CO885-(10-11) — Page 569

405.

J

No. 448.

(CAPE OF GOOD HOPE.)

LAW OFFICERS to COLONIAL OFFICE.

1866. Mr. Rothery's Report.

Lincoln's Inn, January 12, 1867. MY LORD,

We are honoured with your Lordship's commands, signified in Mr. Elliot's letter of the 8th December 1866, stating that he was directed by your Lordship to transmit to us a copy of a correspondence which has arisen out of a claim preferred No. 37,9 April by Mr. Bell, one of the puisne judges at the Cape of Good Hope, for certain fees belonging to the office of judge of the Vice-Admiralty Court in that Colony.

Mr. Elliot was also pleased to state that Mr. Bell appears to have acted as judge of Bob the Vice-Admiralty Court both before and after the passing of the Vice-Admiralty 1866. Courts Act of 1863, and claims certain fees in that capacity, which the Governor of Mr. Rothery's the Colony did not consider himself at liberty to pay to him.

That the matter being referred to this country, Mr. Bell was informed by direction of the Secretary of State that he would be allowed to receive fees for services per- formed after the passing of that Act, but not for services performed previously.

That the ground of that decision was that before the passing of that Act, Mr. Bell's only authority for acting as Admiralty judge was conveyed by a Patent issued to Sir John Wylde, formerly Chief Justice of the Cape, which, in accordance with the law of the Colony, expressly prohibited the Vice Admiralty Judge from taking any fee or gratuity whatever, for any business done in this court, but that this prohibition was repealed by the Imperial Act of 1863.

That this view of the case was communicated to Mr. Bell, and in a letter dated the 1st October last he states his reasons for dissenting from it.

That the Registrar of the High Court of Admiralty has furnished two reports on this subject, which were enclosed and the latest of which is in reply to Mr. Bell's last communication.

That as Mr. Bell has expressed his readiness to rest satisfied with the decision of the Law Officers of the Crown in this country, your Lordship requested that we would favour you with our opinion as to the amount of fees to which he is entitled.

In obedience to your Lordship's commands we have taken this matter into con- sideration, and have the honour to

Report

That we are of opinion that fees in the Vice-Admiralty Court of the Cape of Good Hope, which have accrued since the " Vice Admiralty Courts Act, 1863," are legally payable to the judge of the court.

The Attorney General and the Solicitor General are of opinion that fees which accrued since the Act of the 2 & 3 Will. 4. c. 51., and between the time of the passing of that Act and the passing of the Vice-Admiralty Courts Act, 1863, are not payable to the judge of the court.

The Queen's Advocate inclines to the opinion that the Act of Will. 4. repealed by implication the clause in the charter of justice preventing the judges from taking an office of profit, and any clause in the judges' commission which was inconsistent with their taking the fees of judge in the Vice-Admiralty Court, and that since that statute the fees provided for the judge of the court by the regulations passed by Her Majesty in Council were receivable by the judge.

We have, &c.

(Signed)

The Right Hon. the Earl of Carnarvon,

&c.

&c.

&c.

JOHN ROLT. JOHN B. KARSLAKE. ROBERT PHILLIMORE.

10 October

Report.

o 14978-97.

25.-5/86.

PUBLIC RECORD OFFICE

Reference :-

mimmin

TILTIC.O. 885

11 PUBLIC RECORD OFFICE, LONDON

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