2-062 (Text)

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Whereas there is at present no provision by law for the continuance in the said newly constituted court of any civil or criminal proceeding which was depending in the said Supreme Court so established by His late Majesty's said Letters Patent at the time of the issue of His present Majesty's said Letters Patent - And Whereas it is expedient that the said Supreme Court so established by His present Majesty's said Letters Patent should have power and authority to continue all and every such civil and criminal proceedings and it is expedient also to make further provision for the effectual administration of justice in the said Supreme Court in the manner hereinafter mentioned - Be it therefore enacted by His Excellency Colonel George Arthur Lieutenant-Governor of the Island of Van Diemen's Land and its dependencies with the advice of the Legislative (Council) that no sentence decree order rule or act of or by the said Supreme Court so established under His late Majesty's said Letters Patent or of or by the Chief Justice thereof shall be deemed by reason of the issue of His present Majesty's said Letters Patent to have been avoided but shall be deemed to have been and to remain in as full force and virtue as if the said last mentioned Letters Patent had not been issued nor shall any action suit cause or civil proceeding or any prosecution or criminal proceeding which was depending in the said Supreme Court so instituted by His late Majesty's said Letters Patent at the time of the issue of His present Majesty's said Letters Patent be deemed by such issue to have been abated discontinued or annulled but the same shall be and be deemed to be respectively subsisting and depending in the said Supreme Court so established by His present Majesty's said Letters Patent to all intents and purposes the same as if they had been respectively commenced brought presented prosecuted or recorded in the said last-mentioned court - And the said last-mentioned court shall proceed accordingly in all such actions suits causes prosecutions and proceedings civil and criminal to judgment or sentence and execution and to make such rules and orders respecting the same as the said Supreme Court so established under His late Majesty's said Letters Patent might have done had not the said Letters Patent of His present Majesty been in fact issued or as the said Supreme Court so established under His present Majesty's said Letters Patent is empowered to make in any cause suit or civil proceeding or any prosecution or criminal proceeding respectively commenced in or before the said last-mentioned Supreme Court and so that all actions process and records of the one court shall be continued in and enforced equally by the other court - And the respective judges thereof and all powers and authorities vested in the said court so established by His late Majesty or in the Chief Justice thereof shall be equally vested in and exercised by the said court so constituted by His present Majesty and the judges thereof respectively - And all Sheriffs Gaolers and other officers and persons whatsoever shall be and they are hereby indemnified for all acts done by them respectively under or in pursuance or by colour of any writ or process whatsoever civil or criminal of or from the said Supreme Court constituted by His said late Majesty or the Chief Justice thereof as fully as they respectively would have been in case the said Letters Patent of His present Majesty had never been issued. 2. And Whereas by His present Majesty's said Letters Patent it is provided that there shall be and belong to the said Supreme Court thereby established the following amongst other officers (that is to say) a Registrar and another officer to be called the Master and Keeper of Records - And it is thereby directed that the persons to be appointed to the said offices shall be so appointed by His Majesty His Heirs and Successors by Warrant under His or Their Royal Sign Manual - And Whereas it is by the said last-mentioned Letters Patent also provided that the Governor or Acting Governor shall yearly on the first Monday of the month of January in each year by Warrant under his Hand and Seal nominate and appoint some person to act as and be the Sheriff of Van Diemen's Land and its dependencies for the year ensuing - And Whereas no such Warrants under His Majesty's Royal Sign Manual for the appointment of a Registrar or Master and Keeper of Records have as yet arrived within this island - Be it Therefore (to prevent delays in the administration of justice in the meantime) Enacted that it shall be lawful for the Governor or Lieutenant-Governor for the time being from time to time by Warrant under his Hand and Seal to appoint any person or persons to be respectively the Registrar and Master and Keeper of Records of the said Supreme Court so established by His present Majesty's said Letters Patent - And the persons SO appointed shall respectively be the Registrar and Master and Keeper of Records respectively of the same Supreme Court until the publication within this colony of any such Warrant or Warrants under His Majesty's Royal Sign Manual reappointing them or appointing some other person or persons to the said offices - And all the records papers and documents of and belonging to or received under the authority of the said Supreme Court so instituted by His late Majesty's said Letters Patent shall from and after the passing of this Act remain and continue in the custody of the officers of the said Supreme Court so established under His present Majesty's said Letters Patent duly having the custody of the same respectively and the said records shall be deemed and taken to be equally the records of the said last-mentioned court - And it shall be lawful for the Governor or Lieutenant-Governor for the time being by Warrant under his Hand and Seal to appoint some person to be the Sheriff of this island and the person so appointed shall (until a new or other appointment in that behalf shall be made under His present Majesty's said Letters Patent) be and continue to be such Sheriff - And the several persons respectively appointed under His late Majesty'aid Letters Patent to be the Registrar and Master of the said Supreme Court so instituted by His late Majesty's said Letters Patent and the person nominated and appointed under His late Majesty's said Letters Patent and now acting as Sheriff of this island and his several Deputies and officers shall be and they are hereby indemnified for all acts done by them under or by colour of their offices since the issue of the said last-mentioned Letters Patent and before the publication of this Act in the Hobart Town Gazette as fully as they would have been if the said last-mentioned Letters Patent had not been issued.  
3. And Whereas by the said Act passed in the ninth year of the reign of His said late Majesty it is provided that in case of the absence resignation or death of any or either of the Judges of the said Supreme Court so established by His present Majesty's said Letters Patent or in case of any such disease or infirmity as shall render any such judge incapable of discharging the duties of his office it shall be lawful for the Governor to appoint some fit and proper person to act in the place and stead of any judge so being absent resigning dying or becoming incapable until such judge shall return to the execution of his office or until a successor shall be appointed by His Majesty as the case may require - And Whereas Alexander MacDuff Baxter Esquire the person appointed by
His present Majesty's said Letters Patent to be the first puisne judge of the said newly constituted Supreme Court has not assumed the execution of his office nor has yet arrived within this island by reason whereof and of the non-arrival of such Warrants as aforesaid the said Supreme Court instituted by the said last-mentioned Letters Patent hath been hitherto since the arrival of the same Letters Patent in the colony unable to exercise the several jurisdictions given to and vested in it by the said Act of Parliament of the ninth year of the reign of His said late Majesty and by the said last-mentioned Letters Patent - And Whereas there is no reasonable expectation of the arrival of the said Alexander MacDuff Baxter Esquire within any certain short period of time and the most serious injury to His Majesty's government and subjects in this colony is to be apprehended from any further delay in the exercise by the said last-mentioned Supreme Court of its said several jurisdictions - Be it Therefore Enacted that it shall be lawful for the Governor or Lieutenant-Governor for the time being to appoint some fit and proper person to act in the place and stead of the said Alexander MacDuff Baxter Esquire so being absent until the said Alexander MacDuff Baxter Esquire shall assume the execution of his office or in case the said Alexander MacDuff Baxter Esquire shall not at any time come to this island to assume the execution of his said office until a successor shall be appointed by His Majesty as the case may require and in the meantime until the said Alexander MacDuff Baxter Esquire shall so assume the execution of his office or until a successor shall be appointed by His Majesty and shall actually enter on the discharge of his office in the said court as the case may be the person to be so appointed by the Governor or Lieutenant-Governor for the time being shall to all intents and purposes be and be deemed and taken to be the puisne judge of the said Supreme Court - Provided that in case of the absence resignation or death of any judge so appointed by the Governor or Lieutenant-Governor for the time being or in case of any such disease or infirmity as shall render any such judge incapable of discharging the duties of his office it shall be lawful for the Governor or Lieutenant-Governor for the time being to appoint some fit and proper person to act in the place and stead of any such judge so being absent resigning dying or becoming incapable until such judge shall return to the execution of his office or until the said Alexander MacDuff Baxter Esquire shall assume the execution of his office or until a successor shall be appointed by His Majesty as the case may be and in the meantime until such judge shall actually return to the execution of his office or the said Alexander MacDuff Baxter Esquire shall so assume the execution of his office or a successor shall be appointed and shall actually enter on the discharge of his office the judge so to be appointed by such Governor or Lieutenant-Governor for the time being shall to all intents and purposes be and be deemed and taken to be a Judge of the said Supreme Court. 
4. And Whereas it is necessary that the powers and authorities of the court and the two judges thereof until the said Alexander MacDuff Baxter Esquire shall assume the execution of his office or until the Governor or Lieutenant-Governor shall under the authority of this Act or of the said last-mentioned Act of Parliament appoint some person in the place and stead of the said Alexander MacDuff Baxter Esquire or of any judge absent resigning dying or becoming incapable or until the said Alexander MacDuff Baxter shall assume the execution of his office or until any such judge shall return to the execution of his office as the case may be or until a successor shall be appointed by His Majesty His Heirs or Successors as the case may require should be vested in and exercised by the single remaining judge - Be it Therefore Enacted that until the said Alexander MacDuff Baxter Esquire shall enter upon the execution of his office or until any such judge so appointed by the Lieutenant-Governor as aforesaid under the authority of this Act shall assume the execution of his office or in case of the death or absence of any judge so to be appointed under the authority of this Act or of the said last-mentioned Act of Parliament or any such disease or infirmity as shall render any such judge incapable of discharging the duties of his office and until the Governor or Lieutenant-Governor shall appoint some person in the place of the judge so dying resigning absent or incapable or until the judge so absent or incapable shall actually return to the execution of his office or until the said Alexander MacDuff Baxter Esquire shall assume the execution of his office (as the case may he) or until a successor shall be appointed by His Majesty (as the case may require) the powers and authority of the court and the two judges thereof shall be vested in and exercised by the single remaining judge and it shall be lawful for such judge to sit and act alone and do every act and thing in as full and ample a manner as both the said judges if assembled and sitting at and in the same court could or lawfully might do. 
5. And Whereas by the said Act passed in the ninth year of the reign of His late Majesty it is provided that all issues of fact to be tried on any information or in any action at law in the Supreme Court shall be tried by one or more of the judges in the manner by the said Act particularly provided - And Whereas in order to facilitate the dispatch of business in the said court so constituted by His present Majesty's said Letters Patent it is expedient to provide that both judges may try all such issues separately notwithstanding the engagement of the other judge on other judicial duties at the same time - Be it Therefore Enacted that it shall be lawful for either of the said judges to sit and act upon the trial of all or any such issues of fact notwithstanding that the other judge shall be at the same time sitting and acting upon the trial of other issues of fact elsewhere so as that there may be distinct sittings by and before each judge in civil as well as in criminal cases either at the same place or at different places within this island or its dependencies at one and the same time.
GEORGE ARTHUR.
Passed the Legislative Council this fifth day of September, one thousand eight hundred and thirty-one,
John Montagu, Clerk of the Council