EQUITABLE JURISDICTION OF RESIDENT MAGISTRATES.

Marlborough Express, Volume III, Issue 130, 15 August 1868, Page 4

EQUITABLE JURISDICTION OF RESIDENT MAGISTRATES.

To the Editor of the Marlborough Express. Si r, —It has been for a long time past the practice of Resident Magistrates, in not only this but in many other provinces in New Zealand, when adjudicating upon a case, to shelter themselves under their equitable jurisdiction, and decide the same according to equity, totally disregarding the law of the land as affecting such cases. That this system is wrong there can be no doubt, and probably arises from the fact of the ignorance of Magistrates of the meaning of equity, and their inability to master (or at any rate acquire) a knowledge of the principles of that branch of our jurisprudence. This is better exemplified in the following extract from “ Wharton’s Law Lexicon,” t. recognised authority, who says:—“lt is a popular mistake that an Equity Judge decides according to an unbounded discretion, ‘ nunc severins niinc mitius agendo prout viderint expidire,’ without regard to strict rules.” “There are,” says Lord Redesdale, “ cert ain principles on which our Courts of Equity act, which are very well settled. The cases which occur are various, but they are decided on fixed principles. Courts of Equity have in this respect no more discretionary power than Courts of Law. They decide new cases as they arise by the principles on which former cases have been decided, and may thus illustrate or enlarge the operation of those principles ; but the principles are as fixed and certain as the principles on which the Courts of Common. Law proceed. And if this were not the case, it would be vain to attempt to systematise the doctrines of Chancery ; for what would be the use of principles, if they were of so fluctuating a nature that Chancellors might regard or disregard them as they thought proper ?” I should not have troubled you at such length, had it not been for the remarks that fell from our worthy Resident Magistrate, on the hearing of a case on Monday last (Symonds v. Hyde), wherein he admitted, in giving judgment for plaintiff, that defendant was no doubt entitled in Law to a Nonsuit, but that he decided the case according to the principles of equity ; and on the application of defendant’s Solicitor for leave to appeal, he declined to grant the same. Now, sir, it is a well-known and ruling principle in equity, that Equity is not to be resorted to until tbe law is proved to be deficient. This, 1 take it, could not have been the principle upon which the above case was decided, inasmuch as the Resident Magistrate admitted that the law was sufficient, and at law the defendant would be entitled to a Nonsuit ; but in spite of this ho chose to exercise an unbounded discretion, and give a verdict for the plaintiff.—Yours, &c., An Observer. Blenheim, August 13th, 1868.