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PUBLIC RECORD OFFICE
Reference :-
TTIC.O.8
885
13 PUBLIC RECORD OFFICE, LONDON
ALLY WITHOUT PERMISSION OF THE BE REPRODUCED PHOTOGRAPHIC- COPYRIGHT PHOTOGRAPH-NOT TO
The Attor-
2
That Sir Robert Herbert was to request that we would take the papers which were transmitted with his letter into our consideration, and that we would favour your Lordship with our opinion :-
1. Whether the doubts expressed by Sir Anthony Musgrave in his despatch of 20th October 1887, as to the legality of the proposal to require the Administrator to receive instructions from the Governor of Queensland are well founded.
2. Whether, having regard to the terms of the British Settlements Act, 1887, and of the British New Guinea (Queensland) Act of 1887, the several draft instru- ments transmitted with Sir Robert Herbert's letter of the 17th April 1888 were proper and sufficient for the purposes for which they were respectively
intended.
That Sir Robert Herbert was also to ask that we would assist your Lordship with our advice upon any further points that might suggest themselves to us upon the perusal of the papers.
In obedience to your Lordship's commands I have the honour to-
Report
That the question raised in these papers is one of considerable difficulty. If the effect ney General's of the Letters Patent, Commission and Instructions, had been that Her Majesty had opinion.
empowered the Governor of Queensland or the Governor and Executive Council of Queensland, to control the action of the Administrator of New Guinea, they would in my opinion be illegal as being contrary to the provisions of section 3 of the British Settlements Act, 1887.
The Solicitor General's
opinion.
But in my opinion the fair result of the Letters Patent and the instructions to the Administrator is that he shall apply to the Governor of Queensland for guidance, but full powers are reserved to him to act in conjunction with two or more other persons. See Articles 9 and 10 of the Letters Patent.
I am of opinion that the draft Letters Patent submitted to us are proper and sufficient, but would point out that the provision as to a Civil List is, by the 8th Article of the proposals to be embodied in the Letters Patent, whereas in the documents before us it appears in my judgment inappropriately in the Order in Council.
I am of opinion that instructions to the Governor of Queensland may be given by despatch instead of by standing instructions.
I have, &c.,
RICHARD E. WEBSTER.
In obedience to your Lordship's commands I have the honour to-
Report
That I regret to be unable to agree with the Attorney General in the construction he places upon the documents submitted to us.
In my opinion the result of those documents is that the Governor of Queensland is empowered to control the action of the Administrator of New Guinea, and this cannot be done under the provisions of the Act of 1887. In all other respects I agree with the Attorney General's opinion.
The Right Hon. Lord Knutsford, &c.
&c.
&c.
I have, &c.,
EDWARD CLARKE.
11,707.
No. 119A.
(MAURITIUS.)
LAW OFFICERS to FOREIGN OFFICE.
MY LORD,
We were honoured with your Lordship's commands, signified in Sir T. V. Lister's
Royal Courts of Justice, May 19, 1888. letter of the 4th ultimo, stating that he was directed by your Lordship to transmit to us the papers noted in the accompanying list with reference to certain questions which had arisen in connexion with an action brought in the Supreme Court of the Mauritius against a M. Frouville d'Etienne by the New Oriental Bank Corporation.
That the Judgment of the Supreme Court in the action in question was pronounced on the 9th August 1886, and was defendant, who was in Madagascar at the time, having made default of appearance at in favour of the plaintiffs; the the trial.
That, on the 2nd March 1887, a motion was made to the Supreme Court by the Counsel for the plaintiffs for an Order, addressed not only to all the competent officials of that Court in the Mauritius, but also "to all competent officers and proper persons "to be appointed by the British Consul at Tamatave, commanding them forthwith to "make and levy by distress and sale of such property of the defendant, Frouville
d'Etienne,
then residing in Madagascar, having his place of business “at Tamatave, in Madagascar, as might be levied upon, by the existing law of the Mauritius wheresnever the same might be found within the jurisdictum of that Court, and “ amongst other places at Tamatave, the sum of rupees 6,103: 84," being the amount of the said Judgment, interest, and costs,
16
44
44
That, thereupon, the Supreme Court held "that, as the cause of action did not "arise at Madagascar, the more regular course was for the plaintiff who obtained the Judgment to apply to the British Consul in Madagascar, in order that he should issue a writ of execution after the Judgment of the Court had been laid before him." That it would be seen from Consul Haggard's despatch, No. 136, of October 1887, that various applications had been made to him for the purpose of inducing him to execute the Judgment of the Mauritius Court; but that, on the ground that no precedent existed for such a proceeding, as well as for other reasons, he declined to serve the writ.
That it was presumed that, under ordinary circumstances, the usual and regular method of executing the Judgment of the Supreme Court of the Mauritius upon a defendant's property in Madagascar would be by bringing a further action uppn such Judgment, when obtained, in the British Consular Court for Madagascar. (See Law Officers' Report, Morocco, No. 45 of 1886.)
That, in the present case, however, the Judgment of the Supreme Court was given in default of the appearance of the defendant, and that the latter was, moreover, not at the present time within the jurisdiction of the Consular Court.
That a copy of the Madagascar Order in Council of the 4th February 1869, providing for the exercise of Her Majesty's Consular jurisdiction in that island, was enclosed, together with a copy of the Rules and Regulations framed thereunder of the 1st July 1869.
That there appeared, however, to be nothing in that Order in Council, or in those Rules and Regulations, empowering the Supreme Court of the Mauritius to make, or enabling the Consular Court of Madagascar to execute, when made, such an Order as that now under review, unless with reference to a matter which had come before them on appeal from a decision or Judgment of the Consular Court, and in which the Judgment of the Supreme Court became for that purpose the substituted Judgment of the Consular Court itself.
That Sir T. V. Lister was to request that we would take the papers transmitted with his letter into our consideration, and that we would favour your Lordship with our opinion as to-
(1.) Whether the Supreme Court of the Mauritius had, with regard to actions originating in that Court, jurisdiction to order Her Majesty's Consuls in Madagascar to execute its Judgments.
(2.) Whether, assuming an action to be brought in the British Consular Court in Madagascar to enforce a previous Judgment of the Supreme Court of the Mauritius,
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52950.-29. 25.-6/88.