SUPREME COURT.

Evening Star, Volume VIII, Issue 2266, 11 August 1870, Page 2

SUPREME COURT.

IN BANCO. Tuis Day. (Before Mr Justice Chapman ) SMYTHIES V, RUSSELL. Mr Stewart, instructed by Mr Stamper, applied for a rule nisi to set aside an order obtained by Mr Smythies in the above matter, and to stay proceedings under it. His Honor said he would not now refuse the rule, nor would he grant it. The order obtained by Mr Smythies on the 27th June was obtained chiefly on different grounds, and was so argued, and it was very probable that be would decide the rule upon those grounds, without reference to the grounds stated by Mr Stewart. REfJINA V. STRODE AND OTHERS. In this matter a rule nisi had been obtained, calling upon Messrs Strode aqd other justices to-show cause why a writ of prohibit tion should not issue staying further proceedings in the matter of the application of Thomas A. Jones for a publican’s license. The ground relied upon was that Messrs Eraser, Stuart, and Haughton, J. P. ’s; who were not justices “ acting and usually residing within the district,” in terms of the 13th section of the Licensing Ordinance, 1865, had adjudicated upon the matter. Mr Macassey moved the rule absolute; and Mr Barton, instructed by Mr Hams, showed cause. • Mr Barton made two preliminary objections, that tlie rule was improperly drawn up, in respect to date, and there was foot

sufficient proof of tho Ordinance relied upon, but both objections were overruled. Proceeding to discuss the merits of the case, he observed that the point raised by the other side depended upon the construction of sec. 15 of the Ordinance ; and he submitted that the words “acting and usually residing in the district,” were directory, and not mandatory or imperative. The cases cited by the other side, when applying for the rule (Regina v. the Justices of Herefordshire, and Regina v. Lachlan Brothers), had not reference to the question now raised. There, justices interested in the specific matters had adjudicated ; here, it was a simple question of jurisdiction ; and he cited a recent judgment in tho House of Lords, reported in Paley, which went to show that in the latter cases, the decision was simply voidable and not void. Apart from that question, he submitted the Magistrates who comprised the Licensing Bench on the day in quesrion, complied with the requirements of the Ordinance. They were persons who certainly acted, and usually resided within the licensing district. Mr .Tone’s affidavit stated that at tho same meeting Mr Sibbald’s application for transfer was adjudicated upon, and the jurisdiction was nob objected to. Mr Harris’ affidavit stated, with reference to Mr Fraser and Mr Haughtou, that their legislative duties compelled him to reside in Dunedin for a considerable portion of the year, and that they had on previous occasions heard and determined cases in the Resident Magistrate’s, Mayor’s, and Licensing Courts. With reference to Mr Stuart, it was stated in Mr Harris’s affidavit that that gentleman left the Mataura on the 29fch December, and had continuously resided in Dunedin since. He (Mr Barton) submitted for the purposes of the Ordinance, those justices acting and residing in the dis iiet at the time of the meeting being held wore the persons meant. Mr Fraser certainly came within that description, and. in regard to Mr Stuart, the allegations on the other side were completely displaced. He further submitted that no objection having been taken at the licensing meeting to the jurisdiction of the magistrates, there was a clear waiver on Mr Sibbald’s part, and he could' not now after himself receiving a benefit from a Court which it was alleged was improperly, constituted, deny a similar benefit to others. Mr Macassey was heard at a considerable length; after which his Honor said he would take a couple of days to consider the question of waiver, about which there was some little complication.