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Decisions of the Superior Courts of New South Wales, 1788-1899

Ex parte Hunter [1842] NSWSupC 12

fieri facias - ecclesiastical jurisdiction - Dickens, Charles, reference to - imprisonment for debt, abolition of - reception of English law, imprisonment for debt abolition - statutory interpretation

Supreme Court of New South Wales

Dowling C.J., Burton and Stephen JJ, 18 January 1842

Source: Sydney Herald, 20 January 1842

Mr. Windeyer, on behalf of Graham Hunter, moved for a rule calling on Alfred Elyard, to show cause on Saturday next, why the fifty several writs of fi fa, dated the fifth of January, of the present year, purporting to have issued to the Sheriff, directing him to levy on the goods and chattels of John Edye Manning, sen., certain sums of money, which by an alleged order of the Supreme Court in its ecclesiastical jurisdiction, dated the lst of January, 1842, were ordered to be paid by the said John Edye Manning to Alfred Elyard, should not be set aside, on the following grounds. lst. That the said writs had been issued without authority; 2nd. That there had not been any valid and sufficient order or rule of Court made to warrant the issuing of such writs of fi fa . 3rd. That there has been no entry or suggestion of any rule, ordering any of the writs to issue. 4th. That there was no entry of any right, title, or interest in any one, to or in the several sums of money ordered to be levied by the writs. 5th. That it did not appear that any of the writs had been issued in any cause, in the Ecclesiastical jurisdiction of the said Court. 6th. That it did not appear from which branch of the Supreme Court jurisdiction the fi fas had been issued. 7th. That the writs were not in proper form. 8th. That no sums were endorsed on them. 9th. That they had been issued against the effects of John Edye Manning, to the prejudice of his creditors, instead of being issued, as they ought to have been, against the balance of each intestate's estate, in the hands of John Edye Manning. 10th. That the order on which the writs issued was void, as being made on a holiday. 11th. That the issuing of the writs in favour of Alfred Elyard did not appear to be made in any action or suit determined in favour of that gentleman, entitling him to the fruits of these fi fas .

Mr. Windeyer now argued that there was no precedent or authority for such a proceeding as the present; and that if the measure of which his client now complained was to be supported, the Court might, without reference to principles of law, order a fi fa to issue against the property of any individual, in no way liable to any party for any sum of money.

His Honor, Mr. Justice Burton, asked whether it was not competent to the Court to issue such an order to its own officer.

Mr. Windeyer said, he would not contest that point, but what he disputed was, the power of the Court, to grant such a writ as this, under such circumstances as were before the Court, to enforce their order. There could be no doubt that an officer of the Court stood in a situation, very different from that of any other party. But what he (Mr. Windeyer) considered, entitled him to a rule to shew cause, was, that it did not appear that the order on which the writs were founded, was actually such a judicial order, as would prevent one in the situation of the applicant, Hunter, succeeding in the present motion. He, the learned gentlemen, did not wish to be considered as impeaching in the abstract the validity or regularity of the order itself, but merely to be seeking for such explanation of the circumstances under which the order had issued, as any one would be prompted to do, on finding the informalities of the proceeding, which he, the learned gentleman, had disclosed to the Court in the commencement of the motion. The learned gentleman then proceeded to state generally the grounds of objection to the writs, and mentioned as the most important objection, that the orders of the Judges, of the lst of January, were clearly not such orders as were contemplated in the last clause of the re-enactment of Council for the Advancement of Justice; giving to the order of Judges the effect of judgments at law.

The Court called upon the learned gentleman for his authority for the whole of his positions.

Mr. Windeyer said, he had not brought with him the authorities, not thinking it necessary to do more than make out a primâ facie claim to entitle him to a rule nisi .

The Court was willing to grant a rule nisi upon two or three of the points; but then he would be confined to these upon the return of the rule.

Mr. Windeyer had understood the practice of the court to be, for counsel to obtain a rule nisi, or showing any primâ facie ground, and afterwards to have it made absolute upon all the grounds of which written notice was given to the other side. The written notice of the ground distinguished our practice from at home; where the adverse party looked to the rule and affidavits only.

The Court condemned the practice, and

Mr. Windeyer said, he would prefer withdrawing his motion at present, to taking the rule nisi, upon the grounds to which the Court wished to confine it.


Dowling C.J., Burton and Stephen JJ, 22 January 1842

Source: Australian, 25 January 1842 [1]

Mr Windeyer again moved an application for the rule nisi on behalf of Graham Hunter, calling on Alfred Elyard to show cause why the fifty writs of fi fa, issued against John Edye Manning for the payment of certain sums of money to the said Alfred Elyard, under order of the Supreme Court in its Ecclesiastical Jurisdiction, should not be set aside. The objections on which he grounded his application for this rule were, lst. That the writs had been issued without authority; 2ndly. That there had not been any valid authority, or order made by the Court for the issue of such writs of fi fa ; 3rdly. That there was no entry of any rule, ordering, any of the writs to issue; 4thly. That there was no entry of any right, title, or interest, of any one to, or in the several sums of money ordered to be levied by the writs; 5thly. That it did not appear that any of the writs had been issued in any cause in the ecclesiastical jurisdiction of the said Court; 6thly. That it did not appear from which branch of the Supreme Court jurisdiction the fi fas had been issued; 7thly. That the writs were not in proper form; 8thly. That no sums were endorsed upon them; 9thly. That they had been issued against the effects of John Edye Manning, to the prejudice of his creditors, instead of being issued, as they ought to have been, against the balance of each intestate's estate; 10th. That the order on which the writs issued was void, being made on a holiday; 11th. That the issuing of the writs in favour of Alfred Elyard did not appear to be made in any action or suit determined in favour of that gentleman entitling him to the fruits of these fi fas . The learned gentleman then proceeded to condense these objections under five heads, the principal of which were the illegality of the order, upon which the writs had issued, the informality of the writs themselves, and their having been issued on a holiday. With regard to the last point he argued that although their Honors might have made the order on a holiday in some cases, yet he (Mr. Windeyer) contended that to enable them to do so the consent of all parties interested was necessary. He would take the opportunity of stating, that when last week, in moving a previous application with respect to these writs, he had said that the authority of the Court was impeachable, he had not used that word in the parliamentary sense, but merely in its commonest every day acceptance.

Mr. Justice Stephen - I suppose you mean to say, you used it in a Pickwickian sense.

Mr. Windeyer resumed. - It certainly was not in its strongest and most offensive sense that he had used the word, but merely to express his opinion that the order which had been issued by the Judges was questionable. The learned gentleman, after arguing at some length on the other objections, concluded by moving that a rule be granted, to shew cause why the writs should not be set aside.

His Honor the Chief Justice said, that both himself and his learned brothers were agreed that Mr. Windeyer could, on the first ground, and on that alone, take a rule to show cause in this case. That ground was, whether the order issued by their Honors to Mr. Elyard was one which was warranted by Act of Council. All the other grounds on which Mr. Windeyer had argued for this rule were merely irregularities which might be amended, and as such could not be objected to by third parties. They should therefore grant the rule on the first ground only, and would leave it to the Attorney-General to say whether he was prepared then, to show cause on that ground why the writs should not be set aside, or whether he would take time to consider the matter, and the cause might come on Friday or Saturday next. The first ground of Mr. Windeyer's argument was the only one which would have to be considered, as none of the other points were debateable ones. He might take his rule on that ground, and on that ground only.

Mr. Justice Burton expressed his concurrence in the judgment of his Honor the Chief Justice, as to the first ground only, entitling Mr. Windeyer to take a rule. The other grounds of his argument went merely to question the regularity in point of form as to the issue of the writs, and could not, if they were proved, vitiate those writs. He felt however, bound to say, that he thought that it was hardly fair to attribute, in this matter, any leaning, on the part of the Judges, to either side. He would repeat it was hardly fair to insinuate a dereliction from duty on the part of the Judges, and then to hint at the straining of points at law to cover such dereliction. Such an insinuation came with a yet worse grace from members of the bar, as they were capable of understanding the high and solemn trust and responsibility vested in the Judges, and it was to gentlemen of the bar that they (the Judges) should look for protection against charges of violating such trust. He was sure on his own part, and on that of his learned brothers, that in their proceedings in this matter they had been actuated by those high and impartial feelings of justice, which their oaths of office, their sense of station, and duty to their Sovereign demanded. Fiat justicia ruat coelum . He was sure that had there existed any temptation to divert the due administration of justice, such temptation would have been withstood by him and his learned brothers, to the loss of personal convenience, station, property, or of life itself. But no such temptation had existed, and their Honors in pursuing the course they had adopted, had believed they were pursuing that by which the interests of all would be best protected. It was a matter of great regret that the issue of the order complained of should have become necessary, but because it implicated some of the servants and orders of that Court, was no reason why their Honors should have been influenced by any private or partial feeling. The objections which Mr. Windeyer had taken as to the order not being in accordance with the Act of Council was, however, sufficient ground for granting the rule, and he fully concurred with his Honor the Chief Justice in so doing.

Mr. Justice Stephen agreed with the judgment which had been made by the Chief Justice, granting the rule on the question of the order not being conformable to the Act of the Legislative Council. He could not see himself that the Judges had not in the issue of that order acted strictly according to their duty. With regard to what had fallen from Mr. Windeyer, he hoped and believed that no feeling of suspicion of dereliction on their part, had been intended or implied. He had not conceived that such was the case, and the jocular observation with which he had noticed Mr. Windeyer's explanation, would show this. With regard to the other grounds of objection to the issue of the writs, they could not he considered otherwise than as irregularities, which could not be taken advantage of by third parties. On the first ground he was entitled to take a rule, but he considered that Judges on taking the steps they had, had only done what they were bound to do for the protection of those who might be suffering from an event which they could not foresee or prevent. - Rule granted.


Dowling C.J., Burton and Stephen JJ, 29 January 1842

Source: Sydney Herald, 1 February 1842


            In this case the Attorney-General appeared to shew cause against a rule nisi, which on a previous day had been obtained by Mr. Windeyer for setting aside the writs of fi fa, which, under an order of their Honors the Judges of the first of January, directed to Mr. Elyard, had been lodged against Mr. Manning, the late Registrar.

            The learned gentleman said, that it appeared to him that it was merely necessary in this case to enquire whether the course which had been pursued by the Judges was one which had been warranted by the altogether peculiar circumstances of the case. In order to ascertain the true character of the Judge's order, the learned gentleman conceived it should first be enquired what was the object of that order. Obviously the only object their Honors could have had was the protection of the helpless persons on whose behalf the order had been issued - widows and orphans, all of whom were so situated, as neither physically nor morally to possess the ability to help themselves. The Court, therefore, not merely in his, the learned gentleman's, opinion, but as he conceived in the judgment of the public mind, at home and in this Colony, would have been guilty of a neglect and even a dereliction of their duty, if they had not stepped in as they had done, and by the order in question, shielded these helpless parties from the injury and ruin with which they were threatened. Having prefaced his argument with these general observations, he, the Attorney-General, would now request their Honors attention to the question itself. First he would call the attention of the Judges to the Act of the Legislative Council upon which their Honors had issued the order. That Act was partly founded on the 2nd Vict. c. 110; but being addressed to different objects, was not entirely incorporated in the Act of the Legislative Council. The first seven clauses simply provided for the abolition of arrest for debt; another set of clauses were devoted to the regulation of the practice relating to insolvent debtors. The 18th section of that Act, however, was almost totidem verbis, adopted by the Act of Council; and in that clause, the one on which the order had been issued, no mention was made of the necessity of a judge's order to their officer, being an order of a cause in Court. He, the learned gentleman, therefore submitted, that it was by no means necessary the order in question should be in a cause in Court. This fancied decideration was an interpolation of his learned friend's (Mr. Windeyer) in the act, and, according to the principles on which legislative enactments should be expounded, as explained by Mr. Dwarris, on Statues, viz., that they should be construed according to reason, and grammatical propriety; it could not be presumed that that was intended by the act, which was not even mentioned in it. This part of his learned friend's argument, therefore, he, the Attorney-General, conceived was fully and conclusively answered by reference to the act, and the legitimate mode of expounding it, as recognized by the highest authorities. Besides this argument, founded on the authority of Mr. Dwarris, the case of Jones v. Wright, in the 9th Adolphus and Ellis, which related to an award on a submission, which had been made a rule of Court, also made for him. There judgment (but for the omission of the sum) would have issued for the party entitled on the award, although it could not be said that there was any cause in Court. It was true, that if the Court chose, they could have proceeded against the Registrar by attachment, but the authorities showed that a fi. fa. might issue as well as an attachment; and it was clear the remedy which had been adopted, was at once quicker, cheaper, and more effectual, than the remedy by attachment. His, the learned gentleman's friend, Mr. Windeyer, had complained that the proceeding was in contravention of the great principle of the common law - "audi alteram partem;" but he appeared to forget that not only had Mr. Manning been heard, but heard to his heart's content, for he had confessed that the monies for which the fi. fa.'s had been issued were due and owing to the parties, who, by the order of the Court, were intended to be protected. Another argument upon which his learned friend seemed to rely was, that it was not competent to the judges to issue such an order as the present, where they were themselves interested. This position he, the Attorney-General, confessed he was at a loss to comprehend. How could their Honors be interested in any way but as the protectors of the public interest, and in that very character in which they were recognized by the constitution and the Charter of Justice? Mr. Graham Hunter, in the present case, placed himself before the Court as a general vouchee for both classes of creditors, intestates and others, questioning the acts of the Judges, beyond any right vested in that person, who had no right to look after anything but the due satisfaction of his own writ. As to any responsibility of the Judges, he, the Attorney-General, felt that his learned friend, Mr. Windeyer, would take it as an offence if such a question were to be mooted. The responsibility, it was clear, in this most unfortunate affair, must fall on Mr. Manning alone. His learned friend, Mr.Windeyer, had said something about the lowering of the dignity of the bench, which would probably result from their Honors adjudicating in a matter in which they appeared to be the moving parties; but he, the Attorney-General, felt satisfied, that not only could no blame or reflection of an adverse nature rest on the court, but that their Honors could not have acted in any other way than they had done, consistently with a due sense of their judicial characters, and their duty to the society over which they were appointed to administer the law. He, therefore, submitted that the present rule must necessarily be discharged.

            The Solicitor-General, Mr. Foster, and Mr. Broadhurst followed on the same side.

            Mr. Windeyer, in commencing his reply, said, their Honors would bear in mind that in moving for the rule nisi he had not simply stated the grounds upon which he sought to set aside their Honors order of the lst of January, and the writs that subsequently issued, but had then also stated the arguments upon which he relied. Those were, that the common law would be seriously infringed upon by the construction their Honors had placed upon the 43rd clause of the 5th Victoria, No. 9, and that there were therein no express words taking away the common law; secondly, that their Honors' act was a ministerial one, and therefore, not contemplated by that clause; and, thirdly, that the court was so far interested in the matter, that the Act of Council could not be supposed to contemplate their issuing such an order; and that even if its words sanctioned it, it was void on the principle that no man could be a judge in a matter in which he had any concernment. How had his, the learned gentleman's, four friends met those arguments? Not one word had either of them said to the second argument; nor indeed to the third, except by combating an imputation of interest which he, Mr. Windeyer, had never made. The case of Jones against Wright was in his, Mr. Windeyer's, favour, as it shewed, as well as another case in Dowling's Practice Cases, being the only two which had been decided at home upon the construction of the lst and 2nd Vic. c. 110, s. 18, that there must be a cause in Court, or at an any rate a matter in contest before the Court could act. It was that that supplied the judicial character to the proceeding, which he submitted was not to be found in the present case. The learned gentleman then proceeded to show that the three other cases cited by the other side, had no bearing at all on the question. What then was the case admitted by them, and which ought to be proved by him? It appeared that upon an investigation of the Registrar's accounts by two of the Judges, that officer had a large sum in his hands, consisting of intestates' effects; and upon the two Judges reporting the fact to the Court, the Court on the lst of January make an order on the Registrar to pay the sum he has acknowledged to be due, into the hands of Mr. Elyard, a clerk of the Court; and that not being done, fifty writs of fi. fa. issued, tested by the Chief Justice, and signed by one of the other Judges. The Attorney-General had contended, that because the Act of Council had said, that "all decrees and orders of the Supreme Court in equity, and all rules and orders of the said Court at common law, or in its ecclesiastical jurisdiction, whereby any sum of money, or any costs, charges, or expenses, shall be payable to any person, shall have the effect of judgments at law; and such person shall, or lawfully may, have execution thereon for the monies so payable; and that this being an order of the Court, the writs in question had lawfully issued. This no doubt was an argument that possessed a logical form; but it contained the same fallacy, as might be noted in a facetious argument known to their younger days, of the school-master, who contended that he was ruler of Greece, because he ruled the little children, who ruled their mamma's, who ruled their papa's, who ruled Greece; or that other of the French Professor, who contended that he was the finest man in Paris, because the University was the finest building, that his room was the finest in the University, and he was the finest object in his room. The fallacy consisted in applying the same word to objects essentially different. The rules and orders mentioned in the act of Council, must be taken to mean, such rules and orders of the Court, as were obtained by the usual course of practice; must be taken to mean judicial orders; not rules or orders issued by the Court ministerially, or so to speak, in its domestic jurisdiction. He did not quarrel with the authority of Mr. Dwarris cited by the Attorney General, but on the contrary agreed with it; and contended that the very passage cited by the Attorney General made in his favour. In page 690 Mr. Dwarris said "the real intention too, when collected with certainty, will always, in statutes, prevail over the literal sense of terms." For every statute ought to be expounded not according to the letter, but according to the meaning qui haeret in litera haeret in cortice . Again, afterwards it is laid down, that statutes should be construed, according to the reason of the common law, as it was not to be presumed that the legislature intended to make any innovation thereon, if they did not expressly say so. By the statute de donis it was enacted that a fine levied of entailed land, ipso jure, sit nullus ; yet the construction was, that such fines should not be a nullity, but only a discontinuance. Because at the common law, if a Bishop seized in right of his church, or a husband in right of his wife, aliened by fine, it was only a discontinuance. Taking these rules for their guidance, he would ask, how any rule or order by the common law, could have the effect of a judgment, unless it had been made upon some matter in contest before the court; and upon the court being moved by a party interested, to issue such order? The object of the clause was to make the property of a party, against whom a decree or order was obtained, available in cases where before his person only, could have been attached. Its object was not to change the mode or to dispense with the previous sanctions of law, in obtaining such order. On the contrary, the whole language of the act shewed, that such rules or orders were contemplated, as the Supreme Court issued judicially in its several jurisdictions. The use of the word court, the use of the words in the preamble "the more effectual administration of justice," and "the better administration of justice," and of the words "action, suit, or proceeding," in all the previous clauses of the act, shewed that judicial proceedings were contemplated. How could there be an administration of justice, or a suit or action, except there were some matter of contest in court. Yet because the word "all" was used in the 43rd clause, his friends would insist, that the common law rights, intended in the other words were to be taken away. But according to the Attorney-General's own authority, that of Mr. Dwarris, "it is the most natural and genuine exposition of a statute to construe one part by another part of the same statute; for that best expresses the meaning of the makers. And such construction is ex visceribus actus ." And again, "thus in the construction of chap. 9, of the statute of Gloster, Purview est que nul appeale suit abattu, &c. This clause taken by itself is general, and literally as some have taken it, extendeth to all appeals, as of death, robbery, rape, felony, &c., but ex antecendentibus et consequentibus, fit optima interpretatio . And all the antecedent clauses, do concern the death of man; it was therefore held that the appeals of robbery, rape, felony, &c., are not within this act." Again, in a subsequent part of his book, Mr. Dwarris, quoting very high authorities, says "Acts of Parliament are to be so construed that no man shall be endangered by a literal interpretation thereof." Yet it was upon the literal interpretation of this clause that the Attorney-General placed his sole reliance. He had said indeed, that Mr. Manning might have been attached, and that, therefore, these writs lawfully issued. He (Mr. Windeyer) doubted whether Mr. Manning might have been attached for contempt of an order issued ministerially. There were, no doubt, some cases in which courts did attach for contempt; but they were moved so to do by parties interested, except where the contempt was such as obstructed the judge in the execution of a judicial duty. The case of the King against Clement, in the 4th vol. of Barnwell and Alderson, was such a case: but that and other cases shewed that the Court then had the power of fining, and reaching, if it pleased, the property of the delinquent. This was a proof that such cases were not contemplated by this clause; and at all events, they were all cases standing on a peculiar footing of their own. His second argument had not been touched by his friends on the other side, and as they had been made fully aware of it, the Court would conclude, when four gentlemen so distinguished for their intelligence as his learned friends on the other side, they having, no doubt, the greatest anxiety to support these orders, were unable to find any answer to the argument, there was, in fact, no valid answer to be found. He, Mr. Windeyer, had expected that they would have shown what were the differences between a judicial and a ministerial act of the Court, and that they would have attempted to place the proceedings now under review in the judicial class. But as they had not done so, he would produce some authorities to shew what were the tests of a judicial proceeding, and would then shew that the orders and proceedings out of which these fi. fa. 's had issued, were ministerial. The first was that of Blackstone, who in vol. 3, p. 25, says, "in every Court, there must be at least three constituent parts; the actor, reus, and judex; the actor or plaintiff, who complains of an injury done; the reus or defendant, who is called upon to make satisfaction for it; and the judex or judicial power, which is to examine the truth of the fact, to determine the law arising upon that fact, and if any injury appears to have been done, to ascertain, and by its officers to apply the remedy." In the same volume, page 377, the learned commentator, gave another test of a judicial act; being indeed one, which peculiarly distinguished the administration of English law; it was publicity . The learned gentleman here cited the passage, which showed the necessity of verdicts being public, as also one from Kelyng's Reports, page 54, showing the equal necessity of the judgments of the Judges being in public. He also particularly referred to the case of Daubney v . Cooper, in the 10th of Barnwell and Cresswell, in which speaking of an act of a justice, the Court of King's Bench, in the judgment say, "he was, as it were, a court of justice for that purpose, and we are all of opinion that it is one of the essential qualities of a court of justice, that its proceedings should be public; and that all parties who may be desirous of hearing what is going on, if there be room in the place for that purpose, providing they do not interrupt the proceedings, and provided there is no specific reason why they should be removed, - have a right to be present, for the purpose of hearing what is going on." Also in the same judgment the Court said, "the point which we decide is, that the magistrate in the exercise of a duty of this description, viz., by summarily convicting a party, is a species of court, and is exercising a judicial function, and that his proceedings ought not to be private, but ought to be public." Now where is the actor in this proceeding of the lst of January? Who procured this order? If it were the Judges, where is the judex, who is to be moved by the actor ? Where do we find that publicity, that hearing and decision in open Court, declared by the Judges of the Queen's Bench to be an essential characteristic of a judicial proceeding? If they named an actor then they lost the Judge; if they named the Judge they lost the actor. As for publicity, the whole was concocted in private, in the Judge's room behind the Court; not only without publicity, but on a day when publicity was not possible; the lst of January being by a rule of Court, which had the force of an Act of Parliament, a holiday; and therefore a day on which there could no more be a judicial act of the Court, than there could be on a Sunday.

            By Mr. Justice Burton. - What do you say to the signing of judgments on a holiday?

            Mr. Windeyer admitted that that had been done, but said that it was by the consent of the only party capable of acting at the time; and like any other consent, would cure an error. But even that was against acts of Parliament, although formerly the Courts had held that a judgment so signed was not a nullity. This order, then, wanted all the marks that characterised a judicial act. On the other hand, there were abundant traces of its ministerial character. The Court issued the order under the 12th section of the New South Wales Act, which authorised the Court where no parties appeared to claim administration of an intestate's effects, to prevent the waste thereof) to empower the Registrar, or other ministerial officer of the Court, to collect such effects, and hold them subject to the orders of the Court. The Charter of Justice, by its 9th and 14th clauses, sanctioned the same proceeding. This was, in fact, precisely the power possessed by the Ecclesiastical Court at home in similar circumstances. In the 4th volume of Burns' Ecclesiastical Law, page 285, s. 17, it was laid down, "and if none will take the administration, the Ordinary may grant letters, ad colligendum boni defuncti, and thereby take the goods of the deceased into his own hands, wherewith he is to pay debts and legacies, so far as the goods will go; for which himself becomes liable in law, as other executors or administrators." Now what was the nature of the duty thus cast on the Judges? From the very terms out of which it arose, it wanted several ingredients of a judicial duty. The Court had no option, in granting letters of administration, or in issuing these letters ad colligendum There was no actor to set them in motion; there was no matter in contest before the Court; there was simply property, which the Court was vested with the care of, for the sake of persons, by the very terms of the duty, absent. The nature of the act therefore, was clearly ministerial. But he had also authority, which so pronounced it. In the 18th section of the same page of Burns' Ecclesiastical law last cited, it was laid down, "letters of administration, are not of necessity to be granted, within the limits of the jurisdiction, the granting thereof being not a judicial, but a ministerial, and therefore not a local act ; wherein the Bishop acts, as a person designed, and appointed by the law. He would ask whether the Court was not in precisely the same situation with the Bishop?

            Mr. Justice Burton, said that it being the act of the Court, it became a judicial act.

            Mr. Windeyer submitted, that the distinction between judicial and ministerial acts of Courts and Judges, was distinctly recognised, and that all persons in a judicial situation had occasionally ministerial duties to perform. Those of Justices of Peace were numerous; and the Court had several ministerial duties cast upon it by the Act of Parliament. The appointment of all the officers of the Court, appointable by the Court, was a ministerial duty, so all acts in which the Court moved itself, and in which there was no subject in contest before them.

            Mr. Justice Burton. - The imposition of this duty upon the Court raises it to a judicial act; the Court is not lowered to the situation of the ordinary. Suppose, which was of course impossible, but suppose that any ministerial act was imposed upon the King, would it not become a regal act?

            Mr. Windeyer doubted, whether strictly speaking, almost every act performed by the King was not a ministerial act. No doubt it was regal also, because it was the act of a King; and in that sense every act of a Judge might be said to be judicial, because the act of a Judge. But to adopt that sense would be adopting the fallacy of the schoolmaster's syllogism, proving himself the ruler of Greece . The question here was, whether this was a judicial act, in the same sense, in which the acts of the Courts, in suits, actions, and proceedings in Court, mentioned in the Colonial Ordinance, were judicial acts. No doubt cases might be put, in which it would be difficult to decide whether the judicial or ministerial character prevailed. And that difficulty, was somewhat enhanced, by most of the cases in which the question had arisen, as to whether a particular act was judicial or ministerial, they having been cases in which actions were brought, against parties, on the ground that a particular act of theirs was not protected. The point to be decided in those cases was simply, whether the party charged, was acting in his office of a judge, and so, matters which in a proper sense could not be called judicial, had had the name of judicial loosely applied to them, without their really having that quality. With regard to the act of granting letters of administration being raised into a judicial act, by being imposed as a duty upon a judge, he Mr. Windeyer submitted, that if an act were in its nature ministerial, its character would not be altered, by the name given to the party who was to perform it. In fact that process of reasoning, would prevent the possibility of a judge ever performing a ministerial act; which was counter to our daily experience. In this very matter, the Bishop, with whose authority, the Court is invested, -

Mr. Justice Burton, the Court has more authority than the Bishop; it is a court of record, which the Bishop is not.

Mr. Windeyer submitted, that it was laid down in one of Coke's Institutes, he forgot which, that no newly created court, had more power than was given to it by the act creating it. Indeed it wanted no authority to show that this court deriving all its powers from the New South Wales Act, and the Charter of Justice, could have no authority that was not contained in these instruments; or that of necessity attached to it, by its erection into a Court of Record. Now it was impossible to say, looking to the Act of Parliament and the Charter of Justice, that the court had more power in its ecclesiastical jurisdiction, than the Bishop in the Diocese of London. Indeed it was manifest that it had much less; and that that in which it was deficient was precisely in some of the judicial attributes of the Bishop in the Diocese of London. The Bishop in that diocese then, in the exercise of the self-same duty, which the Court had cast upon it here with regard to Intestate's estates, acting only ministerially, it could not be said, that the Court here had acted otherwise. The Bishop was equally a Judge, in other matters ecclesiastical, with the Judges of this Court; and yet it was held at home that these in him were ministerial acts. The Court here would be possibly acting in its ecclesiastical jurisdiction in deciding in any contest with regard to the validity of the will; and they would be acting in their office as judges, although not judicially, in granting letters of administration. The mode in which the Court had proceeded, too, in this matter, showed its ministerial character. They had had the Registrar before them, in private, and on a holiday, which might be urged as a proof of the ministerial nature of the act, although the Court having refused to grant the rule nisi upon that point, prevented him, Mr. Windeyer, from advancing it as a substantive objection.

The Court said, that they had so little time, that they had been obliged to perform many judicial acts, not only on holidays, but on Sundays, and in the night as well as the day.

Mr. Windeyer said, that he had seen it reported, that his Honor had so stated elsewhere, but he, Mr. Windeyer, then thought it must be a mistake of the reporter. It needed no argument to shew, that no judicial act could be promulgated on a Sunday or other holiday; and that if any judicial acts passed on such a day in the Judge's private room, they did not then take effect, nor till publication in Court, except by consent of parties.

Mr. Justice Burton. - What do you say to a cognovit actionem?

Mr. Windeyer said that although the whole proceedings there were private, it was by consent of the parties; and that the fiction on the Record was, that it was a cause in which the parties appeared publicly in Court. Could it now be said upon the review of these authorities, showing what was a judicial act, and what constituted a ministerial act, that this order of the Judges on Mr. Manning in the Judge's private room on a holiday, in this matter of intestate's estates, there being no particular case in contest before them, was a judicial act, within the meaning of the 43rd clause of the local ordinance? Was it not manifestly a domestic order, having no judicial character, and therefore, not within the act. He (Mr Windeyer) now came to the third argument he had urged on obtaining the rule, and must disclaim all thought of imputing to the Judges any other interest than such as they must naturally and unavoidably have in the position they held. He did not impute to them as had seemed to some, any want of integrity, or any other feeling which it would be degrading to them to imagine, and unbecoming in him to utter. What he imputed to them upon the strength of the authorities he was about to cite was, the having such an interest as incapacitated them in contemplation of British law, from acting upon this ordinance of council, either judicially or ministerially. From the tone some of his friends on the other side had adopted, it would appear that they considered him to blame in approaching this topic at all; but he must say that he thought it more for the honour and dignity of the court, that he, the humble advocate, should render himself liable to the reproach of want of taste, discretion, and judgment, than that it should be said, in the peculiar circumstances in which the Court stood, that that the counsel engaged to impeach its order, had not dared to advance an argument, so obvious to all out of doors. He should urge the argument therefore with that impression; as well because it went to strengthen his second argument, as because it was supported by authority. Moreover, he would urge it not simply as an argument going directly to the point it professed to address itself to, but as an argument that showed there were circumstances in the case, that would induce the Court to have a salutary distrust of its own impressions; especially after the meagre show of reasoning adduced by the learned Attorney General and his colleagues. What was the position of the Court according to those gentlemen? The Attorney General defended the act of the Court, as that of a trustee or guardian, protecting the sacred fund of the orphan and the absent. The Chief Justice himself when the rule was moved for, had said that the Judges had acted only as the custodes of this fund. It was this very position of the Judges, that formed the groundwork of his, the learned gentleman's, present objection.

Their Honors here said, that they had no interest whatsoever, of any kind, in the fund alluded to by the learned counsel.

The Attorney General said, that when he used the word trustee as applied to their Honor's care of this fund, he did not mean to say that they had any interest in it.

Mr. Windeyer said, that he did not mean to contend that the Judges had any beneficial interest in the fund, but merely that they were placed in such a relation to it, that they could not, under the authorities he should adduce, intervene judicially. The Act of Parliament:-

Mr. Justice Stephen: Places it in the hands of the Registrar.

Mr. Windeyer: Under the orders and control of the Court.

Mr. Justice Burton: We could take no security from Mr. Manning; he was appointed by the Crown not by us, and the act obliges us to place the fund in his hands. It was certainly to be regretted that any individual should have been trusted to such an extent, without their Honors being able to take security from him, and it is well known by several now about me, that I have exerted myself to procure measures which should prevent the evil consequences that have unfortunately resulted from this state of things. I may mention also, that the Court had no reason to surmise the extent to which Mr. Manning's defalcations could go. From his first holding office till about his (Mr. Justice Barton's) departure for England, two years ago, just before which he investigated Mr. Manning's accounts, the whole sum he had received on account of intestate's estates was somewhere about £3,000, whilst in the years 1840 and 1841, his receipts on that account had amounted to £7,000 or £8,000 a year. The Court had no reason to suspect so enormous an increase of responsibility, and ought not, and could not, be charged with any neglect of duty on account of what had taken place.

The Chief Justice made a similar disclaimer of any neglect of duty in him.

Mr. Windeyer said, that he did not charge any neglect of duty upon any one, all that it was necessary for him to do was to show that there was a duty. The learned gentleman here read the 12th section of the New South Wales Act, and contended that although the fund was placed in Mr. Manning's hands, the Court was, for the purposes of its protection, vested with full powers to control Mr. Manning, or any one else, in the same situation. It was indifferent to him whether the Court was called the guardian, the trustee, or the protector of this fund; as it was manifest from the Act of Parliament, that the Court was trusted with the guardianship and protection of it. He submitted that the duty thus cast on the Judges was ministerial; but whether ministerial or not, it placed the Court in such a relation to the fund, that they could not act judicially with regard to it on their own motion. It was requisite that there should be an actor, to set them judicially in motion.

The Court pointed out that Mr.Elyard filled the situation of actor, and that the conditions required by Mr. Windeyer were therefore fulfilled.

Mr. Windeyer submitted that Mr. Elyard was the mere hand of the Court, and that he was in such a position, that it could not be doubted, that the Court would protect him, as its hand, in issuing these fi fa's . But was not Mr. Elyard who had set the Court in motion. It appeared by the affidavits, that the Court had issued its order of the first of January to Mr. Manning, upon the report of two of the Judges concerning the state of Mr. Manning's account; and on an admission by him, of a balance due. But surely this was not such a hearing of the other side, as argued by the Attorney General; it was not such a matter in contest before their Honors judicially, as would make the issuing of any order thereon judicial in the proper sense of that word. Mr. Windeyer then read the following extracts, commenting on them as he proceeded, to shew their applicability to the state of things before the Court. "In the Chancery between Sir John Egerton, plaintiff, and William, Earl of Derby, Chamberlain of Chester, and others, defendants, for the trust and interest of a farm called Budshaw, in the county of Chester, it was resolved by the Lord Chancellor, the Chief Justice of England, the Master of the Rolls, Dodderidge and Windh, J. J., that the Chamberlain of Chester, being sole Judge of Equity, cannot decree any thing, wherein himself is party; for he cannot be a judge in priopriâ causâ . But in such case, where he is party, the suit shall be heard here in the Chancery, coram domino rege ." In the 12th of Coke's reports p. 114. In a case of Wood against the Major and Commonalty of London, it was resolved, the question being whether the Major and Aldermen of London could sue at Guildhall, for a penalty to be forfeited to the use of the Major and Commonalty of the said City; the Court resolved that they could not, and the fourth resolution was, "though the Major absent himself, and the Recorder sits for him, and that by the custom of the City, yet it alters not the case, for though the Recorder sits personally, and it is personally his judgment, yet it is legally and virtually, the act of the major; the Recorder is his Deputy; and his act is the act of his superior; the style of the Court is coram najore, &c., and a man cannot sue either himself or his deputy. - lst Salkeld, 398. In the 12th of the Modern Reports, the same case was reported, when the same point was spoken of as the true great point of the case; and the Court said, the "Judge is Agent; the Party is Patient; and the same person cannot be both Agent and Patient in the same thing. But it is the same thing to say that the same man may be Agent and Patient in the same thing, as to say that he may be Judge and Party; and it is manifest contradiction. And what my Lord Coke says in Dr. Buchanan's case, in his 8. 10. Is far from any extravagancy: for it is a very reasonable and true saying, that if an Act of Parliament should ordain that the same person should be Party and Judge, or which is the same thing, Judge in his own cause, it would be a void Act of Parliament; for it is impossible that we should be Judge and Party; for the Judge is to determine between party and party, or between the Government and the party." Again, in 2nd Salkeld, p. 605, the case of Foxham Tything was this: "a justice of peace was surveyor of the highway, and a matter which concerned his office coming in question at the sessions, he joined in making the order, and his name was put in the caption." There it was decided that such an act was illegal, and the order of sessions was quashed.

Mr. Justice Stephen said that the result of Mr. Windeyer's argument would be, that although it was lawful for the Judges to issue the order, they could do nothing upon it.

Mr. Windeyer said, that it might be lawful for their Honors to issue such an order as a ministerial one, but being ministerial, it could not be enforced by the judicial authority given in the Act; that being intended to apply to judicial orders only.

Mr. Justice Burton said, that the argument went the length of shewing, that they were not competent then to sit and hear the present matter.

Mr. Windeyer said, that the Court was appealed to from the necessity of the case, as it would be in any other case, to reverse its decision, where it had exceeded its jurisdiction. The argument was, that the Court had no power to make the order of the lst of January as a judicial order, not that it had no power to reverse it, or to reverse the subsequent proceedings, which had gone on the assumption that it was a judicial order.

Mr. J. Stephen said, that in the case of the justice, who was surveyor of highways, he was clearly afterwards joining in an order affecting his own acts as surveyor. He was in his character of Judge, confirming his acts as surveyor.

Mr. Windeyer. - In the case before the court, the order or writs subsequently issued, equally showed the names of parties, whose previous acts in their office, or whose office had come in question. The last authority he should cite, was the case of the King v. the Inhabitants of Great Yarmouth, in 6, B. & C. it had been held that a justice who was charged and chargeable with the poor-rates was not competent to make an order, for removing a pauper from his own parish, on the ground that it was a judicial act: and that a party interested could not be a judge. The statute 16 Geo. 11., ch 18., authorised justices to act in the cases therein mentioned, notwithstanding that they might be interested by reason of their being rateable. In that case the learned judge said that a churchwarden could not be supposed to have any interest in the removal, except that of a rated inhabitant; it was not therefore on that ground he said (and in this Judges Holroyd and Littledale concurred) that they held the order of sessions invalid; but it was, they considered, clearly bad, because one of the parties making the complaint, heard and adjudicated upon the complaint; and touse the words of Judge Holroyd, " was a party to and a judge in the suit." On these authorities, and on the strength of the arguments he had derived from them as pertinent and applicable to the present case, he, Mr. Windeyer, expressed his sincere conviction that the order of Court in question was clearly an invalid one, and he submitted that the rule which their Honors had granted, should be made absolute.

Mr. Fisher followed on the same side.

At the conclusion of the argument, their Honors consulted together for a few minutes, after which they gave their judgments in succession, being unanimous upon the point, that the rule must be discharged. From the great length to which this report has already run, we are compelled to give merely a compendious summary of the judgments, which, in substance, were as follows:-

The Court said the case had been most ingeniously argued; but they did not think there had been any thing shewn in the course of it, which could be taken to impeach the order in question. They would have reserved the matter for consideration if they had had any doubt about it, but they would not reserve it, lest it should be supposed there was any doubt in their minds when in fact there was none. Their Honors thought they would have been guilty of a dereliction of that duty and trust imposed on them by Parliament, had they not interfered with their order in the way they had done, to prevent the grievous wrong which would otherwise have been inflicted on the absent and the helpless. It had been said that the order was a ministerial one, and that the Judges were interested, but here the Judges seeing a breach of duty in their officer, in virtue of their office, it became at once their duty to order that officer to pay over the money to ensure its safety.

It was conceded their Honors had authority to make the order on their own officer, and he being answerable in his person, did not the Act of Council apply to his case, and instead of issuing an attachment, enable the Court to reach his property? If this be so, the order was within the intent and meaning of the local ordinance. If it were not so, Mr. Manning, might so to speak, snap his fingers at the Court. The order had been made after mature consideration and a full hearing of the matter at issue. Mr. Manning had admitted, having received the monies, and that they were not forthcoming: monies not his, but committed to his trust, as a man of honour and integrity, holding a high and distinguished office in the Court; and it was upon that admission, that it became the duty of the Court to interfere, and enforce its order, as if it were a judgment at law. If the order were not lawful cadit questio . Certainly every order was not intended by the Act, but only such orders as the Court had power to make. Their honors could not consider whether the Legislature contemplated, or knew the extent of the words they used, and it was probable they did not, but if in every case the Legislature were to be questioned respecting its intentions, the answer would be probably very unsatisfactory. The order was an order of the Court, and their honors did not think any order of the Court could be ministerial; and it mattered not, whether such an order, as the one in question had been contemplated by the legislature or not, if it fell within the words of the enactment. The case was within the mischief contemplated by the act, and before the passing thereof, the order could have been enforced by attachment. It had been said, that the act could only mean a judicial act, where there was an actor or defendant. They granted that this was the usual course of judicial orders; but there were many cases in which the court might be moving party; and if it made an order for the payment of money, and it be a legal order, there was no occasion for any other party to intervene. It was true no such case had occurred in England, but it was equally true, that if such an one had arisen, the Court of Queen's Bench could have compelled their officer by attachment. This enactment, which was more beneficial than any that had been made for a long time past, enabled them instead of an attachment, to issue a fi fa . If this had really been the Judges own case, the authorities cited by Mr. Windeyer would have been applicable. But the monies were not theirs, but those of parties, who were placed under their protection, and therefore the order was properly issued; and the rule must be discharged with costs.


Dowling C.J., Burton and Stephen JJ, 29 January 1842

Source: Australian, 1 February 1842 [2]


            The Chief Justice said that this was a case which had been most ingeniously and elaborately argued on both sides, and if he and his learned brothers had found themselves in any doubt or perplexity, on any single point, they should certainly have deferred their judgment for further consideration. Such however was not the case; for notwithstanding the very plausible and ingenious case Mr. Windeyer had made out, it appeared quite clear both to himself and their Honours, how the law on the matter stood. The two questions on which the judgment pended were he conceived to be these - First, was the order, a lawful one, and one which this Court was competent to make? Mr. Manning was the Registrar of the Supreme Court, appointed by the Crown to receive the revenues of intestate estates. He had been ordered by the Court, to whose custody that revenue was entrusted, to deposit certain balances, which by his own admission were held by him, according to the order of the Court. They having discovered that this order had been disobeyed, and that Mr. Manning was about to resign his situation of Registrar, made an order to another ministerial officer of this Court to issue certain writs on the effects of the said Mr. Manning for the amount of those balances. Now, he was clearly of opinion that no other course on the part of the Judges would have been in conformity with their duty. The question had been raised as to whether this order was made by the Judges in a ministerial or a judicial capacity. He really could not see as long as it was made by the Court in virtue of the limits of their ecclesiastical jurisdiction, that it was not plainly and clearly a judicial act. It had also been insinuated that the Judges were interested parties, but there was no circumstance attached to the case that could by any possible inference lead to such a conclusion. The fund it was true was placed under their protection, but was that any reason why the Judges should be any way biassed in a matter with reference to it like the present? He could not believe that such an opinion could obtain in times like our own - in these days of enlightened sense and high moral feeling, he could not bring himself to think that the idea could exist that such a feeling of self interest could influence a judicial tribunal. The second point to be regarded, was whether the order was in accordance with the terms of the Act of Council, and with regard to this point it was conceded that the Judges had the power to make the order within the extent and meaning of the Local Ordinance. Mr. Manning admits, that the money was not forthcoming, and he did contend, that considering the sacred nature of the fund, under their protection, that it was the provision of the helpless and destitute, of the orphan and the widow, that it was the duty of the Court to step in and shew the world that Courts of justice would sacredly protect the charge committed to its care, against the innovation of any, even of its own officers.

            The judgment of their Honors was, that the rule be discharged.

            Mr. Justice Burton said, that perhaps the learned counsel who had given so much time and learning to this matter, might feel a little disappointed that they (the Judges) had not given it a longer consideration before delivering their judgment on the matter. It was not to be thought, however, although they came into the Court with perfectly unbiassed minds, and prepared to listen to, and weigh every argument adduced, it was not to be thought that they had given the matter no previous consideration. But the case was so clear, and the conclusion at which they must arrive so direct, that it would be useless in them to delay their judgment. He would remark that there had been many arguments used, many cases submitted, which were entirely inapplicable to the case, and which were, he must consider, bordering on the absurd and ridiculous. The simple question to which their attention was required, was whether the order made by the Judges was a lawful one or not, and was that order accordant to the Act of Council? It was admitted that the order was one which the Judges were empowered to make, and the only question was, as to whether it was made by them in their judicial capacity, or in a ministerial one. He certainly could not see that the Court having made that order in their capacity as Judges, as performing one of the duties committed to them by their ecclesiastical jurisdiction, that this was acting in any other than a judicial capacity. Orders of the same description are made, and the authority of the Court is never questioned respecting them. A case had recently occurred in that Court, where a clerk about to leave the same, and holding a sum of money in his charge, received the summary order of the Court to deposit the said money according to direction. The Court made this order in its summary control, but he could not see that it was not on that account a judicial act. With regard to the question of the Judges being interested parties, there could be thought be no grounds shown for that charge. It most unfortunately happened that the Registrar had misapplied the revenues arising from intestate estates, but however much the Judges might regret such occurrence, still they were in no way responsible for it, and they were only the more bound to use every effort to see justice done. He agreed with the judgment of his Honor, that the rule be discharged.

Mr. Justice Stephen said, he fully concurred in the judgment of their Honors.

Rule discharged with costs.


  [1] See also Sydney Herald, 25 January 1842.

  [2] This extract is of the judgments only.   The Herald gives a better account of the arguments, and the Australian a fuller account of the judgments.

Published by the Division of Law, Macquarie University