SUPREME COURT.

Globe, Volume VI, Issue 688, 2 September 1876, Page 3

SUPREME COURT.

SITTINGS IN CHAMBERS. Friday, September 1. (Before his Honor Mr Justice Johnston.) His Honor sat in Chambers at 11 a.ra. EE WILL OF '.ERNEST (LINDNER, DECEASED, In this case an order was made, granting probate to Clara Lindner, as widow and sole executrix of deceased. RESIDENT MAGISTRATES ACT, 1867, AND RE GEORGE LILLY HELLISH, This was an application for a rule nisi, calling on the Resident Magistrate at Christto show cause why a mandamus should not issue to compel him to grant a summons. The facta of the case upon which the application was made raises a very important point of law. At last criminal session of the Supreme Court one Michael Galvin was arraigned for burglary with violence on the premises of one Henry Cutler at Riccarton. At the time of the burglary the prsecutor bad in the house a large sum of money which was taken. Subsequently, on the prisoner being arrested, it was discovered that not only had he money in his possession, but also a certain sum in the bank. The prisoner was found guilty, and sentenced to twenty years’ penal servitude. At the time of the trial no application was made to the learned Judge under sec 4 of the Forfeiture Act for an order to hand over the money so found in prisoner’s possession to prosecutor. Ultimately however the prosecutor made application for a summons at the Resident Magistrate’s Court, Christchurch, and entered a plaint for damages against the prisoner for £IOO. The Resident Magistrate, conceiving that there was no way in which the prisoner could appear to answer to the plaiat, declined to issue the summons ; whereupon the appellant Cutler, the plaintiff in the Court below, applied to the Supreme Court for a rule nisi calling on the magistrate to show cause why the mandamus should not issue compelling him to grant such summons. . Dr Foster now appeared m support of the application. He had not been able to find any authorities where it was distinctly laid dpwpV lavy that judgmpnb could be obtained against ponvictprisoners whilstunder goipg sentence, though it was giveni m one of the books that a convict could be sued, though be himself could not sue, (Ihe learned counsel cited several authorities on the subject.] Therefoie it was to be held that his client had a right to obtain a summons against the convict; what became of it after service was no business of the magietrate. His Honor thought that, looking at the matter, Dr Foster was estopped from proceeding farther, inasmuch as the law provided a course under the 4th section of the Forfeiture Act, which the applicant had n ogl cted to take. As to the question of the mandamus, it was futile to issue an order to an officer to do what could not be done. The

principle ef the law was that the defendant should have the opportunity of being present at all stages of the proceedings de die in diem. Now, in this case, the defendant could not be so. It was a question for con' sideration as to whether a Magistrate could refuse to issue a summons.

Dr Foster would desire to point out to his Honor the language of the Resident Magistrates Act, which was very clear and precise. It said “On a plaint beinglodged a summons shall issue and shall be signed by such Magistrate.” His Honor thought this a matter of very great importance indeed, and without at present expressing any opinion, he thought that a Magistrate, like the Registrar of the Supreme Court, mightjbe open to indictment for refusing what was clearly a man’s right, viz—a summons or a suit. In civil cases the Magistrate decidedly had no discretion, though of course in the matter of criminal informations the discretion allowed was very wide indeed. Dr Foster would contend that he was entitled to take the summons. It was at his own risk as to whether he could obtain judg. ment or not. His Honor would not at present express any opinion, as he had not had an opportunity of considering the matter so fully as its importance warranted. A case of this nature should, he thought, be heard in Court, and not on an exparte motion in chambers. However, Dr Foster might take his rule nisi at his own risk, returnable at next sittings in banco, Order made ; rule nisi to issue, calling on the Resident Magistrate to show cause why a mandamus should not issue, compelling him to grant the summons required. Rule returnable on 19 th September, in banco.