LAW REPORTS.

Dominion, Volume 5, Issue 1271, 28 October 1911, Page 14

LAW REPORTS.

THE COURT OF APPEAL. THAT BABY. HOW FAR DID IT AFFECT JURY? STAGE EFFECT OR NOT? OPINIONS OF THEIR HONOURS. An interesting point was settled by the Court of Appeal yesterday, when reserved judgment was delivered in tho case of H.M. the King v. Charles Boakes, which had reference to tho conviction of Boakes for perjury at the last criminal sittings of the Supreme Court in Auckland, before Mr. Justice Chapman. On the Bench were: The Chief Justice (Sir Robert Stout), Sir Joshua Williams, Mr. Justice Denniston, Mr. Justice Edwards, Mr. Justice Chapman, and Mr. Justice Sim. At the hearing, the Solici-tor-Gonoral (Mr. J. W. Saimond), with him Mr. H. H. Ostler, appeared for tho Crown, and Mr. D. S. Smith was assigned by tho Crown as counsel for Boakes. Tho Baby Dawns in Court. In 6tating the case, Mr. Justice Chapman set out that Boakes had been arraigned at Auckland for poTj'ury. Tho substance of tho charge was that, in the Magistrate's Court at Auckland, on February 13 last, Boakes had denied tho paternity of a certain child. The charge also had reference to three other statements made, on that occasion, by Boakes. At the trial, Boakes had been defended by Mr. J. R. London, who had addressedthe jury late at night, and had explained that he would bo absent at Hamilton next morning at the sittings there.

When the Crown Prosecutor was addressing the jury next morning (Mr. Lundon being absent), the complainant in the paternity ease sat in the wiffcess-box with a baby in her arms. The baby was apparently about the same age" as the child mentioned would bo. It had fair, curly hair resembling that of the prisoner, and this was brushed in much the same way as prisoner's. During his address, tho Crown Prosecutor had referred to tho child in Court, but had immediately been stopped by the Judge. The jury, after a retirement of over four hours, had brought in a verdict of guilty on tho three first assignments. His Honour, not being satisfied that tho jury had not been- influenced by tho presence of' the child, and, believing that the child had been brought into Court for the purpose of convincing the jury that it. resembled the prisoner, deferred sentence, and ordered Boakes to present himself at tho next criminal sessions.

Was the Verdict Vitiated? ■ A special caso had then been stated by the Judge for the Court of Appeal, with the facte ret out as above, it being suggested that tho Court should essumo that Boates was applying for a now trial. The question for the Court was as to whether the facts set out wore sucl as to vitiate the verdict. If the Court was of opinion that the verdict could be regarded as properly attributable to tho evidence, it was asked to determine whether tho oonviotion should be quashed or whether there should be a new trial. Interesting Views of the Bench. The Chief Justice was of opinion that the conviction must stand as the Judge had no power to reservo the point. His Honour also thought that the action of tho mother in bringing the baby into the Court should not bo regarded as having influenced thc_iury. Sir Joshua Williams was a.lso of opinion that the conviction must stand as tho Judge had no power to reserve tho point', but he was of opinion that the jury might iiave been influenced by the action of tho woman. It was still open for the prisoner to make representation to tho Governor-in-Council. Mr. Justice Denniston, Mt. Justice Chapman, and Mr. Justico Edwards agreed with tho views expressed by Sir Joshua Williams. Mr. Justico Chapman deemed it his duty to cxpros his opinion on tho conduct of the woman. If his Honour's intervention at tho trial had any effect, it was probably (o call more marked attention to the baby. It was impossible to say that the action of the woman did not produce an effect on the jury. When Should the Governor Act? Tho Solicitor-General asked if the Court was of opinion that tho time for the Governor to act was before or after tho passing of sentence. The Chief Justice stated that he would not express an opinion one way or another as the question had not been argued. Mr. Justice Chapman was of opinion that the time for the Governor to act was before the passing of sentence, and he understood that Sir Joshua Williams agreed with him. Mr. Justice Denniston was of the 6amo opinion. Tho Solicitor-General remarked that it was not probable that the Governor-in-Council would take action before scnlenco was passed. That would bo quite unprecedented. Mr. Justice Denniston observed that such a case had never previously been decided by the Court. The circumstancss were quite unprecedented. '

FRAUD NOT PROVED. CHARGE OF MISREPRESENTATION. Mr. Justice Edwards's decision in tbo case of William Schmidt and William Bollshaw v. Willie Greenwood was reversed. This was an appeal from a decision delivered at New Plymouth on August 23, 1911. Tho bonch was occupied by the Chief. Justice (Sir Robert Stout), .Sir. Justice Donniston, and Mr. Justice Chapman. At the hearing, Mr. H. D. Bell, K.C., with him Air. J. H. Quilliam, appeared for. thoappellants, and Air. Martin Chapman, K.C., with him Mr., R. Sponce, for tho respondent. The First Action—Before Survey. In tho* original action, heard at New Plymouth in Juno, 1910, W. Greenwood, farmer, at Okau, proceeded 'against William Schmidt and William Bellshaw, both farmers, of Tongaporutu, to recover the sum of ,£259 as damages for alleged fraudulent misrepresentation in connection with the sale of 1022 acres of land in tho Mimi Survey District. Tho sale price was ,£6OO. The allejed misrepresentation was that Schmidt and Bellshaw, through their agents, had informed Greenwood that there were 122 acres in grass. It was alleged por contra that tho aroa was only 49 acres. The decision of Mr. Justice Edwards was given in October, 1910. In the course of his decision, his Honour said: "It is not in dispute that tho defendants (Schmidt and Bellshaw) represented to the plaintiff (Greenwood) that the area of grassed land was about 100 acres. . . . It is, however, proper to say at once— and emphatically—that, _ assuming this statement to havo been inaccurate, there >is no justification whatever for the chargo of fraud. ... I am satisfied that if the defendants had been asked for a warranty they would have refused to give it, and that the plaintiff did not understnTul that they were giving it. . . . Upon this action, as it was framed, the plaintiff must, therefore, have failed, but I have yet to consider whether or not the plaintiff can succeed in his claim for compensation as in an action for specific performance nf tho contract for sale under the special agreement mado at the timo of the completion of the sale, and the amendment of the statement of claim to which the defendants' counsel consented at the trial." His Honour _ then went on to state that further evidence ought to be called to enable him to arrive at a satisfactory conclusion as to the area of the land under grass. The parties would bo allowed fourteen days in which to agree to have a proper survey of tho grnsccd land, as it existed at the time when Greenwood took possession. The report of a licensed surveyor would be treated as evidence. Tho parties, however, did not corao to any agrccmont, and Greenwood won accordingly nonsuited, but without costs. Second Action—After Survey. Subsequently, however, Greenwood had tho land surveyed, and then formed the opinion that there had only been -IS acres under grass at the time of tho sale. Ho accordingly brought a further action (as

if it were a claim for compensation in an action for specific performance of tho agreement for sale) claiming .£271 damages. Tho second action was heard, and, on August 23, Mr. Justico Edwards gave his finding, in the courso of which ho went on to remark that the ovidenco adduced in tho action had put an entirely new complexion upon tho matter, and had satisfied him that Schmidt and Bellshaw must have known either when they mado tho representations as to grass acreage that they were uutruo, or that they had made those representations recklessly, and without earing whether they were true or not. That these representations had induced the contract was unquestionable. It now appeared that tho actual area of grassed land was only 15 acres, or 55 acres less than tho 100 acres which, in the former action, ho had believed to bo the area. Tho Judgo then continued: Tho difference between tho actual area is so great, and the defendants' refusal to act upon the suggestion which I made in tho former trial so unreasonable, that I can come to no other conclusion than that they woro quito well aware that the area of grassed land was very much less than they had represented, and that they refused to agree to a survey because they knew that the deficiency would bo thereby exposed. I regret that I am compelled to withdraw tho favourable opinion which I formed as to tho value of the defendants' testimony in tho former action, and to give credit to the plaintiff's evidence as to tho extent of tho misrepresentation. I find, therefore, as facts that tho representation was thjt the area of grassed land was 120 acres, that the actual area was 45 acres, and that tho defendants knew when they made tho representation that the area was vory much less than they represented. Judgment was given for plaintiff for .£lB7 10s., and costs .£35 is. Od. It was from this decision that Schmidt and Bellshaw appealed. Tho appeal was upon the ground that it was erroneous both as to finding of fact and determination of law. On the second day of the hearing in the Court of Appeal tho Chief Justico said that the Court had been considering the position, and tho question arose as to whether the Court should not be enlarged. One of tho members of the Bench (Mr. Justice Chapman) had already given a judgment on the principal point at issue, viz., whether compensation is allowable lor misrepresentation made innocently and without a warranty. Another member of the Bench (Mr. Justice Denniston) had expressed an opinion on the same judgment when the caso was before the Court of Appeal.

Eventually it was decided to argue tho question of fraud only and if it afterwards became necessary to argue tho question of warranty and innocent misrepresentation, that could 1m settled before a fuller Court. What it Amounts to Now. The learned Judges wero unanimous in their opinion that the finding of fraud was not conclusively supported by the evidence, and that, therefore, the finding mnst bo reversed. The argument on tho questions of warranty and innocent misrepresentation will bo heard at the next sittings of the Court of Appeal, and costs will be hied on tho result of that argument. AKAROA CASE, CLAIM FOR SPECIFIC RELIEF. Yesterday the Court of Appeal delivered reserved judgment in the caso of William Pidgeon, Henry Osborno Devenish, Meares, and James Hugh Williams v. Francis Narboy, a claim for specific performance in regard to a land deal at Akaroa. At the hearing Mr. T. W. 'Stringer, K.C., and Mr. Kaymond appeared for plaintiffs; and Mr. Georgo Harper, Mr. Murphy, and Mr. F. K. Hunt for the defendant. The Bench was occupied by tho Chief Justico (Sir Robert Stout), Sir Joshua Williams, Mr. Justice Denniston, Mr. Justice Chapman, and Mr. Justice Sim. The case was first heard at Christchurch, and, by consent it was ordorcd that the motion for judgment be removed to the Court of Appeal. The case was considerably involved. The plaintiff, William Pidgeon, is a farmer al Okain's Bay, Akaroa, and tho other plaintiffs joined witli him are solicitors at Clmstchurch. The defendant, Francis Narbey, also is an Akarm settler, and the ownor of the land in dispute—tho Long Bay Estate, comprising 3700 acres. In June, 1910, according to tho statement of claim, tho defendant agreed to sell his Long Bay estato • to Messrs. Meares and Williams for .£lO 10s. 'per acre, for the purposes of a small Farmers' Association under tho Act of 100!). Messrs. Meares and Williams floated the association successfully, and an agreement with the defendant was executed for the disposal of tho land, with tho exception of 600 acres w;hich were to be reserved for tho defendant. After the execution of tho agreement, the Land Purchase Board reported adversely on the confirmation of tho agreement, and the Small Farmers' Association could not then be formed. Thereupon tho plaintiffs, Messrs. Meares and »Williams, sold tho estate privately to William Pidgeon. A few days after receiving notification of tho sale, defendant replied that ho did not recognise any contract as existing relating to the sale of the estate. Tho plantiffs, therefore, asked for specific performance of tho agreement. The defendant denied that the agreement was valid, because of the alleged failure to com© to a settlement regarding the definition and location of the 500 acres to bo reserved. Ho also denied the right of Meares and Williams to sell the land privately to Pidgeon. It was also urged that the agreement (if such, existed) was not completed within the specified period of six months. The Chief Justice (Sir Robert Stout) held that judgment should be for the defendant, with costs on the highest scalo as from a distance, the costs of the Court below to be fixed by tho Court below. Sir Joshua Williams and Mr. Justico Sim concurred.

Mr. Justice Denniston dissented, and was of opinion that the plaintiffs 'were entitled to the relief which they asked for. Mr. Justice Chapman agreed in tho main with the judgment of Mr. Justice Donniston. MINING CASE. THE APPEAL IS DISMISSED. Reserved judgment of the Court was delivered by the Chief Justico in the c'aso of tho Tairua Golden Hills, Ltd., v. M'Kano and others. Tho Chief Justice (Sir Robert Stout) presided at the hearing, and sitting with him were Sir Joshua Williams, Mr. Justice Denniston, and Mr. Justico Chapman. This was an appeal from a decision of Mr. Justico Edwards, delivered at Auckland, disallowing an appeal from the Warden's Court at Thames. Tho parties to tho action were the Tairua Golden Hills, Ltd., mine-owners, and David M'Kano, Charles Lockycr, Richard Lockyer, Jeremiah O'Sullivan, William Kinsella, and Charles Jocliin, miners, of Thames and, Waihi, respondents. At tho hearing, Mr. J. R. Reed, of Auckland, appeared for tho appellants, and Mr. T. Cotter, of Auckland, with him Mr. E. J. Clendon, of TJiames, for the respondents. . In tho orginal action in the Warden's Court, M'Kano and others (tho respondents in tho present action) were plaintiffs, and tho Tairua Golden Hills, Ltd., defendants. Tho claim was for .£1517 2s. Id. damages alleged to bo duo for breach of contract, etc. M'Kano and his party alleged that they had boon tho successful tenderers for stoping 10,000 tons of quartz from one of tho company's mines, tho price being Gs Gd. per ton. Tho party paid a deposit of .£25, and were ready to start on March IG, 1910, but alleged that the company had delayed them from proceeding with the work until May 2, 1910. The work was then carried on until June 11, when tho company closed down the mine and suspended tuo contract on account of a mill breaking down. By that timo M'Kane and his paTty had shifted 13.10 tons (according to their own measurement), but 10S0 tons according to the company's measurement. As they had not been allowed to complete the contract they sued tho company for £1517 2a. Id., the principal item of which was .£1338 loss of profit on 8920 tons of quartz yet to be removed. The warden gave judgment for the.plaintiffs for .£917 17s. Id., being J2-150 damages, .£23 refund of deposit, and .£22 17s. Id. refund of percentage money. I'rom this decision the defendant company appealed to tho Supreme Court at Auckland, on tho ground that it was

erroneous in point of law, and that tho company had in fact beon guilty of no brcaoii of contract.

Mr. Justice Edwards disallowed tho appeal, and the company carried tho case to tho Court of Appeal. Tho appeal was dismissed, with costs on the highest scale as from a distance. WILL OF LATE ALLAN M'LEAN. EXECUTORS' ALLOWANCE. Decision was also given on the motion for confirmation of tho Registrar's report as to remuneration of trustees and executors in the matter of the Administration Act, IMS, and the will of Allan M'Lean, lato of Christchurch, deceased. Tho esse camo before four Judges of the Supremo Court, but was immediately removed into tho Court of Appeal. The Bench was occupied by the Chief Justice (Sir Robert Stout), Mr. Justice Denniston.Mr. Justieo Edwards, and Mr. Justieo Sim. At tho hearing, Mr. T. W. Stringer, K.C., with him Mr. Levi, appeared for tho executors of tho will (Henry Cottcrill, solicitor; Boulton Merlin Molineaux, bank manager; and Goo. Francis Gee, bank manager); and Mr. T. G. Russell appeared for the M'Lean Institute (tho residuary legatee under tho will). Allan M'Lean died at Christchurch on November 27, 1907, and probate of his will was granted on November 21, 1907, to the executors mentioned above. By the will it was directed that each of the executors should receives .£1001) as an acknowledgment for his trouble as executor, and in lieu of any commission to which he might be entitled. The Registrar (Mr. W. A. Hawkins), in pursuance of an order made by Mr. Justice Sim, hold an inquiry at the Supreme Court, Christchurch, on May 10, 1911, as to what would be a reasonable sum to allow as commission to the executors. At that inquiry. Mr. Russell contended that the sum of .EIOOO each was- an ample allowance, but tho executors declined to accept that allowance or any part thereof, on the ground that it # was not adonuatc remuneration for their pains, trouble, and responsibility in tho management of tho estate. The accounts showed that, at the time of the testator's death, the assets amounted to .C597.G30 Bs. id., lore debts amounlini; to .L'G'.'.l Bs. 4d. The gross capital realised amounted to £3~n.2% Is., and the income received to .£45,303 12s. 2d. Had the estate been administered by the Public Trustee, he would have been entitled to chargo ,£7793 IBs., by way of commission. The Resistrnr recommended that the executors be allowed, out of the estate, a sum of .£7352 2s. 4d., less the amount of ,£3OOO provided for in the will—a net sum of .€1352 2s. ill.

The judjment of the Court, as delivered by the Chief Justice, allowed an additional .£750 to the executors on account of the fact that there had been no charrro for office expenses, and also because by theii arrnnwment with the principal lesatre. the .debentures were without being realised before their maturity, thus saving the estate ias.OOO. Each" party wo.' ordered to pay its own costs. Mr. Justice Denniston dissented, and expressed the opinion that .£3OOO, a.s fixed by the will, was an ample allowance, but that JHSO shonld be allowed as interest on that sum for three years.