LAW-REPORTS.

Dominion, Volume 5, Issue 1262, 18 October 1911, Page 3

LAW-REPORTS.

THE COURT OF APPEAL.

EHRMAN'S CASE.

HABITUAL CRIMINAL OR NOT?

COURT SATS "YES."

A special case, stated in connection with t.ho recent conviction of Jofoph Ehrman at Auckland (the wlinrf thefts), was heard by tho Court of Appeal .yesterday. The bench was occupied by tho Chief Justice (Sir Kobort Stout), Sir Joshua Williams, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. Tho Solicitor-General (Mr. J. W. Snlmond) appeared for the Crown, and Mr. R. A. Singer, of Auckland, for Ehrman. . . At tho Supremo Court trial at Auckland four indictments had been made against Elirman, tho charges including theft, receiving stolon goods, false pretences, and escaping from lawful custody. He had been found guilty on tho first indictment on August 29 and on August 30 he had pleaded guilt}- to tho second, third, and fourth indictments. Ho had previously had a conviction recorded against him in respect of on offence, within' Class 11, Section 29, of tie Crimes Act, 1903. That was on August 27, 1900. On September 2 last Mr. Justice Chapman had sentenced him to four years' hard labour on tho first indictment, and four years on the second indictment these sentences to be cumulative. Ho had also been sentenced to four years on each, of the third and fourth nuuetments, this term to bo concurrent with tho second. As part of tho sentence on tho fourth indictment the prisoner had been declared to be a habitual criminal. The. question for tho consideration oi the Court was whether t.ho learned judge had jurisdiction to include this declaration in tho sentence. If not, the Court of Appeal should cither amend tho sentence or pass the proper sentence. Mr. Singer argued that before a person could be declared a habitual criminal there must be recorded against him (prior to the date of the offence on which he wns declared a habitual , criminal) the requisite'number of convictions to comply with tho Act. Tho present raw, he contended, was distinguishable from tho case'of Rex v. Steel, which had been heard by the Court of Appeal in 1910. Without calling on the Solicitor-Gen?ral, the Court gave a unanimous decision that the cajo could not bo distinguished from otso of Rex v. Steel, and that the declaration that Ehrman was a habitual criminal must stand.

MOTION RE J. R. LUNDON. DECISION RESERVED. Hearing was concluded yesterday of tho motion of the Auckland Law Society that tha rule nisi granted by the Supreme Court re J. R. Lundon, barrister and solicitor, be made absolute, and that Lundon be struck off the roll on tho ground of professional misconduct. The Bench was occupied by Sir Joshua Williams, Mr. Justice Dennifton, Mr. Justice Edwards. Mr. Justice Chapman, and Mr. Justice Sim. Mr. T. Cotter appeared for the Auckland Law Society, and Mr. C. B. MoriFon for Lundon. Particulars of the allegations a-gains,, Lundon were given in yesterday's issue. When tho Court resumed yesterday, Mr. Morison proceeded with his argument. Ecferriiis to Hadden's affidavit, Mr. Morison stated that two of tho points Hied en by Mr. Cotter were both unbelievable. He referred to the statement that Lundon told Hadden that ho was acting with Mr. Skf.lton. and to the further statement that Mr. Skelton had thrown up t'-.o case. Surely Hadden's affidavit could not Iμ accepted njfainsfc "that of Lundon? Hadden was "doing time" somewhere in New Zealand just now. If tho«e two alleged misrepresentations were taken away from the case, the question wns ivere'v ono of a breach of the conventions, and there was nothing in it for the Court to move in. Tn refrard to the payment of the JC3 18s. 7d., counsel contended that this had been refunded on the understanding that it would end the whole matter. Had Skelton infmated that he intended to report the matter to tho Law Society, Lundon would have c»nte.*Nl tho civil nction. and then the refund of tho money could not have been made a point a"sii'=t him in tlii' Court. Skol ton's affidavit was contradicted in material details by the affidavits of Shrahan and "Flynn. Lundon had b?en very frank in his own affidavit, and had not attempted ■to concede anything that counted against him. Tho proceedings had been a sufiV cientlv frrave punishment for a disregard of professional etiquette. Since the matter had been reported, his client had not accepted any business other than that for wh'ch he hn.l already beon retained. Mr. Cotter briefly replied, and put in the correspondeice that had passed between the Auckland, District Law Societj and Lundon's Auckland counsel. The Court reserved decision.

HAS HE JURISDICTION? CHIEF JUDGE OF NATIVE LAND COURT. An nppeal from a Supremo Court decision in regard to a dispute over the area of a block of Native land was heard by the Court of Appeal yesterday. Tho Bench was occupied by Sir Joshua Williams, Mr. Justice Edwards. Mr. Justice Chapman, and Mr. Justice Sim. It appsarcd that, in 1888. (lie Native Land Court partitionei! the Okohuknra Block in the Taiipo district. Okahuknra No. 2 was marked off on the plan before the Court, and the area found to be (according to tho plan) 23G0' acres. An accurate survey, made later, disclosed that .the subdivision contained 79G acres only— about one-third of tho area shown on. tho plan. Subsequently an application was made to the Chief Judge of the Naiivo Laud Court by tho owners of Okahukura No. 2 to have the area of tho subdivision increased to 2360 acres. That was granted. Parliament was then petitioned on two occasions, on behalf of the owners of the subdivision known as 8M No. 2 to have a reinvestigation of the block made. In 1807 tho Native Land Laws Amendment Act was passed, and Section 37 of that Act authorised tho Native Appellate Court to inquire- into tho matter. The inquiry was held, and tho boundaries of Okahukura No. , 2 wero fixed 6o as to include an area of 1100 acres, and by Section 37 of tho Act, tho decision of "this Court was to be final and conclusive.

An application was then made on behalf of the owners of Okahukura No. 2 to tho Chief .Ttidpre of the Nativo Land Court, under Section 3!) of the Native Land, Act, 189 V, asking that tho area be increased to 23G0 acres on the ground that I hero had been a manifest error in the decision of the Nativo Appellate Court. This application was heard and. immediately thereafter, the owners of 8M No. 2 commenced proceedings in the Supreme- Court to have tho Chief Judgo of the Nativo Land Court prohibited from proceeding with the application, which was taken to hnvo been made under Section 50 of the Native Land Act, 190!), as well as under Section ii 9 of tho Nativo Land Court Act, 1891. Tho Supremo ■ Court held that the Chief Judge had no jurisdiction to interfere with tho order made by tho Native Appellate Court in 1907. The present appeal is from tho decision of tho .Supremo Court.

The parties io the action wero Taitiinm Marangatann and others, owners of OkahuktiiYi i\o. 2, appellants and Patona Keiehi and another, own-srs of 8M No. 2 respondents. Mr. H. D. Bell, ICC, with him Mr.

T. \V. Lewis, Hi' Uisbonic, appeared for appellants, and Mr. Martin Chapman, K.C., with him Mr. S. A. Atkinson, for the respondents. Ai'ifiiment hud not contended when {'ho Court adjourned until this morning. SUPREME COURT.

MIRAMAR LTD. AND WONDERLAND. Mr'. Justice Edwards delivered reserved judgment in the .Supremo Court yesterdny in thn case of Hcathcoto Ccethnm Williams, Dudley Brnco Hill, and Arthur Snrv Uwavos Carlyon, all of Hawko's Bay, v. Jliramar, Ltd. Mr. A. W. Blair appeared for the plaintiffs, and Mr. H. D Bell K.C., with him Jlr. C. H. Treadveil for tlie defendant oompaaj>

Plaintiffs (Williams, Hill, nnil Carlyon) claimed that, by a deed dated March .1, 11W8 (and executed in consideration ol their guarantee to an overdraft, ot A«.n at the Bank of New South Wales for the ilirainur Athletic Park and Nondeiland Company), tho defendant conipaii} (iliraiiiar, Ltd.) had agreed that, it tho guarnntcß were not discharged, tucj would, on March 31, 1900, n low t< ifiiurantors to remove the buildings ail Fixtures (other than the fences) at V, on; derlaiwl. In this event a certain contracj to purchase between Miramar, Lt( ~ ami tho Wonderland Company was to be terminated. Or, in the alternative. Milrimar, Ltd.. would pay to plain tiffs 1 o sum of .£"351 55., and t.iko over the lands and buildings belouginß .'« * lip .,^°» d land Company, and terminate tho agree-

In addition to denying severa 1 mat ers, Jliramar. Ltd.. defended the action upon tho ground that Williams, 11.11, and Cnrlvon had lost their right under the pu. rantee, und, moreover, by certain conflict, had precluded themselves from makw D Honour, "is an action for specific, relief. The claim arises under a deed, dated March 21, 1808, made tehveen Miramar, Ltd the defendant company of the first part, another company called tho Mrramar Athletic, lark L,l Wonderland Company (which I shall hereafter call the Wonderland Company), of the second port, and tho plaintiffs of the third part. By a agreement dated April 11, 1907 subsequently adopted by, and made binding upon, the Wonderland Company, Miraraai, Ltd agreed to fell to the Wonderland Company, and tho Wonderland Company agreed to purchase, certa.in lands at Miromai for the sum of .£11,756 »;., to be paid bv instalments of JE2O per centum on or before July It, 1907, .£lO per centum on October 11," 1907, £W per centum on Janiian- 11, 1908, and the balauco on April 11, 1912, with interest at the rate of Xo per centum per annum, computed from .Inly 11 By this agreement tho Wonderland Company was precluded from, using tho lands thereby affected for any purpose other than as a private park, and otherwise as therein specifically stated The Wonderland Company paid to Miramar, Ltd., on May 8, 1907, .£2351 55., being tho first instalment of purchase money payable under this contract, but made no further payments either for principal or interest. Prior to March 21, 1908, the Wonderland Company became indebted to its bankers, and to other creditors, in very large sums of money. There wero also then owing by 'M- V onderland Company to Miramar. Ltd., two further instalments of purchase money, amounting to .£2351 55., and arrears of interest. Each of tho plaintiffs (William.?, Hill, and 'Cadvon) was then tho owner of a very number of shares in the Wonuerland Company. Tho plaintiff Hill, who was a director of that company, held 5100 of (!hoso shares, each share representing .£l. The Wonderland Company thus being m financial straits, and the plaintiffs being anxious to save their moneys sunk in that company, an arrangement was come to whersby it was agreed that the plaintiffs should guarantee the payment of n. further advance by the bankers of the Wonderland Company to that company of tho sum of .£4533, upon receiving certain fecurities, and upon Miramar, Ltd., agreeing to a modification of the contract of purchase of April 11, 1907. Miramar, ltd., did-so agree. Several reasons for this are suggested. The real reason appears to have been that Miramar, Ltd., was anxious that the rale to the Wonder-

land Company should be carried into eifpct. This, however, is quite immaterial. Th» deed of Morch 21, l<loß, was accordingly executed for the purpose of carrying these arrangements into effect. After reviewing the .terms of the dsed and tho happenings subsequent to the drawing of that document, his Honour took it to bo beyond all question that the time fixed by tfie first clause of the dec-d, March 21, ISO!), was the essence of tho contract. As the plaintiffs did not affect to exercise their right of election until November 23, 1910, it was really unneccs;ary to determine precisely the Inst (lay upon which they could hnvo exercised it. Whether it was March 31 or April 1, 1909, is quits immaterial. It appeared, however, to bo tolerably plain that it was March 31. Plaintiffs must therefore fail because nn ,l >"ir own showing they failed to elect in time. Judgment v. as given for the defendant company (Miramar, Ltd.), with costs according to scale. INTERPRETATION OF WILL. Reserved decision was delivered by Mr. .Tustico Edwards on an originating summons, in reference to the estate of John Carroll, settler, of Maurieovillo, deceased, for the purpose of ascertaining whether a daughter of the deceased was entitled to a sum of ,£2G4 under the will of deceased, and, if so, whethev the sum

should bo paid out of the general residue of the estate or out of tho share of Martin John Carroll, who had elected to purchase a particular section of land under tho option conferred on him by tho will, having thereby, it was contended, become liable to pay tho sum mentioned. The parties to tho action wero: Mary Ann Brooks, wifo of Richard Wm. Varo Brooks, farmer, of Mauriceville, nnd daughter of deceased, plaintiff, and Richard Wm. Vare Brooks and Chas. Edwd. Blewet. executors- and trustees of deceased's will, and Jfnrtin John C.irroll, labourer, of Mauriceville, defendants. At tho hearing, Mr. C. 11. Treadwell appeared for the plnintiff, Mr. D. Logan for the trustees, and Mr. A. R. Bnnny for tho third defendant, Martin John Carroll. Tho plaintiff, by affidavit, stated that at tho time of the death of John Carroll, the parcel of land containing over 117 acres, being Section 95, Block 11, Kopnaranga Survey District, referred to in the will of the deceased, was subject to a memorandum of lease for the term of ten years from October 1, 1903, at a yearly rental of .188, so that when tho testator died on May 11, 1910, there were upwards of eight years of the lease uiicxpired. There was a provision in the will, however, that, in the event of asalo being arranged, the lessee (Richard Wm. Yare Brooks') should relinquish tho unexpired term of the lease upon payment to him of .£l5O. On March 23, 1911, one of the defendants, Martin John Carroll (son of deceased), purchased the property at MO an acre, and paid the sum of .£l5O in respect of the unexpired term of tho lease. Plaintiff ,(Mary Ann Brooks) wns entitled, under tho will, to tho sum of ;E2GI (three years' rent of the

property referred to at ,£BB per annum). The trustees refused to pay her more than £73, -being the rent pavablo on the section for the period from the death of testator until the disposal of the property to Martin John Carroll. His Honour said it was quite clear that the gift to the plaintiff was a specific gift, and that it was a Rift of an interest in. tho land ont of which tho rent was to issue. There must bo a declaration that tho plaintiff is entitled to be paid out of the proceeds of the sale of the land described in the will of the testator, as Section 95, Block 11, Ivopuaranga Survey District,* the same sums as she would have been entitled to if such land had not Ijeer. fold until after the expiration of the period of three years subsequent to tho death of the testator. The costs of all parties must be taxed and paid out of the estate, due regard being had to tho smallness of the amount in dispute. PROBATE AND WILLS.

On the motion of Mr. J. W. Macdonald, the Supreme Court has granted to the Public Trustee probato of the wills of the undermentioned deceased persons: —William Walton, late of Greymouth. Civil Servant; Charles Lyon, late of Larry's Creek, farmer; William Charles Humphrey, lato of Petono, Civil Servant; John Read, late of Wellington, settler; David Arthur Anderson, late of Greymouth, retired clergyman; Edmund Spencer, lato of Styx, farmer; Owen Donohoe, late of Southbridge, farmer; Edward Craig Stuart, formerly Bishop of Waiapu, lato of Ispahan, Persia, doctor of divinity. Administration was obtained from tho Court in respect of tho estates of the followins:—Timothy M'Mahon, ln.to of Inveroargill South, inspector of works; Elizabeth Ellen Stevens, late of Grcytown, widow; Alexander Busby, lejto of Blackheath. England (with will annexed) tha Parsons, lato of Ocean Beach, widow; Walter John Young Johnson, lalo of Kakahi, rattler; James Reid Walker, lato of Abbotsford, miner; Thomas Alexander Whyle, late of Runanga, miner; William Milne, late of Kanakania, engine-driver; Edward Dickinson, late of Wellington, census clerk; Ernest William Truscott, late of Napier, labourer; Richard Mcars, Into- of Wellington South, storeman; John Price, late of' Auckland, grocer; Charles Blythe, late of Parnell, labourer; Andrew Anderson, late of Taradale, cook; Mary Ann Keayoi, late of Soddonville, moKiod woman. .

MAGISTRATE'S COURT. (Before Mr. W. 0. liiddell, S.M.) For insobriety two first offenders were convicted and discharged. 'I'wo others were fined ss„ in default 2-1 hours' detention. One, wlio did not appear, forfeited tho amount of his bail. Patrick Dnly, charged with insobriety, was convicted and discharged. For breach of a prohibition order he was fined -10s., in default seven days' imprisonment. Walter Harris, who failed to appear on bail on Monday, was called to answer certain charges, and was remanded until to-day.

DEBT CASES. (Before Dr. M'Arthur, S.M.) .Tud'inent by default was given for plaintiffs in "the I'ollowiug undefended cases:—Maria Thornton v. Agnes V.. M'Curdy, £5 19s. M., costs ,£1 3s. fid.; Ma"nus, Sanderson and Co., Ltd., v. A. Bovd, .£2 125., costs 75.: Thos. Pagov. Hv. Mitchell, .£2 17?. fid., costs 10s. : D:I.C. v. George Stratford. M Us. 9.1., costs XI ss. Gd.; same v. .Mrs. 'Ihos. Hill. M 19s. Gd., costs 55.; llobt. Isbister and Co. v. John Lambcrg, .£l7, costs £1 13s. Gd.; James M'Ateer v. Louis Benzoin. -El "s Gd costs 5«.; Frost and Frost v. .Mrs. J 'Duncan, £2 65., cost? 10s.; Samuel Brown, Ltd., v. Jos. Perry, -El 2s Id., costs Bs.- Wm. John Lankshoar v. Albert J. Mace. 18s. 6d., costs 5?.; Hy. North v A. H. Baqprarley, costs 7s. 3d.; Samuel Brown, Ltd., v. Ealph Walsh .£2 11s. Gd., costs 10s.: same v. James A. I hornpson, .£lO 6s. 7d., costs £1 10s. 6d j Wellington Operative Bakers Industrial Union of Workers v. Thos. Lock, 1.5., costs Bs. JUDGMENT SUMMONSES. John Toits was ordered to pay _ Isaac Hunt the sum of ,£3 12s. 5d., by instalments of 20s. per month. In the case of the. Wellington Operative Bakers' Union v. Kobt. 1;. loung, a claim for M Is. 7d., defendant was ordered to pay tho amount by monthly instalments of ss. ~, . No order was made 'in Hie following cases :-M'Lcan Bros. v. Edward Adams, a claim for .£1 16s. lid.; E. Rawson v. L. Armstrong, X 2 Is. Gd.