RESIDENT MAGISTRATE'S COURT.

Otago Daily Times, Issue 72, 7 February 1862, Page 2

RESIDENT MAGISTRATE'S COURT.

Pout Ghamieus, Thursday, February G. (Before A. C. Strode, Esq., and D. Garriek, Esq.) William Dakin and fourteen others who had, on the arrival of the barque Mary E. Ray, been given into custody by the master of that vessel as " stow-aways," and subsequently admitted to bail, were charged with illegally secreting- themselves on board the said vessel without the consent of the captain or others in command, and contrary to the statute. Mr. Howorth, who appeared for the defendants, who were accompanied in Court by a number of the passengers by tb,e Mary E. Ray, took objection to the hearing of the case, on the ground that such a charge as was preferred against bis clients could not be made against them collectively, but individually. The act of secreting one's self on board ship was an offence necessarily personal in its extent, and for such offence the punishment-by the Passengers' Act was a fine not exceeding £5, by the Merchant Seaman's Act .£2O, it being at the same time provided that such as were accessory to the offence, by aiding orabetting, were amenable to the law ;but in this case the information had not been so laid, and was consequently null as a legitimate charge against the defendants. One effect of a charge thus collective in its character would be to shut the mouths of any -witnesses whom it might be necessary to call; but it was otherwise incon-* sistent with law, justice, and common sense, and ho insisted upon the defendants not being amenable to an information so founded.

Mr. Prendergast, for the complainant, contended for the perfect legality and propriety of

the information, and quoted Jarvis's Act, and those under which the charge was brought, to show that i:i such circumstances as those involved in tiiis case, the parties could be charged as principals and abettors, the trial of the abettors coming before, with, oi after that of the principals, as might ba convenient." Three courses were thus open to the complainant, and of those three he had chosen the course of laying the information collectively sisrainst the parties concorned, for it would be plain from the evidence which he was prepared to produce, that the defendants had, from first to last, acted in concert, one person having been chosen by thorn to make their representations, first to the mate, and subsequently to the master of the ship, and all participating in each other's acts.

Mr. Iloworth lit Id Jarvis's Act to be inapplicable, as in this case the charge was equal against all parties. The form of charge might be a very convenient o?ie for the complainant, butjnstico was not to be perverted to suit the convenience of either one party or the other. For himself, he would not have come down there to-day, had he not known that the charge ag Just the defendants was an attempt on the part of the Captain to screen himself from the fact of having taken on board a greater number of passengers than he had made provision for, and so rendered himself liable to prosecution.

Mr. Prcndorgast protested against any such statement.

Mf. Strode said that was at present, of course, ft mere matter of supposition.

Mr Howorth suggested thatanyoncof thedefendant's should be selected, but to this Mr. Prcndergast declined to agree, and the Court, holding the objection to be fatal, dismissed the case, discharged the defendants, and ordered their bail to be returned.

Mr. Prendcrgast thereupon applied for a fresh information against the parties individually, and it was agreed that, in that shape, the case .should be heard in Dunedin on Saturday.

The next case was one at the instance of Mr. Monson, Customs and Emigration Officer, at Port Chalmers, against Henry Green, master of the Mary E. Kay, who was charged with the breach of several important sections of the Passenger Act.

It appeared that the • captain had only been served with the information after the opening of the Court, which the Bench considered did 'not allow him a reasonable time to prepare his .defences to the several charges, which were of a serious nature, involving heavy penalties, and it was decided to adjourn the hearing of the case till Saturday.

T. Norton, shipping agent, Dunedin, was also charged on the information of Mr. Monson with a contravention of the Passenger Act.

Mr. Prcndcrgast, for Mr. Norton, mads the objection that the charge was not specific, but the Court ruled that according to the Act a simple reference to the section under which the information was laid was sufficient.

The charge was that Donald Robertson, with two others, had secured at Mr. Nortou's office ft passage to Melbourne by the Oithona, but that, on presenting himself at the ship's side, he was refused idmission on board, and was also refused the return of his passage mouey, without reasonable cause for either proceeding. For the defence, on the other hand, it was stated that Itobertson had gone down with the Lady Barkly steamer to the Oithona, along with other passengers, but instead of going on board at once, had gone ashore at Port Chalmers, and presented himself, with his companions, at the ship's side after (i p.m., when the captain was not bound to receive passengers on board.

After the case had proceeded for some time,.Mr. Prendergast desired to adjourn it, so as to;procure evidence, but without the consent of Mr. Howorth for the Crown, the Court declined •an adjournment, and Mr. Prendergast satisfied himself by simply calling Mr. Norton and the master of the Lady Barkly, to prove that that vessel had been alongside the Oithona, affording Kobertson an opportunity for going on board in proper time.

The Court, however, considering the peculiar circumstances of the case, and of the parties, gave judgment to the effect tiiat the passage money, amounting to £3 us, be returned to Kobertson with £1 damages. In the opinion of the Court it seemed that he had done everything in his power to be on board in time, and was in time so far that he applied to be admitted on board before the vessel was cleared by the officer at Port Chalmers at half-past nine on the eveninu: of the 4th ; while there was the circumstance in his favour, that no day of embarkation was me:tinned in the contract ticket.

Mr. Prendergast stated his intention to appaa against the decision, but the Court questioned the right of appeal, such not baing contemplated or provided for by the Act under which the information was laid.

Mr. Norton said it was only as a matter of principle that he appealed, for scarcely a. vessel sailed without some losing their passage, and it was most necessary the rules should be recognised. ; Mr. Mod son said it was equally as a matter of principle that ho brought the action, for it was almost regularly the case that vessels were advertised and cleared out to sail on certain days, while they did not sail for si-vcral days after. Mr. Norton hoped the present proceeding might serve as a mutual caution to agents and to passengers. Win. Evans, charged with unlawfully discharging a gun in the port of Otago, contrary to to the harbour regulations, and James Barr, charged with the same ofience, pleaded ignorance of the regulations, and were ordered to pay the mitigated fine of Is. and costs. Samuel Marshall and another seaman, also charged with contravening the harbour inles by boarding the City of.liobart steamer before she was visited by one of the port authorities, were fined the same amount. John Hornby, for d9pasturing a cow on the public street, was fined, in absence, ss. with costs.