Colonial Despatches

Mr Elliot
There is nothing on record either for or against this claim to fees advanced by the Chief Justice—but the Statements of the Col. Secretary & the Attorney General now supplied by the Governor shew that the Salaries of the Chief Justice & Officers of the Court were regulated on the understanding that all fees were to be paid into the Treasury. I annex the Acts referred to & the Resolutions of the Assembly agreeing to the Salary.

Are the rules on the construction of wh the controversy terms [stems] in the Office?

Sir F. Rogers
The Rules of 1857 giving the Chief Justice a portion of the fees of Court will be found marked in the accompanying Vol: with your Report upon them, but I can find no record of the Rules of 1860 the 3rd Clause of wh: is quoted by the local Attorney General. I annex however the correspondence on the claim (see 1329) recently made by the Chief Justice to a portion of the fees in the Court of Bankruptcy, to which Mr Needham refers, (See last enclosure of present Desp) and with which I ought to have supplied you in the first instance as it appears to decide the question now raised.

It is unfortunate that the rules of 1860 are not in this Office. However the case appears to me pretty clear.

The rules of 1857 give the C.J. a claim to a share of the fees of the Summary Court of Civil Justice.

The rules of 1860 are alleged by the Atty General to have the effect and seem to have been intended to abolish the right of the C.J. to share in those fees.

In fact the C.J. did cease to receive those fees & commenced receiving a Salary instead.

In 1864 while this state of things existed, and on the assumption that the C.J. was not entitled to the fees of wh he had intended to deprive himself by the Rules of 1860 & wh he had actually ceased to receive, an Act was passed giving him a Salary of 1200£ and Mr Needham accepted the office at this Salary.

Now he claims, or rather detains from the Fees the proportion assigned to the C.J. by the rules of 1857.

That in equity the C.J. has no right to these fees there can I think be no doubt whatever.

Nor do I see any reason to doubt that the Rules of 1860 repealed the gift of fees to the C.J.

I should write that having reference to the fact that the rules of 1860 as quoted by the Atty Gen. have every appearance of having been designed to put an end to the receipt of these fees by the C.J.—that from the passing of those rules the then C.J. ceased to receive these fees and after these fees are so abandoned by the C.J., the salary of that functionary was fixed at 1200£ a year and so accepted by Mr Needham, H.G. can have no doubt that Mr N.'s claim is witht any foundation in equity. That it appears to H.G. equally witht foundation in strict law, but that on this point he is unable to speak with the same confidence as he has before him no copy of the Rules of 1860, and as these Rules do not seem to have been brought under the notice of Mr Needham who may have some objection to allege to their validity or their legal application to his rights.

Sir F. Rogers
Yes, but shd not a recommendation be added that legislation shd take place to remove any technical doubts which may exist?

Recommend that if contrary to H.G. expectation it shd be found that the rules of 1860 have not the legal effect of cancelling those of 1857 as regards the payment of fees to the C.J. an act shd be at once passed cancelling prospectively the C.J.'s right to those fees.

Draft at once.

Sir F. Rogers
I concur in thinking that the 13th section of 29 Vict. No 3 only keeps alive existing rules & does not re-enact repealed rules.

But the question is whether at Law the rules of 6 April 1857 under which Mr Needham claims the fees have been repealed.

I find that the rules of 1860 are in the book sent herewith and it seems to me that by some accident those rules only apply to the fees of the Superior Court which were settled by the Schedule (unfortunately not attached) to the rules of February 1857.

The rules of 1860 speak it is true of the "preceding orders" but there had been no precedent mention of the Order of April 1857.

I am of opinion therefore that the rules of April/57 have not been in fact repealed, & are in existence.

But equitably Mr Needham has really no claim at all. The fees were not paid to the Judge of the Supreme Court after the passing of the rules in 1860 & it is morally certain therefore that Mr Needham's Salary as Chief Justice was based upon the assumption that he would receive no fees from any source.

I submit a draft despatch to be in place of the one proposed to be sent.

Alex Watson, Treasurer, to Richard Woods, Acting Registrar of the Supreme Court of Vancouver Island, 26 October 1866, requesting information regarding the collection of court fees.

Woods to Watson, 26 October 1866, stating his willingness to begin lodging court fees upon receipt of appropriate directions.

Watson to Colonial Secretary, 26 October 1866, referring the letter from Woods for instructions.

W.A.G. Young, Colonial Secretary, to Auditor, 30 October 1866, asking whether the acting registrar had forwarded his monthly claim.

Henry Wakeford, Auditor, to Young, 1 November 1866, advising the last monthly claim received was for July 1866.

Memorandum, W.A.G. Young, 14 November 1866, holding the matter over for the attention of the governor.

Watson to Acting Colonial Secretary, 14 November 1866, advising that the fees of the Supreme Court had been paid into the treasury, "subject to certain deductions."

Young to Watson, 15 November 1866, asking for particulars regarding the deductions.

Watson to Young, no date, reporting the nature of the deductions.

Young to Attorney General, 5 December 1866, asking for a report respecting fees paid to the chief justice in addition to his salary.

T.L. Wood, Acting Attorney General, to Young, 6 December 1866, opposing Needham's claim to fees, with explanation.

Needham to Acting Colonial Secretary, 27 December 1866, explaining the circumstances under which he felt entitled to deduct the fees.

Minute, W.A.G. Young, 28 December 1866, commenting on Needham's letter as noted above, with explanation of facts refuting the claim.

Draft reply, Buckingham to Seymour, no number, May 1867, marked "Cancelled."