SUPREME COURT.

Otago Daily Times, Issue 1605, 21 February 1867, Page 5

SUPREME COURT.

SITTING UNDBJI 'HE DEBTORS AND ) CKEDITOKS ACTS. TUESDAY, Femuabt 19th. .

Re William John Dtkb.—MrJust"c<* Richmond gave judgment in the case of this inffolvciit. If any amount <*>f assurance conld entitle a man to his ftoa: order of discharge, the present iacolveiit, having no wnnt of that quality, would be bo entitled. In conirid*ritp whether the .insolvent had committed a fraud on the opposing creditor, he (the Judge)could not find whether the Rink (Commercial Bank of New Z a land) had krnt its engagement with the insolvent. But the insolvent knew that he had assigned nil his crop, &c , to the Bmk, and so he well knew that they were the properly of the Dsnk ; nevertheless, he disposed of them, and applied the proceeds to hiq own purposes, speculative or otherwise. It would have been a less Bronx had he applied the proceeds to paying the other creditors, which he did not do. The final order must be suspended for three months irom the present date.

IN BANCO.

(Before their Honor?, Mr Justice Richmond and Mr Justice Chapman.) The Court sat at noon. MANDAMUS BErOSEI). Mr Smythies moveu for a writ of mandamus to Mr A. R. C. Strode, R.M. to hear and determine a charge of druukenness nrefcrrcd by James JS'unon agiinet John Curric. Mr Smythies read affidavits by the defendant, by 11. W. Smythies, and another. The defendant, in his affidavit, stated the circumstances of Lis being arrested by Nimon, and of the hearing before the Magistrate; thnt the Magistrate, after evidence en each side had been heard, asked him whether he had any other witnesses; that he made on answer whi:h the Magistrate considered disrespectful to the Court; that the Magistrate sent him out of Court in charge of an officer, and afterwards inflicted a fine for contempt of Court, which fine was subsequently paid ; that he required the Magistrate to determine tbe charge of drunkenness, which the Magistrate refined to do; but that now a .other summons had been issued, r< quirinc» him to appear before the Magistrate on Thursday next, to answer tbe charge. The other affidavits were to the effect that againgst the charge as entered in the Court book, were the words, " Adjourned tine din," together with " some other words;" but that an application to be allowed (o take a copy of the whole entry had been madr and been refused.

Mr Smythies co"btetidcd_ that the Magistra.e had no power to adjourn such a case sine din. Sub-section .'J, cccMon 18, of the Act, said that "if both parties appear, the Justice shall proceed to hear and determine" the cai=e. Section 20, provided that " The Justice, having heard what each party shall have to say, and th': witnesses nnd evidence bo adduced, shall consider the whole matter, and shall convict the difendant or dismiss the iitforma'ion, cither upon ifs merits, or without prtjudic•-.' to its beinir again laid." Not having convicted in this case, the Magistrate was bound to dismiss: therefore, it was proposed, by the mandamu*, to call upon him to determine the matter, by entering a dismissal upon the proce-c lings, according to the 23rd section, which provided for an entry, nnd for the giving of a certificate of dismissal, " which, being produced, shall be a bar to any suhs.quent proceedings against the party for the same offence." Here, tie defendant was absolutely summoned ngain, to answer the stimc charge-. Mr Jus'ice Richmond: timely, you do not contend that if a imn by his outrageous conduct renders it impossible for a Mngistrate to go on with a case, the Magistrate ia nevertheless bound to go on or to dismiss the information. The defcudnnt appears to have been committed for contempt; nnd we must assume that that was rightfully done. The matter has not, in fact, been dropped—it ia going on. Mr Justice Chapmen: The contempt seems to have been a little episode, which necessarily delayed the proceedings. Mr Smythics : Not necessarily, for after having b'.en finyd fur-tl:e contempt, the defendant called upon the Magistrate to go on with the charge of drunkenness. Yet there wap an adjournment, which the entry stated to be sine die.

Mr Justice Richmond : There is nothing to show that the adjournment was not a good one. Mr s?myttiie=: That could not be; for an adjournment was, according to the Ac*, to be to a time and place to be named in the presence of the parties, their attorneys, or agents.

Mr Justice Chapman : If the adjournment wis ha- 1, the proceedings most be 'lr»pped. What have jou then to complain of?

Mr Smytliies: The defendant meant to brins; an action for the imprisonment; and he c>uld not do that until the information had been disposed of. The defendant was entitled to a dbmwsal, and to a certificate of that fact In an ac'.ion, the defendant would be bound to prove a di-miaeal. Mr Justice Chapman: I don't know that:, alt you have to prove is how the matter terminated. If the proceedings are abortive, that will be in the defendant's favor, if he bring 3au action. Mr Smytliies : Then what was to Become of the new summons? He meant to ask for an injunction against the Magistrate's proceeding on that summons. Mr Justice Richmond : I am inclined to think that there caa be no further proceeding on the information of the 9th February. But you are asking that there shall be a further proceeding. Mr Smytbies was asking for a certificate of dismissal, which was the protection provided by the Act against any further pro* ceeding. Mr Justice Richmond: If, hereaf'er, there should be an attempt to convict your client upon the original information, you . can apply. to quash it. We are not to assume that the Magistrate will decide wrongly. There may be a freßh summons; but there was a mover on the first hearing, and we moat prcsame there is one now. We cannot dictate a decision to the Magistrate. Mr Smythiia: Not ia a taac where

there was a discretion: but Here there was no discretion —the Magistrate could take bat one course.

Mr Srnythies was farther heard. Mr' Justice R'chmfnd : It may be that the adjournment sine die was cot a good adjournment, and that no conviction can now talte place upon the information of the 9,h February. That is a point upon which we say nothing: but we are both of opit-ion that we have allowed this matter to be argued long enough, atjd that there must be no rule. Upon the contention of Counsel, the proceeding is a lapsed proceeding: and it is vain to ask us to command the Magistrate again to take up a proceeding which be wko asks his shown to be lapsed. Further, we are asked to dictate a conclusion to the Magistrate; and, beyond that, to dictate a conclusion upon the merit* of a case which it appears nai not been heard. That, to ray miud, is an accumulation of absurdities and selfcontradictions, such as is not often heard, here or'anywhere else. It is very plain that the rule roust be refused.

Mr Justice Chapman: And if there was a ltip;c by reason of contempt, end that lapse should result in any inconvenience to tbc defendant, he was the author of his own inconvenience.

Rule refused

HilNTKtt V. M'GHF.GOH ANT> ASQTIir.B— Mr Justics; Chopraan delivered the judgment of the Court herein. The plaintiff appealed against the decision of the Resident Magistrate, who gave effect to the ddcudant'a claim of privilege, as n Solicitor, to be sued in the Supreme Court, and rton-suited the plaintiff. The Court i:o» allowed the appeal. Bjssktt v. Muekay.—Mr Justice Richmond delivered the judgment of the Cout; which was in favor of t»e defendaut. The question of costs is to be spoken to. The Court waa adjourned uutil Tuesday next.