Supreme Court.

Star (Christchurch), Issue 645, 17 June 1870, Page 3

Supreme Court.

CRIMINAL SITTINGS. Thursday, June 16. (Sefore Mr Justice Gresson.) DEMOBKER. Mr White, who appeared as counsel for Wm. Horßfall, against whom a true bill for perjury was returned by the Grand Jury, demurred to the indictment on the following ground : — 1. That it is alleged that B. Woolcombe wan on the 10 th day of February, 1870, and still is, a Resident Magistrate and Justice of Peace in and for the colony of New Zealand, assigned to hear and determine dirers complaints, civil actions and suits, in the said colony, and had then, at Arowhenua, in the district of Canterbury, in the said colony, competent power and authority to administer an ; oath to the aaid William Horsefall ; whereas by Clause 7 of the Resident Magistrates Act, 1867, a Resident Magistrate can only be appointed to a certain district in the said colony, within which district he is to exercise his duties and have jurisdiction. 2. That it is not alleged that the cause of action upon the hearing whereof the perjury assigned was committed occurred within the district in which it was heard. 3. That the indictment alleges that the assumed perjury occurred upon the rehearing of an interpleader claim, but does not set out the proceedings in the civil case out of which such interpleader claim arose, viz., the sums therein, the hearing, the judgment, the execution, the seizure of the goods, and the notice of claim to the bailiff not to sell the goods, they failing to show that the perjury assigned was committed in a judicial proceeding. 4. That it is alleged that the assumed perjury was committed upon the rehearing of an interpleader claim to recover £62 Os sd, wheresa there is no such judicial proceeding known to the law of this colony, or recognised by the Resident Magistrates Act, 1867. 5. That the indictment does not allege that the Resident Magistrate had jurisdiction to hear and determine interpleader claims. 6. That it is alleged that the assumed perjury took place upon the rehearing of an iinterpleader claim; whereas there is no power in the Resident Magistrates Act, 1867, to rehear interpleader claims, and this power to rehear in order to be exercised must be given by Statute. The learned counsel contended that under clause 99 of the Resident MagUtrate't Court Act, which prorided for the re-hearing of civil cases, no power was given to re-hear an interpleader claim, and he submitted that where it was intended that Resident Magistrates or Justices of the Peace should re-hear cases, such power was expressly given to them. In England, as well as here, no power was given to the Superior Courts to re-hear interpleader cases. The Colonial Legislature, in withholding from Resident Magistrates' Courts the power to re-hear suchj cases, did so with the full knowledge that in I

England no such power was given, even to Superior Courts (cited authorities). The alleged perjury arose out of the re-hearing of an interpleader action, which the Resident Magistrate had no jurisdiction under the Act of 1867 to re-hear. Mr Duncan admitted that at first sight there was a good deal of weight in the argument of his learned friend; the whole thing turned upon the construction to he given to the 99th clause of. " The Resident Magistrate's Court Act." Bis Honor said that the argument had b=en very cUarly and neatly put by Mr White, and he must say that he was with him, so far as he had time to consider the matter. He would look into the authorities, however, before giving his decision on the grouni just argued. Mr White went on to argue the other grounds of demurrer. His Honor said he would take time to conaider, and the Court was thereupon adjourned until 1 1 a.m. this (Friday) morning. This Day. His Honor took his Beat in Court at 11 o'clock precisely. DEMURRER— HI ATM. HOESFALL. His Honor : I have considered the argument on the demurrer in this case, and lam very clearly of opinion that the demurrer must be allowed on the last ground — that the Resident Magistrate's Court Act did not intend, and does not apply to cases of interpleader. Mr Duncan : No, your Honor. His Honor : I have taken the language of the 71st and 72nd clauses of the Act, in conjunction with the 99th clause, which is strongly confirmed by the tase Beswick v. Boffey, cited by Mr White. It is unnecessary for me, and perhaps I had better abstain from going into the other grounds. I have not had time to consider them all, but upon the first ground it appears to me also that I should be disposed to allow the demurrer. I understand, Mr Duncan, that under those circumstances the jury may now be discharged ? Mr Duncan : Yes, your Honor ; there i 8 no other case. The jurors summoned to attend were discharged accordingly. William Horsfall, the accused, was also discharged. Bennett's case. Edwin Bennett was placed at the bar. His Honor : Edwin Bennett, you have been convicted upon very clear evidence of a very heinous offence, and I might at once proceed to pass sentence upon you ; but as you were undefended by counsel, I felt it my duty to act in a certain degree as your counsel, in taking a technical point that appeared to me upon the indictment to be a point of Borne importance, and I have resolved, upon consideration of that, although you have not taken any proceedings to arrest the judgment, to take the opinion of the Judges of the Cout of Appeal ; and with a view to do so, as I am empowered under the 69th section of the Court of Appeal Act, I have resolved to postpone the judgment at present until that question be considered and decided. In the meantime, I shall allow you, if you choose, to enter into recognizances, yourself in £500 and two sureties i» £250 each, to appear at the September session of this Court to receive the judgment of the Court. If you are unable to enter into that, you will have to be committed to prison, and kept in custody until you enter into that security to appear at the next September session of this Court for the disposal of criminal business, and receive the judgment of the Court. I believe, Mr Duncan, that disposes of the business ? Mr Duncan : Yes your Honor, it does. His Honor : I propose to prepare a case for the opinion of the Judges upon this point, and to shew it to you. Mr Duncan thanked his Honor. The Court adjourned sine die..