SUPREME COURT.

Globe, Volume XXIII, Issue 2203, 18 March 1881, Page 3

SUPREME COURT.

SITTINGS IN BANCO. Thib Day. (Before His Honor Mr Justice Johnston.) His Honor sat in banco at 11 a.m. M MURPHY V S. ECCLBS. Mr Joynt, for the defendant, obtained leave to plead. In thi« case the defendant was the endorser of a bill, but had received no notice of 'its dishonor. RECHSTA V. JOHN MDRPHY. Mr Stringer appeared herein to show cause to a rule nisi for an habeas corpus in this case. His. Honor said that before the matter was opened he might say that he bad no jurisdiction, as there waa no racord, but the Crown having admitted the record, the argument would bo allowed to go on a? if the record had been right. Mr Harper pointed out that the duty of making up the record was put on the officers of the Court, and had nothing to do with the prisoner. Mr Stringer submitted that the rule could not be made abfoluto because the first count had been reversed, but the case remitted to the Court below for judgment to be pronounced on the other count". His Honor said that as the first count was reversed, and jndgmant to be given on the other counts by tho Court below, he wished to point oat that judgment had been given already by the Circuit Court of the Supreme Court. The point in error on the counts after the two first had not been taken at the trial. Hence now he could not direct an acquittal. He would like to hear what Mr Harper had to say. Mr Harper said that h i should contend on tho authorities that a'l the judgment had been reversed, and that the prisoner was unjustly detained. Hen'-e ho should prefer to leave the matter over till next sitting of the Court of Appeal. His Honor said that the certificate of the Court of Error Bimply said that two counts were bad, but that the other counts were good, as being remitted to the Court to give judgment on them.

Mr Harper was prepared to show from authorities that all the judgment had been reversed, and that tho prisoner was therefore entitled to bis discharge, and it was not necessary that an acquittal should be had. Hiß Honor would hear Mr Stringer on this point. If Mr Harper could convince him of that, then the prisoner was entitled to be discharged 1 . What Mr Harper contended was that the document spoken of in the two first counts which were declared to be bad was referred to in all the four-counts. Hence the four counts were bad according to Mr Harper's argument. The whole question was whether the four counts were bad. If they were, then the prisoner would bo released ; if not, then the judgment of the Court already given must stand. He thought the best way to cut the Gordian knot would be to refer tho matter to the Court of Appeal. Mr Harper suggested that tho Court could read the certificate as having reversed the whele judgment. His Honor thought not. Mr Harper said he would draw His Honor's attention to a case of Campbell v the Queen, 15 L. J. Magistrate's cases, 56, as to the construction of a general verdict, in which it was held that though one count was good the rest could not be construed. His Honor pointed out that the Court of Error had found several of the counts good, and remitted these to the Court for judgment. Mr Harper submitted that the Court of Error having reversed the judgment there were no count" to give judgment upon. Be would read the affidavit of the counsel in the case in error, and this said that the Court in Error gave a judgment which would enable the Judge below to discharge the prisoner His Honor could not for one moment consider iS likely that the Court in Error would make any such statement to counsel and not forward to him a certificate containing such decision. The Court in Error had held that there were several counts good, and he was prepared to pass sentence on them.

Mr Harper submitted that the prisoner was illegally detained. There was no judgment existing at all against the prisoner, because the two counts having been found to be bad, it went to all the counts, as the judgment had been reversed. Hia Honor said that there was no lachis on the part of the Conrt. What was really wanted waa an exposition of what the Court in Error required him to do. So far as he was concerned he waa now ready to give judgment on the counts Bent back to him for judgment, which would be an upholding of the judgment as already given. This was the only course open Co him if Mr Harper pressed for a judgment. Mr Harper asked if bis Honor would not hear him as to the question of writing obligatory. His Honor said that he could not do this as it would be putting him above the Conrt in Error. Ho was prepared to hold on the certificate of the Court in Error that the judgment ahonld hold good on the four counts. Mr Harper said that he was prepared to allow the matter to stand over till the sitting of the Conrt of Appeal, so as to allow of the Court of Error explaining its certificate. Mr Stringer concurred in this course. Mr Harper said he did not want to move the motion for a rule nisi as to a new trial in Bogina v Michael Murphy, as it hanged somewhat on the present one. Some argument took place as to_ whether the ease could be postponed without being heard. His Honor, after consideration, decided that the motion must be opened. Mr Harper opened the case for the rule, pointing out that the indictment of Michael Murphy at tho trial charged him with perjury as to a paper writing purporting to be a contract, whilst in the indictment for forgery which was read at the trial, it was stated to be a writing obligatory. At the trial he had taken the point that there was a variance, and had cited a case. He submitted that it was open to the prosecution to describe the paper writing similarly, but as the reference was a variance it was a fatal variance in the indictment. [Case cited, Bex v Leach, 2 M and R ] He submitted that the case of Michael Murphy was even a stronger one, as the variance between the indictments was very marked. Hie Honor pointed out that the materiality in the counts cf the case quoted by Mr Harper did not apply hero. He was clearly of opinion that there was no error. It was true that in the indictment for perjury that it waa called what it waa not, but it wub also true that in the indictment for forgery the averment was true. The case differed, therefore, entirely from tho one cited by Mr Harper. Bule refused; leave to appeal granted.