Supreme Court Act 1837 (SA)

ACT for the Establishment of a Court to he called the Supreme

Cozcrt of the Province o f Xouth A,ustralin.

E IT ENACTED by His Excellency ~ I I N HINDMARSH Knight of

the Royal Hanorcrian Ciuelphic Order Capt,;lin in the Royal

y Governor a i d Commander-in-Chief of His Majesty's Province

outh Australia and its L)ependcncies by and with the advice and

ent of the Legislative Council thereof that there shall Fe and Excellency thi Governor by and with thc like advice doth erect te constitute and establish a Court of Judicature to bc called the reme Court of the Province of South Australia.

r w r of the Provi~~ce for the time being by and with the advice m

. That such Court shall be holden before a Judge of the said 1:t to be called the Judge of thc Supreme Court of the Province outh Australia (Sir Jolrn Williarn Jeffcott Knight b6i.ing ap-

ltcd by 13% Majesty the Judge of the said Province for the pur-

of holding and presiding in the said Court) and that from time

me hereafter upon death racancy or resignat'ion the Judge of the

Supreme Court shall he appointed by His Majesty His Heirs Successors save as hereinafter mentioned and that such Court l also have all such ministerial and other officers wshall be essary for the administration of Justicc in the said Court mid for

(h execution of the judgments dccrees orders and processes

That the numbers names and duties of such ministerial and

officers shall from time to time be fixed and defined by the

of the Supreme Court with the consent of His Excellency the

of the Council thereof and that theLpPointment and removal of such officers in case of misconduct sh41 be vested in the Judge for the time being of the Supreme Court.

IV. That the Judge of the Snpreme Court shall receive such reasonable salary as the Lords of His Xajesty's Treasury for the time being shall from time to time order and direct and that the salaries of the ministcrial and othcr officcrs aforcsaid shall from time to time

be fixed by the Judge of the Supreme Court with the consent of the

Governor for the time being and the Council of the Province and that such salaries shall be in lieu of all fees or other emoluments whatsoever it being the intent of this Act that the Judge of the Supreme Court and the ministerial and other officers appointed by virtue of the same shall derive no emolument from any fees which may be made payable under the authority of this Act but that s~ich

fees shall and they are hereby directed to be accounted for and paid by the person receiving the same to the Treasurer of this Province for the general purposes thereof on or before the 31st day of March' the 30th day of June the 30th day of September and the 31st day of December in every year.

V. That the Judge of the Supreme Court shall from time to t

: vided that in case of the absence resignation or death of such J u or of such disease or infirmity as shall render any such Judge i pable of discharging the duties of his office it shall be lawful for Governor for the time being of thc said Province 1)y and with advice of the Council of the said Province to appoint sorne fit proper person to act in the stead of s ~ x h Judge so being absent signing dying or becoming incapable until such Judge shall ret to the execution of his ofice or until a Successor shall be appoi~ by His Majesty as the case may require and in the meantime person so appointed as last aforcsaicl shall be deemed and taken to

as occasion may require be removed by His Majesty IIis Ileirs per person in the place and stead of the Judge so removed

Successors and by no other authority and that IIis Majesty IIi

and shall be acting Judge of the said Supreme Court. (4

VI. That the said Supreme Court shall have ancl use a seal bear: ing a dcvicc or imprcssion of the Royal Arms within m cxcrgue 0:': label surrounding the same with the following inscription: " Supremr Court South Australia" and that the said seal shall be kept in th custody of the Judge of the Supreme Court for the time being.

VTI. That the said Court shall be a Court of Record and sh have cognizance of all pleas civil criminal and mixed and jurisd tion in all cases whatsoever as fully and amply in this Province an its Dependencies as His Majesty's Courts of King's Bench Comrno Pleas and Exchcqucr at Wcstnlinster or cithcr of thwn lit^ fld have or hath in England: And the said Court shall also be ;it i times a Court of Oyer and Terminer and Gaol Delivery in and f

tlze said. Province and its Dependencies and the said Judge so ap- pinted or hereafter to be appointed as ilforesaid shall have and exer- cise such and tllr like jul-isdiction and authority in this Province ant1 its Dependencies as the Judges of the said Col~rts of King's Bench Common Heas and l.:schcqner or any of them lawfully have and exercise and as sllall be necessary for carrying into effect the several j~~risdiictions powers :and alltlwriti~s cominitt~d to tlie said Supreme C'ourt.

VIII. That the said Supreme Court shall be a. Court of Equity in this Province and its I1)epcldencics and s l d havc power and authoritp to administer jlxstice anti to do exercisc and pcrfimn all such acts matters and things necessary for thc illre exccntion of such equitable jurisdiction as thc Lord TIigll Chancellor of Grcat Britain can or lawfully may within the I k d m of Engltlnd and all such acts matters and things as lawfully c m or may bc done by the said Lord High Chancellor within the ltcttlm of England in the exercise of the jurisdiction to him belonging.

IX. That the said Supreme Court shall be a Court of Ecclesiastical Jurisdiction with full pomcr to grant probates undcr the scal of the said Court of the last wills and testaments of all or any of the inhabitants of this Province a rd its al)ependencies and of all other pcrsons who shall dic and leave pcrsonal cffwts withill this Province

or its Depenthcies and to commit lctters of aciministrntion under

the scal of the said Court of the goocls chattels crcdits and all othcr cffects whatsoever of the persons aforesaid who shall die intestate or who s l d l not havc named an Exccutor resident within the said '

Province or its Dependencies or where the Executor being duly cited sllall not appear and sue forth mch probate annexing the will to the said lctters of administration when such pcrson shall havc left a will without naming any E x r c ~ ~ t o r or any person f'or Xxecutor who shall

then be alir-c and rcsi&nt within the said Provincc and its Uepen- ticneics and who b i n g duly cited thereunto will appear and sue forth a lwobatc thereof and to sequester the goocls ancl chattels credits and

other cficts wlmtsorwer of such pcrsoni SO dying in cases allowed by law as the samr i s and may bc now u s r d in thc 1)ioccse of London

to demand require takc hear examine an(l allow and if occasion rccluirc to dinallow and reject the accounts of thcrn in snch manner and form as is now used or may be used in the said Diocese of London

to do all othor things wilkttsoever needful or necessary in that

b ~ l d f: Provided always and ille said Court is hereby authorized in

h l l ~ h cases as aforesaid where letters of administration shall be com-

mitted with the mill anncxed for want of an Xxccutor applying in due time to sue forth tllc yrobatc to reserve in such letters of

administration full powcr and anthority to revoke the same and tu grarlt probate of the said will to such Executor whenever he shall duly appear and sue forth the same.

X. That such letters of administration sllall be gan ted to any olle

1 i Or more of the lawful next of kin of such persona so dying as afore-

, said

said and being thcn resident wi tan the jnrixliction of the said C01 11.t and being of the aFe of twenty-o?e y a r i and in case no such pcrson shall then be residing within the jurisdiction of the said C'ourt or being duly cited shall not appent a t d pray thc same t h m that the same shall be granted to the hrgistrnr or ('lvi-k or somc othor ministerial offirer of the saicl Court or to such perSon or persons whcthcr creditor or creditors or not of thci decenscd person ns the

('ourt shall see fit. Yrovideci always that probate of wills and l c t t c l~

of administration to be granted bp the said ['ourt shdl he limitcd to such money goods chattcls and effects as thc tlrrrawtl Iwrsoli shall be entitled to within this Yrovince and its ILkpenrlexcics.

XI. That every person to ~ ~ h o n i such letters of admiuistratioii

shall be committed shall bp himself with one or more sufEcicmt ancl able surctics bcfore tht. granting thereof give and rni er into snfiricn t security by honrl to such ministerial officc~ of the Supreme Court a s

thc ~ u d ~ e of the said Court shall for that purpose appoint for the

payment of a competent sum of money 1-e~pcct being had in the sum

therein to be contnincd oncl in the & l i t y of t i i r susrtir>s to tl:c reloc of the estate and that such bond shall be deposited in the said Court anlong the rero1.d~ tlwreaf and them wfcly kcyt and that a copy thereof shall also be rt\col-cled among thr proceedings of the said ('ourt and that the condition of the sald bond shall be for the niaking and exhibiting a truc and j u s t accomt and administration of the chattels and credits of the dcceased to thc satisfaction of the said Court and according to the directions thcreof and that the form of the coxdition of the said bond shall be fixed by thc Master or Xegistrar of the said Court or such other ministerial officer of the saicl Court as the Judge of the Supreme Court ~ 1 ~ ~ 1 1 for that PU~.I)OSC appoint and that in case it shall be mcccssary to put the said bond ill suit for the sakc of obtaining the effect thereof for the benefit of such person or persons as shall appear to the said Court to be interested therein such person or pcrsoas from time to time g i ~. i ~ l g security to the satisfaction of the said Judge of the Supreme Court for paying all such moneys and costs as shall arisc from the said suit or arry part thereof sur.11 pwson or persons shall hv order of' the said Court be alloned to sue the same in the name ;I the party to whom the said	bond sliall have been cntcretl into and the said Court is hcschy	cmpowercd to ordcr thnt thc enid bond sliall 1.c pxt in snit in tlli
name of the said party accordingly.
XII. That the said Court shall aAix certain p~r iods mhcn all pcrsons to whom probate of wills and letters of adirlinistration shall t)c grantcd by the said Court shall from timc to time until the effcctb of the deccnscd person shall be fully aclrrlirristered pass the l~ccountk relating tl~evcto before the said Court and in case the effects of the
tlcccased shall not bc fully atlrninisterecl within the tirnca fpr tllat p rpose to be fixcd by the said Court then or at any earlier timc if thc said Court shall see fit so to direct the person or persons to whom such prohate or administration shall he granted shall pay deposit and]
clispose of the balance of money belonging to the estate of the' I

deceased

I l

deceased then in his her or thcir hands and also all other bonds bills

,ccurities chattels and effects belonging to the cstatc of the deceased ill rnanner and 1111to such persons as thc haid Court &all clircct for Fafv custody ancl the oaid Court shall from time to tilrle nlahc

order as shall bc just for thc clue adnlinistiation of snch assets

11~1 for the paynwnt or remittance thrreof or any part thcrcof as

casioll shall require to or for the use of any person or persons ether rcsiclcnt or not resident in illis Province and its Dppendprrcics 0 may lw csititlrd thcwto or any part thereof as creditors Qa-

ces or next of kin or by any othcr right or titlc whatsue~er.

XIIT. That it sllall be lawful for the said Judge of the said

upreme Court to allow to any Xsecutor or Administrator of the

'p& of any clcccasd person (exccpt as lwrcia mentioned) such

n~lnissioil or per centagc ont of thcir assets as shall be just and asondde for their pains and trouble therein: Provided always

at no nllo~~tancc wllatevcr shall be made for the pains and trouble

f any Esecutor or Aclrninistrator who shall ncglcct to pass his ac- ounts at such time or to disposc: of any money goods chattels or ccurities with which ho ahnll bc ehar,&xible in ssorh manner as in ursuance of any general or special rulo or order of the said C'ourt

hall he requisite and morcowr ewrp such Exccutor or Administrator o neglecting to pass his ncconnts or to disposc of any such money

oods chattels or securities with which he shall be chargeable shall

c cliorgetl with interest at the rate then current within this Pro- nrc and its Dqwnclcncics for such sun1 and sums of money as from

me to time shall have been in his hniscls whether IN shall or shall

~t make interest thereof.

p	1
5 SW. That the mid Snpremr! C'ourt shall have power to appoint 'nardians and kerpers of infants and thcir estates according to the

dcr and course observed in that part of the Vnitecl I~ingclom

114 Ellgland anrl also gilardiarls and keepers of the persons and

tates of natural fbds m d of s~lch as are or shall be clrpived of eir understanding or reason by the act of Gocl so as to be unable gnvenl theinselves a n c l thcir estates which thc said Clourt is hereby thlined i ~nd empowered to inquire hear and determine by inspec-

of the p c ~ ~ m n or such vthcr ways and means by which the truth

be best cliscoverecl and known.

XV. That it shall be lawft~l for the Judge of thc said Suprrme

't to make nlld prescribe such rules and orders touching and erning the time and practice of llolding the said Conrts the

and manner of proceeclings and thc pract~ce and pleading upon

illdictrncnts informations actions suits ancl o t h r matters to be light themin the apl~ointment of Commissioners to examine wit- ses the taking thc examinatioas of witnesses de bene csse and al- ving the same as evidence the granting of probates of wills and

tcrs of administration the proceedings of the Sheriff and other

nisterial oficcrs the process of foreign attachment and all other

P'ocess of thc said Court and the mode of executing the same

the

the admission of attorileys solicitol;~ and barristers the fees poulirlage or perquisites to be taken by any' officer attorney or solicitor in the said Court and all other matters and things for the conduct of busi- ness in the said Court as the ciicumstanccs of the Province may require: Provided that such rulas and orders shall be subject to bc disallowed by IEis Majesty and upon such disallowance being signi- fied through the Governor such rules and orders shall become void and of no effect.

XVI. That the Governor for the time heing and the Council of

the said Province (with the exception of the Advocate-General and Crown Solicitor) shall constitute a Court to be called the Court of Appeals of the Yrovince of South Australia which Court shall have power and authority to receive and hear appeals from the judgments decrees orders and sentences of the said Supreme Court in whole or in part in all cases where the sum or matter in issue shall amount to one hundred pounds and shall or may affirm ttltcr or rcvcrse thc

said judgment decrees orders or serltences in whole or in part or dis-'

miss the said appeal with costs as may be just: Yrovicled also that upon every appeal to be brought before tlie said Court of Appeals from any judgment of the Supreme Court founded upon the verdicts of a jury of twelve men thc skid Court of Aplmds shall not rcversc alter or inquire into tlie said juclgmcnts except only for error of law apparent upon the record.

XVII. That any person may appeal to His JIajesty His Heirs

and Successors in his or their Privy Council in such maniler within,

such time and under and subject to such rules regulations and limi.

tations as are hereinafter mentioned (that is to say) in case any such

judgment decree order or scntencr shdl be given or pronounEcd foi

or in respect of any sum or matter at issue above the amouut or vall~t

of five hundred pounds sterling or in case such judgment decre~

order or sentence shall iizvolve dircctly or. inclircctly any clnia

demand or question to or respecting pl.operty or any civil rig!(

amounting to or of the value of five hundred pounds sterling or r r:

case the said C'owt of Appeals should by any such judgment clecrct:!

sentence of the said Supreme Court the person or persons feelin,$	order or sentcncc relrprse alter or vary any judgment decree order 01 3
Court of Appcai may within fonrtcen days nex t after the samr s1d.i P aggrieved by any such judwnmt dmrcc ordcr or sentence of tlic sait J
have been pronounced made or given apply to the said Court c ' +ippeals by petition fur leave to appeal thcrcfi-orn to His Allztjvsi. His Heirs a i d Successors in his or their Privv Council and in CS such leave to appeal shall bc prayed by t1;e party who is or 87
directed to pay any sum of money or to perform wiy duty the sal Court of Appeals shall and is hereby ernpowered cither to direct tl the judgment decree order or sentence appealed from shall be carr into csec~ltion or that the execution thereof shall bc suspcndcci pc ing the said appeal as to the said Court may apyeax to be most c0 &tent with real and substantial justice and in case the s t d Court
App23.1~ shall dircct such judgment decree order or sciitencc to

into execution the person or persons in whose favor the same s l d l be given shall before the execution thekeof enter into good and

sufficient security to be approved by the s$id Court of Appeals for

the due performance of such judgment or oFder as Kis 31ajesty His

Heirs and Successors shall think fit to make$hereupon or in case the

said Court of Appeals shall direct the exeuution of any such judg-

ment decree order or sentence to be suspebded pending the appeal	,
the person against whom the same shall &VC been given shall in liliu manner and before any order for the %suspension of any such execution is made enter into good and suffichnt security to the satis- faction of the said Court of Appeals for the Bue performance of such judgmcnt or order as His Majesty His H$irs or Successors shall think fit to make thereupon and in all cas& security shall also be
b niven by-the party or parties appellant to th$ satisfaction of the said
Court of Appeals for the prosecution of the 4ppealar and for the pay- ment of all such costs as may be awarded b j His Majesty His Heirs and Successors to the party or parties respondent and if such last- mentioned security shall be entered into within three months from the dntc of such pctition for leave to appeal then and not otherwise the said Court of Appcals shall allow the appeal and the party or parties appellant sEdl bc at liberty to prefer and prosecute his appeal to 13% Majesty His Heirs and Succes$ors in his or their Privy Council in such manner and under such rales as are observed in appeals made to His Majesty from His bfajesty's other Plantations or Colonies and in particular that in all cases of appeal allowcd by the said Court of Appeals the said Court of Appeals shall certify
"and transmit to IIis Majcsty IIis IIcirs or Successors in his or their
Privy Council a true and exact copy of all evidence proceedings juclgrnents ciecrees and orders had or made in such causes appealed from so far as the same have relation to the matter of appeal such copies to be certified under the seal of the said Court.

31st A&ay, 1837,

Passed in Council,

GEO. STEVENSON,

Clerk of the Courscil.

By His Escellency's command, ROBERT GOUGER,

Colonial Secretary.

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ADELAIDE; Printed by authority by W. C. Cox, Govornmerlt Printer, Victoria-square,