LAW REPORTS.

Dominion, Volume 1, Issue 292, 3 September 1908, Page 4

LAW REPORTS.

I SUPREME COURT. CIVIL SITTING. H. A.. WARD v. NEW ZEALAND LOAN AND MERCANTILE AGENCY CO. HEARING POSTPONED. Tho caso of Henry Albert Ward v. th< Now Zealand Loan and Mercantilo Agcncj Company and Robert M. M'Knight, a clain for £1393 155., alleged loss by sale undo mortgage, was mentioned before Mr. Jusfcie< Cooper yesterday. _ Mr. Wilford, who represented tho plaintiff, said it had been arranged that the ''.paring of tbo caso should stand over until liexf sittings. Difficulty in obtaining witness?: from a distance—one from Kawliia —hac made it impossible for the caso to bo taker this week. >' Mr. Myers, on behalf of tho defendants said the understanding was that Hho ease should go to trial as it now stood"; no interrogatories to bo asked for by 'plaintiff Tho caso was accordingly struck off tho lisi of cases for hearing at the current sittings, A WANGANIII JUDGMENT. i "DIDN'T KNOW IT HAD BEEN DELIVERED." _-Leavo was granted to Mr. Wilford to mention an appeal from tho decision of a magistrate heard by bis Honour at Wangaoiui some months ago. "My'clients havo written to mo asking what has been tho result," remarked counsel. His Honour: 1 delivered judgment in the caso within forty-eight hours after ■ hearing argument—the day after you left Wanganui. I dismissed tho appeal on the facts. Counsel: The' local press never reported His Honour: Perhaps they did not think the matter was of sufheient importance. The full text of the judgment appears in the Law Reports. (Laughter.) IN .BANCO. SALE OF PAK-A-POO TICKETS. CONVICTION QUASHED. Judgment was delivered by Mr. Justico Cooper yesterday with r&spect to a motion to quash a conviction under tho hand of Dr. £I'Arthur, S.M., dated April 15, 1907, against Jo Geo upon tho information of Acting-Detective Williams charging Geo inth, on January 30, 1907, having sold a ticket by which permission was given to the purchaser, to have an intorest in a scheme by which prizes were gained by modo of chance; His Honour said that at tho hearing of tho information Acting-Detectives Williams and .Kemp gave evidence that on tho date in quostion each received from Geo two pak-a-poo tickets, for which each paid him sixponce. When they returned to Gee's houso after the.bank had been drawn they hjnded their tickets to Geo who, after comparing thorn with a marked, ticket on the- tablo, handed Williams ono shilling. The' magistrate con-rioted Geo, and lined him £100. Geo appealed on tho , following grounds:— (1) That the information did not state to whom tho ticket was alleged to havo been Sold; (2) .that thero was no cvidonce—apart from tho evidence of common knowledge, which counsel contended was inadmissible— that the tickets sold gavo tho purchasers in interest in a scheme by which prizes wero gained by a mode of chanco within tho meaning of tho:Gaming and Lotteries Act, 1881; and (3) that tho game of pak-a-poo was not a lottery or a schomo by which prizes wero gained by modo of chanco within Section 18 of tho Act., Justices Donriiston, Chapman,-and Butt-on, whoheaxd tho appeal,' Dver-ruled all tho objections. Tho conviction was drawn up by tho magiatrato.and ..filed: in tho Supromo Court on April 29, 1967."'Ge0 now appealed on tho., following; grounds:— (1) Want of certainty, as tho conviction was on a different matter from that set out in tho.inforniation, and;(2) that..it/li.d.not ptato referred to wa.s sold, and did not spccify which of'.tho tickcts ill regard to which 3vidence was givon tho conviction referred to. , ■ The information was, his Honour continued, laid under Section 18 of tho Gaming and Lotteries Act, 1S81," and. had been sustained by the Supremo Court. Section II of tho_ Act enacted that "Under this Act n every information in writing and in every ;onviction it shall bo sufficient -to set forth ;ho ofronco or causo of forfoituro as the caso nay bo in tho words of this Act." Tho jffence. had been described both in the information and , in tho conviction according to.tho statutory, definition. It did not, how3ver,_ follow that.because tho information was sufficiently certain to justify tho magistrate learing tho charge tho conviction,' be-' lauss it set for-th the offenco in tho 'words if 'the Act, was'necessarily good. Tho mealing of a similar section in the Summary Jurisdiction Act (England), 1879, had been ;onsidored in two cases. Counsel for the lolice officer mainly rested his'argument on .ho opinion of Mr. Justico Bruce, who .held n Regina v. M'Kenzio ;(1899) 2 Q.B. that if :-he conviction in quostion had followed tho ,vords of the Act, oven though it did not specify the particular Act which the informmt was intended to bo prevented frqm doing, t would bo sufficient. But in' Smith v. tfoody (1903) 1 K.B. a very different view was ;akon. Lord Alverstone, C.J., hold that it :ould not havo_ been intended by Section 39 <0 do away with tho old rule of criminal iractice, which required that fair and reasonible particularity as to tho naturo of tho iffenco must bo given in indictments and :onvictions. For instance, it clearly would lot be sufficient to say in a conviction for arceny, "Did steal tho property of" tho prosecutor without further particulars. 3e idded that in his opinion Section 39 did not iuro tho omission of such particularity in the lescription and details of the offenco as had llways been required. Justices Wills and jhannell wero of samo opinion. The principle stated in Smith v. Moody was, Mr. Justice Cooper thought, a sound and rational me, and, as tho terms of Section 41 of tho Saining and Lotteries Act, 1881, wero the lamo as those of Section 39 of tho Summary Jurisdiction Act, 1879, ho considered that ho night to follow the caso,- and test the'valid? ty of tho conviction in the present case by ;ho indicia stated in that case. He 'might ldd an additional test: tho conviction' should state tho facts relating to tho particular iffenco charged in a sufficiently certain manier to enable tho person convicted to provo i plea, of autrefois convict if afterwards prosecuted for a similar offence committed on ;ho samo date and in tho samo place by prolucing the document which contained tho. Particulars of the offenco of which ho had icon previously convicted. - His Honour then applied tho tests to tho prosent case. Geo had, he said, sold four sickets at the same time and place, two to Williams and two to Kemp. If lie had been subsequently proscouted for tho salo of any >no of theso tickets* could ho have substau-!' tiated a plea of previous conviction by' tiro production of tho conviction in the present 3aso?_ Clearly' Slot. Tho "ticket," in respect" if which ho had been convicted was not identified, and what was of even moro' importance, tho conviction did not state whether tho tickot_ in respect of which tho magistrate convicted him was sold to Williams at ill. For aught that- appeared it might have been ono of tho tickcts sold to Kemp. The jonviction did not, therefore, contain the accessary information to cnablo it to havo been used as an answer if Geo had been subsequently prosecuted for tho salo of any ono if tiic four tickets referred to. Tho fact that li> had been convicted in respect of ono of tho four tickets would not havo been a bar to a prosecution in respect of any ono of .the rnTrr.ining thre.e. Tho conviction, therefore, lid not contain tho facts whioh, notwithstanding the provisions of Section <1, wero still essential; to make tho document a valid jnniiction. It should havo stated to whom tho ticket was sold, and as four tickets were sold at tho samo timo. it should also, ho thought, havo stated whiohtickct was tho subject matter of tho conviction by identifying tin ticket in rcspeot of t-lio sale of which the plaintiff was convictqd. Ho ;had no power to amend it, and, oven. if t .ho lmd, thoro was no material by which it could, .be

amended, as it was impossible to say wind of the four tickets sold by tho plaintiff wa; tho ticket in respect of which lie had beet convicted.' The conviction must, .therefore, be quashed; His Honour informed Mr. Myers, who appeared on behalf of tho police ofliccr, thai ho had the right of appeal. It was, ho said a very important question. Possibly, magistrates might have drawn up a number oi convictions in tho samo goneral terms. 11 might bo as well if tho matter came before the Court of Appeal. Ho had noticed thai a Bill had boon introduced in Parliament, but ho did not know whether it was sc drafted as to remedy the particular want oi form in the procedure in question. Mr. Wilford, counsel for Goo. .said thai the' Bill had-been'referred to tlie Statute: Revision Committee. Mr. Myers thought it was doubtful whcthci it would be worth while appealing. It would be quite easy to have all tho necessary particulars included in subsequent convictions. His Honour: I thought I ought to mention that this is a case where there is tho right of appeal if you cared to exerciso it. There will be no order as to costs, for in tho first place defendant is a police officer, and secondly it was through no fault of his that the conviction was not properly drawn up. Mr. Wilford: Then the fine of £100 and the costs deposited by my client will bo returned to him? His Honour: I have nothing to do with that. On tho question whether the magistrate has power to draw up a proper conviction in place of tho one which has been quashed, I am not prepared to express an opinion. If defendant gets his fine and costs back it is only through a technical blunder. Ho has -been proporly ■' convicted although the form of . tho conviction has not boon properly drawn. Mr. Wilford: Wo can't call it a "moral victory." His Honour: I call it a "legal victory." (Laughter). IN CHAMBERS. MIDLAND RAILWAY COMPANY. NEW ZEALAND RECEIVER GRANTED DISCHARGE. A matter relating to the affairs of the Midland Railway Company came before Mr. Justice Cooper in Chambers yesterday. This was an application by tho plaintiff in the debenture-holders' action in England, who, having fully investigated tho accounts of tho New Zealand Receiver (Mr. -J. H. B. Coates), and being satisfied therewith, asked that Mr. Coates bo granted a full dischargo in respect of all matters already dealt with by him, and that tho balance of tho funds in- his hands_ after provision is mado for known liabilities bo handed to tho solicitors of tho plaintiff in New Zoaland; Mr. Coates to bo under, no obligation to move further in respect of any outstanding matters savo on tho request and at the expense of the plaintiff. Mr. Ostlor .appeared for tho plaintiff, and Mr. Dalzioll for Mr. Coates. An order was made, by consent, •in terms of tho application. ' THE LATE JOHN PLIMMER'S ESTATE. ____ i -QUESTION OP .'SUBDIVISION.' Air-important question respecting - the interpretation of Section 117 of tho Public Works Act was thon argued boforo Mr. Justice Cooper. The section provides that on tho subdivision of land for tho purposes of sale whero tho land has ft froutago to a public street loss than 66 feet wido tho owner set back tho frontage. lino of tho street to a distance of 33 feet from its centre, and shall dedicato tho portion between tho old and tho now street lines to tho public. It is further cnaetod that tho owner so dedicating shall bo entitled to compensation from tho local authority. Tho facts in tho case in question were as follow :--The late. John Plimmer during his lifetimo erected several buildings fronting Plimmer's Lano and Plimmcr's Steps. l)y his will- ho devised tho sevor.il properties to different devisees., Tho : district land registrar refused to register-tho' transfers from tho executors to the devisees in terms .thOj,.wjll ..unloss.,tho,..strep.t.'ivero.. widened in ■ ■ accordance'- with' 'the->]}rovisiriris'- of tho Act. A summons was then issued against the registrar by Harry Plimmer, one. of tho devisees, to show cause why his transfer should not bo registered. Mr. Beero, who appeared in support of tho summons, contended that tho Legislature could never havo 'intended the section to have tho interpretation put upon it by the registrar. To do so would make tho section a scourgo to landowners and local authorities alike, a scheme for depleting tho revenues of 'local bodies-for tho purpose of turning tho thoroughfares of towns and villages throughout tho Dominion into fantastic shapes, destructive of symmetry and perilous to passers by. Counsel submitted that the devises under tho will did not amount .to a subdivision; that the land had been actually subdivided by tho orection'of houses 'and fences years beforo tho Act came into force, and that tho will merely devised tho separato portions that had, in fact, been divided prior to tho Act coming into force. Mr. Pauling, land registrar, who was present, was not called upon. His Honour said .that although thero was considerable force in the arguments adduced by., Mr. Beero his present opinion was that if ho had'to giro'judgment lie'would probably decide in favour of tho district land registrar. Tho case was, in his opinion, essentially one that ought to go beforo tho Court of Appeal, and if ho woro asked to decido the point,- whichever sido lost ought to appeal. If lie disagreed with Mr. Beero's contentions, one or more buildings would have to be pulled down,, and .when tho lino was sot back thore would then bo insufficient land upon which to erect another building, and tho corporation would practically have to pay the price of the whole section, ino liencli had not been unanimous with respect to any judgment delivered by it in regard to the section of tho Act in question. Ihe caso boforo him was a concrete case ■ in fact, it was the best that had como beforo him for raising tho particular question in dispute. Ho therefore suggested that the parties should agreo to the removal of tho case into the Court of Appeal. > The hearing was then adjourned until to be J take X n. Preliminary steps