LAW REPORTS.

Dominion, Volume 5, Issue 1255, 11 October 1911, Page 3

LAW REPORTS.

SUPREME COURT. COLLAPSE OF AN APPEAL SUIT. ONE REMARK DECIDES. THE EASTERN, AUSTRALASIAN, AND CHINA TELEGRAPH CO. AND THE COMMISSIONER 01' TAXES. Sitting in Banco, in tho Supreme Coart yesterday, the Chief Justice (Sir Robert Stout) heard an appeal by the Eastern Extension, Australasian, and China Telegraph Co., Ltd., against a decision of Dr. A. M'Arthur, S.M., delivered on June 20 last. In the original action the Commissioner of Taxes sued the Eastern Extension Australasian and China leJegrapli Co., Ltd., to recover the sum of .£74 3s. 10d., alloged to l>e due on account, of taxes unpaid (£Q7 95.) and interest thereon at 10 per cent. (=£6 4s. 10d.). Defendants coiinterclaimed £67 95., alleging that on August 23, 1901, defendants obtained judgment against the plaintiff for the refund of certain income tax paid by defendants, and costs to be fixed by the Supreme Court. The;e costs were subsequently fixed at J3185 2s. 9d., and settled about September 20, 1910, and tho defendants were entitled to interest thereon, at 6 per cent, from August, 1904, to ■ September, 1910, this interest amounting to JG67 9s. The defendants had since received a bill for incomo tax amounting to .£134 10s. 6d.; paying £67 Is. 6d„ and taking erwlit for the • sum of .£67 9s. The sum so paid, together with the amount credited, made tip tho whole amount pa.vablo by the defendant to the plaintiff for such income-tax as aforesaid. Therefore the penal rate at 10 per cent, (amounting to .£6 lis. lOd.) never became due. As the claim was for taxes, plaintiff was entitled to judgment on the claim. The only question in disputo was tho set-off. • The ease was argued at length, and tho magistrate had decided that, in an action between tho Ctowii anil • a subject, the subject had no right to set-off. Judgment was accordingly given for the Commissioner of Taxes for tho amount claimed, viz., i£74 3s. lOd. But the magistrate was of opinion that tho Telegraph Company had a claim against the Crown for £67" 95., • for which it must proceed by petition. Considering the naiuro of the claim, and the justness of having the questions stated, no costs were allowed. It was from this decision that the Eastern Extension, Australasian, and China Telegraph Company appealed, on the ground that it was erroneous in law. Mr. A. W. Blair appeared for tho appellants, and 1 the Solicitor-Geueral (Mr. J, W. Salmond) for the respondent, tho Commissioner of Taxes. During tho courso of Mr.' Blair's argument the Chief Justice, pointed out that, in the Magistrate's Court the case had been, argued upon tlie assumption that judgment had been given in 1904, whereas the judgment had not actually been delivered until 1910, and therefore interest wculd run, if at all, from the date of the judgment. The appeal was then dropped, thq So-licitor-General beinz allowed »E4 4s. costs. COURT OF APPEAL. OUR LAW OR THE SCOTTISH? Yesterday the Court of Appeal concluded the hearing of the "case of John Geo. Alexander Baird and others v. Githa Enid Fergusson and others. The hearing was commenced on Monday, the Bench being occupied by Sir Joshua Williams, Mr. Justice Edwards and Mr. Justice Chapman. .. -

Mr. H. D. 'Bell, -'EG:-/! 'with Miifa ''Mr.' H. P. Richmond, appeared for tho plaintiffs, and Mr.. J. R.-ißocd r of Auckland, with him Dr..-BanvfersH app:ecfrtii.'for ,i t/lio' defendants. ..

Tho caso liad come before Mr. Justice Edwards in Auckland and by direction of tho learned' Judge,' had been removed to tho Court of Appeal. It is aii application in regard to the transfer of certain lands in the Wairarapa, and as to. how they aro affected by a marriage settlement entered into bv Githa Enid Fergnsson and her husband in Scotland in November, • 1901, before the former was 21 years of. age. The particulars were reported in yesterday's issue. Argument was not concluded until nearly 5 o'clock yesterday afternoon, when the Court reserved decision CASES TO FOLLOW. The cases set-down for hearing in tho Court' of Appeal to-day and to-morrow will bo taken in the following order:— The Land Transfer Act, 1908, and the Native Land Act, 1909, in tho matter of the ICopaatuaki .Block. Corley v. Corley. Tairca Golden Hills Co. v. M'Kane and others. Motion under the Law Practitioners' Act re J. R. Lundon, barrister and solicitor. | MAGISTRATE'S COURT. (Before Mr." W. G. Kiddell, S.M.) • i AFFAIR~AT SEA. OUTSIDE TERRITORIAL LIMITS. Ah Wong, a Chinese seaman from the German steamer Walkure, appeared on remand. Ho was charged with that, on October 2, whilst the vessel was between Auckland and Wellington, he had assaulted Whong Bou so a 9 to cause the latter actual bodily harm. When tho caso was called Sub-Inspector Shcehan, who represented 'the police, asked leavo to withdraw tho information as the Court , had no jurisdiction, tho alleged offence having been committed on board a foreign vessel outside the threemile limit on the high seas. Ah .Wong wnS accordingly handed over to the captain of the vessel who undertook to pay costs. PENCHANT FOR FOOTWEAR. William Laurence and narry Spooner wero charged with the theft of 11 pairs of boots, the property of Robert Pearson, tho total value being £5. ; Both accused pleaded guilty and Laurence, who had been previously convicted, was sentenced to three months' imprisonment, whilo Spooner was' fined 10s., in default seven days' imprisonment. REMANDED. Mary Collins, who appeared to answer a charge of being an idle and disorderly person and also with causing damage to police cell property, valued at os. 9d., was remanded until to-morrow. . CIVIL BUSINESS. (Before Dr. M'Arthur, 'S.M.) Judgment was given for plaintiff in the following undefended cases:— Buryogne, Burbidges and Co. v. Paul Bock and Co., £17 lGs. 3d., costs £2 3s. Gd.; S. P. Rilstone v. Victor H. Braund, it 9s. Gd., costs lis.; J. B. Clarkson and Co., Ltd. v. G. H. Carson, £1, costs 55.; A. D. Kennedy and Co., Ltd. v. E. H. Barber, ,£ls 75., costs 15s. JUDGMENT SUMMONSES. Ernest Cohen was ordered to pay jE9 Its. 6d., to C. Welsh . and others on or before October 2-1, or undergo seven days' detention. H. 11. Knight was ordered to pay Arthur T. Clark the sum of £i 10s., on or beforo October 2-1, in default seven days' detention. To Kororeho was ordered to pay Emily Gullory the sum of ,£8 25., in instalments of 20s. per month. In tho'caso of Arthur Searle v. John Searle, a claim for ,£7 125., defendant was ordered to pay tho amount on or beforo November 7, in default seven days' detention.