Correspondence.

Colonist, Volume II, Issue 189, 12 August 1859, Page 2

Correspondence.

■' To the Editor of the Colonist. Sin, —You will oblige me by giving insertion to. the enclosed extract from, the very elaborate judgment of the Chief Justice in the case of.',' The Manukau Company," on the application for a rule calling -.upon the "Waste Lands Commissioner for the Province of Auckland, and Commissioner o£ Crown Land to shew cause why he should not allow the company to select,out of the. Svaste lands of the Crown from any several allotments open to settlement, 17,897 acres of land. , . / The Court, after hearing Counsel fov three.days-... in suppbrt'ofthe motion; and after complimenting- .;. the learnedCounselfor his ingenuity in, what I " should say, endeavoring to make the worse appear ''the better cause, observed, "Had I consulted my own convenience, I should have granted this rule in the first instance, but it seemed to me to be the duty of the Court not to put the parties to the heavy expense of contesting a case of so much detail, unless' it appeared that the applicant had clearly a' pfima facie case. ' ' " ' ■ . ■ In order to determine even that preliminary question, it'became necessary to p'cruee and'collate, an unusual mass of docuinenfaryeyidehce. ' . ■ ■ This case haying been represented as one" of loss and hardship upon the applicants, in which they were perseyeringly disappointed , and ; delayed of their just rights' (as.was asserted by Messrs.. Gihba and Moore and Gibbs) "against the Crown, it ap]>eared to me nor unreasonable to give every latitude to subjects so situated. ■ In adjudicating upon their claim I haye yielded to the same-principle. After a careful investigation of the case raised by the affidavits, it became clear that the mo-- • tion might be disposed of upon, one short and simple point. But had the judgment of the Conrfc proceeded upon so narrow a ground, and the applicants departed from the Court ignorant even of the bias of its judgment upon a case of such magnitude, , the very silence of the Court might be construed into acquiescence in the main argument of their counsel, and lead them on to pursue a course of expensive litigation" (without a leg to stand on), " while the Court kept from their knowledge the difficulties" (rather say the fatal objections) "that beset their,path. It ia therefore proposed to enter upon the whole merits of this application, although the merits will rest mainly upon one simple. objection to the claim. The general principles of law affecting mandamus are well known. The applicant is bound, to prove—first, .that he has a clear right; secondly, that he has no, specific remedy whereby to enforce his right", and lastly, that there is a power lodged in, and that; it is the duty of the person against whom the mandamus is prayed,' to do the act which the applicant seeks to f enforce." In the course of his summing up his Honor observed, " a mandamus^ cannot go against a public officer if the object is indirectly to constrain the Crown^ nor "where the officer acting under the Crown, has a discretion,and may retract his consent." ; . , • In the present case, after a very, lengthened review of the whole case the judgment of the Court was—" That the Court had no power.ioissue a mandamus if this rule were granted, consequently the parties-must- take nothing by this motion." I will now make a few remarks upon the case which was presented to his Honor Mr. Justice Johnson at the last sittings of the Supreme Court for this province. ; ; - ■ ■■' \ It was an application on the part of Messrs. Moore and Gibbs for a rule calling upon the Superintendent to shew cause why he refused to declare the amount of land which, with the advice of the Executive and the Waste.Lauds Commis-' sioner, he is empowered to name, as the counsel for the applicants contended was imperatively called upon to name, in reference to the extent of mineral leases, when applied for under the. provisions of the Waste Land Regulations Act of 1856. •, Here I" would observe that in one sense I am sorry that this case had not come on for argument before the announcement of the consent of the Crown to the Gold-Fields Ordinances, as I feel confident the judgment of the Court would (corroborated, as it would have been, by the late judgment of his Honor the Chief Justice in the case above quoted), have cleared away much of the erroneous conclusions and misconceptions entertained upon the subject of -mandamus by very many otherwise well-informed persons; and I' cannot help noticing how closely Mr. Justice Johnston followed his Honor the Chief-Justice in his argumentative address to the counsel for the applicants; and I further think he y^ouldhave arrived at .precisely the same conclusion, though perhaps upon somewhat different grounds. . . < His Honor the Chief Justice, as.has : been no-, ticed, observed that the general principles of law affecting mandamus are well known. Here, in all--due deference to his Honor's legal acumen, I think he assumes too much, even if he confines his,ob- . servation to the members of the legal profession; and if he is correct, it argues very little for the honesty of some of the members of that body, if we are to judge by the results of a vast number of the applications. . In the case, however, of Moore and Gibbs, it is clear that they were armed with a prima facie case, and that they came within the second, rule ; but as to the last rule, which divides itself into . two branches, I take it they would fail on the latter clause ; the last rule being to shewthat there was I a power lodged in the person against whom the mandamus is prayed to do the act which the applicants seek to enforce, and that it is the duty of the person possessing tha,t power, imperatively to com ply with the requisition. Is is upon this last proof, in my humble judgment, they would have failed in their proof. What are the terms of the act relied upon by - the applicants ? They are as follows—Section f. Leasing mineral lands. Clause 39. "The amount of land to be leased shall be determined by. the Superintendent, acting with the advice of the Executive Council-and the land Commissioner./ I know it may be argued that the Sup'erinten- . dent may act in contradiction to his Executive- - Council, "though I do not see how he is to get over the objection of the Land Commissioner, or he may dismiss his refractory Executive, and-elect • another —before which operation is effected, he may have changed his mind, as was the case of the Lords of the Admiralty, iii the case of a. Mrs. Ricketts, to whom they had promised a return of some deductions.they had made from the pay of a. , relative of hers, upon the ground that it would subject them to similar applications; and tKe .court determined that the promise vested no right in Mrs. Ricketts as against the Board of Admiralty, and refused the rule. ~.'■■■ SENEX ALBUS. .

To the H/iitor.of the Colonists •■ '[ Sir, —I beg you will allow me to trespass upon your columns, in order that I-may reply to some of the statements contained in Mr.- Blackbunw'3 letter, which appeared in your paper of Friday last. In that letter he, in no words of circumlocution, ' calls me a liar. This term is certainly most coarse, and I should not have noticed it had he ■ not, in addition to his want of temper, lost s:ghfc of facts : but I have, I think, somewhere mid that ho who commences calling ugly names, usually has the worst of an argument. When I wrote

the letter he referred to, I had not the documents before me for reference, and I am sorry that even now, 1 have not access to them all, or I would go jnore into detail tham I am now enabled to do. But, firstly, let me clear away Mr. Blaektmrrow's hyper-criticism upon the uea of the word "cognovit." I am informed that the effect of a warrant of attorney and a cognovit in this case would he exactly the same thing. Mr. Blackburrow states v that the debt duo is £253.!' This is not so. The amount due to me, as settled by the Registrar of the Supreme Court, is £304 18a., and the amount of judgment, including costs incurred to that time, was £373 18s., Bince which time the costs have been increased. I must again repeat, being prepared to prove that I have frequently stated, that I would accept iIOO in discharge of'the debt and costs, although ■certainly I have not said this directly to Mr. or Mrs. Shipley, for neither of them ever came near me. I will again state, being prepared to prove, whatever Mr. Blackburrow (who was not present) may say to the contrary, that when Mr. Shipley was first asked to give a cognovit to save expenses, lie refused, stating as his reason, that he did not «cc why he should do so, unless he got something by it,- as the costs would not come out of his pocket. He then made no reference whatever to Ins solicitor, though I believe that afterwards he ■was advised by Mr. Traversnot to give a cognovit, for the reason contained in that gentleman's letter No. 1), appended hereunto. When Mr. Travers gave that advice, I presume that he was not aware, t hat it was only proposed, that judgment should be entered up at the same time as if the case went to trial, and that any disputes *is to the amount of the debt should be settled by the Registrar of the Court. Upon referring to •date, I find I am not quite correct as to the time of executing the cognovit, but the correct date tells more strongly against Mr. Shipley. The Court sat in the beginning of August, and the last sitting was on the 17th or 18th of August. The •cognovit was executed some time in September; I do not know the exact day, but judgment could not be entered up, until o?t or after the 3(VA day of September: and the bill of sale to Mr. Btack•burrow was executed and filed on the 29th September. I think Mr. Travers' letter will fully corroborate my statement, that Mr. Shipley, with various excuses, did delay executing the cognovit. Now for another of Mr. Blackburrow's fencings with truth. His letter contains the following paragraph: —"Mr. Harley goes on to state that, the bailiff had given warning of his intention to arrest Mr. Shipley the night before the occurrence. This is a simple lie; for Mr. Shipley did not know ■one half-hour before he was arrested, that such an ■occurrence was to take place." Ido not pretend to say when Mr. Shipley was informed of it; but I have the authority of the bailiff, Mr. Fagan, for •stating that he told Mrs. Shipley and Mr. Blackburrow—Mr. Shipley's intimate friend—of his in- ' tention, the day before the arrest, as is shewn in the following extract from his letter to me :— ■"** On the 28th July, I received from the Sheriff a •warrant to apprehend him (Mr. Shipley), and, •acting under what I though the most humane to be adopted in such a case, I, on. the .-same day, informed Mr. Blackburrow, who resides •with the family, of my intention of executing the ■warrant on the following morning, that the same might be gradually communicated to Mr. Shipley." Yet, with this direct evidence, Mr. Blackburrow ■lias the impudence to attempt to brand me with a "lie. Could he not have looked nearer home when he thought of such an epithet? As Mr. Blackburrow knows so much of Mr. Shipley's affairs, perhaps he will be kind enough to inform me, what became of the money received *by Mr. Shipley for goods supplied to him by me -during the time he was at the "Motueka Hotel"' -as my tenant. The time extended to exactly twelve months, during which I sent him 6264 igallons of ale, at an average price of 2s. 9d. per gallon, which would cost him, say £'880. Now, 'this quantity retailed at 4s. per gallon, would -yield, say £1250, leaving a clear profit of ,£390, or finore than £7 per week. Yet, Mr. Shipley left in my debt to the tune of £364 18s. Now, what I want to know is, where went the £390 profit on 'this beer, and the ,£364 18s. which he. owes me, ■making an apparent loss of £754 18s. to a man fshewn to have been realising more than one pound -a day profit on one article only. That Mr. Shipley was not tratisacrtng a losing business, I think may be inferred from the fact •that Mr. Parker gave him £100 good-will for the chouse. Another little, but most, significant fact, I would. mention. Messrs. Shipley and M'Kenzie distsolved partnership on the sth of April, 1856 ; yet Shipley had made out to M'Kenzie a bill of sale, .dated 20th March, 1856. Was not this done with ;an intention to prevent the payment of my debt ? 'When I saw their dissolution of partnership advertised, I went over, in order that I might get for my debt, as I could get no money. I masked for a bill of sale on the furniture, and was *told all had been made over to Mr. M'Kenzie. To rget out of my debt, Mr. M'Kenzie offered to hand ■to me the bill of sale. I accepted it, and discharged liimfrom liability. Bat how acted Mr. Shipley ? He delayed signing the inventory to the bill of rsale, and at last declined doing so unless I permitted him to make certain alterations, which would ex--empt articles therein named. I consented to this, =and then the bill of sale was executed. And yet Mr. Shipley takes credit for doing this act, although he had tried to prevent if, as is shown by Shis signingthe bill of sale to Mr. M'Kenzie, on *the 20th March. There are many more su«h questionable acts •which I could cite, but I presume the public will ■not care for them; and I apprehend that Mr. 'Shipley's champion will not again invite the proeduction of evidence which, as far as I have gone, ,1 think cuts truth from beneath his feet, and Jleaves him only general inuendoes to rely upon. I am, &c, CHARLES HARLEY.