LAW REPORT.

Evening Star, Issue 3280, 25 August 1873, Page 2

LAW REPORT.

SUPREME COURT.- IN BANKRUPTCY,

Monday, August 25. (Before his Honor Mr Justice Chapman.)

In nr. Lancelot Booth. —MrM'Keay for the bankrupt. Adjourned till September 8, In he Seymour Harris Sanders.— Mr M'Keay for the bankrupt. Adjourned till September 8.

T.v hr Thomas Quill.—Mr M'Keay for the bankrupt. Final order granted. In re John Proctor Hydes.— Mr M'Ke&y for the bankrupt. Similar order. In re Albert Byford.— Mr H. Howorthfor the bankrupt. Similar order. In re Edmund Flynn.— Application for declaration of complete execution of deed. Mr M'Keay for the trustees. Declaration granted. In re James Kelly.— Similar application. Mr E. Cook, in the absence of Mr Stout, for the bankrupt. Granted. In re Messrs Roach and Martin,— Similar application ; granted, Mr E. Cook, in the absence of Mr Stout, for the bankrupts. In re Franklyn Clisby,— Application for final examination and discharge. The application was opposed by Mr John Bowie, one of the creditors of the bankrupt, who proceeded to examine the bankrupt as to the cause of his inability to pay. Mr Bowie asserted that the bankrupt had invariably squandered his earnings in drink, that his accidents which had incapacitated him from work were the result of mixing in drunken brawls ; that, in fine, his losses and misfortunes were all attributable to his love of drink. No witness, however, being called to prove these assertions, his Honor granted the bankrupt his certificate, Regina, on the Prosecution op Perdue v. Brooks.— Mr E. Conk, on behalf of the defendant, moved for a rule nisi for a writ of certiorari, addressed to the Hon. Dr. John A. R. Menzies, George Merewether Bell Alphonse Angus M'Donald, and Alexander M‘Nab, Esquires, Justices of the Peace, sitting in Petty Sessions for the Mataura District, commanding them to show cause why they should not return into the Supreme Court a conviction of the said William Brook, made on or about the 6th May, and all other proceedings connected therewith. Chapman, J.: Why did not you apply before! You must explain the delay. Mr Cook : There is an affidavit accounting for the delay. Moreover, the Statute allows six months.

Chapman J. : How is it the conviction has not been sent up to the Registrar in the usual way ? The Statute requires all convictions tq be sent up ; it saves a certiorari. Mr Cook ; It has not been returned.

Chapman J. : Is there an affidavit that they have been applied to send up to the conviction? Mr Cook: Yes, your Honor. I apply also that the rule be extended, that they show cause why the conviction should not be quashed on •the grounds : first, that the alleged offence was not committed within the jurisdiction of the Petty Sessions where the convictions took place. The offence was leaving & loaded dray on the highway ; the information being under the Town and Country Police Ordinance, whereby the several districts are defined. Chapman J. : The proper course is to prosecute such offences at the nearest Petty Sessions. Mr Cook : The second ground is, that the information and complaint are bad in substance and in form ; thirdly, the conviction is bad, inasmuch as the Justices exceeded their jurisdiction by inflicting a penalty of L2O. Section 13 of the Ordinance, which is clearly the section under which the information is laid (see subsection 10) limits the penalty to L 5. If the information had been under section 12, it ought to have followed the words of that section, and alleged that life and limb were in danger. It is possible that the Magistrates convicted under the sth section, which allows them to inflict a penalty of 1(20 \ hut if so, the defendant was mislead by the summons, for it is not averred that the loaded dray was “ across ” the public highway, in which case only would the offence come under section 5. The information and conviction are clearly under section 13, subsection 10. The Court will, I submit, attach importance to the words “ across,” and “ whereby life and limb are in danger.” Under any circumstances we are entitled to the rule, inasmuch as the Justices have neglected to return the conviction into this Court,

Chapman, J.; No doubt you are ; but you should look before you leap. Lord Mansfield on one occasion refused to allow a conviction, when returned, to bo contradicted, as it had then become a record of the Court, and it would not be permitted to contradict a record. In that case the vessel was designated in the conviction a bum-boat, and Lord Mansfield said he would not allow the conviction to be contradicted, even if it could be shewn that the vessel was a seventy-four. There is no imputation here of malice, so that you will not get your costs against the Magistrates. After some further discussion, the rule was granted, all proceedings to be stayed in the meantime ; the Magistrates also to show cause why they should not pay the costs. Chapman, J. : If you omit that danse, the Magistrates may not show cause, and leave it to the Court to determine the question, which will greatly reduce the costs in the matter. I make it a rule never to give costs against the Magistrates where they are acting honestly in the discharge of their duties. I only mulct them in costs where they are guilty of unnecessary harshness. Rule returnable ten days after service, or so soon after as counsel can bo heard.

The Court then adjourned till 3rd Septem ber.

M'Cosrß v. Low.—We will give a full report of his Honor’s elaborate judgment herein in to-morrow’s issue. His Honor refused to grant a new trial, and gave Mr Haggitt leave to appeal,