ a i ~ t , s

the only means of restoring peace and t r a n q u ~ l ~ ~ t y to the district over which he

presided as Judge, and to infuse a just and proper confidence in the administration

of justice, and in Her Majesty's Government, in the coIony. His occupatioa of the

, i u ~ ~ e n ~ s e a t was, in the opinion of the Governor and Council, incompatible with

540

WILLIS 9. GlPPS [1846] V MOORE, 391

the peace and good government of the colony. Since the A ~ ~ e ~ l a n t ’ s removal,

another JuIge has been appointed for the district of Port Philip, by the Governor,

under E3911 the provisions of the Colonial Act. and that appoiihiient has been

confirnied by Her Majesty.--[Lord Brougham.-The appoiritrnerit of a successor to

an office held during pleasure, vacates the prior appointment.]

111 a case of this

nature, where the Government removes an officer, from motives of expediency,

notice was not necessary to be given t o the Appellant, of the proceedings which were

taken by the Executive Government.-[Mr, Baron Parke.-It 1s a principle of the

common ltlw, that a party caiinot be removed from office, in which he has a freehold,

but f o r misconduct, and that he is entitled to be heard, upon the charges made

against him. If he held the office at the will of the Crown, the authority which ap-

pointed him may remove hirn.J--Although the Appellant nux7 urges, that if he had

heen afforded an opportunity, he would have shown the grouI-idl~ssnes~ or” the aecuw

iions brought against him, yet he has always iefuced t G admit the power of t!ie

Executive Council over hini; lieither does lie deny any of the material facts, on

nhich the accusations, made against him, are founded : therefore, the oppo~ tun i~y ,

which he now insists ought to have been afforded him, would, in truth, have been

altogether useless; in fact, a mere formal matter. Vhere there appears a good

ground for amotion, the Court will not award a peremptory iiiandainus, the only

effect of which would be, to compel the corporation to restore an officer, whom they

would be bound immediately to remove, in a more formal manner. The King I-.

Cr2ffiths (5 Barn. and Ald. 731) ; Rex v. The Zayor of Axhridge (Cowp. 523) ; The

[892] Queen. v. Smith (5 Q.B. Rep. 614). The circumstances of the case justified

the exercise of the power of amoval.

No judgnieiit was delivered in this appeal, but the report of their Lordships,

bearing date the 8th day of July 1846, which was confirmed by Her Majesty, was as

follows : -

“The Lords of the Committee, in obedience to your Majesty’s said Order of

reference, have taken the said Petition into consideration, and having heard Counsel

on behalf of tlie said Petitioner, and likewise on behalf of Sir George Gipps, late

Governor of Kew South Wales. their Lordships agree humbly to report t o your

Majesty, as their opinion, that the Governor in Council had power in law, to amove

Mr. Willis from his office of Judge, under the authority of the 23 Geo. III., and upon

the facts appearing before the Governor in Council, and established before their

Lordships, in this case, there were sufficient grounds for the amotion of Mr. Willis ;

but their Lordships are of opinion, that the Governor and Gouncil ought to have

given him some opportunity of being previously heard, against the iimotion, aiid

that the order, of the 17th of June, 1843, ought, therefore, t o be reversed.

‘‘ Her Majesty having taken the said Report into consideration. was pIeased,

by and with the advice of Her Privy Council, to approve thereof, and to order, as

i t is hereby ordered, that the said order of the Governor and CouneiI of the colony

of Xew South Wales, of the 17th of June!, 1843, be, and the satlie is E3931 hereby

reversed, for the reason in the said report stated, and the Right ono our able Earl

Grey, one of Ner Majesty’s Principal Secretaries of State, is to give the necessary

directions herein accordingly.”

[Mews’ Dig. tit. COLONY, I. GENERAL PRINCIPLES, 4. Judges and Courts; tit.

PUBLIC OFFICER, A. JUDICIAL CAPACITY, 1. Jiidges, e. Amotion. S.C. 6 St.

Tr. (N.S.) 311. The Statute 22 Geo. III., c. 75, wads formerly known as Burke’s

Act. Under the Short Titles Act, 1896 (59 and 60 Vict. c. 14), its short title is

the Colonial Leave of Absence Act, 1782. AS to (i.) its construction, see 3fo.n-

tap6 V. Torn Dieman’s Lafzd (~~eutenant -6overno~~ o f ) , 1849, 6 Moo. P.C. 489;

In re Ctoete, 1854, 8 Moo. P.C. 484; E x parte Robertsosb, 1857-58, 11 ~ 0 ~ .

P.C. 295. (ii.) As to powers of Privy Council in regard to renloval of Colonial

judges, see Representatives of the Idand of Grenada v. Samdersola, 1847, 6

Moo. P.C. 38 ; and ‘‘ Memorandum of the Lords of the Council on Removal of

Colonial Judges,” 6 XOO. P.C. (N.S.) Appendix (iii.) As to r-iecessity of

notiee, see E c k s o n v. Conzbermere ( ? 7 ~ ~ ~ 0 ~ ~ n ~ ) , 1863, 3 1F. and F. 549 a. ; and

cf. Fisher v. l i e m e , 1879, 11 Ch.D. 353; ~ a ~ o z i c ~ e r ~ v. ~ ~ a ~ ~ ~ c l ~ ~ e ( ~ o ? d ) ,

1579, 13 Ch.D. 346.1

Secondly, the objection is, that the Appellant mas not heard.

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