SUPREME COURT.

New Zealand Spectator and Cook's Strait Guardian, Volume I, Issue 30, 3 May 1845, Page 3

SUPREME COURT.

WADE V. LEWYN. This is an application under the 43d Geo. 3, c. 46, sec. 3, to give the defendant costs, on the ground that he was arrested, and held to special bail, without reasonable and probable cause, for an amount considerably larger than the plaintiff recovered. Doubts have been expressed as to whether the statute is not in effect repealed by the 1& 2 Vie, c. 110 ; but apart from the obvious consideration, that the very evils sought to be remedied may occur under the old law of arrests, we have decisions both in the Queen's Bench (James v. Askew, 8 Ed. & EL, 351) and Exchequer (Robinson v. Powell, 5 M. & W., 481), which set those doubts at rest. It appears that the defendant was actually arrested, and gave bail to the Sheriff, but did not put in special bail. The statute gives the remedy, where the defendant has been " arrested and held to special bail," and the learned counsel for the defendant contends, on the authority of a dictum of Mr. Justice Littledale, in Reynolds v. Mathews, that the arrest and bail to the Sheriff are equivalent to special bail, and that the statute is satisfied. This then is the \ point to be determined. In Edwards v. Jones, 2 M. & W., 417, a question was put by Mr. Baron Parke, which seems to favour this view, i He says, " Does not the being actually arrested, and so brought under the necessity of putting in special bail, satisfy all that the statute intended?"

But in the same case, Mr. Baron Alderson says, " If the holding to special bail were the necessary consequence of the at rest, it might be said that the one involved the other ; but it is clear that it is not so." The defendants is in fact not " brought under an obligation of putting in special bail," to make use of the words of Mr. Baron Parke, until after the expiration of the eight days, and this is clearly the reason why Mr. Baron Alderson denies, that " holding to special bail," is " a necessary consequence of the arrest." From Bates v. Pilling, 2C. M. 6 R., 374, and Robinson v. Powell, 5M.& W., 482, we may also collect that the statute is not satisfied unless there is both an arrest and a holding to special bail ; and Pjeedy v. Macfar- , lane removes all hardship, by deciding,- that where instead of putting in special bail, the defendant goes to prison, the statute is satisfied, for that is clearly equivalent to a holding to special bail. If this reconciles all the cases, it agrees with the remarks of Barons Parke and Alderson, and it saves the remedy whole when it has become too late for the defendant to have the relief which the defendant in this cause has had, under the 6th section of the 1 & 2 Victoria, c. 110. If, upon principle, the doctrine of a construction holding to special bail, be extended to payment into court in lieu of bail, under the 7 & 8 Geo. 4, c. 71, the remedial operation of the two statutes combined, is complete. As it appears, therefore, that there was nothing to amount to a holding to special bail, the court is not called upon to consider the question of the existence of a reasonable and proper cause, and the rule must be discharged. Rule discharged with costs.