SUPREME COURT.

Dominion, Volume 5, Issue 1282, 10 November 1911, Page 3

SUPREME COURT.

SCQTT-MARTINBALE APPEAL THOSE CHARTS. "ABC," and Scott and Mnrtind.ilc-wlie-ther tho ono Avas indicative* of tho other— worked a somoAvhat tortuous way through an appeal ease in the Supremo Court terday. Tho moaning of "publishing also carno up, and there was tho usual legal interplay. The appeal was intituled Scott and Martindale v. Kemp, and was heard boforo Mr. .Instieo Chapman.

It was aa appeal front the decision of Mr. W. G. Kiddell. S.M., who had convicted Scott and Martindalo of publishing a notification relating to bettinjr. Scott- and Martindale's appeal was mado on the ground that there was no evidence to justify the magistrate in concluding a certain card had «:om* from Uioin* Mr. T. M. Wilford appeared for fccott and Martindale, and Mr. T. Neave. of thb Crown Law Office, for the other side. At tho outset Mr. Wilford admitted that his side could not deny that tho document had reference to betting on horso races. He denied, however, that bcott and Martindale imd published it, or tliat it was a document "within tho meaning of tho Act." To begin with, it was not known Avhere the letter had been posted. It had been received by Mr. Fred Mowlem, of raimerston North, but had been addressed to his son, Mr. C. L. Mowlem. His Honour: Your caso is that there was no evidenco such as a Judge would nut to a jury if tho case had to be tried fey a jury. , , 3Lr. Wilford: Yes! I say nono whatever !

Continuing, Mr. Wilford wont on to omphnsiso that there was no evidence that Seott and Martind-ale had posted thp envelop?, or that anyone hrul posted it by their direction. Even assuming thut the posting ot such a card would bo a "publication," there was no ovidonco that Scott and Martiwlale had been parties to it. Two facts had been held to point to Scott and Martindalo, namely, that the cards had been enclosed with defendants' name, and that "ABC" (appearing on the card) was said to refer to them. As a matter of fact, it could not be inferred that tho cards camo from Scott and Mnrtindalo. Indeed, it could not bo shown that the cards had ever been in Scott and Martindale's hands. The prinU-r could not identify them, and it was quite possible that somo third party might have dispatched the cards, with tho objcct of injuring defendants or for other motives. Supposing, for instance, the documents had been written, would it not have been necessary (by evidence of handwriting, etc.), to connect them with defendants? Yet, here it was attempted to show that they had been printed for Scott and Martindalc. Mr. Wilford further submitted that the dispatch of sucli a card by post would not be "publishing" within the meaning of the ict.

Mr. Neavo argued that, from the admitted or proved facts, the inferences which could be drawn were: Firstly, that the charts were published- by Scott and Martindale either to the printer, or to Mi. Fred. Mowlcm, who received them, at Palmerston North. Secondly, that the fact that evidence had been given that the letters "ABC" had' been the private sign of Scott and Martindale. This justified nn inference that the charts had been published by. or on behalf of tho person who had used that sign.

In regard to the. main question—as to what the proper interpretation of tho word "publish" should be—Mr. Neave contended tlmt bringing the chart under the noh'co of one person constituted publishing. Under Section 30 of tho Gaming Act "publishing" was the same thing as "publishing" under tho Law of Libel. His Honour reserved decision. TAITA HOTEL. WAS IT KEPT OPEN FOR SALE OF LIQUOR ON SUNDAY? Another appeal case that occupicd the attention ol : ill'. Justice Chapman was 'that of Bryan v. M'Kenzie. Tnis was an ,a,.plication that tho Court should reverse a decision of Mr. \V ]{. Ilaseldcn, S.M., who on September 20, 1910, had convicted Francis Elizabeth Bryan, licensee of tho 'It'aita Hotel, tor keeping licensed premises open lor th'! sale of liquor on Sunday, July 1)1, of that. year. When the case was before the lower Court it had been proved to tho satisfaction of- the magistrate that two men had li ;d liquor in tho hotel on tho date in question. But evidence for the defence was to the effect that the liquor had been igiven to tho men to keep them out of the kitchen, that the liquor had not been paid ;for, and that it had been obtained irom a cupboard in the dining-TOcm, and, further, that the bar had not been opened .to procure it. Tho magistrate, however, held that tho evidence before him warranted a conviction being entered. The appeal was made on the ground that the decision of the magistrate was erroneous in point of law. and that there was no evidence to justify the finding. Mr. T. Young appeared for the appellant, and Mr. T. N eavc, of the Crown Law Oflice, for the respondent. After hearing argument of counsel, his Honour reserved decision. SATURDAY CLOSING TIME. CASE ON APPEAL.

Employers throughout the Dominion are said to be concerned in the result of an .-.jpeal case (Archer v. Le Crcn), heard in the Supremo Court yesterday belore the viiief Justice (Sir ltobert Stout), and still awaiting decision. On the information of ■;iie Inspector of Factories (E. J. Le Cren), Horace J. Archer, draper, of Cuba Street, Wellington, was charged with having employed a snop assistant after 8 p.m. on one niglit during a certain week, namely, on Saturday, July 1.

At tho hearing Mr. Weston intimated that, as thi» was purely a test case, ho rrould admit that a sale had taken place it 'J. 30 p.m. Ho relied for his defence on i Section of the Act which ho contended ■vas specially framed by the Legislature to givo shopkeepers half an hour's grace, because if the time was fixed at 9 p.m. there •was bound to bo a difficulty in closing, and prosecutions would bo numerous. Ho maintained that it was quite clear that tho Legislature intended that tho employer should close his shop at 0 o'clock, ibut that ho should not bo penalised if ho finished half an hour later. The magistrate did not agree with Mr. Weston's view of the law, but held that a breach of the Shops and Offices Act had been comnjitted, and recorded a conviction It was from this decision that tho defendant (Archer) appealed on tho ground that it was erroneous in point of law. Mr. T. S. Weston appeared for the appellant, and tho Solicitor-General (Mr. J. W. Salmond) for the respondent. After hearing logal argument his Honour reserved decision. WILL ALTERED. ALLOWANCE TO THE WIDOW.

Yesterday the Chief Justice (Sir Robert Stout) delivered his reserved decision in an originating summons in r<! a claim by a widow for further relief tinder the will of her husband, 'The parties to tho action wer? Ellen Scally, widow oj Patrick Scally, late contractor, of Woodville, plaintiff, and the Rev. Thomas M'Kcnna, priest, of Pahiatua, Patrick William Corby, hotelkeeper, Wellington, William M'Cafl'ery, Woodville (trustees of tho will of deceased), Elizabeth Corby (wife of PV?. Corby), and P. iV. Scally, farmer, of Woodville (beneficiaries under tho will), defendants. At the hearing Mr. A. W_ BJair appeared for Mrs. Scally, and M_r. C. B. Morison appeared for the trustoos and the beneficiaries under the will cited. Tho valuo of tho deceased's will was stated to lio bctweeji .£BSOO aiyl XSOOO. Mrs. Scally was bequeathed the furniture, etc., insurance money, £75 per annum for life, and riven the" right to occupy a house mentioned in the will. The annual value of this portion of the cstalo was estimated by Mrs. Scally at .£lor> Ills. Gd. There were various other bequests of small amounts, and Elizabeth Corby and I'. W. Scally were the residuary legatees. Mrs..Scally claimed (hat her husband had failed to make adequate provision for hex maintenance, oiid d&irnei. tundci tJio

Family Protection Art, such further relief as 'the Court might ti'nk fit. liis* Honour was of opinion considering the applicant's health and roini'inlimntr what her allowance- had been in (ho past, Iho allowance was insuflicienl. She was unable to work, anil had Id employ a .servant, jjo. would incrwji-'c Iho allowance by ,£!5. Costs uinountiug to -Vlt Ms. were allowed.