The Hawaiian gazette., 1870-08-10

banco for consideration of the legal questions
evolved and that they should not, in this sum-
mary mode, be compelled to bring witnesses here
from distance, passing by the tribunals estab-
/ lshed nearer their own door.
If there were controverted facts, or if the con-
tract were not presented, at the instance of the
respondents as the basis of the trial in the Court
below, and if the respondents were not in court
as the heirs and legal representatives of Metcalf,
these views would have force 1t will appear
that do give them certain force l declined to
hear evidence tending to show the invalidity of
the contract by reason of fraud duress. or other
wise. or that its assignment by Rogers was not
assented to by the prisoner. / can not decide
questions which were properly within the discre
ton and jurisdiction of the magistrate. | must
assume it to be true, that it was proved to the
magistrate by legal evidence that this contract
with John S. Rogers was legally entered into
and signed by the petitioner, and that Rogers
assigned the same as alleged to "1heo. Metcalf,
his representatives and assigns" But assuming
the contract to be all that is claimed for it. can
not decline to notice these facts, presented on
the return and amended return, viz. that the
suit before the magistrate was brought on this
contract, Endorsed as alleged, at the instance of
Metcalfs legal representatives, and of the owners
of the Metcaf plantation, that the judgment was
founded thereon and that the petition now be-
fore me is opposed by the heirs and legal repre-
sentatives of Metcalf, and by one claiming as his
surviving partner.
l shall consider these matters solely with refer
ence to the magistrates Jurisdiction 1t is
scarcely necessary to alude to the welknown
principle of law, that the jurisdiction of inferior
Courts is never presumed, but must a1irmatvely
appear The jurisdiction must appear as well
over the persons to be affected as the subject
matter, or " the judgment will be as utterly void
as though the Court had undertaken to act where
the subject matter was not within their jurisdlc-
ton" Bloom vs.. Burdick, l Ill., l39. In ex
after deciding that haJeds corpus lies only where
the process is actually void says: for void pro-
cess is the same thing as if there were none at
all; and then the party is imprisoned without
any authority whatever. Hence, the question
would seem naturally to arise, whether the auditor
had jurisdiction in the casc-in other words,
whether the person and the subject matter are
such as 10 bring the case ,citlin tie jurisdiction
Of the act Of CongresS-for these are the critic
ria of jurisdiction" IF Court assumes to act
in case over which the law does not give it au-
thority, the proceedings and Judgment will be
altogether void Cooey's Const. Inns, p. 1893
Shaw, C. j., in Vose vs.. Morton, Cush., 80,
and in Carkes case, u Cush., 800
Had the Magistrate Jurisdiction over the person
and subject matter in this case?
The contract purports to have been made in Macao,
in China. Foreign contracts to be enforceable here
against the person, must conform to laws partic-
ulary TO the requirements specifedin Sec 141S The
only extension in their favor is, that they may be
made for ten years and that limit is placed upon
the age of the servant, whereas domestic contracts
can be for only five years. and the servant must be
twenty years OF age have the assent of parent or
guardian Admitting that this contract is penalty en-
forceable'in favor of any persons to whom Rogers
may assign it, / think the least that the statute
requires is that such persons shall be persons in be-
ing and designated by name at the time of the
transfer. True, Metcalf may have had dormant
known partners, and they may now be his assigns or
representa-. But the contract was not assigned
to them partners, and it is only surviving part
ner of firm, that they claim the benefit of the
statute Section 1925 provides that the contract
is discharged at the masters death, unless it was
made with a company of individuals, of whom there
are surviving partners A contract made this
was, with Rogers and any to whom be may transfer
it, is not written contract with another, with any
partnership, is required by Sections 14lS and 1926
This is going back to the original contract without
reference TO the assignment by Rogers for of course
Rogers could assign, in writing by parole, no
greater rights under that contract than it secured to
himself admit that the contract itself contains no
stipulation that its assignment shall be in writing or
subject TO the prisoners assent. 1t provides that
the prisoner shall enter into the service of J. S.
Rogers Tor eight years, and that during that PERIOD
he viii work for the benefit of Mr.. j. S. Rogers
or for whomsoever he may transfer the contract"
But no contract for personal services gives
Police Magistrate jurisdiction for enforcing 1t by
Imprisonment, in the absence of fraud, except by
force of the Master and Servants Act No such
contract of an adult is enforceable by the common
law of England or America l. Hurd on Free
dom and Bondage, "A l43, oil 1t is a law deem
ed by the Legislature to be requisite to the needs
of this country. and of the policy of the law, they
are the sole judges But as it is law against
the liberty of the subject its meaning can not
be enlarged by intendment or inference by the
Courts. This is the old maxim of English law,
Aagliae jara in onania casu Hbe,fati dant ia.
U0rem. In doubtful cases of Englishmens
rights, the odds shall be in favor of liberty.
The magistrates criminal jurisdiction over these
cases is confined by the statute &c written con-
tracts signed by the servant, between the servant
and another, or others forming q cO-partnership.
This cannot be denied and imprisonment on a
contract not written and signed. is clearly illegal
and relievable on hdbeHs corpus.
Even under the strict apprentice acts of Eliza
beth. once in force in the American colonies and
some of the States of the United States, and to
some extent now in force in the latter. the con- |
tract was not assignabe, for says Kent vol 3, D. |
265, upon the masters death, the end and design |
of this personal trust cease. See Baxter VS. Bar
field, Str. 1866; Coventry VS. Woodruff, Dough |
1874 Hall VS. Gardner. l Mass. IFS Davis vs. |
Coburn. Mass. 3O2 Commonwealth VS. Van
Lear ! S. & r. 24s.
/ do not regard that as a contract enforceable