SUPREME COURT. Auckland, 28th June. (On the part of William Halse, Esq.)

New Zealander, Volume 1, Issue 5, 5 July 1845, Page 3

SUPREME COURT. Auckland, 28th June. (On the part of William Halse, Esq.)

This was an application by William Liaise, Esq ,of New Plymouth, to be admitted as a Solicitor of the Supreme Court. j On the 16th June, Mr. Merriman moved. Mr. Pott, (on behalf of Mr. Hart, Solicitor of Wellington,) stated certain objections which are noticed in the following Judgment. ! The Chjif Justice said :— By the Supreme I Court Ordinance of 5 Viet., (1841), section 13, it was enacted as follow*, "The Court shall enrol to practise therein, as Solicitors such persons only, as shall have been admitted as Solicitors, I Attornies or Writers, in one of the Courts at Westminster, Dublin, or Edinburgh, or Proctors, jin any Ecclesiastical Court in England, or shall have served inch terms of Clerkships, as shall be required by the general rules theieof." In the Supreme Court Ordinance now in force, bectiou IG, the same rule is retained but with the addition of the following words, "or shall hdve established themselve* in the exercise of their profession on or before the 22nd day of December, 1841." On these additional words the application is granted. Our first object must be to ascertain the intent of those words. The clause itself contains no recital, so that we are left to gather that intent from the words themselves. Now in the iirst place, it is to be observed, that the rule as to qualification laid down by the former ordinance is not broken in upon, it is retained w ithout any alteration. There is no intimation that any lower degrees of qualification than that which had been previously required, shall for the future be regarded as sufficient. And indeed it were hard to assign any thing short of admission, as a satisfactory test of qualification; whilst admission itself involves, under existing regulations, a previous examination as to professional attainments b) competent persons. No intention whatever appears on the one hand, to recogoize any lower qualification ; or on the other, to impose any terms at all in that respect, upon the peisons. who are to take advantage of ttie new enactment. Yet, whilst the benefit which it was the intention of the Legislature to confer is in no wise limited by any requirement of proof of p»ofessional qualification, the clause which bestows that benefit is very narrowly limited to the time over which its operation is to extend. The persons to be benefit ted must have " established themselves in the exercise of their profession on or before the 22nd day of December, 1541." The day so named is that on which the former ordinance was passed. Again the benefit is limited to persons who established themselves ; it is not extended to persons who have merely commenced piactising. Taking the whole together it appears to me that the Legislature mu&l have intended to pro-

Uvt a Hhss of persons, who might have been in jm ed by tho opeiatiou of the former ordinance. Persons who having doiived, (if not a livelihood, >et fit any rate), some regular emolument fiom the practice of the law , would (but for this enactment ). have been for I lie future deprived of it. And thus it becomes plain, why it was not the mere evotciso of tlte pi« r c*sion, but the fact of establishment, which was to entitle a man to the benefit so given. Such individuals as were likely to experience a serious injury were to be piolected, bejond that, the rule originally laid dow n, m as deemed geneially beneiicnl, and was to be strictly maintained. This appeals to me to be the fair meaning of the words in q-iostion,— but, as one case has alrpadv been decided upon them, I will now refer to that decision. 1 have been furnished with a report which 1 hove reason to regard as correct. Mr. Brandon, (the applicant in that r,i«e) shewed that lie bad been frequently consulted as a law\er established in practice, that he hail acted not mereh as a convewmcer, but as an attorney, and had attended as such in many instances on behalf of clients in the only Courts which were at that time open, viz.— those of the Police Magistrates, and the Justices of the Peace. It is striking at fiist sight that the question does not appear to have been raised, whether) Ihp applicants practice had been a source of emolument, had been carried on, (according to the phrase of the statute of Geo. 2) " for fee or reward " But that such was the case appears to be every whpre implied. That Mr. Brandon had established himself, in fact was admitted: that his establishment however, had been under the existing circumstances, illegal, and that therefore he could not be allowed ty take advantage of his <im n wrong, was contended ; but unsuccessfully. It was also urged that the words "their piofession," imply that the persons intended to be beneutted'must have had some right, according to the laws of New South Wales, if not accoiding to the laws of Kngland, to call the legal profession tfvirs. That construction, however was overruled by the Court. Ido not doubt that the true intent of the ordinance was carried out bv that decision. I look on Mr. Brandon's case as resting on the principle above laid down as governing the construction of the words, viz: — 1. That the question of degree of qualification does notarise, •2. That Establishment in fact must be shewn. 3. That the practice carried on must have been foi " Fee orrewaid,"; so as to yield to the party so established, m emolument, which it is the object of this enactment to secure to him. I proceed to apply these rules to Mr. Halse's case. I lay out of view the affidavits of service under articles, the service not having been followed bv admission. I pass to the evidence of Establishment : This consists of four solemn deolaiations made by certain peisons lesident at New Plymouth, that — " on several occasions during the interval of time which elapsed between the month of August, 1611. and the 22nd day of December, of the same \ ear," each of the several declarants, "did consult Win. Halse, of New Plymouth, aforesaid Ksq., on matters requiring professional advice, and assistance, and that on such occasions the said Win. Halse, did accordingly net as (the declarants) legal adviser in the matters aforesaid." These same words are repeated, without any variation or addition, in every one of the lour decollations. Now, is this evidence sufficient to bring the case of Mr Halse within the Ordinance? leannot think so. In the first place, the only desciiption of the acts of Mr Halse is, that he did act as legal adviser, — a description which is altogether vaguo. The declarant*, instead of summarily stating results, should have specifically set forth facts ; upo-i which, the Court might have pronounced, whether they did or did nut, amount to an establishment in practice as a solicitor. Having regard to the shortness of the time between Mr. Halse's arrival in the colony, in August, lS4l,and the22ndjDecember in the same ■\ear, and to the small population of New Phmouth at that time, and the necessarily small amount of legal business there, I do not say that acting "on several occasions " for each of four bettleis might not be a sufficient establishment. The gieat defect in these declarations is in this, that the nature of the acts done is not at all shewn. They may have been acts properly belonging to the business of a solicitor, but the) may also (for any thing that appears) have related tn the hutiiuebs of conveyancing, which at that period vi as open to every peison, whether he professed to act as a solicitor or not. The second defect is, tint it is not shewn that the acts done (whatever their natnre may have been), weie othei than gratuitous. 1 have gone fully into this matter, in order that Mr. Halse m-iy (if he shall think fit) renew his application on a clearer and more satisfactory statement of facts. As the case now stands before the Court, the application cannot be granted.