New Zealand Times. (PUBLISHED DAILY.) TUESDAY, MARCH 6, 1877.

New Zealand Times, Volume XXXII, Issue 4977, 6 March 1877, Page 2

New Zealand Times. (PUBLISHED DAILY.) TUESDAY, MARCH 6, 1877.

When referring the other day to the Resident Magistrate’s Act, we pointed out I in it three main defects—as regards the entire omission of any provision for jurors in any case, as regards the insufficient right of appeal, and as to the dangerous discretion given in respect of the rules of evidence. We quoted the language of the 47th section relating to this matter of evidence, and showed that, when this was taken along with the. very unsatisfactory power of appeal, an absurdity amounting to tyranny resulted. We also showed in a somewhat general way how unfavorably our Act in these points compared with the Victorian, County Courts Act... Here is the language of the 100th section of our Act relating to appeals:—" Whenever the sum claimed exceeds twenty pounds (or’ by leave of the Court when the sum exceeds five • pounds but does not exceed twenty pounds), either party,' deeming himself aggrieved by the decision of the Court in point of law, may appeal to the Supreme Court.” As to what is the meaning and effect to be attached to this phrase "aggrieved by the decision of the Court in point of law,” let us quote the exposition of an able Judge, Mr. Justice Richmond, in thecase of Pearson, appellant, v. Clarke, respondent. His Honor said that this power of appeal only applied to cases where the moral merits of the litigants are equal, or where moral considerations can have no conceivable bearing on the decision, and in which the dispute turns on a dry point of law. “In such cases,” said his Honor, themagistrate must decide according to his view of the; le'gal ; rights of the parties. , . ■ . My opinion is that the Act contemplates that in certain cases the magistrate will not recur to his power of deciding on grounds of conscience, but will base his decisions entirely upon a point of technical equity, and that in such cases", and such only, the Act gives an appeal to this Court. ... It appears to me that the Act gives noappeal upon the ground of, the improper admission of evidence. The natural meaning of the phrase ‘ aggrieved by the decision,’ is aggrieved by the final decision of the cause. . . . The reasoning by which I have arrived at the conclusion that the final decision should in some cases proceed on strictly legal grounds does not apply to the admission of evidence.” Nothing can be clearer than this exposition by Judge Richmond of the extent of the power of ; appeal given to the suitors, and of the extent of the discretion over evidence given to the magistrate, The one is the narrowest possible —being, indeed, as his Honor explains, - not applicable in one case in a hundred ; and the other power over evidence is monstrously large. Of course Judge .Richmond was not expressing an opinion as to the political expediency.opfthe ethical fairness of these provisions, but merely, as his duty-was, expbuhding the meaning and effect of the law as it is, In our opinion it is a monstrous law, and. to our certain knowledge these large powers given to magistrates have been in multitudes ,of cases most inequitably and cruelly exercised, to the harm and ruin of individuals. Now, keeping in mind what we before explained of the beneficial provisions of the Victorian Act as to the appointment of jurors, let us see what, that Act provides- in respect of appeals and of evidence. This is settled by .the GBth clause, which is as follows: “ Ifj either party to any cause shall be dis : satisfied with the determination or direction of the Court in point of law, or upon the admission dr rejection of any, evidence, such party may appeal from the same to the Supreme Court.” Now, here' mark two points; the dissatisfied suitor can appeal “in any. cause”—that is to say, there is no restriction in point of amount of claim, as in our Act ; again, an appeal is specifically allowed “upon the admission or rejection of any evidence.” What the New Zealand Act expressly forbids the Victorian Act expressly empowers. Now we repeat what we said before, that this pionstrous discretion given to magistrates in the matter of evidence is systematically abused. These gentlemen, well knowing, how easily by a dexterous manipulation of this power they can evade the miserably limited right of appeal, generally contrive to base the decision of the

Court, not on a point of laiw, but of fact or evidence. Thus, justice - ’ is ini a vast number of cases effectually Jade feated. Now' we ask—and we ask it, intending, if we can exert any. influence, to have the question answered—are. these, proper powers to ; give tp men who are not professionally educated ? Is this a proper way to - hand over peoples’ rights, without .appeal, remember, to the tender mercies and the generally crude understandings of laymen ? . How, for instance, are these men without legal training to distinguish and single out those very exceptional cases referred to by Judge Richmond, which are to be decided strictly and solely on legal grounds 1 And supposing them to be capable of making this selection will-they be willing to do so in order to bring the decision within the reach of an appeal ? As we said already, we say again, that all over the colony these men, where the decision can be based on fact or evidence, never do in any case decide solely on legal grounds ; that is but natural under the circumstances. But* for that very reason, because it is natural, the law, we say, ought to put such legerdemain tricks beyond their power. We have not yet referred specially to our own Resident Magistrate, who is no exception to the bad rule we are condemning, or rather, indeed, he is an exceptionally bad sample of the class to which he belongs. We have only space left to mention one little incident as illustrative. One day two lawyers, whom we shall call A. and 8., appeared on opposite sides in two cases in the Resident Magistrate’s Court. They both knew quite well the respective merits of their cases. Lawyer A. knew that if right were done he ought to gain ease number one and lose case number two ; and lawyer B. knew, conversely, that on the same ground he ought to gain case number two and lose case number one. The magistrate’s ruling just reversed this order of things, giving A. and B. respectively a judgment in the case they, should have lost, and deciding against them in the case they knew well they ought by right to have succeeded in. Meeting outside the door of the Court, lawyer A. (an eminent practitioner) put up his hands, exclaiming “ What a farce!” Well he might say so, and what a farce we may repeat. But when we add that the thing happens nearly every day in that Court, then the farce becomes serious, and turns into something rather tragic.

Wo shall return to this matter again, as it is very far from being exhausted.