STAT. 13 GEO. II., c. 18.-Certiorari-Notice to Justices. THIS was an application for a writ of certiorari, in which a preliminary objection had been taken that the Magistrate ought to have had notice of the intention to move under Act 13 Geo. II., c. 18, the 5th section of which is to the following effect: -"From and after the 24th June, 1740, no writ of certiorari shall be granted to remove any conviction, judgment, order, or other proceedings had or made by or before any Justice or Justices of the Peace of any county, city, borough town, corporate or liberty, or the respective General or Quarter Sessions thereof, unless such certiorari be moved or applied for within six calendar months next after such conviction, judgment, order, or other proceeding shall be so had or made, and unless it be duly proved upon oath that the said party or parties suing forth the same hath or have given six days' notice thereof in writing to the Justice or Justices, or two of them, if so many there be, by and before whom such conviction, judgment, order, or other proceeding shall be so had or made, to the end that such Justice or Justices, or the parties therein concerned, may show cause, if he or they shall so think fit, against the issuing or granting of such certiorari." J. Downer for the Justices.-The office of Justice of the Peace in the colony is the same as the office of Justice of the Peace in England; and as the colonists brought with them such of the English laws as were applicable, it is but equitable to suppose that the Imperial Legislature intended to give to the Justices the same protection. If there was any doubt, it was removed by the local Act No. 2 of 1843, entitled "An Ordinance to facilitate the adoption of the laws of England in the administration of justice in South Australia." (GWYNNE, J.-Do you consider that Justices of the Peace ever existed in this colony? If so, it must be either by SUPREME COURT. CERTIORARI-NOTICE TO JUSTICES. COMMON LAW. Statute Law or Common Law. I suppose you assume that they exist by Common Law. I am aware of no Statute which authorizes any one to appoint such an officer, and I have looked carefully. Therefore, if they exist at all, it must be by Common Law.) Yes; and if they do not exist at all, certiorari would hardly go. (GWYNNE, J.-This was a Court of Magistrates, was it?) Yes, (GWYNNE, J.—The jurisdiction they ask for a certiorari to go to is that of a Magistrate?) Yes. Stow, Q.C.-Certiorari would go to any one assuming jurisdiction. Downer.-Had the description of the English Act been "any Justice of the Peace," there could have been no argument about it; but it was the words relating to counties and boroughs and other divisions which let in the doubt. Then, was it to be said that because the Legislature had mentioned specifically every species of Justice of the Peace they knew of, instead of confining themselves to the general statement that enumerating them rendered the Act inapplicable to the colony? The mischief that the provision was intended to remedy existed precisely the same here as it existed in England. The Act No. 31 of 1855-6, "An Act to consolidate the several Ordinances relating to the establishment of the Supreme Court," which gave them the same power as the King's Bench had in England, provided also that it should be exercised subject to the same restrictions and in the same manner. In every way the Statute was one which might be in force in the colony. It was not made to redress a local grievance, and was just as applicable to a colony as to England. In James v. Brind, reported in the Register, April 19 and June 7, 1861, a similar question was raised with regard to the Statute of William and Mary, which the Court, including then Sir CHARLES COOPER, decided did apply both on general grounds and by the effect of the local Act No. 2 of 1843, which declared that everything required to be done by a constable or peace officer in England might be done by a constable or peace officer of this province. The same Act provides SUPREME COURT. CERTIORARI-NOTICE TO JUSTICES. COMMON LAW. that when by an Act of Parliament which could be applied in the administration of justice in South Australia, anything was authorized and required to be done by or before any Justice of the Peace, the same might be lawfully done before any Justice of the Peace in the province. James v. Brind, referred to the case of Attorney-General v. Steward, 2 Mer., 143, which is the leading case on the subject, and the whole of the reasoning of Sir W. Grant against the Statute of Mortmain applying to Colonies, goes to show that the Statute of Geo. II. is applicable here. The provision of 13 Geo. II., c. 18, is a general regulation applicable to any country in which English Justices of the Peace exist. Stow, Q.C., and Andrews, Q.C., in support of the rule-In reply to the point as to whether notice is required to be served upon the Magistrate, that depends on two questions-first, whether the provision of the English Statute ipso facto became part of the law of the colony of South Australia upon its foundation, and if not, whether the Statute of 1843 made it applicable. The case of the Attorney-General v. Steward decided or affirmed what was always understood to be the law, that on the establishment of a new colony so much of the English law as was applicable was introduced or became ipso facto their law. But the Statute in question was not a part of the law which was applicable to colonies, but was entirely local in its nature. The clause-and it was only one clause which it was argued did apply -referred to no such persons as Justices of the Peace generally, and Mr. Downer was altogether in error in stating that the Legislature had enumerated all the Justices of the Peace. The establishment and jurisdiction of Justices of the Peace in England was altogether local, with the exception of the Lord Chancellor, Lord High Steward, the officers of the Queen's Bench, Master of the Rolls, and some few others. The writ of certiorari to bring up the judgment of an inferior Court was a common law right, and being so could only be taken away by express words of an Act of Parliament. The Act which limited the right of the subject to have proceedings removed referred to no person who SUPREME COURT. CERTIORARI-NOTICE TO JUSTICES. COMMON LAW. held the office of "Justice of the Peace for the country of England,” which would be the only office analogous to that of "Justice of the Peace for the whole of South Australia." It referred to Justices whose powers were altogether local-applicable to part only of England, and not the whole of it. They were described as Justices of the Peace" of any county, city, borough town, corporate or liberty." It was only one part of the Act that could be applied to the colony, because the others were for "pulling down turnpikes," "preventing exaction upon the River Thames," &c. To show that there were Justices having jurisdiction in all England, see Blackstone, 340. The powers of the English Justices were conferred upon the South Australian Justices as far as they were applicable, and so far as the exercise of that jurisdiction so conferred was concerned they were entitled to the same protection under the Act of 1843, but no further. Cur. ad. vult. 9 May GWYNNE, J., delivered the judgment of the Court:-We have considered with a good deal of attention the case of the AttorneyGeneral v. Steward, 2 Merrivale, and we have lingered upon the judgment of Sir William Grant as being the leading case upon the subject. The question here is whether or not the requirement of notice to proceed against a Magistrate is of universal application, or whether it is an Act which has reference to certain locality, and specially to certain persons. The Act at home was passed for the protection of gentlemen serving in the onerous and responsible situation of Magistrates of counties and other territorial divisions of England, the functions of which they discharge without any fee or reward. The Act was passed to afford to gentlemen who were giving their services gratuitously to the State greater protection. As pointed out, no doubt the Magistrates here have a much larger territorial jurisdiction, as Justices for the whole colony of South Australia; but we do not see that because a man has a more extended jurisdiction, that therefore the principle of protection should not be extended to him. They are both serving their country without fee or reward, and Magistrates here as well as in England are entitled to every protection the law can reason SUPREME COURT. RE HARRIET WARREN. CRIMINAL. ably throw around them. As the whole policy of the Statute in England was to protect what were called the great unpaid, we see no reason why the same protection should not be extended here. Although we have some doubt upon it, the best opinion we can form is that the Statute is applicable to the administration of justice in this colony, and we find no local legislation with which it is inconsistent. Rule discharged. GWYNNE, J., WEARING, J.] MARCH 30, 1870. RE HARRIET WARREN. [CRIMINAL. MARRIAGE ACT, 1867.-On indictment for bigamy it was objected and proved that the person who performed the second marriage had no power so to do, and the marriage was therefore null and void. It appeared, however, that the RegistrarGeneral of Marriages had improperly published such person's name in the Government Gazette as having been duly enrolled an officiating minister under the Act. Sec. 13 of 15, 1867, makes the Gazette conclusive evidence that the persons therein so mentioned are officiating ministers under the Act. Held-That the Gazette notice was conclusive; and that such person therefore would be taken to be an officiating minister though in, fact he was not. THIS was an indictment for bigamy which had been heard at the February Criminal Sittings before GWYNNE, J., when the prisoner was convicted but sentence deferred. The question was, whether the prisoner's second marriage had been properly solemnized or not. Mr. Hammond of Port Lincoln, a minister of the Church of England, had performed the ceremony; but it did not appear that his name had been entered in the book kept by the RegistrarGeneral under Act 3 of 1855-6 as an officiating minister; nor had he been enrolled as such under the Marriage Act 1867, ss. 9, 10. |