CO885-(11-13) — Page 445

5434.

SIR,

No. 198.

(WESTERN AUSTRALIA.)

LAW OFFICERS to COLONIAL OFFICE. We were honoured with Mr. Herbert's letter of the 2nd January last, stating

Temple, 4th April 1879. that he was directed to transmit to us a copy of a despatch from the Governor of No. 111, 21 Western Australia, with enclosures respecting two cases recently heard in the Supreme Oct. 1878. Court of that Colony, Miles and Gallop v. Slade, and Miles v. Šlade, and Mr. Herbert Enclosures was to request that we would favour you with our opinion whether the decision of the Chief Justice in the matter was a right one.

In compliance with the request contained in Mr. Herbert's letter we have the

honour to

That in our opinion-

Report

1. His Honour was not right in allowing objections to be taken, as stated in paragraphs 24-27 of the case, to the convictions as returned in obedience to the writs of certiorari, which objections were not taken on the application for the fiats.

2. His Honour was right in telling the jury that Miles and Gallop had a joint cause of action in respect of the seizure of the ships.

"

3. We are unable to say that if the words “wilful and intentional intruder or trespasser were intended to convey no more than the learned Judge afterwards explains them to mean, i.e., voluntary as distinguished from accidental and unin- tentional, they were wrongly applied. We think his direction was right, but if the effect of the use of such words was to lead the jury to suppose that they ought to give damages for a wilfully high-handed and oppressive act of power, we think the result was unfortunate, and if it had occurred in this country would doubtless have enabled the defendant to procure a new trial; but even then it would have been upon the ground of excessive damages, and not upon the ground of misdirection.

4. The notices of action were invalid.

JOHN HOLKER. HARDINGE S. GIFFARD.

We have, &c.,

The Right Hon.

(Signed)

Sir Michael Hicks Beach, Bart., M.P.,

&c.

&c.

&c.

in original.

1

12916-188. 25.-12/84.

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PUBLIC RECORD OFFICE

Reference :-

TTFUCO.

885

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