SUPREME COURT.

Globe, Volume VIII, Issue 919, 5 June 1877, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Monday', June 4. His Honor sat in Banco at 11 a.m. In this ease his Honor delivered judgment as follows: RE JOHN HAMILTON. In this case it appears from the affidavits that on the 29th November, 1876, John Hamilton was arrested on an information by an Inspector of Distilleries for having a quantity of spirits concealed on his premises, on which duty had not been paid. On the 30th November he was convicted by a R.M., and was sentenced to twelve calendar months imprisonment with hard labor, and sent to gaol. Hamilton appealed to the District Court, and was released on bail. The appeal was dismissed with costs, and the accused delivered himself up, and was sent to gaol on the 14th February, 1877. On the 27th March an application was made to the Judge of the Supreme Court at Christchurch on behalf of Hamilton, founded on his affidavit, and an affidavit of Cotter, the gaoler, to which was attached a copy of the commitment. The commitment did not allege in the words of the Act that Hamilton had been convicted of having knowingly “concealed” the spirits, or that the premises on which they were concealed were his. These points were not brought before the District Court. A rule nisi for a habeas corpus was granted by me, returnable on the 17th April. On showing cause, Mr Duncan, for the Crown, objected — First, that the decision of the District Court was final under the Appeals Against Justices Act, 1867, section 18; and, secondly, that by the 156th section of the Distillation Act no objections can“be taken on habeas corpus to a conviction but such as have been raised upon affidavit; and that the commitment can be amended at any time. Mr Harper contra , contended that the right to move for a habeas corpus was not taken away by the Appeals Against Justices Act. I held that though the commitment appeared bad on the face of it, yet as the party applying had not brought the case within the exceptions of the 156th section of the Distillation Act, rule must be discharged. On the 20th April, Mr Harper applied again for a rule nisi for a habeas , on an affidavit of Hamilton’s solicitor, to which were annexed copies of the commitment and conviction, and in which various grounds of objection to the conviction and commitment were set out, including those founded upon the absence from the conviction of the word “knowingly,” and of an averment that the spirits were concealed on the premises of Hamilton. I granted a rule nisi, and on the 27th April Mr Duncan appeared to show cause, and produced what was sworn by the gaoler to be an amended warrant of commitment, and also an amended or altered conviction filed in this Court. Both the conviction and commitment professed to be “ given, &c., by the Resident Magistrate on the 24th April, 1877,” although the conviction appeared by the affidavits to have taken place actually on the 30th November, 1876. They both contained the averment of scienta and of the premises being the defendant’s. The conviction began by saying that on the 30th November, 1876, an information was exhibited, &c., and continued “I do therefore convict and do adjudge, &c. Given, &c., 24th April.” The warrant of commitment recited that on the 30th November Hamilton was convicted, and the mandatory part was in this form :—“ This is to command you, &c., and I do hereby command you, the keeper, to receive, &c. Given, &c., 24th April.” It seems to mo doubtful whether the affidavits sufficiently show that the commitment and conviction last brought before the Court were duly substituted for the informal documents formerly produced, within the principles laid down in the case re Elmly and Sawyer (1 Ad. and El. 843), relied upon by Mr Harper, but assuming that the document filed in this court on the 27th|April, 1877, is to be taken as the conviction on which the commitment is founded, it appears to me that it is the record of a conviction which took place on the 24th April, 1877, and that the commitment relied on recites a conviction on the 30th November, 1876, and authorises imprisonment on and after the day on which it purports to have been made—namely, the 24th of April, but does not show any justification for the imprisonment of the accused at the date when the rule nisi for the habeas corpus was moved for. The rule, therefore, must be made absolute, and the prisoner discharged. Mr Harper, who appeared for Hamilton, asked that the rule should be made absolute for the discharge of the prisoner without waiting until the habeas corpus issued. He had consulted the authorities on the subject, and this was the course pursued. His Honor said that, under those circumstances, he would make the order absolute for the discharge of the prisoner. Order: Prisoner to be discharged. BRUCE V WASTE LANDS BOARD. In this case, which was an appeal, his Honor delivered judgment dismissing the appeal with costs. PERRY AND ANOTHER V RHODES AND OTHERS. In this case Mr Hanmer appeared for Robt. Heaton Rhodes; Mr G. Harper for Mr W. Donald, one of the defendants ; Mr Wynn Williams for the plaintiffs, and Mr A. Thompson for the infant defendants. This was an administration suit in which the parties sought a decree of the Court as to the disposition of the monies arising from the sale of certain properties belonging to the estate, and also the revenues arising from the station and other properties. Mr Wynn Williams now brought up the minutes of the proposed decree as arranged by the solicitors of the parties. By this decree it was arranged that the sum of £37,500 5s 7d be paid over to the plaintiffs in the suit, which would terminate the proceedings between the parties. Order made. Decree affirmed in terms submitted by counsel engaged.