SUPREME COURT.—Civil Sitting.

New Zealand Herald, Volume III, Issue 895, 26 September 1866, Page 4

SUPREME COURT.—Civil Sitting.

1 TtJESBAYj September 20th. (Before Hjs Hpjipr Mr. Justice Moore and Special [ juries.) His Honor took his seat on the Bench at 10 itfclock. HABEAS CORPUS. ' In the matter of John Pfieetley, a prisoner in I 'liount Eden Stpqkada, !■■: Mr. MbCormick rnqyed thp Court fora ..rule that ' a. Writ Habeas pQrpus .migt]t issue to bring,up the ■ .body of Briestiey.atprerentincustQdjinilpnnt Eden Gaol; .cdmmitmeht irons one of the ! Native' Circuit Courts, sigried;- bjr Mr. Maoky, ;?.M., s Kaurarawa, fitting, with two native aeiessore, for a . : breacli of |Ue Arms JLct, 1360, with a riew to hu discharge from custody. ■-' ■■■ ' I The commitment set forth that the said Johi* Priestley a jury pf t sT el7^.: g oo s , men and true," for that h<s, pn tbs let September, did '; unl'awfuily.remove and transfer *onyey>pQash ! wise, in a veaepl nateedthe .Aloe/tertaln ■■.arms and r : warlike stores, forwkich offence ■ he . was sentehoea, " having been tried under the Native Courtg. Act;; to 1 three years',imprisonment under. Act,. wit|j ■ hard' labdiir,. .. V.... . . . The learned counsel contended that the pbmni^ti ment was bad; firati that there waj no jurisdiction in . the Court, and no power. try ths accijeed. The partictilar grounde of. hu objections w.era three in : ' number: Oy):'"-Becaus'o the Native Circuit Courts \ ■■ have no jurisdiotjoii over any persons, JBritisli »üb* jepta, other^^thin'■'peiiorii of the native race. This: was to be seen from the Acts of the. jiesembly by ' which such Courts w>re constituted. These ricti. of the Assembly were two, namely; the Act .of 1359, and the. Amendment , : Act .of -1862, which were passid ,to inafcs".better provision.for the admihistTatioii.of'justice withia dietricte oter.wbieii : the'hatiye title : is ;npti yet'eixtinguish.edi. It. was. no ' where irientioned inthe Act that it. had any applioar tiptttiaßritisb. »abject,bßfciraiiW>*ly tapw»n4efor

th* administration of justice ia places -where, as it ht-A been eaid, "the Queen's writ did not run." Although both natives and Emopeaus were technically British Buhjeots, at the same time the whole history of the colony and the tenor of legislation showed that there were peculiar distinctions which had been held properly to obtain in dealing with tho two races. In acts affecting the native race it would appear that they had been dealt with otherwise than as British eubjectß, and that also appeared from othor matters—for instance, they had been allowed to exercise belligerent rights in tho lato war. 2. The second ground of objection to Ihe commitment was that the Court had no jurisdiction over the offence which win constituted by the Arms Ace, ISGO, which says that whoever shall remove or assist in removing without license warlike stoma, arms, &c. The Act of 1862 (Native Circuit Courts), extended tho jurisdiction of tho Act subject to the provisions of the Aot of 1853, where the jury had no power to try cases where the penalty was above £5. But the " Arms Act." authorises imprisonment for a term not exceeding three years, and a fine not exceeding £500, therefon. , , the offence was not cognizable by the Native Circuit Court. The warrant of commitment wa* bud on the face of it. Paley on convictions, laid it down that every exemption, excuse, or qualification of an offence must be stated us part of tho oil'ence, and tho teemed to be claar that all cirnnmstnnces, whether a* to time or to the person, should be enumerated at length. In the same manner the warrant of commitment should recite all exemption 3, excusci, qualifications and describe the offence with eulire completeness,' the omission of wnich would not be cured by any' general allegations, such as unlawfully, fraudulently, &c , and again it was laid down that by anv defect of substance in the commitment the complainant may obtain his discharge bv habees corpus. The Court would not assume a good conviction in support of an irregular commitment. There was no appeal under these Acts, and the right of certiorari had been taken away. His Honor ordered tho writ to is3un, making it returnable on Friday nest, when the whole queetiou will be argued. BiBEES V. TTjCKWELIj. Mr. Wynu appeared for tho plaintiff; Mr. Weston appeared for the defendant. This was Rn action brought under the following circumstances. The wifo of tho defendant on the day named, in October, 1565, went t.> the Kesident Miigistrftte'e!Court and laid information aqainst the present plaintiff, in consequence of which a search warrant was issued, and the plaintiff's house was searched by the Sergeant-Major of the Auckland Armed Police. Tho declaration sat forth that the plaintiff and his wife did without reason or probable pause, and from malicious motives, obtain a search warrant under tho hand of a Justice of the Peace, with a view to discover certain goons alleged to have been stolen from the defendant "; that tho SergeantMajor of the Auokland Police executed tho search warrant. The third issue asked the jury to find whether such goods were in plaintiff's hou-e and the fourth, the amount of damage the plaintiff had sustained. Mr. Lodge, Clerk to the Besident Magistrate s Court, proved the laying ot the information by the wife of the defendant, on which a eearch warrant was prdered to be issued. The witness said that the was lost. It had no result, that was to saj no goods were found, and might not have been returned. His Honor could not help remarking that two cases of loss of important documents had occurred at the Besident Magistrate's Court, which documents fc-ere necessary to proceedings in the Supreme Court. Only yesterday it was shown that a vesting order— Mr. Lodge said the vesting order had never been in hie possession. He had been connectsd with the court five years, and this was the first occasion that document had been known to be missing. His Honor did not wish to cast blame on any particular person, but rather to draw attention to the circumstances, 60 that greater carefulness might be observed. Police Constable said he search the plaintiffs house in company with the defendant and his wife. Was about" an hour a half employed in the search. Defendant and hi 3 wife were with witness all the time the search was going on. In cioss-Rxamination the \vitne3s said that when lie went to plaintiffs house he sais- plaintiff's daughter. Plaintiff soon after arrived. "Witness read the sear h ■warrant to Barker, who eaid witness was at liberty to Search the house. There was a small bnx on a shelf Tjith Tuekwell's name en it, and Mr. Tuokwell daimed it as his. Barker said he did not know bow jt came there. No injury waa done to the boxes. One box wai brozen open. By the Foreman : Tuckwell said there had baen eome property stolen in the neighbourhood, and it been traced to" plaintiff's house. John Barker, examine t by Mr. "Wynn : Said he •was plaintiff in the action, and lived at Mount Eden. Was a carpenter by trade. Owned the house in ■which he lived, and other property. Xeithor the defendant nor his v ife accused witness of having stolen £ flannel night-dress or petticoat. £his was the case for the plaintiff. Mr, Weston contended that plaintiff must be nonsuited, inasmuch as the information had not been brought forward, nor any evidence giren of its contests. There was no proof of the signature of the person to the warrant of eearch, nor any proof of the formal laying of the information on oath, nor that of the signature of the person laying the information. Mr. Wynn contended that the action, was for causing a search, warrant to be issued. That was done, a fact about which there was no dispute. It was shown that it issued from the proper quarter, that it Was executed by theproper authorities. •• ■ Mr. Weston said the warrant was a most extraordinary document. It recited, " Whereae it appears tome, Thomas Beckham, Esq.," and is signed by J. H. Home. His Honor : That is to gay, something appears to A, and B signs it because it appears to A, and so the warrant issues. Mr. Wynn: W« are not responsible for tho form of the warrant; the injury is done. This is after, all a iiiere-recital, and not an essential part of the warrant »t »11. ■■• His Honor: I doubt whether this is a warrant at all. Aβ for the recital, what would be the instrument without it. " Now I therefore " —what is the warrant without these ? • Mr. Wynn thought the case ought to go to the jury, reserving the technical point. : Joseph Tuckwell, examined by Mr. Weston : I am the defendant in this action. I was present at- the »earch ; of the'plaintiff'a house. I had reason to eus-pisct-that property belonging to me was in possession Of the plaintiff. One of the plaintiff's children waa Constantly about my premises, and was found btealheard reports of property belonging to other persons being fonnd in plaintiff's possession. Found the box produced on a shelf in Barker's houee. It ie I ay property, and my name is on it in my own handwriting. The constable '.eked if I intended to give the man in charge. I said, " No, the man was more valuable to his family than the loss of the box was an injury to me." I was satisfied at making the discovery that my suspicions were correct. Barker s daughter said that her mother put " on the petticoat" that morning before going out, moaning the article tli&t belonged to Mrs. Tuckwell. She said so. to Sirs.-Tuckwell. One. box was. not searched at the plaintiff's own iequest.... In cross-examination by Mr. Wynn, witnes« said that the policeman was present when the child said that mother had put " the petticoat" on. before going out. Mm. Jane Tuckwell eaid she had hung out a flannel petticoat and flannel night dress. Had seen plaintiff's child about her place picking up clothes pegs, and all sorts of things. Emma Barker, plaintiff'B daughter, tolc. witness that her mother had the &auhel petticoat. ■-'■■': : ;, Mx..Weiton .addressed the jury for the defendant. He'Characterißed the warrant '■ as a singular product of legal knowledge. Indeed, said the learned gentleman, it should be hung up in some conspicuous place in the city of Auckland to testify to the high legal acumen of some of our justices. (Laughter.) '' pia Honor having summed up, the jury, ofter »oine deliberation, ■ found for the defendant on'the first issue,' for the plaintiff on tho eocond issue. Damages nil. LONDERGAN V. TOXEY. This wae an action of slander. The facts appear jn the evidence below. Mr. Weston for the plaintiff; Mr. Brooifield foi the defendant. Daniel Londergan eaid ho was a tailor in Auck land, and in January last waa a tenant of the defen dant, to whom the witness owed some money. Wit neBB was applied to by Messrs. .Taekeon and Kussel for piyment. The firm of the Foleys owed witnes some money. Saw the defendant and hie son Ton T/hea witness went to pay the money at the office o

Messrs. Jackson and Russell. Witness asVed Mi Russell to return £3 out of the £12 10s, telling hit that Mr. Foley was in the next room. The dofen dant came in, and putting his hands in his trowser." pockets took out three notes and flung them down o; the table. Ho said to Mr. Russell, " Take «. receip from Londergan ; I will huo him again, for ho is th two ends of a fverbnm saiiguineumj rogue, am he 13 receiving money from me under false prf tencee. Cross-examined by Mr. Brookfield : Tho words h used weie, " Take a receipt from Londnrgan. I wll sue him again. He is tho two ends of a b ; rogue." He did not say I was a " purty boy." H did'nt call me a gentleman. He said to Mr. Ruesel that he (witness) was receiving money tinder falsi pretences. Mr. James Russell heard tho words. Mr James Kussell must huva heard tho words. Patrick Melvin, a i'armor at the North Shore, wa callud, but could give no evidence material to tin issue. This was the plaintiff's case. Mr. Wynn said the answer to tho plaintifl"'.i casi was that this was a most paltry and vexatious proceeding. Mr. James Ituseoll would tell the jury whui ho had heard. Mr. James Bussell said that the defendant happened to be in his office whan Londergan cums in Witness iisked :ibout tho £:">, whotlu-r ho wonl.l p:>y the money. The defendant refuiiod on the ground that lie hud paid it before I .lo nof think Foley "Ho is receiving money under ftilsc pretences." I have not the least recollection of such words ; but the defendant did say " You are the two ends of a purty boy." (Loud laughter.) Foley also said to Londergan, •' You're a gentlviU'in," and thi3 appeared to throw tin plaintiff into the greatest stiito of excitement. Foley said that Lon.iurgiiu came from tho same part of Ireland. Loudergan also said ho would have the law. Ihe jury found for tho defendant oa both issues. During the proceedings the following memorial was handed to His Honor by Mr. Albyn Alartin. CONVENIKXCB OF SPECIAL JtJROItS. Auckland, 21th Sept.. ISG6. May it please your Honor, —We the undersigned merchants and others serving on special juries, beg most respectfully to call your Honor's attention to a serious inconvenience and loss of time which results from our being summoned to at : cnd tlui civil sittings of the Supreme Court on a day earlier than that on which our services uro nctu'illv required, the inconvenience being particularly great to those who roside ut a distance from Auckland. As it appear.* to be the rule th-it the common jury cases be taken first, we respectfully submit ilrit much wimble timo would bo saved to the community by fixing a subsequent day for the hearing of special ease*.—We have, &c, T. Macfarlauo, H. Gilfillan, G. Webster, T. M. Machnttie, S. E, Edmonds, James Burfc, J. S. Macfarlaue, R. Maclean, Thos. Mucky, Walter Grahame, J. H. Burnside, Albin Martin, T. H. Hull, D. B. Thornton, H. Sherrard, L. W. Eaton, J. W. Bnin, John Boberton, His Honor Justice Moore. His Honor snid the request of the memoralists would be attended to.