New Zealand Times. (PUBLISHED DAILY.) WEDNESDAY, FEBRUARY 28, 1877.

New Zealand Times, Volume XXXII, Issue 4972, 28 February 1877, Page 2

New Zealand Times. (PUBLISHED DAILY.) WEDNESDAY, FEBRUARY 28, 1877.

We have found it necessary from time to time to complain of the loose and unsatisfactory way in which business is 'coil; ducted in the Resident Magistrate's Court in this city. And we fully expect that we shall hereafter from time to time, so lopg. as the , present regime continues, find it no less necessary so to do. Our present purpose is ; not to criticise ihe mode in the powers given by the Resident Magistrate's Act are administered, but to point out what we consider are very serious defects in the Act itself. Three cardinal deficiencies single themselves out to the eye of the most cursory observer ; these are—first, that the magistrate has power in all actions brought in it to determine both the law and the fact, and to give-judgment'ac-cordingly; second, the arbitrary power it gives in the admission of evidence: the magistrate can receive any evidence which he thinks fit, " whether strictly legal or not;" thirdly, the very unsatisfactory provisions made for appeal from the . judgments given. These defects, we say, are so patent that they can escape no one, if only he have ordinary common sense. This is, in other words, saying that the magistrate is both judge and jary, that he has much larger power in the important matter of evidence than the Supreme Court itself, which is bound by the legal rules of evidence, and that the appeal from him which the Act graciously allows 'is practically in seven cases out of ten no appeal at all. If any one of these three charges be well founded, it is quite sufficient ground for applying to the Legislature to amend this Act; but if, as we hope to show, the whole,three charges are quite well founded, then we say, and say it fearlessly and confidently, this Act ifl a,

machinery not for the administration of justice, but a very convenient weapon, if the person or persons administering it were so disposed, for the infliction of wrong. Convenient, we say,- because there would be no remedy beyond the Court. The 47th section of the Act of 18C7 is as follows :—" The Court in all actions brought in the court shall have full power to determine all questions as well of fact asoflaw, and to give judgment between the parties as it shall find to stand with equity and good conscience, and to examine witnesses on oath, and the Court shall be at liberty to receive any such evidence as to it may seem fit, whether the same shall be strictly legal evidence or not, and in any judgment to prescribe such terms and conditions as to the time and mode of satisfying such judgment as it shall deem just and reasonable." Such large powers as these, when taken with the very restricted power of appeal, would be bad enough, and dangerous enough, but when they are to be exercised, and are everyday exercised by persons without any professional education, they . are simply monstrous. The single point of no jury being permitted under any circumstances to the wish of the parties, would of itself alone be enough to condemn the Act. This feature, which is totally out of harmony with the principle of British justice, was no doubt adopted in order to secure finality and expedition in the decision of a multitude of small cases. And Bacon tells us that it is sometimes admissible to veil the fair face of the statue of Justice. But we repeat, and we mean to prove that the provision, when taken along with the monstrous clause about evidence and the insufficient appeal, turns into absurdity amounting to tyranny. It usually happens that when a New Zealand statute is compared with a Victorian statute on a similar subject the comparison is altogether to our disadvantage in all respects, both Of matter and of manner. And there is no exception to this rule when we compare our Resident Magistrates Act with the Victorian County Courts Act. Thus, besides carefully providing for the professional trainingof its Judges, the Victorian Act secures the appointment of assessors or jurors, and gives large powers of appeal; while not a single expression, we believe, tantamount -to our dangerous rule as to evidence, is to be found in that Act. Under the Victorian Act, sections 31-33, in cases where the claim exceeds £2O, either party may claim to have a jury of two appointed, and in cases where unliquidated damages are claimed the Judge may appoint them. If the two assessors agree their verdict is the judgment of the Court; and if not, the verdict of one and the Judge constitutes the judgment of .the Court. One needs no lawyer's acumen to see the great utility and justice of this simple provision; and even of itself, if introduced into our Act, it would be a vast and beneficent improvement. As that Act now is there is absolutely nothing corresponding to this most righteous and sensible enactment respecting assessors ; for be it noted that such appeal as is allowed by the section 100 is only allowed from the magistrate's decision "in point of law," whereas assessors or jurors decide on the facts. Now, as the jurisdiction of our Resident Magistrate' Court now amounts to £IOO, this becomes a serious matter; for even when the claim reaches the whole extent of the jurisdiction, you have no chance of appealing unless the magistrate bases his decision on the law. This is what in ninety-nine case out of a hundred no magistrate ever does in this colony; they always, when it is at all possible, so twist the matter as to rest the judgment on some points of fact or evidence. This, to our'knowledge, is a matter of bitter complaint by the ( profession in various parts of the colony ; but as the law now is, they are at the mercy in this respect of the magistrates. The subject is far too extensive and too important to be dealt with in one article, and we shall return to it until we can feel that the public are reasonably in possession of a decent knowledge of the very objectionable law under which they living.