SUPREME COURT.

New Zealand Herald, Volume III, Issue 900, 2 October 1866, Page 4

SUPREME COURT.

Monday, October 1, (Before His Honor Mr. Justice Moore.) JcrHisDrerroN of Native Cieccit Covets. IN EE J.SO. I'EIESTLET A TRXSOSEE.—HABEAS CORPIS. The circumstances ot this case havb been before the public for some time. His Honor gave judgment as follows :—ln this case an application was made to the Court for a writ of Habeas Corpus directed to the keeper cf the gaol, at Mount Eden, commanding him to hs.ve in the Supreme Court, at Auckland, immediately- upon the receipt thereof, the bod}' of John Priestley, being detained under the keeper's custody, as was said, together with the day and cause of his being taken and detained. The application was granted, and the writ issued. By the return made thereto, by the keeper of tho gaol, it appears that the said John I nestley is detained in the keeper's custody by virtue of a warrant of commitment therewith produced, and of an amer.ded warrant received from the committing magistrate since the service upon the ieeper of the said writ, and prior to its return. And by the amended warrant of commitment under the hand and seal of James Maekay Junior. [His Honor read the warrant of the committing magia-i trate, and the return to tho writ of habeas corpus by the gaoler.] On this return being made, divers objections were taken to it on behalf of the prisoner. It was objected .first, that the Native Circuit Court has no jurisdiction over Europeans, but only over natives; secondly, that the olfence for which the prisoner was committed was not an' offence within the jurisdiction oi" the Native Circuit Court; and third, that the warrant of • commitment was bad on the face of it be* j cause, (1) Because the conviction set forth in (he warrant did not follow the of the Act; (2) It did not appear by tho warrant ihat James Haciay is a resident magistrate of the Native Circuit Cour. j (3) Because of the uncertainty as to the rature of tho offence with which the prisoner is charged ; and ; ) Because the conviction as set forth in the warrant contains a judgment which is illegal. The quest tia thu3 raise! ior the opinion of the Court hardy second in importance to any th it cculd be raised for

its opinion, involving as they do touching iua liberty of tue subject, the powers ar authority of magistrate*, and the position before tl law of British-born subjects, and subjects of the n; tixe race respectively. And if it had been neeessa» or proper on this occasion for the Court to conic i an opinion on these questions, or any of them* must hnre to come to an opinion of thorn Hccordinijb however much it h ire dosired on questions < such importance to havelhe opportunity before doin fr-o of conferring with one or more of tho other men hers of the Court. In the view which X take <-f th matter, however, it will not be necessary or proper f give any opinion upon these question?, or any ( them, and that, for reason* which I shall now proceed to stnte. By th*s 12111 portion of the Nativ Circuit Courts Act, 185S, it is enacted that no apprji shall lie against any conviction by the Native Cireui Court, nor shall any properdin'.; < f Mich Court in it criminal jurisdiction be remore'i into anv superio Court by certiorari or otherwise ; nor shall any sucl proceedings bo quashed or set n«dd-\ or bo jud>ei Toid, or insuine'unt f>r want of form. This >eeiio' is in substance the snne as the 17th section of th< Summary Proceedings Ordinance, ISJ-2. the Of the two sections beinir. ;>S far as the earlier only not identical, though tHo arrangement of th' sentences in the one is different fro.n (hp arrange men:- of them iu the other, undue section of tht Act £oe.s further than the section of th* ordinan'v : for while tlie ordinance only prohibits inform .ti- »»j. convictions and r.thor proce • beinir quashal. &c., for w.iT;t •"f form. icm.ivei liy <• oi otherwise, the A t. tro.s on in nd ikion t-> rhi? ro p;-«>-hibit appeal against con\ic:ions by thv Xa T ive Circuit Court. Cnde- this section of »he .\cr the other question at once arise-;—whether, the s«Yt;.m notwithstanding. th.re is Mill a riirhr of app-n! n respect of the nuitters to which the .Aci v. !.;:,'? r >'ow, with regard to the Sumruarv Woceo iio«j«j t>rdinance, it may bo siid—it is ?iij—that the se.-ti »n in question i* repealed, virtually at least- or bv impliontion, by the Justices of the Peace Act of IS-"o, by section 4 of which .Act it is enacted that th-* -mimmarv Proceedings Ordinan e is repealed s > f.-.r ?i> the same is repugnant tr>. or would prevent, or interfere with, the operation •"»: th" taerehv adopted. One of the Acts thereby adopted the -lih ivul l2rh Tic., cap. 40, the Summary PiO'-eevHnrrs Act of ISSS. By gc-ction 14 of that Ac. a? iutvrpreled Sy lb* 1 adopted Act, it is required of justices of that the> cause convictions to Ve 1 nl'x d wirh the Registrar of the Supreme Court, to be t>y him i\.v\ amongst the records of tlie court. 'Ihis. if is siid, amounts to a virtual rt pe.il of the provisions in the Summary Proceedings » >rdi:;:UH*o «st > the n,m-re-moval of proceedings by certiorari. Do this, however. as it may. and admitting it to !>♦* as s.iid, it could, of course, onlv apply t » under thOrdinance. As to convictions nor under the Ordinance. the repeal, )>v rhe Justices *'f tho Peace A r. of the Ordinance would haw eiiVet. and would leave them untouched : so that if, as to anv convictions not under the Ordinance, the right oi appeal is tak-*n away by any other '.'rdin?*.nce or Ac, rhar rijfht of apical :. mins taken away, unices -jiven back by some subsequent Ordhi.iiKv or Aer other than the Justice* of the Aet. For example, if the riijht of convictions under rhe Ka.ive Circuit Court* Act is ta'ien away, it remains taken away unless rjivou back by s ouo subsequent &ot. Is i: then given back by any subsequent Aet ?—I t»\v by any sub: juent Act, for it e:>uid not. of course, be given back by the Justices of Peace Act, a* that Act was passed before tlie Native Circe £ Courts Act. the latter date the Uth of Auuu>t. ISSS, while the former bears date the Sth July. iS-V 4 . not into operation until the 1m or Jmuarv, 1S")3. .Bot it is not suggested, as far a.? 1 am aware, that ihisriirhto: appeal if taken a way by the Native Circuit Courts Act is c»ven back by any *üb-equent Act. if, therefore, it is so. tiken away it remains taken awav still. The question then is, the right of appeal as to matters within the Act taken away by tlie Act ? Sow it niav help toward a decision of this question to observe the difference there is in tlie respective questions between tho Ordinance and the Act. I'or whereas, the Ordinance, after (by the section in question) enacting- us st «ttjd, against quashing, &c. t &nd a removal of j)ro-eeJiniZs, ctojs o i in f.».lowing: sections to enable appeaii to be brought in the manner pointed out there- The Xative Circuit Courts Act contains no such clauses. This, though of course it is not conclusive of the question, may, nevertheless, bo not improperly considered us furnishing no slight iitdication that the intention of the Legislature was essentiaUv different as to appeals in tho case from its intention as to appeals in tl:L» other. For, of course, the Legislature mu>t be taken in passing" the Act ro hare . had the Ordinance present to its recoilectian. And if from this comparison of rhe Act wi:h the Ordinance wa pa.-3 on to vonsider the Act in itself, the inference derived from that comparison h certainlv not w. akened by the onsidcration. father the nature and scope of tlie Act, and its various provision?, or some of them ?er-m to strengthen that inference; and if. as is those provisions, or some of them, are altogether exceptional and unusua' it will be the less surprising to und (imongrt them one taking away the of npp-.*ai as to inattcrs within, this Acf, even if that provfWo/] should be considered; as so far interfering with and the liberty of the subject. And on the best consideration that I have been ahlo to give the whole matter, aud particularly the question they raised and ptated. I arn of opinion that the Leaisbutire ail iutsnd by the BTatke Circuit Courts Act to take away that right of appeal as to matters within the Act, and that they have expressed that intention in no inadequate terms. In coming to thi-i contusion, which i do, not without reluctance, I do n-.it forget the rule which says " that the jurisdiction of the Superior Courts is not to be ousted cxcept by express ■words. 1 ' But I think the words of the Act. s-uiiici.:nily express, and I may adapt, with a slight ne?e-Siirv vari&tion, the of Lo.-d D-;nman, C.T. in Timms r. William--, 4, QH, I;'.', and say—" lie re, r.s it appc-arc to ce, tiic has thought it Useful to wituhold ths po-.ver of inaiitutinff proby way of anneal." Nor do I forget what is to be found iu the books as to nrtiosarl no 1 - bcnintaken away ercn by t-ipress Ttords where there is a want or excess of jurisdiction, although tho con-ric-tion may be good on the f;iee of it. But besides that ro question as to certiorari arises in this case, tho proceedings being before the Court without it. Ceri't»ra,-i.j is only a means of obtaining in.-peetkm of proceedings, | and when the Court obtains that inspeetion it givi.l judgment as it thinks judarment * ought to be I given. And I of nothing to prevent tho Oonrt there upon giving judgment to the effect that in its opinion it has no jurisdiction in matter as well as to any other eii'ect of it. i<or, lastly, does the conclusion 1 have come to in inv way infringe upon or interfere with the subject's ritjilt to a writ o£ habeas corpus. Xhe right remains, thin conclusion notwithstanding, as indeed everv judgo inu=t wish it to remain, as als j tlie Act known by the same name. An Act, as has been said, of transcendent iinportnnca in our constitutional history, even thoujih it may be true, as is also sai'i,that it introduced no new principle, nor conferred'any right upon the subject. That right, I s lv , remains, the conclusion tc which I have feit constrained to coma to notwithstanding, as indeed is shown by this os--e. The subject sues out, the writ return is m ide to it in due course, and therefore the Oourt before which he is brought up upon it. mav well enough aeciaro its want of juvisdiction in the matter, if so it fninks lit. J have only to add the expulsion of my hope that it may ba found practicable to rr.eko mv decmon the subject of appeal to the full Court, and tnat it may be subject to such appeal accordingly, in tue meantime it follows, from the conclusion f have come to, that tho prisoner must be remanded to the custody of the keeper of the gaol. MACFAM.AXK V. AUCKLAND INSURANCE COMPANY. This action was tried last week before his Honor, and retina verdict on all the issues for the J'"i ,lt t! '- e I ; 6Hea were - tea of H EKALTJ Of Ittgf. WOfik.) . - fir. Vyynn appeared on behalf of the defendants, T a rUIC "1""' tf '" 11° „ :o ■ ho 7.® au ™ wl '.v a re w trial should not be had on tho following grounds • — the 6t ; r ;°, n i h ®B"un4 that the '.Tudpe presiding at is.ue of V mi-aireeted th, jury respecting the first! BBC ° n P } ' S * rene "' al the ®Tiden'cJ ,iat th ° To '' a!efc WM Bea ' nßt 11,3 wei ° ,lt « ( Counsel went very carefully and very fully into S , rounds ' aiul "übrnittecl that upon them 119 was Fmitiea to a rule ttisi. »r,r!i S u Honr,r ' , llfter lu ' nrin ? counsel, decided tint but- 10 ii. " r °und he could not grant the rule "1 1011 « f'rst ground cmnsel might take his rule on the 7th November next. C'-^ds I'™1 '™ g ' ltu^ers marr y they rarely announce "no