SUPREME COURT.

Evening Star, Volume VII, Issue 1913, 23 June 1869, Page 2

SUPREME COURT.

IN BANCO. (Before His Honor Mr Justice Ward.)

Regina y. Strode and others.— Mr Macassey applied for a rule nisi, calling upon Alfred Cbetham-Strode, James Fulton, and Richard Bowden Martin, Esqrs, and John Hughes, to show cause why the conviction of James Smith, of Dunedin, solicitor, for assaulting John Hughes, should not be quashed with costs. The grounds upon which the rule was asked for were—l. The facts constituting the bailiff’s duty, in the execution of which he was engaged when assaulted, were not stated in the conviction. 2. That the conviction was for more than one offence. 3. That, under the conviction, the award of distress and imprisonment is joint, though the penalties are separate. Mr Macassey addressed the Court at some length on the first point. Referring to the second point, he contended that, under the Justices of the Peace Act, an information could only contain one offence, whereas the information in this case contained two. Of course, the conviction could only follow the information in that respect. According to Jarvis’ Act, which is the law at home, and which was the law here before the passing of the Justices of the Peace Act, only one offence could be contained in an information. Every person was made individually responsible for an assault upon a bailiff; under this conviction there were joint defendants on a separate offence, which was an infringement of the seventh section of the Justices of the Peace Act. With regard to the third point, he would cite cases for the purpose of showing that where an offence was separable in its nature, the law clearly implied that from first to last the prosecution and the punishment should be separate too. Where the Legislature intended that persons should be jointly liable for a penalty, there could be no doubt that they could be jointly charged ; but where the Legislature intended that each person should be for himself responsible for his own act, the law provided a sufficient proceeding. The Judge observed that by the terms of the conviction, if Couzens had not paid the fine, Smith would have had to remain in gaol. Mr Macassey said that this was the case ; and by the defendants being so jomed, the 7tb section of the Justices of Peace Act had clearly been infringed. The information and conviction should have been against each person separately. The Legislature declared that the penalty should not exceed L2O. Assuming, for the purposes of argument, that it was possible to state a joint-convic-tion, it should have been for some other sum; as it was, it was for a sum larger than L2O. He submitted that there could not be the slightest doubt that if the defendant Couzens failed to pay the fine, or had not sufficient goods to satisfy the judgment of LIO, Mr Smith’s goods were liable to distress, and his body was liable to be incarcerated.

The Judge said that he was not sure whether Mr Smith’s goods could be distrained upon, as the word “respectively,” in the

conviction, might be questioned. It was clear that hia body could be taken. He would grant the rule.

White and Others v. M'Kellar Bros. —Mr Haggett moved that the deed of submission herein, the appointment of a third arbitrator, and the various enlargements of time be made a rule of the Court. The application was granted. Mr Macassey moved for a rule nisi to set aside the award in the above case, on the following grounds :—1 hat the third arbitrator was appointed after the other two arbitrators had entered into the reference ; 2. That one of the arbitrators took no part in the decision of the arbitrators, and was not consulted in the award ; that the arbitrators made a mistake in not allowing payments admitted ; that a witness was examined in the absence of one of the arbitrators. The rule was granted.

Re Thos. Philips, a bankrupt.—On the motion of Mr Smith, the Judge sanctioned the appointment of Mr Larnach as a trustee in this estate, in the room of Mr H. E. Glennie.

Application for Adjudication. —On the motion of Mr Stewart, who appeared on behalf of Mr W. Gregg, a creditor, John M Cubbin was adjudicated a bankrupt, and a meeting of creditors fixed for the 9th prox.

Motion for Prohibition. —Mr Macassey moved for a rule nisi, calling upon Messrs Strode and Fulton, R.M.’s, to show cause why a mandamus should not issue, directing them to proceed with a warrant of distress in the case of Abbott v. Simpson, heard in. the Resident Magistrate’s Court, Dunedin. The application was granted.

Judgments. —ln answer to Mr Barton, the Judge said that he would deliver judgment in the cases of Cunningham v. Ure, and Manning v. the Bank of Otago, next week.

Motion for New Trial.— Mr Stewart moved for a new trial of the case of Stamper v. Wilson, on the following grounds :—That the verdict of the jury was against the weight of evidence; improper rejection of evidence by the learned Judge who presided at the trial; misdirection. A rule was granted on the first ground. The Court then adjourned.