CASES ARGUED AND DETERMINED IN THE SUPREME COURT OF SOUTH AUSTRALIA. JULY 18, 1865. DAWES AND WIFE against QUARREL AND WIFE. LOCAL COURTS.-Validity of Local Court-Motion to quash certiorari, and to set aside ca. sa. on the ground that there was no such Court legally constituted as the Local Court of Adelaide. Held by Boothby, J., and Gwynne, J., Hanson, C.J., dissentiente. That the Legislature of South Australia has no power to constitute Courts—and that therefore the Local Court of Adelaide, professed to be established under the Local Courts Act, had no existence. By Gwynne, J.-That the provisions in the Local Courts Act, with regard to the mode of trial, &c., of Civil actions was repugnant to the laws of England, and therefore void. THIS was an action commenced in the Local Court of Adelaide, under the provisions of the Local Courts Act, No. 15, 1861, against the defendants, to recover damages for slanderous words spoken by the wife of the defendant of the wife of the plaintiff. Plea-not guilty, and justification. The action was tried before the Special Magistrate and a Jury. Verdict for plaintiffs-damages, £20 and costs. On the 25th day of April plaintiffs removed the judgment upon that verdict into this Court, and sued out a writ of capias ad satisfaciendum, upon which the defendants were arrested. On the 24th June a rule nisi was obtained, calling upon the plaintiffs to show cause why the writ of certiorari to bring up a judgment between the same parties from sostyled Local Court of Adelaide, issued in this cause, should not be quashed, and why the writ of capias ad satisfaciendum, issued out of this Court by the abovenamed plaintiffs against the abovenamed defendants, should not be set aside, on the grounds that there was no such Court legally constituted as the Local Court of Adelaide, and that there was B no judgment of this Court to warrant the issuing of the said writ of capias ad satisfaciendum. The rule was argued on the 8th July, the Attorney-General (Mr. Andrews) for plaintiffs; Mr. Stow, Q.C., for defendants, in support of the rule. The Court now delivered judgment. GWYNNE, J.-In this case a rule has been obtained by Mr. Stow, calling upon the plaintiff to "show cause why the writ of certiorari to bring up a judgment between the same parties, from the so-styled Local Court of Adelaide, issued in this cause, should not be quashed, and why the writ of capias ad satisfaciendum, issued out of this honourable Court by the plaintiffs against the defendants, should not be set aside, on the ground that there is no such Court legally constituted as the Local Court of Adelaide, and that there is no judgment of this Court to warrant the issuing of the said writ." Of these Local Courts there are in South Australia some thirty. They were first established by the Local Act, No. 5, of 1850, but the principal Act now relating to them is No. 15 of 1861, and this confers upon them very extensive jurisdiction, both criminal and civil. They have cognizance of all personal actions (including libel, slander, breach of promise of marriage, and malicious prosecution), when the debt or damage claimed is not more than £100; but, by consent, they have jurisdiction in any action without any limitation as to amount of claim. (See secs. 23, 24, and 25.) By the 27th sec. it is enacted that "a Local Court of Full Jurisdiction shall have cognizance of any action in which the title to any corporeal or incorporeal hereditament or easement shall be in question, or in which the validity or effect of any devise, bequest, or limitation, under any will or settlement, or document in the nature of a settlement, may be disputed." These Courts have also jurisdiction to try actions of ejectment. (See, amongst others, secs. 159 and 169.) The only qualification of the Judge (called a Special Magistrate) who presides in these Courts, and exercises this extensive jurisdiction, is that he shall be a Justice of the Peace. (See sec. 8.) And although in Jury cases he is required to direct the Jury upon all matters of law, and decide upon the admission or rejection of evidence (sec. 18), it is not necessary that he should be bred to the law, or have had any legal training whatever. The Jury which the Special Magistrate is to direct "upon all matters of law" is not a Jury of "twelve good men and true," but a Jury of four Jurymen (sec. 43), and even this sort of Jury can only be obtained, in civil matters, upon the payment of £2 (sec. 37), and in criminal matters is refused altogether. Then comes this extraordinary enactment—" All causes and matters cognizable under this Act by a Court of Full Jurisdiction shall be heard and determined in open Court, in a summary way, acccording to equity and good conscience, and the substantial merits of the case, by and before, &c., a Special Magistrate and two Justices of the Peace for the said Province, or a Jury." (See sec. 13.) I need only allude to two more provisions of the Act-the one relating to appeals to this Court (see secs. 56 et seq.); the other (sec. 54), which enables a successful party to remove the judgment of the Local Courts into this (the Supreme) Court, when it is to have the same force as if originally a judgment of this Court. It is unnecessary to allude to the Criminal Jurisdiction of Local Courts, except as illustrative of the genius of our local legislation. Certain felonies are matters cognizable under the Act by a Court of Full Jurisdiction (sec. 115), and therefore, pursuant to sec. 13, were to be heard and determined, not upon the broad principles and liberal spirit of the English Criminal Law, but "in a summary way, according to equity and good conscience, and the substantial merits of the case, before the Special Magistrate and two Justices, without a Jury." This novel mode of administering criminal justice, however, no longer exists, as, in the case of the Queen v. Neville, I held that thus to try an Englishman encroached upon the great principle of English law, "that no man is to be punished until found guilty by a Jury of his peers;" and, being supported in that view by my learned colleague Mr. Justice Boothby, the Criminal Jurisdiction of Local Courts has ceased to be exercised. But in reference to civil suits, what do those words mean, according to equity and good conscience, and the substantial merits of the case?" Is the principle of deciding implied by these words applicable alike to jury cases and to cases heard before three Magistrates, or only to the latter? The requirement that the Special Magistrate is in Jury cases to direct the Jury upon all matters of law, and decide upon the admission and rejection of evidence would seem to imply that the "equity and conscience" principle should not apply to cases where there is no Jury; but even this conclusion seems doubtful, for although by sec. 56 an appeal is given to either party in a cause dissatisfied with the determination or direction of the Local Court upon a point of law or upon the admission or rejection of evidence, yet the Supreme Court shall, if of opinion that substantial justice (I suppose upon the equity |