SUPREME COURT.

Evening Star, Volume VIII, Issue 2272, 18 August 1870, Page 2

SUPREME COURT.

IN BANCO. This Day. (Before Mr Justice Chapman ) REGINA V. STRODE AND OTHERS. Ilia Honor gave judgment in this case, which was an application for a rule nisi calling upon Messrs Strode and Fulton, R. M.’s, and Messrs Lloyd, Fraser, Driver, Stuart, and Haughton, J.P.’s, to show cause why a writ of prohibition should not issue staying all further proceedings in the matter of the application of T. A. Jones for a license for the hotel known as the Provincial bar, on the ground that three of tho justices were unqualified to act. By the 13th section of the Ordinance the quarterly licensing meeting therein named is composed of all resident magistrates appointed to hold courts in the licensing districts and all justices who act and usually reside in such licensing district. It "was sworn in tho affidavit upon -which the rule was obtained, that three magistrates out of the seven who composed the quarterly licensing meeting which granted the license now impeached did not so reside, hut usually resided elsewhere. He had already expressed his opinion that the words “usually reside in the licensing district,” excluded all justices who usually reside elsewhere, and that therefore, assuming for the present that nonresidence of the three magistrates objected to was nob satisfactorily answered, the licensing meeting was not legally constituted. But it was contended by Mr Barton that Mr Harris’s affidavit as to residence completely obviated the objection, and if it did not, the objection was waived by Mr Sibbald. Those two points he had to answer. As to one of the magistrates, Mr Robert Stuart, he had already stated that Mr Harris’s affidavit completely reinstated him. He did reside at the Mataura in December last, but then came with his family to reside in Dunedin, and had continued to reside here since. But as to Mr Haughton the facts were of a different character, and Mr Harris did not deny that he usually resided at or near Auckland, and it was set forth that Mr Haughton was a member of the Provincial Council, and usually resided here during the session. The affidavit as to Mr Fraser was similar, except that specific instances were given of his attendance as a magistrate upon the Dunedin bench, and it was further alleged that ho had taken part in former licensing meetings. Ho did not think that residence during the session constituted usual res;dcuce,within the meaning of the Ordinance ; neither did temporary residence for the purposes of business, recreation or Parliamentary duties, constitute usual residence. The place where a man usually resided was the place he made his ordinary home, and in the case of Mr Haughton and Mr Fraser, that was elsewhere. He was not prepared to say that a man might not have two places of residence —a town house and a country house—in which case ho would usually reside in one during one part of the year, and in the other during the other part. But such was not the state of facts in these cases ; neither did lie think the difficulty was got over by the circumstance that the magistrates had acted withip the meaning of the 13th section. The section required bqth acting and usual residence. In ordinary eases they might act legally and with public advantage, but not in cases where the Act rendered them incompetent. As to the alleged waiver. Assuming for the purposes of his argument, but without admitting the disqualification of at least one member of the Bench, Mr Barton contended that the conduct of Mr Sibbald disentitled him now to rgise tho objection. Mr Sibbald took his licence from the same Bench ; moreover, lie opposed the application of Mr Jones, and urged several objections, but did not then object to the constitution of tho Bench. Mr Sibbald having then taken advantage of objections upon which he failed, was, M.r Barton contended, a waiver of his present objection. Referring to tlie cases cited tiy Mr Barton, his Honor observed that interest on tlie part of the justices qr judge was an objection which might certainly

be waived either expressly or impliedly, but even then it must clearly appear that the fact was in the knowledge of, the patties at the time. But this was something ■ more than a temporary or evanescent objection only affecting the parties for' the time. Here it was no licensing meeting at all, and it had no more power than if- composed of self-appointed men. It came within that class of cases in which no jurisdiction could be given where the law had given none. There was, moreover, another element in the case which seemed to him to strengthen the distinction between this case and cases of interest, and that element was public policy. In the case of an interested justice, the parties before the court were only affected ; here, the legislature had prescribed the particular constitution of the Bench for reasons of public policy—as a security against the granting of licenses to improper persons, and that the number of public houses should not be in excess. That security was lost when the Bench acted improperly. He had looked carefully through the affidavits, and had failed to discover anything to prove that Mr Sibbald had a knowledge at the time that the Bench was illegally constituted. Before he could be said to have waived the objection he must know what he had to waive. Under the circumstances, the writ would be granted, but without costs. Mr Jones, like another applicants, went before a tribunal, believing at the time that it was a legal one. There was no imputation that either of the disqualified justices were there at his instance, or .at the instance' of anyone in privity with him. Under these circumstances he ought to be relieved from costs.

Ross v. Chaplin,— Motion for new trial Arguments were not concluded at 4 o’clock.