22-APR-1991 17:37
CONSTITUTIONAL AFFAIRS BR
852 840 1976
P.08
CALO
27
,
The doctrine is perhaps viewed as the child of necessity,
The earliest example of the doctrine appears to be the case of the Abbot of Fountains in 14 3 1 (Y.B. 9 H.VI 72 PL.3) That case turned on technical pleading points. The Abbot, for the time being, was sued on an obligation under the seal of the Abbey and made by a certain person as Abbot. The Aobot was a corporation sole and one Abbot could bind his sUCCOBBOIS, The defendant's answer to the suit was that the person who placed the seal upon the obligation was improperly inducted and occupied the office
usurper. Under the rule of pleading, a plea in
•
confession and avoidance "should" give colour". Colour meant an apparent or prima facie right. Without going into any more details of the сабе, it is sufficient to conclude that the case is the origin of the limitation to the
doctrine,
namely that a de facto officer should have a
colouraple title of authorit/
•
I propose to refer to three more recent cases from New Zealana, Australia and England all of which considered the doctrine ana all of which made reference to a leading American authority. I shall then consider the cases that MI. Кеале relies upon to show that no such theory exists or does not exist in the context of criminal cases.
In Re Aldridge (1893) 15 NZLR -361, the applicant had been sentenced to a term of imprisonment by a judge who had been improperly appointed. There had been. statutory provision for four Supreme Court judges, and this gentleman was the fifth. After the time for appealing had expired, the prisoner commenced proceedings for habeas corpus. The application was dismissed, and in his judgment, Richmond, J. dealt fully with this doctrine and cited both English and American authorities. It is clear from the judgment that the judge in question continued in office until quo warranto proceedings were commenced against him, and such proceedings ended in the Privy Council which affirmed the invalidity of his appointment. (See Buckley .v. Edwards (1392) A.C. 387)
Richmond, J. held that
"The prisoner having been tried at a sitting of the Supreme Court hela by one who was a judye de facto, his conviction is lawful and irreversiole
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The learned judge recognised the historical research which hau gone into the juuyment of Butler, of the Supreme Court of Connecticut in State V. Carroli
C.J.
3
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