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I SUPREME COURT-SITTINGS IN BANCO. ¡
TUESDAY, MAY 0.
In re Tetley and Sherwin.
The Attorney-General, this morning, shewed
cause against n rule nisi, obtained on Tuesday
last hy the Solicitor-General, to issue execution j
against the defendant. On the 17th February t
last an order was obtained to stay execution (
until a further order was made, and the learned
counsel begged to observe, that the parties on
the other side had slumbered from the last day
of the last term to tho first day of the present
term. On the part of the defendant a petition
had been made, founded on the Charter of Jus-
tice: and that petition was presented, but in
consequence of the sum at issue being under
¿£1000, and for another reason, tho court re-
fused the petition : a motion waa now made
under the Common Law, by which the subject t
has a general right of petition, and it was thus
they carno into court to show that execution I
could not issue. The costs were only taxed, '
and judgment entered on the 1st of the month,
and immediately after the execution was sought.
They could not petition before judgment was
signed, but the other side could have signed
judgment on the last day of the last term, when
the defendant would have had nothing to com-
plain of. He, the Attorney-General, was pre-
pared to show, that a petition had been drawn,
and settled by counsel (Mr. Fleming,), and that !
the defendant did intend to petition bona fide
the Queen in Council : the defendant indeed
was there in person to give any security that
might be required for the debt and costs with
all other incidental expenses : he had used all
due diligence in the matter, and exhibited no
unnecessary delay. The learned counsel need
not advert to what had taken placo in four
courts of nisi prius, nor to the reluctance with
which their Honors had permitted judgment to
be signed in the case.
Mr. Justice Montagu observed, that the affi-
davit did not disclose all the merits of the case:
the court did not decide that Mr. Sherwin had
a right of appeal at Common Law-the point
had never been discussed. Judgment not having
been signed, the court could give no opinion,
and judgment not being signed, there could be
no appeal : Mr. Butler had not stated the ob-
jections fairly ; it was the duty of an attorney,
ns well as of every one, who undertook to quote
the decisions of the judges to quote thom cor-
rectly and fairly.
In the event of sureties being required, the
Attorney-General proposed Messrs. John Sher-
win and D. M'Pherson : the learned gentleman
observed, that the defendant had offered every-
thing that the law could require ; and stated
that he had authorities to adduce, which had
been collected by the diligence and research of
his learned friend Mr. Fleming, and he did not
think he asked too much if he requested their
Honors to look back to the merits of the case.
The Solicitor-General, in reply, should follow
the Attorney-General in everything, as nearly
as he could, except his observations upon the
merits of the case : he then proceeded to show
that the sum being under £ 1000, the defendant's
course was to petition the Queen for leave to
appeal, and he cited several cases in support of
this opinion. The learned counsel did not deny
the defendants' right te petition for leave to
appeal, but he contended that the court had
nothing to do with the matter: after judgment
was signed, it had no power to take security,
nor to suspend execution.
The Chief Justice said that the parties did not
come to the court to get a petition under the
charter, but, the amount being under £1000,
they came to beg the court to suspend execution,
upon giving proper security, as they were going,
rbonâ fide, to petition the Queen for leave to
appeal.
Mr. Justice Montagu observed, that the
court's power over an action was not discharged
until execution was levied.
The Solicitor-General would ask, whether
the opposite side had shewn any authority by
which their Honors could suspend execution
after judgment was signed, or to deprive the
plaintiff of the amount of his judgment? Ile
submitted, that the court hod no such power.
Mr. Justice Montagu.-Suppose the judg-
ment was founded in error, or that the verdict
was contrary to law, so that if execution issued
it would be illegal ?
The Solicitor-General.-Then there would
he a new trial.
Mr. Justice Montagu.-In the present case,
that would be useless ; the pannel was already
exhausted} the court did not always set aside a
I judgment merely for a new trial.
The Solicitor-General again submitted, that
the court had no power to suspend execution,
uniess it could bo shewn that some irregularity
or error had existed in signing judgment : he
cause a party says he means to petition for leave
to appeal, that was no ground to set aside the
judgment,
Mr. Justice Montagu observed, that the effect
of a petition of appeal was to stay execution : in
the present case, if the plaintiff got his money,
it would be perfectly useless for the defendant
to appeal, as he would never get a farthing of
the money back again.
The Chief Justice asked if the Attorney
General had met with any cases where execu-
tion had been stayed in cases of appeal ?
The Attorney-General replied in the nega-
tive : we understood the learned counsel to say,
he had only received his instructions late the
day before. His Honor then enquired whether
Mr, Fleming had been more successful? when
that gentleman replied that he hod not met with
nny case bearing directly upon the point, but he
quoted one from which a favourable inference
might be drawn.
Their Honors taking time to consider their
decision, the Attorney-General begged to ob-
serve that Mr. Sherwin was in Hobart Town,
and that he had important business to attend to
at Launceston, where ho resided. Mr. Justice
Montogu did not know why Mr. Sherwin was
sent for at that stage of the business : it would
have been quite time enough to send for that
gentleman when the court had decided upon
taking his recognizance : His Honor did not
think that course would be required, as the best
plan would bo to have the money paid into
court : he certainly should not hurry himself to
give a decision upon a matter so important.
Mr. Montagu applied for a writ of habeas
corpus to bring before the court Thomas Wil-
liams and Jane his wife, who had been com-
mitted to Hobart Town gaol ou four distinct
charges of felony, by G. B. Forster, Esq., the
Assistant Police" Magistrate at Brighton : the
learned counsel applied for the writ, on the
ground that there was no seal affixed to either
of the warrants.
Copies of the warrants were then put in, and
the originals produced, when the writ was
¡.'ranted, returnable on Friday: a writ of err
tioruri was also directed to he issued, to have
the depositions produced by the committing
Magistrate.
FRIDAY, MAY 12.
After several motions of course, Mr. Stewart
showed cause against a rule nisi, obtained by
the Solicitor-General this day week, for a new
trial, in the case of Baynton v. Crouch, tried
before his Honor the Chief Justice, at the last
civil sittings. There was nothing of any interest
in the arguments of the learned counsel, the
point turning upon the difference between a
contract and a guarantee, the Solicitor-General
maiutuing that the contract, as affecting Crouch,
was not made out,
Tho rule was discharged with costs.
In the case of the Queen v. Williams, Mr.
Montagu, who obtained on Tuesday a writ of
habeas corpus to bring up the prisoner and his
wife, now moved for the discharge of the pri
soners.
The Attorney-General, who had the depo-
sitions in the case, intimated to the court that
he had found a true bill against Williams, and
was then prepared to put the information on
the file : he would, therefore, leave it to the
[ discretion of the court whether it would dis
i charge bim.
The Court intimated that it did not think the
Attorney-General could interfere in the matter,
i unless he appeared on behalf of the committing
magistrate : all that he was required to do, was
' to produce the depositions.
I The Attorney.General bowed to the decision
, of the court, and produced the depositions.
The return to the writ was now road, by which
! it appeared that Thomas Williams and his wife
were committed on four charges as follow :
i for stealing seventeen sheep, the property of
I Sir John Owen, of Orielton, valued at £6 ; for
stealing a calf of the value of £3, the property
of Mr. E. Rand ; for stealing, two bullocks, of
I the value of £40, and a chest of tea, some soap,
and some sugar, of the aggregate value of
| £8 15s., the property of Mr. Andrew Gerrand.
The wife had been discharged by an order from
i the Attorney-General.
A conversation here took place as to the dis
' charge of the prisoner, Air, Justice Montagu
observing, that, as in one case, the property was
clearly traced to the prisoner's house, the court
could only remand him.
Air. Alontagu suggested, that the court might
bail the prisoner, who was a very old man.
Air. Justice Alontagu decidedly objected to
such a course, as it would lead to perjury, and
the packing of witnesses ; ho would never bail
even the wifo if he could help it.
The depositions were then read, and an order
directed to be issued to the magistrate, Air.
Forster, of Brighton, to appear before the court
on Tuesday (this day).
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