R. v. D’Hotman, 1842

Mr. Browne appeared to shew cause why the rule nisi obtained in this case to allow Mr. Butler, the party in the actual possession of the land, to come in and defend should not be made absolute.

Mr. Butler’s affidavit stated that the defendant (the patentee) having mortgaged the property to Mr. Dobson, her interest was sold by the sheriff, when Mr. John Jackson became the purchaser, he sold to Mr. Dobson, who transferred to Mr. Butler. On this affidavit the rule was granted.

Mr. Browne, against the rule, now wished to put in the affidavit of Mr. Loane, which was in substance that the present scire facias was to try the long pending claim between him and Mlle D’Hotman, respecting the title to the Bellvue property upon the ground as stated in the sci. fa. that the crown had been deceived in issuing the grant to her, and the second advocate having objected that Mr. Butler’s counsel had produced no authorities in support of the rule, observed that Mr. Butler might, “defend on the name as he stood in the shoes of Mlle. D’Hotman,” and farther remarked, “that there was no intention by these proceedings to disturb the possession of Mr. Butler, “the sole object being to try the validity of the grant to the patentee, and was about to go into the facts developed in Mr. Loane’s affidavit, which he said would explain the particular purpose for which this action was brought, when he was stopped by the court the Chief Justice observing that it was unnecessary to trouble Mr. Browne to make any farther observations as the court had done wrong in granting the rule in the first place, as it was not possible to let Mr. Butler in to defend as applied for.

His Honor Mr. Montagu concurred in this view and the rule was discharged with costs.

Mr. Macdowell applied for a rule to shew cause why the writ of scire facias issued in this case should not be quashed on the ground that Mr. Butler the tertenant was not warned thereby.

Mr. Justice Montagu asked whether notice of this motion had been given to the Crown.

Mr. Macdowell replied that he had not done so, because his motion was merely a rule to shew cause.

Mr. Justice Montagu thought that notice should have been sent to the Attorney General in conformity with the rule, that where the crown is interested, notice of motion shall be given.

Mr. Macdowell observed, that this was a form of proceeding quite new, that no one knew any thing of the practice, and therefore it was in the discretion of the Court to adopt what course it thought it proper.

Mr. Justice Montagu asked with some warmth if the learned advocate meant to say that the Judges knew nothing about scire facias, and added if the Crown be interested it must have notice, but if the Court knows nothing about the matter, then the application was useless. It was useless Mr. Macdowell troubling himself to address a Court that knew nothing of the matter. This was a matter Mr. M. was interested in, and he became heated at the slightest contradiction.

Mr. Macdowell replied, that the heat was not on his part. He had no hesitation in saying the Court knew nothing of the practice, and it was impertinent his addressing the Court.

Mr. Justice Montagu. - “Just so, and therefore I suggested you should not proceed.”

Mr. Macdowell said, that he had an affidavit which disclosed facts that ratified him that the scire facias ought to be quashed, and as the Court had already in this matter done a grievous wrong in making Mr. Butler pay costs upon the former motion, he felt it his duty, as it was his privilege, to remove the ignorance of the Judges.

Mr. Justice Montagu (sharply,) - “If it be your duty to instruct the Judges, why did not do so in that case?”

Mr. Justice Montagu. - “Then it was not the Court, but Mr. Butler’s retained counsel who inflicted the injury upon him.”

Mr. Macdowell observed, that the case of Mr. Butler was a very hard one, and on the former occasion their honors were strongly impressed with the opinion that some remedy should be made for him. Yet he was an additional sufferer by the misdecision of the Court, so that his case might be well described in the words of the Roman satirist -

The Chief Justice regretted that Mr. Macdowell should have used such a quotation, as an insult could be as well conveyed in Latin as in English. His honor did not profess to be so good a Latin scholar as his learned friend, but according to his construction of the phrase, it might be translated thus - “the Greeks are made to suffer for the misconduct of their kings,” implying Mr. Butler had been made to suffer through the misconduct of the Judges.

Mr. Macdowell did not intend to reflect upon their Honors, but Mr. Butler had certainly suffered from the crier of the Court.

Shortly after Mr. Macdowell had to refer to a case which was reported in Latin, when he observed, I am sorry to be compelled to use Latin, since -

Chief Justice. - Really, Mr. Macdowell, I am surprised you should make such an allusion to me.

Mr. Macdowell. - Your Honor, I only meant - to say - that the case - being in Latin, I was obliged to give it as I found it.

Chief Justice. - From your looking at me when you made the remark, and observing a smile upon the countenance of a young gentleman who sits on your left (Mr. Perry) I concluded you referred in a sarcastic manner to the observations I made in reference to your former question.

Justice Montagu. - No doubt you were, as your remark was intended as a slash at me. I felt the cut, but am so accustomed to your slashes that I take very little notice of them unless they cut very deep, and thought it better to amuse myself in turning over the leaves of this old book than to resent what I could not fail to see was a sarcasm levelled at myself.

Mr. Macdowell said that in sincerity and truth he did not mean to offer any disrespect to his Honor.

Justice Montagu. - I am very happy to hear you say on this occasion you are sincere; for you so often say things when you are not sincere, that there is no very accurate criterion of your sincerity. (Here there was a general silence and the matter dropped.)

Mr. McDowell then proceeded at great length to argue by analogy in support of the power of the Court to quash a scire facias, and also cited several cases to shew that the tertenants ought to be included in the writ. All the cases, however, were those in which the writ was sued upon bonds in which the cognizor being dead the court had held that all parties liable to contribution should be included, the tertenants as well as the heir. Not one case could be found of any similar proceeding to repeal a grant of land, the last grant of the kind made in

England

by the crown being that of Woodstock to the Duke of Marlborough, in the reign of Queen Anne. The learned advocate then went on to say that when he had last the privilege of addressing the court he had said in reference to that portion of Mr. Loane’s affidavit which set forth that a nolle prosequi had been entered on the former writ of scire facias, that Mr. Loane had stated what was incorrect, if he used a harsher term he much regretted it. Since then Mr. Loane had called upon him, as he was fully justified in doing, to explain this assertion, and he had no hesitation in admitting that if any person in the world had reason to believe a nolle prosequi had been entered it was Mr. Loane, for he (Mr. McD) had written to Mr. Loane’s solicitor that it was his intention to enter a nolle prosequi, which, however, he did not do as he could find no authority on the subject. The learned gentleman then proceeded to argue that as Mr. Butler having purchased the land on the faith of the validity of the grant he had a right to be let in to defend with the patentee, which could be no hardship upon any one as all he sought was an opportunity to shew that the crown had not been imposed upon.

Mr. Browne said that if there fifty let in to plead at last the only question is has the grant been properly issued or not.

The Chief Justice asked whether Mr. Butler as the assign of the patentee might not be considered as the patentee.

Mr. McDowell said it was upon that ground he made his present application. The grant was made to Elinor D’Hotman her heirs and assigns for ever.

Mr. Justice Montagu said the court would make no order upon a motion where the crown being interested had not had notice, besides how could the court issue another writ.

Mr. Justice Montagu thought that if the writ, issued by the express sanction of the Attorney General, was found to be working injustice, that officer would be the proper person to apply to in the first place.

Mr. McDowell said that the present Attorney General thought the scire facias the right of the subject, as did the Attorney and Solicitor General of England, he however differed from that opinion.

Mr. Harrison in the same case applied on behalf of Mdlle. D’Hotman for six weeks time to plead.

The Court requested the learned gentleman to produce the authorities for such application o Friday next as their honours were not aware of any such practice in sci fa.

SUPREME COURT - Tuesday, December 13 - The Queen, on the prosecution of R. W. Loane, Esq., v Elina D’Hotman.

Chief Justice. - It is a most unfortunate matter I have forgot my papers; however, I will state that much, having seen the Attorney-General’s fiat. A petition is presented - the Lieutenant-Governor authorises the writ which recites the issue of a grant - it goes on to state the particulars, and then proceeds to direct the Sheriff to warn Miss D’Hotman, - then a motion is made in this Court by Mr. Butler, setting forth that he purchased the ground and that the writ, and all proceedings thereon, may be quashed. The question is, whether it can be quashed or not? His Honor here mentioned the case of Adams v terre tenants of Savage, reported in Lord Raymond’s Reports. The scire facias is a writ of very extensive operation. It is a judicial writ in every case. It is sometimes used to get the benefit of a judgment. There is a case in Burrow’s Reports, where a person was warned as terre tenant. The object of scire facias is to give the terre tenant an opportunity of pleading his title. It is held in every work that the scire facias is in the nature of an action. In every real action the action must be brought against the tenant; and in a case like this, where we have nothing but principle to guide us, the most common principles of justice will decide that no person should be deprived of his estate without an opportunity of defending himself. His Honor here alluded to a case in which a writ of scire facias was granted to repeal a grant of some lands belonging to the Duchy of Cornwall. The writ recited a charter, and an Act of Parliament in the reign of Edward the Third; then the sheriff was directed to warn the several persons named in the writ, and every body else who had a tenancy in the land. Each terre tenant there defends himself, and they vary in their defences. This accords with the common principles of justice. The writ cannot be a legal one unless it directs the sheriff to warn all tenants, and not sweep a man’s property from under him, without giving him an opportunity of defending his title; therefore I think the writ ought to be quashed as being illegal and void. I find at home, where the crown is applied to for his writ, which I admit it is bound to issue on good cause being shewn, a warrant is issued to the Attorney-General, and upon that he issues his fiat. The Governor has power to treat for unlocated lands, but I apprehend he has no authority to repeal a grant which has once passed the public seal. I leave it to Mr. Attorney-General to determine whether he can issue the writ upon the mere authority of the Lieutenant-Governor. I cannot say what the contents of His Excellency’s commission are, but in all Governors’ commissions which I have seen I have seen no power to repeal grants.

Mr. Justice Montagu. - I never doubted, under the common principles of justice, that Mr. Butler ought to come in in some way before he was deprived of the land. I had a doubt whether he could come into this Court and ask to have the writ quashed, or whether he ought to have gone to a Court of Equity, or in what other way it was to be effected. Where a writ is not in the proper form, that is a ground why it should be quashed. There is a case in the fourth volume of Lord Coke’s Reports, soon after the prince’s case, where the terre tenants came in and made several pleas that met the justice of the case. In that form the writ ought to issue; on that ground alone, seeing that it is not the proper form, I think it ought to be quashed. It has been argued that this is a prerogative writ, because it issues with the consent of the crown. His Honor here cited a case where a scire facias had been issued out of the Court of Chancery, to repeal a grant in India. If the crown is bound to issue the writ, it is the subjects writ; if the crown can stay it, it is the crown’s writ. There is a case in 1 Salkeld, where the mode of obtaining this writ is laid down: - A petition is presented to the crown - a warrant issues to Mr. Attorney-General under the sign-manual, and upon that he grants his fiat. I think it is a prerogative writ. I think the crown has an undoubted right to withhold the writ, because it is under the sign manual or privy seal of

England

. Mr. Attorney-General says in his fiat, it is by the order of His Excellency. If it means the legal execution of a power, the power should have been stated. It states merely the order oft the Lieutenant-Governor, which I take as nothing. The Governor receives his power from his commission. The Governor has power to issue grants, but not to repeal them, and he has no other power. He cannot, if he has the power, execute it otherwise than under the seal of the colony, even if he has the power. If I am right, a grant issued here cannot be repealed in this colony. I think the writ should be quashed beyond all questions. If the fiat had only been issued by the Attorney-General, what the effect of that would have been I say not; but as he goes on to state under what authority he grants it, I have no doubt upon the matter, although I say it is a prerogative writ, I say it is also a judicial write.

[1] See also Hobart Town Advertiser, 16 December 1842.

This saga, which included an appeal to the Colonial Office, has been discussed in G. Lennox, ‘The Battle for “Belle Vue”’, Tasmanian Historical Research Association Papers and Proceedings, vol. 49, no. 3, 2002, pp. 177-91.