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An Order in Council of the 10th November 1866, in accordanco with such recommen- dation, having been made, a copy of this order appears to have been sent to the judges of the Supreme Court of British Guians.
The judges determined not to appear on the appeal unless directed so to do by the Judicial Committee.
On an application made on 22nd June 1867, ex parte, on the part of Mr. McDermott, to the Judicial Committee, counsel being present to watch, but not appearing, on the part of the judges, their Lordships stated that they would not direct the judges to appear, but that they considered it advisable that the Crown or the judges should be represented on the argument.
Up to The judges thereupon appeared, and were made respondents to the appeal. this time the Government (excepting the Colonial Office by the letter of the 23rd June 1866) had not interfered in the matter, but the judges having appeared as above stated, applied to the Colonial Office to undertake their case; and the Secretary of State for the Colonies, by the letter of 2nd September 1867, informed the Lords of the Treasury that in his opinion the Treasury Solicitor should be directed to appear for the respondents.
Their Lordships accordingly, by letter of 5th September 1867, gave directions to their solicitor, who thereupon undertook the conduct of the case, and instructed the Law Officers of the Crown to appear for the respondents.
Before the appeal came on for hearing, Mr. McDermott, taking the opportunity of the presence of Mr. Justice Beete in this country, served him with a writ in an action for false imprisonment in the Court of Queen's Bench, the cause of action being the imprisonment on the committal and order, the subject of the appeal.
On the 5th December 1867 the appeal came on for hearing, when, on the suggestion of the Judicial Committee, acquiesced in by the counsel on both sides, the argument was ordered to stand over pending the determination in the Court of Queen's Bench of
the action above mentioned.
On the 20th December 1867, Mr. McDermott delivered his declaration in the above- mentioned action, laying his damages at 10,000%.
On the 26th December 1867, Mr. Justice Beete, by letter of that date, requested their Lordships to instruct their solicitor to undertake the defence of that action.
Their Lordships referred this application to the Colonial Office, and, acting on the recommendation of the Colonial Secretary, instructed their solicitor, on the 25th January 1869, to undertake Mr. Beete's defence.
The defendant, through the Treasury Solicitor, pleaded to the action.
The plaintiff, Mr. McDermott, took no further steps in the action, and, on the 10th June 1868, the appeal came on for hearing, when the appellant applied for a postpone- ment in order that the case might come on after another case then in the list of business before the Judicial Committee in which the judges of the Supreme Court, Mr. Justice Beete being one, were also respondents.*
This postponement was assented to on the condition that the action against Mr. Justice Beete should be abandoned, which the appellant agreed to do, on the ground, as stated through his counsel, that Mr. Justice Beete had left England.
The action was accordingly put an end to by a stot processus which was subse- quently entered.
The appeal was thus further adjourned till the 6th July, but, in consequence of the pressure of other business, was not in fact heard at those sittings, and so stood over till the next sittings of the Judicial Committee in November 1868.
In consequence of these adjournments it became necessary to deliver fresh briefs to counsel, but before doing so the Treasury Solicitor inquired of Mr. McDermott's solicitor, through Mr. Reeve, the Registrar of the Privy Council, whether it was their intention to bring on the appeal for argument under the then existing circumstances, the action having been abandoned, and it being admitted that the judgment of the Judicial Committee, even if in the appellant's favour, could not give him compensation or affect his imprisonment, which he had already suffered.
The appellant's solicitors were also informed that if the appeal should be dismissed
• With this case-The Court of Policy v. the Judges of the Supreme Court of British Guiana—the Lords of the Treasury had nothing to do. It resulted in a report by the Judicial Committee, or which the Chief Justice Beaumont was dismissed. The merits of that case and how far they affect the merits of the present case with respect to Mr. McDermott and Mr. Justice Beete are known to the Colonial Secretary, The Government took no part in the case through this Department.
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the Treasury Solicitor would think it right to ask for the costs incurred on behalf of the respondents.
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The appellant's solicitors, however, declined to withdraw from the appeal, and 'the argument was heard on the 1st December 1868, resulting in the Judicial Committee stating their opinion that the leave to appeal ought to be rescinded, and the appeal dismissed with costs.
Immediately on this judgment being delivered, appellants counsel, Mr. Coleridge, applied to the Judicial Committee to reconsider its order as to the costs. On this Lord Chelmsford remarked, “You have not proceeded even in the regular way, you should have gone to the Secretary of State, and through the Secretary of State have approached this tribunal." Mr Coleridge replied, "Unfortunately we went to the Secretary of State, as appeared in the case, and he told us the only redress was to After some further discussion, Lord Chelmsford added, "come to your Lordships."
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"I confess it appears to me that there being no ground whatever for this appeal, it the orders for leave to appeal should ought to follow the usual course
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"be rescinded, and the appellant should pay the costs."
I forward herewith a print of the judgment, to which is added a transcript of the shorthand writer's notes of the subsequent discussion.
Having thus stated the history of the case, so far as it is within my knowledge, I would now refer to the reasons urged by Mr. McDermott in his present petition to Her Majesty.
Mr. McDermott "does not take the slightest exception to the decision of the "Judicial Committee," but asks for a remission of the costs:
1. On the ground that they are payable to the Crown, and not to the respondents. On this I would observe that if the Crown had not appeared for the judges, Mr. McDermott admits that it would have been "a private matter," and he would then certainly have had to pay the respondents' costs.
His argument must be that, although he might have had to pay the respondents' costa if private persons had been respondents, as the public pays the respondents' costs he ought not to repay the public.
It may be that the Colonial Secretary, in recommending that the respondents' case should be conducted by the Treasury Solicitor and at the public expense, may have con- sidered that it was for the public advantage that the constitution of the Supreme Court as a Court of Record should be supported by the Law Officers of the Crown. This recom- mendation might have been quite independent of the merits of the dispute between Mr. McDermott and the judges of the court, which merits, and whether it was for the public advantage that Mr. McDermott should raise the question, are matters, as it appears to me, more for the consideration of the Colonial Secretary than for the Lords of the Treasury.
Their Lordships will, however, observe that when Mr. McDermott obtained special leave to appeal, with the reservation with which that leave was given, and on condition of depositing 3001. as security for costs in case his appeal should be dismissed, he put himself in the position of any other appellant with respect to his liability to costs, and he prosecuted his appeal with full knowledge that it was liable to be decided, as it was,
"on what may on the point originally reserved, or, as he describes it in his petition,
called technical grounds." Mr. McDermott further submits that "in presenting and prosecuting this appeal he was doing what might have proved beneficial to the public, but could not improve his personal position, because the entire term of his imprisonment would necessarily expire before any decision could be given in the
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On this I would observe, that in prosecuting this appeal it is an assumption on his part to say that a decision in his favour might have benefited the public.
It is not for me to express an opinion on the merits of the disputes existing in the Colony, but it cannot be assumed that a decision in his favour and against the respon- dents would necessarily have proved beneficial to the public.
It is true that a decision in his favour could not have improved his pormonal position, inasmuch as the Judicial Committee could not have given him compensation or remitted the sentence he had already undergone.
But a decision in his favour might have been made use of by him as a ground for an appeal to the Government for compensation, and it would have gratified his personal feelings, which must have been very strong against the judges. Neither ought it to be forgotten that if he had prosecuted his action in the Queen's Bench, that tribunal could "the technical ground," on which the appeal was have determined the legal question,