IN BANCO.

Tuapeka Times, Volume V, Issue 238, 22 August 1872, Page 6

IN BANCO.

August 15. (Before Mr Justice Chapman.)

Begina v. Beetham.— This was a rule calling upon Mr Warden Beetham and H. Eager, plaintiff in the action of Eager v. Grace, to show cause why a writ of prohibition should not issue on two grounds. First, that the "Warden's Court, at which the complaint of Eager against Grace was heard, was illegally constituted, inasmuch as the Warden and assessors acted together throughout as co-ordinate judges of law and fact; and secondly, that the distress warrant or execution was issued before the expiration of the time limited for appeal from the decision of the said Warden's Court. The rule was argued on the 11th, 12th, 13th, 17th, and 23rdult. His Honor in a lengthy judgment, which, was delivered to-day, said that after a careful consideration of the several affidavits and the report of the trial, he came to the j conclusion that the Court of the Waiden before which the case of Eager v. Grace was tried was not illegally constituted, and that there was so far no ground for a writ of prohibition. All the points raised before the Warden might be taken on appeal, and were proper subjects for the consideration of the District Court, as such court of appeal. Some perhaps might have been good for a re-hearing before the Warden, but an appeal lying as it did to a professional judge both on questions of law and of fact, was a much more satisfactory proceeding. It was in fact a new trial, which met all the case required. His Honor next considered the second ground. Did the writ of execution issue too soon ? If so, was that a ground of prohibition ? An appeal is a remedy by statute, and only lays when given by statute. Prima facie execution was the consequence of judgment ; and where a statute does not expressly or impliedly take away that consequence, there was no stay. No ease had been cited to show that a stay of execution followed from the mere giving of an appeal, and his reason for thinking that it could not be so was, that an appeal being the creation of the statute law, no incident could be engrafted on it. It was to be regretted that the Goldfields Act did not provide tor a stay of execution on terms, for restitution might not always repair the mischief. But subject to that, he believed the whole justice of the case would be met by the appeal to the District Court, which in fact reopened tbe whole case. The rule was therefore discharged, with costs.