SUPREME COURT.

Press, Volume LV, Issue 10058, 9 June 1898, Page 3

SUPREME COURT.

SITTINGS IN BANCO.

Wednesday, June 8.

(Before his Honour Mr Justice Denniston). His Honour sat in banco at 11 a.m. HIGGINS V MAKSACK. This was a case on appeal from the decision of Mr Beetham, S.M. convicting the defendant in the court below (the now appellant) under the Gaming and Lotteries Act, for having, together with one Randall, being the occupiers of a shop in Colombo street, kept it for the purpose of betting with persons resorting. thereto. Randall pleaded guilty, but Higgins pleaded that he was not connected with Randall ia the betting transactions. The S.M., however, found that both the defendants were guilty, and convicted them. It was against this conviction under which he was sentenced to two months' imprisonment, it was against this sentence, that Higgins now appealed to the Supreme Court.

Mr Stringer appeared in support of the con dction. Mr Kjppenberger contra, and in support of. the appeal. Mr Stringer called evidence similar to that led in the lower Court. The witnesses examined were Detective Marsack, Richmond Beetham, S.M., W. H. Macdougall and W. J. Randall. Mr Kippenberger cross-examined the witness Randall at some length to show that no partnership existed between them, but that Higgina merely came into the shop as a friend, and also with others to see the sporting papers and announcements kept in the shop. His Honour commented upon the fact that there were several accounts found in Randall's shop which had bsen paid by ifiggins, including race cards, but Randall stated that he did not know that Higgins hail paid for the cards until he heard it in the lower court. In reply to questions from his Honour Randall said that Higgins and himself were partners in the tobacco business.

Mr Kippenberger, in opening the case in support of the appeal, said that the only evidence which might* be construed against the appellant was what he had said in the lower Court, as deposed to by Mr Beetbam, and the finding of racing cards and other documents belonging to Higgins found in Randall's shop. The cards contained simply information extracted from the sporting papers, and there was no reason why they should bet merely because the cards were given to them. The finding of accounts for the cushioning of Higgins'a trap and the suit of clothee was quite consistent with innocence, because it was not denied that Higgins was in the habit of going into Randall's shop, and he might have taken out his accounts and papers there. The men were, as his Honour would remember, in partnership in the old shop, and there was no doubt their monetaiy transactions were conducted together. Mr Macdougall had told them that though he rendered the account for painting tire shop to Higpins, the latter had stated that it had nothing to do with him, but he would get it back from Randall. He contended that Higgins's statement that if a man came to the shop to bet he would take him outside to bet, was perfectly consistent with bis

innocence. It did not follow at all from this that the information charging him with keeping and using a shop for the purpose of betting with those who resorted there was at all justified.

His Honour pointed out that " using" was the gist of the information as against the appellant. What did Mr Kippenberger suggest was the cause of Higgins's going to the shop so frequently.

Mr Kippenberger said Higgius and Randall were friends of many years standing. It was necessary, in carrying on the business these men did, for them to acquire information, and what was more natural than that Higgins should go into the shop to get information. Then there was the arrangement that Randell would clerk for Higgins on the course and divide the profits there. He would urge upon his Honour the view of the case that other persons not bookmakers, but who went in for betting might go in and out and make bets, in fact doing what this man had been convicted of, but nothing would apply in them for so doing. Yet this man simply because he was a bookmaker and went in and out of the shop like others was held to be using the shop for the purposes of betting. This he contended was not supported by the evidence, nor was there any evidence of Higgins having "used" the shop for betting on the date mentioned in the information. He therefore appealed to his Honour, sitting as a jury, that ho would under the circumstances acquit the appellant. If his Hcnour were against him, he would submit that as this was a new trial, it would be for his Honour to say what the punishment should be. His Honour said that he did not think so. Mr Stringer said that in the case of Searle v McCardell, 15 N.Z. Law Reports, the Chief Justice had held that the Court had no power to alter or mitigate the sentence imposed by the Magistrate. All the Court had to do was to quash or uphold the conviction. His Honour said he was glad to find that this was so, as he himself held Che same opinion as that expressed by the Chief Justice. Mr Stringer said that there was an English case referred to in the case before the Chief Justice, to which he would direct his Honour's attention. The case was Regina v Justices of Surrey. His Honour thought he had no pewer to mitigate or alter the punishment. He had nothing before him upon which he could form his opinion, if, as learned counsel submitted, it was a perfectly new trial. He had the greatest reluctance, under these circumstances, in interfering with the Magistrate's decision, because the Magistrate had evidence, and came to the conclusion that the offence had been committed and must be put down. As the matter was one of some difficulty he would take time to consider his decision. MILLER (APPELLANT) V HOBSOX (RESPONDENT). This was an appeal from the decision of the Stipendiary Magistrate, Christchurch, in which the appellant waa fined for a breach of the Licensing Act. The appellant was the licensee of the New Brighton Hotel, and an information was laid against him for having sold liquor on a Sunday to others than bona fide travellers or lodgers. The case was that Mr Fenerty, who had come from Linwood to New Brighton, over the three miles' limit, went into the hotel and took with him Mr Sinclair, a resident of New Brighton. Mr Fenerty had paid for some liquor for Mr Sinclair, but before the beer supplied to him was consumed the constable came in, and then Sinclair did not take the beer. An information was laid against Miller for supplying liquor to other than a traveller. An appeal was then entered. Mr Kippemberger in support of the appeal, and Mr Stringer contra. Mr Stringer called Mr Fenerty, who deposed that he went into the hotel soon after his arrival from Linwood.

Mf Kippenberger submitted that the sale was to Fenerty, who wasa bona fide traveller, who paid for the drinks and no one else. Hence there was no offence disclosed, and the information was not supported by the evidence.

Mr Stringer said he would apply for an amendment of the information to the extent, .that this was, an unlawful sale, of liquor, inasmuch as it was a sale of liquor to Fenerty, who was a traveller, but not for his own consumption. His Honour allowed the amendment is asked for.

Mr Kippenberger submitted tbat the Act made the sale lawful providing that an hotelkeeper might sell liquor to a faona fide traveller for his own consumption on the premises. A lengthened argument ensued as to whether, the traveller, having ordered, say; six or eight glasses of beer, was bound to consume the whole of it himself.

Mr Stringer pointed out that under the Act, if a landlord supplied a traveller with .eight or ten drinks for friends he had brought in, he would be committing a breach of the law, because the A v ct said most distinctly that the landlord should only supply the traveller with liquor for his own consumption.

His Honour said that the obvious intention of the section of the Act was that the liquor should not be supplied except to the traveller for his own consumption. Mr Kippenberger submitted that this was not the interpretation. What it meant was that the liquor, if consumed, should be consumed by the traveller on the premises. It was no offence to put the liquor before a man if it were not consumed. He would admit that had the beer been consumed by Sinclair no doubt there would have been an offence against the law. But it was not so consumed; hence there was no offence. The whole gist of the offence was the corii sumption by a person other than the traveller. Mr Stringer submitted that under the old Act lodgers and travellers could pick up as many persons as they liked and take them into.the hotel and 'shout" for them. The Legislature met this by the clause in the Act of 1895, which provided that liquor was only to b& supplied to a bona fide traveller arriving from a journey, for his own consumption, on the licensed premises. His. learned friend would hove to prove that the liquor which was supplied to the traveller was consumed by him. This was not so in this case. The liquor was not consumed by the traveller at all. Hence it did not come within the exception of the Act. His Honour said his difficulty was the extravagant and altogether disproportionate nature of the penalty to the offence. Here was a possible penalty of perhaps thousands of pounds on one small slip. Hence the Courts would look with considerable care into the construction of the clause, which was, to say the least of it, somewhat ambiguous. If the clause was clear and! unmistakeable in its language, there would! be no difficulty in his mind ; the result would rest with the Legislature. Mr Stringer said the clause must either be taken literally, or some other construction must be put on it. His learned friend could not clearly come within a literal construction of the clause. Then, looking beyond this, there was no doubt the offence was committed the moment the beer was supplied to Fenerty for Sinclair's consumption. There was no doubt that Sinclair was not entitled under the exception of the clause of the Act. Mr Kippenbereer said that if the words "to be consumed were inserted in the proviso of the clause the results would be more intelligible. His Honour said they had to deal with a clause which created a privilege to a class but it was given in a limited degree, because

it provided that the liquor should be personally consumed on the "premises by the traveller. Literally interpreted, tlhe clause would mean that it would save the licensee from a prosecution if the traveller refrained from drinking it. This, of course, was absurd, but the Court would not take the inference that the section was inoperative. But what was meant was that the saLe ot liquor! was one which intended that it was tor the travellei kimself tc be cons\imed by him on premises, and no ono else. It seemed to him to be tlie only possible interpretation of the clause. Thj "fact that the liquor itself was not actually consumed by the person other than the traveller for whom it was ordered would not bo an answer to the information. Hence he must hold that there had been a sale, but not within the exception of the clause regarding the sale to a traveller. The .appeal would be dismissed with £7 7s costs. IX THE MATTER OF THK ESTATE OF GEORGE BEJLTTT, DECEASED. This was an originating summons, which Ward and Co., Limited, on behalf of themselves and other creditors, were plaintiffs, and Emma Kent, R. C. Bishop and J. M. Thompson, as trustees, defendants. The facts of the case shortly set out were that George Beatty died on the 11th November, 1882, leaving a widow and children, and probate was taken out of his will by the widow and Const&ntine Walsh. At the time of his death Beatty was indebted to the plaintiff company, and Mrs Beatty continued to carry on the business of hotelkeeper and theatre proprietress. On March 22nd, 1883, Mrs Beatty borrowed £565 from the plaintiff company to pay the debts ot her deceased husband, and executed a mertgage of Lot 697 to secure it. She also executed a deed of inspectorship in August, 1886, under which E. W. Roper was appointed inspector for the various creditors, and up to the 7th August, 1890, the inceme ot the trust estate was paid under the inspectorship deed. At the latter date the defendants we r e appointed by the Court as trustees, under the will of the unadministered property, comprising the Theatre Royal and the "freehold land belonging thereto. The stamp accounts filed by Mrs Beatty (now Kent) showed that tho deceasQfl owed secured debts to the amouut of £6216 15s 6d. The claims of unsecured creditors amounted to £2805 163 3d, and the total value of unpledged assets to discharge unsecured debts left a deficiency of £1200 103 9d, which had been reduced under the inspectorship. One of the secured creditors of George Beatty, deceased, was the Permanent Investment and Loan Association of Canterbury, and at the time of his death he owed the Association £4565 principal money, and £28 17s interest; and at the time the inspectorship was created the amount due was £3244 18s 6d principal money, and £229 4s 7d for interest. Between the date of the inspectorship being created and October 29th, 1887, when Mrs Beatty re-Tharried, the principal money due to the Association was considerably reduced. Under tho deed of inspectorship Mrs Beatty undertook to carry on the business of hotelkeeper, &c, under the control of the inspector until the creditors, who are also parties to the deed, were paid in full, or until she was released by the inspector. It was also provided by the deed, that Mrs Beatty should execute in favour of the plaintiffcompany a release of her equity of redemption in the mortgage to the Company o\ r er the Palace Hotel and the lease in satisfaction of a sum of £1750 due to the company. The plaintiff company then rauked as a creditor for £565, but no part of this debt had been paid to plaintiffs. It was claimed by the plaintiff company that the debts acknowledged in the deed of inspectorship were enforceable against her, and that the amount paid in reduction of the, principal money due to the Permanent Investment Association between the death of the testator and Mrs Beatty's re-mar-riage out of the income of the estate should be available to the creditors under the deed of inspectorship, subject to accounts between Mrs Beatty and the defendants as trustees, and that the estate should be administered by the Court. Mrs Kent, in her affidavit, stated that her late husband, in his will, had described himself as an hotelkeeper, and the powers and authorities mentioned in the will referred to hotel keeping only. To the best of her belief .the whole .of the debts owing by him at the time of his death had been paid, satisfied or released. She borrowed as tho executrix of the estate, from the Permanent Loan and Investment Association £1000. This was secured by a second mortgage over the freehold property on which the Association already held a mortgage. On April 9th, 1897, £900 only was due to the Association, and a new arrangement was entered into by which it was agreed that if the £900 and interest at 6 per cent, was regularly paid they would not call in the principal for four years and six months, computed from. December 31st, 1896, and that the trustees should not be at liberty to pay off the principal before the expiration of that period. She was advised that there were no moneys due to the Association under the mortgage given by the late George Beatty, and that the amount due by him to the Association at the time of his death had been paid and satisfied. Mr Kippenberger, with him Mr Lane, for the plaintiff company ; Mr J. B. Fisher for the trustees. After some argument had been heard, the matter stood over till after Chambers on Friday.

The Court then rose.