CO129-399 - Governor Sir May - 1913 [1-2] — Page 262

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in order to supply more convincing testimony, the court held to the contrary. In re Kelly, (1886) 26 Fed. Rep. 852. See

Ex p. Kilburn, (1835) 9 Pet. (U. S.) 704.

"Touching the effect of the Habeas Corpus Act, 31 Car. II,

0.2. Sec. 6, on this case, reliance was placed upon a dictum in Atty.-Gen. v. Kwok-a-Sing, L.R. 5 P. C. 179, at page 202, where it is said: 'They do not say x I x that the section

may not also apply to cases where a prisoner is discharged

unconditionally upon the ground that the warrant on which he

is detained shows no valid cause for his detention. They

think, however, it can only apply when the second arrest is

substantially for the same cause as the first, so that the

return to the second writ of habeas corpus raises for the

opinion of the court the same question with reference to tue validity of the grounds of detention as the first'. The object of the section is succinctly given in Short & Mellors'

Crown Practice 337, thus: Provision is made against a person

set at large upon habeas corpus being vexatiously committed again for the same offence.

*The language of Mellish, L.J., in L.R. 5 P.C. indicates, I

think, that he was regarding the second arrest as involving substantially the same matters of investigation and of evidence as the first arrest; and that is manifestly not the case in the present inquiry, for here the second proceeding is to supplement and make good what was lacking in the first; so far from being vexatious it is the interest of justice and international comity that the charge should be further prosecuted.

"But I think the better view is that taken in a Victoria

court, viz., that this statute does not apply to extradition proceedings. The preamble of the English Act shows that it is framed for the benefit of those of the King's subjects who are

in custody, and it was held by Holroyd, J., in In re Frederic Gebhard No. 3, (1901) 27 Victoria L.R. 655, that the 'offence' mentioned in section 6 must be limited to offences

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