Law Intelligence.

Auckland Chronicle and New Zealand Colonist, Volume 1, Issue 28, 25 March 1843, Page 3

Law Intelligence.

COUNTY COURT. Tu BS-twi v, Ma rc n>2l.

r«i.j Queen <-. Moore and otihhis

■ Pvlr.r Bar tley, fids -morning, shewH cause against a decision of the Court, calling upon John Moore, Thomas Flowerßuj.ssl'!, and Alexander Rboney, to forfeit-the' recognizances to which they were severally liable, for the nonappearance of John Moore to take his trial on a charge of larceny.

Mr. Donnelly,-' '(Crown. Prosecutor) ably : replied, and the Judge deferred

his decision until the following day. The arguments of Counsel we shall give in our next. In the mean time, the merits of the case are ably set forth in the following judgment: Wednesday, March 22, 1834.

His Honor delivered Judgment in ibis case in nearly the following terms : This was an appeal against an order of this Couit, by virtue of- which the amount of the .recognizances entered into by John Moore- Thomas Flo <er Russell, and Andrew; Rooney, that John Moore should appear and take Shis trial at the sittings of this Court in December last for larceny, was directed to be levied by the Sheriff.

" The facts appear to be these: Tti December last, a charge was brought' against Moore before the Police Magistrate, of stealing printing materials and types belonging to the .government, the result of winch proceeding before the Magistrate was, that Moore was* bound by recognizance, himself in £IOO, and two sureties.in £SO each, to appear and fafcn his trial at the. then next sitting of this Court. The recognizance was duly certified to the Court, as required. The Court sat, and Moore did nut com; ly with the terms of the recognizance, which were forfeited, and in accordance with the provisions of the 3rd Geo. IV., c. 46, a writ of fieri facias was issued under the authority of this Court, directing the Sheriff to levy thp amount of the recognizances on Moore and his bail. A right of appeal is given by the sth section of the Act, upon certain terms, which were complied with, and Counsel were heard for and against the appeal, at "the sitting of the Court yesterday. On the part of the appellant, two points wet;e made. The first was, that this Court had not complied with what the law requires before issuing the writ to the Sheriff, and as an authori y for what these requirements are, the course! f.,r the appellants q mted the 7th Geo. IV., c.(>4, see. 31, and made a charge agaius' this Court of having acted prematurely. Now, there is no pietence whatever for saying, that every thing the law requires has not b( en snictly comp'ird with, and I am surmised that such a charge as that allutle\l*»o should have been lightly made, as 1 cannot but believe that a moment's e6usidefad<>n would have been, ample fo have convinced the learned counsel lb t nothing vu it. f. ,

The ..writ to Oie 'Sheriff was issued under the 3d ch. 46, sec. 2. I his act was passe.d|"for th.e moTe speedy return, and flues, t enaltres, and forfeitures, estreated." The second section enacts, that the Cleik of the Peace, (to use the werds of the act,) "copy on a roll, all fines, issues, amercements, forfeited recognizances, sum or sums of money, paid or to be paid in lieu or satisfaction of them, or any of them, imposed and forfeited at such Court of General and Quarter Sessions, and shall, within such time as sha'l be fixed and determined by such Court, not exceeding 21 days after the adjournment of such Court, send a copy of such roll, with a writ of distringas, or fieri facias, nd capias, according to the form and effect of the schedule marked A ;" and the section then goes on to give the Sheriff directions for the execution of the w r i f..

Now, the requirements of this act have been strictly acted up to. Tlie contrary, indeed, has not been for by the appellants;; but it.'nro-been contended that the daw, Wit thus stood, has been aftered by the"3lst section of the 64ih of Geo. IV. The words of this section are as follows :—"And whereas the practice of indiscriminately estreating recognizances for disappearance of persons to prosecute or giveevidence, or to answer for a common assault, or in the other Cases hereinafter, specified, has been found, in many productive of hardship to persons who ha)^ entered into the same; be it therefore that in every case >< here any person bound by recognizance for his or her appearance, orfor whose appearance any other person shall be so bound to prosecute or give evidence in any case of felony or misdemeanor, or to answer for any common assault, or to articles of the peace, or to abide an order in bastardy, shall herein make default, the officer of the Court, by whom the estreats are made out, shaH, and is hereby required* to prepare a list in writing, specifying Ihe name of every person so' making default. &c.' Now.it is quite clear that this section was intended to, and did only effect an alteration in certain cases therein specified, and these cases are twice enumerated, first in the recital, and then in the enactment. The recognizances of persons bound over to appear on a charge of felony are not mentioned, although defendants in other cases, as for instance in assauJt cases, are not forgotten. So far, then, as this enactment goes, the 46th of Geo. 111. is untouched, and as there is no other enactment on the su.bj.ect, the objection to the legality of the proceedings under the 3d Geo. IV., cap.4(>, is not well

founded,and the charge against this Court, of having acted prematurely, groundless. The other point taken on the part of the appellants is, that the defendant was, at the time of the silting of the Court' in December, in the custody of the Sheriff for debt. The affidavit filed states, «;f h at> previously to the said sessions, deponent was taken in execution for debt bv the Sheriff, under which execution deponent re trained in custody until the 7th day. of January, in the year of our Lord 1843 ; that, on the 20ih dav of December, i,i the year of our Lord 1842, deponent, with his said sureties, came in o this Honorable Court fo' the purpose of faking h s tria. upon the above charge, when depcnent was immediately seized by the Sheriff's officers, and. hurried out-of Court." Ihe truth of this statement has not been disputed ; but it has been said, "that the defendant might have obtained a "Day Uuie" from ihe Sheriff, and, availing him-: self of this, might have taken his trial. In order to procure this rule, it is necessary that bail should be e.iven that the defendant return to the .custody of the Sheriff at a certain hour. This he might not, and in all probability he would not, have been ab'e to comply with. The trial might have lasted -beyond the hour appointed for the return • or, if he had been convicted, he might have been imprisoned in the felons' gaol, either of which would have involved a forfeiture of the bail. I do not think that men could be found to become sureties under such circumstances, nor could the defendant'be reasonably expected to find them. This would be a sufficient reason why he could not appear at the time, as required by the recognizance; but then, his subsequent cotiduct might have justified the enforcement of the sums in which the defendant and his sureties were bound. But it is sworn 10, and not disputed, "That deponent has always been ready to take, his trial on the above charge ;" and again, "That, deponent has likewise presented himself b'e- [ fore Fellon Mathew, the Chief -Police Magistrate, to ansacr any charge, and has in every "aycou;ted and sought investigation on the above or any other charge,"— From this, then, it appears that the defendant has, riot attempted to evade his tria',' but ra-her courted it. At all events, if he lias not complied with the strict letter, he has by his subsequent conduct cbm»piicd with "ihe effect of the recognizance. The.only object in taking recognizances is, to ensure the appearance of a defendant to lake his trial. Although the defendant in this case was not present to fake his trial at the time appointed, it would—at least as far as lam able to judge by what is before me —as well have answered the ends of justice that he should have been tiied &t a subsequent sitting of the Court; or even 7 JTirJMlsehe any charge against him, that he at the next. It would, therefore, be to punish him and his bail, whether innocent or guilty of the offence he was originally charged with, by compelling the payment « the amount of the recognizance, especially as the ends of justice have not beemjpttempted even to be defeated.—Having come to this conclusion, I am the better satisfied to be borne out by the practice which has been followed in the Court of Exchequer in England with respect to estreated recognizances. It is thus, stated in the case of Rex v. Tomb, " If a recognizance be estreated in the Exchequer, because not punctually complied with, yet if the party appear to take his trial next session, he may compound for a very small matter in the Court of Exchequer, because the effect, though not the exact form, of the recognizances is complied with ;" and it does seem that such a course is quite consistent with what justice requires. It is, however, to be regretted that there should have been attempts made to introduce matter quite irrevelant to the case. I should be sorry to say, that the motives which led to this were improper; but the introduction of such matter was quite unnecessary. A Court of Justice is not the place either to attack or defend the Government, and I on no future occasion a remark similar to the present may he called for. The appeal must be allowed; and the recognizances of Moore and his sureties discharged; provided he surrender himself at any time within five days if called upon.