LAW REPORTS.

Dominion, Volume 1, Issue 184, 29 April 1908, Page 4

LAW REPORTS.

■ QP APPEAL.

Co. v. united ; "'itisUriANCE go. JUDGMENT FOR THE DEFENDANTS. Thfe sittings of tiib Court of Appeal were ' rbsumed'-.yesterday-'moriiingj when further a'rgiimont''was heard in tho case betweOii the t Phccnix Assuranco Company and the United.'-insurance Compiriiy, a claim for £820 ,'ftndv interest;' rriieged to bo dub tinder ■ a -re-insuraiicei policy. . Mr. ST. (with. him Mr: - behalf of the plairitifis,' anil 1 Sir? G'.' Harper, of: Chris'tchurch •'(with for thfe defendants.. ' " ' ;■ ' Tho"' facts, .briefly, were that tho Kaiapoi ' 'Woollen two prop'brtifcs in Cashel Streot, Christclmrch —one "attached" in tho middle and the other at the end 6f .tli'e : 'lilocltfj7 Tlio' building:, had; formerljHbeeii known aS the Metropolitan llbtel. For sbfho years the Wioenix,-Compiiiijttriatl'gra.nted policies of insuraiico^to'.,tli5 J Ksiaiioi Woollen Company •in' resji&V' bf : 'tlie " attached " building in tho middle of the block, and tho United Company" granted re-insurance policies for part •of thb:!risk:,v TherflidHcics expired in December,-: 1906; ;but, subsequently the ' Kaiajioi niade anothor proposal tor insurance tb the. I'hamix Company, the building being described iis ''detached." Appli- . : policy, was made by ' the .Phmms the United Company 'siiorlly-Tffinvai'cls. ~(fn-November 18, 1907, the "attached" , building rind contents were destroyed bv. ;i fire;. The United Company ■ ref htef" to -pay' tlid aiiibuntof thb, rfe-inSiir-•atice, hence tho action. ,Qii behalf of the Phoenix Cbinpany it' was submitted that,the .buildiiig which was;• re-insured by tlie United. i^ffipifnv?^^?'We ,s H^s.Kttaolied" building ? (flß^' a l?BiS I - ; -that . the ;Word in fr®p r &T?.osar.and policy was Company, coil--~'t|'ri(lfdrh i Ut. ifetpa&Stlie.''' detached' '■ -build-'-the Metropolitan • the! street/ that. it. _ . ifc did nofc.cori-, • Bidbr/ it .tdlcall.on Mr. Happen •ciunsol' for . the' defendant 'jjorapany, to address it..,... ~ . ... .- ' • '- ' ' , MrV,I Jifetico"c:AV 11]i^infs, in tile ;courSo .of his judgiiierit, atated-tlrdt' the proposal made On October 15, 1906, bv tlio Kaiapoi Woollen; Company .to the- Phcbriix . Cdmpony for. iilsuririco .described tlib building as ,n ii;are- ; hbuSO- arid"-plothihg- P f.actory. detached abbiit 6 feet. - lii'St he*oralliK'r'y. courso tho .proposal, ■'camo inl;o.the;haildg'of;thb Pbconix Company,' and thereafter.-a coiiiidefttial-'report was en-. dbrsed : ''¥ppn; it:.;H3Timt report showed con-. Company took bf/yfchb 'apJ)ii#tibti,,T<'as that Jt._ was , aii applicii&bh ■ iii of th 6' building • for* HotoL.That: proposal" Was; accepted ,by tho, Plicciiix Com-gany;s.whicH^p?op6?e3i-'to.'; r.eMnßui'e ; > arid on 'ecßmb'er- : 26 -a. .cover!: note 'wdsj given. It. was hdjpolcfss^.td"tftifit'end. ithat "anything else;than the" -wits' intended. to-be Company. Tho ioittylthing on'whioh',atjr.wa's possible to found - 1 1va l S^tMfi i 'th(i. policy issiied 'ta be "in .lieii. Of" another policy; lit might verv . well, bo that tho tfb.rds " in. ■ 51k>u/oe" «ould mean genoi'fllly that it was, policy for. exactly tlio sa'md; but ;i perfectly obvious from otherand frdm the documents tlicnH: an ehtir'bly' different $|a;'>i! , lt. ; wo.ijildfbO"'ibsiird to - Say that'.whci)" i^jß 4i different the. words; be '-'read • as ovor-rid.ing. wotildy ho'.felif :.^'ftain) ; 'TOpiire forward;.ami -Bay, reasonsilib. ;tho; ■ had failed'W'|make. flht;its.;. • !w®- ; S®Mliad 'been no 'been-.fefftßrpd; other haridj-'.'iiicbritfect hadit was.a contract.in ,!respoot, of jtiio-'Metropolitari building.\ , '• &ijiistices Dennistbh,. Bdwardsj and, Cooper conburredj"; judgment was entered ifor cOmpdh.Yi with costs in'.ltho": . i'Sutirbnie Court on thg.fhiglic'st scale iis ori.'.a,. 'ciaini-'.ibi; £650, ; aiid alscf "(vithcosts in;' tho;. Appeal. on highest • scale, i --v; '[,■ DEFAMATORY LIBEL. - THE DEFjSON CASE. V:/; of Appeal, through .Mr. Justice* rdiia'piiiaii, deliyered reserved judgment in tho ißdeson defamatory libel case as follows:— i'■ The ftccused "frfis ' tried oil November 29, ,lflo7,- at-.Wellmgtbji;..l)eforo His Honour Mr. -a defamatory*. libeK.VTher'b.iwas 'a plea '"6t" justification. " No' evidoiitie whs give'ri. .tllat .iriy bi-'det iiermitting the prosecution 'of ;thb; prisbrifer for the alleged.(.libel. hatl.;been;_mado under section 5, '• sub6ekion"<(2Kol'.TKb'"Criminal, Code AmendimenE'iAbt\ il901»w . ! r :of, cdrittiiiitid several :distiiifct,'dwiriiatory^fcharges. One. of them po jiiry-found'fras iibt trtie. , As to' the twiJ :',6tliers;,^he, jury '-found that:-'they were true, ';b'u.t: tli,dt it',.was nbt for,'the public benefit that- thoy should bb'jiublifehed; ' Upon this. 'tiie'Teai'iied Judge directed tho jury to Cud Accused • guilty,- and reserved the question ds to w'hethof tlib order giving the permission; required by the statute • should liavo ;lieeri' put •;inv;^«'. i _ fif . , .1. ; Tho Court, tdidl not)* think that: such a prObf was" necessary; : Tho : br,der was riot on tho same footing as . ingredient iii tlio fcriine. It. wiis a;nqfdteary jirelihiiiiary with.but/ which not acquire . jurisdiction j tut- it. yv;as - not a matter which was in issue before thd jliry; Tho preliminaries liidictniefits Acts in Eriglandj and formerly in Now Zealandj tlio siiriib .character; atld tliofe'^was"'distinct authority for saying that, ,'sucii. matters- I 'liad nbt to be, piit ; iii ovidenco lit tho; trinl:. the order ■ should .bo in was manifest, as, •under.^.sectioiiv-G,.^thG'iaccused, ought to bo; ;able.tb' afecertaiii-fronl'-it who might'bb.liable '.for•'•Hi3'?,66BjS , j^Sni3, r "{^B. ; Jndgo • ought" tb bo .in,.a tliot tho grand jury -■werb in" a • positidh to find it true hill. It ,fraS"'i)ut;.tßVthg-.Pofi'rt by. counsel -for thd' '<iQcu_sb'd requiring' .tlib .ihak.ing; of..t-he .'ordefc was something .like the' iii. civil cases ; for iiotidd" of 'action; ;Tliat did'jiot assist - codti&l,.' Hojr- : as;..siich. matter's-had tObe decided by the .prqsiding.'Judge. I;.' 1 . '■ Counsel , ;wV , tlie?T>r|sonor ) Mr. \ Gray;' je~ ■ lied^on- r ß.'.',y.''AlliSonJand another, 16, Cox ■C'.C.i.vsp9;'!rlii*V.ili'ariicase .it wai) .objected that the order was.imperfect, and it was drgued'that th&t' : showed that it was produced.- There waßj'however/nothing >ih the report showing ~that it ;wont before tho jury," ari'd : 'fcfeHaiflly. hdtliifig tb show that it ! ,#as■ considorbd that .it ought to. go.ih as bvidonco. -The Court was satisfied that Howldeii v. Reg. and Erg. v. Chambers lVere.in authorities tho other ikay," while- of scctibii 5, subscction -(8),-requiring--notice tb. bo, given to the acciised 'cif 'tlift'.'Spjilicatioh for tho order, gave hiin the,opportunity of iiiiowing whether it existed Or, -liotn 'For those roasbhs", the iiohviction'lnust.-bo "afDrined; ■ Mr. .Wilforcl, ap'pe&rncl on behalf of tho prosecution (for.-,thp- King) and Mr. Gray' for-tlio prisoner;'--

breaches of'the bankruptcy act.

THE ICING f ; ' AY. G. TU^TIN; conviction Affirmed, Argiimeiit was lieitfd iri tlie ICirig y. \V. G. : Tustin;/,a .';fcase.',k Stated by Sir. Jilstice Copper of the Court of Appeal under} the Criminal .CodoiS - •MK-'-' Myersrappbarbd,, oii behalf' df the Crowfl,'' and : MH'NOHVo fbf Tnstiii: . The prisoner, was tried-beforo Mr. Justice Cooper on November 27, 1907/ cliaf-ged that heing . a- person ' adjudged, Jiankrupt. at Wellington on Maj;.:l4; ,1907j ho did j : within three years before the commencement of his • Bink^liJptS^;-.f&jl ! siiGll hbdk§ .of. acdount' as arc usual "dnd proper iii tlie business carried on ;hy him, and as sufficiently set fo'ftK'Jlii'MSlffds&rtriliisafctlbiiS' iiiid disclose his financial position; a' 'i that ho

could not have had at the timo when certain of J'is debts woro coirtracted—that is tb saj-, all debts - contracted by him after January 1, 1906—any reasonable or probable ground of expectation of boing able to pay. tho same its well as all his other debts. Upon tho prisoner being arraigned his counsel objected to each cotmt of tho indictment, on tho .ground that no intention to defraud was alleged, arid he. contended that an intent to defraud.was of the ftsseiice of each charge 'laid against the prisoner. His Honour held tfiiit it waS'iiot iiecessary for the Crown to dllpgO or" to prove any intent upon tho part of the prisoner to defraud, and intimated that in the fcverit of a conviction he would reserve tho question for the-opinion of tho Court of Appeal. The prisoner .Pleaded not guilty. During the -fci'ial - .the'' deposition the prisoner, nroved to' Kayo freofi ma'dtt at his public examination in bankruptcy on August 7, 1907, was tendered in bvidonco by .the Crown. Counsel for the prisoner objected-to its admission, on tho ground that it contained reforences tb the transactions' of tlip prisoner in relation to his business and with his creditors iifior to January 1, 1906. HjS Honour overriilfed the objection, a:rid life'ld that the defibsitibri. wits admissible,- arid it was then read to the jury._ The jury convicted tho prisoner, but in answer' to a special issue found that the prisoner' in fe? ference to the matters alleged iii the.indictment had no'-iritentidri t6 defraud. Counsel for prisoner contended.that this ; (jrititled the prisoner to an acquittal. His Honour postponed sentence, and admitted the prisoner to bail until the decision of thfe Court of Appeal upon tho questions reserved for the opinion of the said. Court. The questions for tho opinion of:the Court of Appeal were : — _ ; . ■ -. (1.) Was it.necessary to allege in tho indictment or to prove any intent to defraud oil tho part of the .prisoner ? ' (2.) Was the .prisoner's said deposition properly admitted in evidence? Mr. Neave addressed the Court on bShalf of the prisoner. _ _ . ,-• Their Honours,did not require Mr. Mj'ers to address tho .Court. . , .. i ! Mr. Justice "VVilliiims, said the points bad .teen reserved • mairily .-on 'iie'ebunt. of $±pTessions made -by liifti iii ire Griiitllfey arid in i 6 Allen, which '.were' 1 decided uri.der'the Act aof iISB3. Seotibri ITI allowe'H.tlio.Jiidge: dlScrotioh (in t-he ciiiestiori .&8' tfewjigther', the jiunit.bry clauses: should bo -.ippliect if a' bankrupt Jiad bxougiit himSelf; within-tlieir provisions. . In those cases, tlie ■ whole ; matters . came, before ;tlie ''.•'Ji^^-'Sittiiig ; '.ifl..'fiSnkrfipt6y. Ho had decided in ','thoso cases, that although a mail brought himself within the letter of tho punitory "clauses if suspension of dischargo were considered ' amnio punishmentV tho Court in its discretion Would not apply, the punitory clauses. .He/had riot decided that mens rea (a guilty mind),'was neccssary to bring..i man .withiii' tlibsb clauses. Ho-'was satisfied •that.-aiHinder tho'elaiises of the-Act. of; 18S3 iio! .'lhoh's''-'rea:was,.necessa.ry, so no mens rea Was necessary:.. undftr the. sub-sictipris of Sectidri 137: of.' .'thc i Act-of 1892.;. The. object of those clsuses-'was to prevent, the happening of an event'to which they referred. Ho .might point out that tho object was ndt punishment, but... prevention.' i--;. The clauses spoke for themselves. It was-, out bf, this question to suggest, that, in an indictment framed, on any of was necessary. :fof;do more.';thaii •'Sbtrolitsthe language -pf v committed ; bo found .gnilty.jt : nb, his ititentipn/m.ight' matter of cbmrn6ix^nowledge' ; of 'sanguine perisons;,accoiinted;fbr.'Sri enormous riumbor of. ban]jrriptci,o.s,V.and ;it,' was for tho .purpose bf :;ch?ckmg : 4litH qppnition!! of siicli riorsoiis that:'.tbo; T/egislatureyhad enactc'd those clausesi- .In his loninionjthe conviction of nrisonon" should; be ■ Justices iDerinistonv'-'Edwafds;. Cooper, arid Chapman held;-fte"'saniqjf«ew; ; : imd tho conviction was "affirmed^.accordingly. v'. v #k i A '5 ■ '%M :• j The case of the Harland, a. matter reserved|ifor'Mb!;.'ppinion .of/.tho Court, under Spotisri .Criminal Codft, Act, \fjjstic6 Donniston, . ?''' ■ ; ■].on;i'ibelialf of jtho presefif'.nor ' v•' .'HaHand.wasvtnbdtb'eforbi^ :n'iston.'. o'iij Noyefhber ; • 15, 1907, tin ■ .-;a' cliargb'; ,'i of ic-hayirigi.'' cdmniitt-ed';. aii o'flenco ■.- the i' ago of sixteen yesirs -; / between''., J tine 6. - ahd 12,1907. J. 'He 'admitted\<; : 'tlie offence,, but depended-upon :the'.defehco that lie had ■at ; th'e;-time reSscnabloycauso-.tb believe that the girl ; ivns;,b'f -.oi'vaboyo tho \ago of sixteen. As ~a; mattpr ;'qf^jfactf/tho:.;girl,-,was bbrri in June-;lS, ;, iß9ii. tip for.Sonvth'e;. Court to ,-rei, : 'of'rj'£he Court df was i-.ny -^v i idG&c6"V-t6v;SiiiSJf6i i tfiiifdiiig of tho j'.fy that :tfcctised, knew that thfe girl was iifciler Sixteen. The only evidence on thq point was that tlio accused was thn'.iiriclb of the girl; arid, had been .familiar with tho family sinca 1898 (when the' girl 'Would;'bb eight 'years pld). At tlie . rfeqiiest. of the accttslwk HiS Honour -,sentenced , hinij but c intjmated ; ,that he would reserve tlio question whothef tlitre ivas ovideiicp. .from, which "-tlio. jbry■-.might •.find as to the offqet of tlio findings in any case; : : , ; . :. .- ) .The Court : iritiiriated that- a telegram had been received front the .prisoner; to. tho etfect that ho did riot, wish iiriythitig lutther done in the mailer. There was no-appear-ance dn behalf ef tlie prisener, ,but notwithstanding tlio Court had coftSiddrod the case. Mr. Justice Willisirii3 said lib was"satisfied no case for the accused had been mads' ciut. Tho Criminal Code Act puts upon the accused thq.-burden\.of .proof of; making -it . appeal to' the jury. that-ho had -reasoaublo cause td believe that the girl was of or iibout the ago of sixteen years. In his opinion tho jury wore; justified in : coming to tho conclusion that he had rib such reasonablo Cause. : The. cohvibtion-shbiiid, ho thought; be affirmed. . ~ Justicos Deniiistoriy Edwards, Cooper, and Chapiftari cdiicurred/ and the judgriient of the Court was that the conviction bo upheld. - - ' ■

ALLEGED'' BREAKING ANtJ ENfgR- ' ■. . INC. . " ' .

: APPLICATION FOR.' A NEW TRIAL. Argument relativd ito. tho applicatioii of Frank Sales for a new trial on the gfound that, the verdict ill Ills, caso was- against the weight of evidence wds then heard." Sales niid .one. .Taffies • M'lrityre were •; indicted jointly fo_r breaklfig iliid efitoririg the hfiiise of the Rev. Jolili Mackenzie.; in; Olirist-cMi-cli and stealing therefrom jeweller? and inoiiey: to th§. Value of • £07;,J05.,. and. were both convicted aiid sentenced. ~Mr. Neaye appeared in support of the motion and Mr. MyeriJ for the' Grown. ' Mr.. Neave; .on behalf of., prisoner, contended that there was. no direct evidence to coilfifiet/ Sales witli the rfibberjv It'was; ho said, Sales's misfortune to stand iii the dock with ft, iiian. who was undoubtedly gUilty, and that the jury did not properly disbriminato between thS evirlenco admissible against M'lntyre and the evidence admissible against Sales: Jurthfer, he submitted, that.-tho bUrdfeh of pfoof was" upon M'lntyre) whii' had failed. to discharge it, whereas the burden of proof as regards Sales Wail tiii the Crown, and the jury might have considered • that M'liityro's faililro to account for his!own actions implicated Sales. At this stage the Court adjourned until 10.30 this morning.

MAGISTRATE'S COURT*

Police CASRS, (Before Mr. \V. G. Riddoll, 8.M., oii ' Tuesday;) AN IMITATION BANKNOTE. ; -A strongly-built young man named Joseph Cooper, alias Joseph.- Eiiiinei'Sbii, alias Joseph or George Nicholls, appeared on a charge of obtaining .tlio siiiii uf 19s. Bd. and fniit valued at 4d, . froiii George Howej Adelaide Road, by false protences. A plea of , guilty waa entered.

Dbtectivo Keinp said that. Cooper had presented a coloured imitation banknote, and had been prevented from going to Lyttelton with another criminal. Accused stated that ho was.asked bv,another man to make tho purchase, and this man haiided him the liote. A sentence of three months' imprisonment was imposed.MISCELLANEOUS. .A second offender, named Patrick O'Leary, who was convicted and discharged on Monday, was fined 10s., in default 48 hours' imprisonment for driiiikehiiess. For loitering and importuning in Taranaki Street on Monday night, Sarah Jamieson was sentenced to'one month's imprisonments