Untitled

New Zealand Herald, Volume V, Issue 1344, 7 March 1868, Page 4

SUPB.EME COT7ET.—Sittings in Banco. Friday, Mabch 6th. (Before Hia Honor Mr. Justice Moore.) THE QTJBEN OS THE BELATIOX OF BOWB V. SIACKAV. This was an ex partc proceeding to obtain leave from th« Court to uppeal against the recent decision of bis Honor in respect to the authority of Mr. Maekay, R.M. and C.O. to exercise tho office of Warden and sit aa a judge in the Court of the Wurden at the Thames Gold-field. Mr. McCormic'c appeared in support of the application on behalf of Mr. Maekay, the appellant, and said that the leave was asked under the 24th section of the Court of Appeal Act. He regretted that ho had so little time. The proceeding was taken ex parte because tha notice of appeal must be given after the trial, on leave beinor granted, but from the wording it was evident that the leave could be given on an exparie application. There was no preamble to the Act, but it was pnes»d to enable parties to appeal from tho judgment of the Supreme Court in every case. The Act was divided into two parts having respect to civil jurisdiction and criminal jurisdiction. Under the civil jurisdiction the ability was given to appeal from all judgments or decisions relating to all rules whether discharged or made absolute. The 25th section provided that no appeal would be allowed unless notice were given in writing four days after the decision complained of. But it had been held that a certiorari to remove a plaint from one Court to another could be granted on an ex parte application to a Judge. His Honor : But it might be that the Court would not sit, and therefore it was possible that a fyiwi. could not give the necessary notice. Mr. McCormick : It is provided that such further time may be given as the Court may think proper to allow.

His ETonor: There ie the celebrated Opera caeei Ward v. Lumley. Mr. McCoimick : The point there was that the four days had elapsed, and it was not necessary to apply for liberty to appeal within four days. There is no right to appeal under this eection. It ie after liberty <o appeal that the notice is necessary The notice of appeal to be given beforo the application for leave would not only be not necessary but nugatory/ Certiorati was but another form of appeal. If the proceeding were an appeal directly to the Court of Appeal notice of such intention would be necessary. The other question was whether the present proceeding was within the civil jurisdiction of the Court. Of late years proceedings for a rule for quo warranio was regarded as a civil proceeding. It is EO laid down in Kegina v. Francia (Clark and PMUamore, S-elwyn'e NieiPrius) by Mr. Brougham. Hie Honor : But considering the sections of the Act I have much doubt a'nout the notice. If leave were granted where would be the necessity for notice ? Ifleave is granted upon an ex parte application without notice how is the order to he got rid of? Mr.'MacCormick : How c- nld a person give notice of hie intention to appeal before he gets leave to appeal. There is a right to appeal from the criminal jurisdiction of the Cou-t, or the civil side must be obtained. If a party get r leave in the case of an ex parte application for certiorari without notice the eame might occur. His Honor » as of opinion that notice was required. If notice and bat! were given then 'execution was stayed, but the notice itself would not have that effect. The Court would bo willing to extend the time. As the present was the first case of the kind ' there was no practice, to guide the Court upon the subject. Mr. MacCormick said he would like to hear the whole question arc ued. ' His Honor said he would mate an order giving leave to appeal, subject to the following' conditions: Notice to be given forthvrith to the other side with, liberty to move the' Court on Tuesday next to discharge the order. The question of costs to be reserved. VIS PETER BTORIEB MACKENZIE, PUBIICAN, INSOLVENT. Mr. Hesteth appeared for the insolvent; Mr. \Vynn for the detaining creditor. : This was an lipplication under the Bankruptcy Act of Inst session' for a discharge from debts. £he bankrupt, is in custody upon n judgment execution by Mr. David Nathan. The application was made,on the ground that the Act provided that where an insolvent in custody mat?e a declaration of 'bankruptcy no process against him would be available without the leave of'the Court. Where the creditor took proceedings, time w.hs given to surrender, or protection was given. Mr. iiesketh cited : decisions given by Baron Martin which was supported by a subsequent decision of Baron Kelly, in which it Was laid down that where a creditor was in prison, and made a declara'tion of bankruptcy, and the declaration was gazetted', no process against his person or hjs property could be • available, whether process taken before the , declination or not His' Hoaor:' The"'effect of your Mr. Hesketh,'ie that whete a creditor petitions, the deb'tor must surrender, arid submit to be examined. But where the dehtor declares himself a bankrupt, being incustody, he can avoid those conditions of his protection. Where is the use of all these enactments if that be so ? Mr. Hesketh : By his declaration he gives up hie property to'be dealt' with g and accounted for by, the provisional trustee.' • •' ■ Hie Honor :' The infirmity of your case* is .that J they do not refer to the sections cited, whereas Mr. Justico Chapman'hae referred to them and decided against the very point raised.

Mr. Heslreth: Mr. Justice Chapman believed that the language of the Act (section of the English Act) applied, only to process after the declaration, but the Enclish Courts have decided that nq. process shallbe available. Hia Honor was of opinion that he could not grant the application. The oases relied on (Marks and Hall andßogers v. Roberts), were forcible, but the decision founded upon them did not refer to the sections of the Act referred to by Mr. Heeketh- But the judgment ot Mr. Chapman did refer to them, and decided that the debtor was not entitled to his discharge. He believed that.he saw his way to'a more comprehensive meaning of the word " available," than was put on it by tha learned counsel, who had put all the argument!) before tho Court with great force. It was open to the double construction that the language applied equally to process issued but not executed. Where procest was executed it had fulfilled its purpose. If ho were to order tho discharge of. the prisoner not only from custody, but from his debt, ho would simply be overruling the judgment of Mr. Ju«tice Chapman. Even if he supposed that there was ground for supposing that Mr. Justice Chapman were wrong in his decision, he would feel reluctant to deci.ie in the teeth of euch an authority. It process has issued and been executed it has been made availnbls by that fact, and the proceedings should be different from that taken. But if process had issued, but was not executed, then it would be availal'lc for the purpose for which it was taken. He could not think that tho lung;im!»e of tho Act me?.nt that from the mere fact that an insolvent had mado a declarationol bankruptcy,when in custody, thatcould operato as a complete dischargo from all his liabilities. The application must therefore be refused.