LAW REPORTS.

Dominion, Volume 5, Issue 1286, 15 November 1911, Page 3

LAW REPORTS.

SUPREME COURT. THE "LIGHT LIST" UNFOLDS. CRIME AND EVIDENCE. ONE SOLICITOR PULLED Ul>. The criminal sessions of the Supremo Court were continued yesterday before the Chief Justice (S\T Robert Stout). Mr. T. Ntavo, of tho Crown Law Office, i"epresenled tho Crown. The body of the court was crowded throughout tho day.

The first case called was that in which JoTin Baker w?.s charged with stealing a sheep valued at £1, the property of Patrick Kavanagh. Tho offence was alleged to havo taken place at Xgahauranga on September 22. Jtr. A. Dunn appeared for the prisoner, who pleaded not guilty.

The Police Watch by Night. Evidence for the prosecution was much tho same as that submitted in the lower Court. It was alleged that since March last, Patrick Kavanagh, a farmer in tho Ngahaurauga. district, had missed some 50 sheep from his property, and the police had been informed. On the night of September 22, Acting-Detective Bailey and Constable J. Cum tiling;, who had been watching Kavanagh's property, observed Baker coming down a track with a sack on his back. The sack contained the carcass of a sheen, and Baker was.thereupon arrested on a charge of sheep-stealing. On Iwing held up Baker made resistance, and also protested his innocence, adding that ho had authority to kill sheep on the adjoining hill. Marks on tho carcass of the sheep indicated that it had been killed by a bullet. On tho following day Baker's boardinghouso had been searched and a pea rifle wis found underneath the mattress of a snare bed. Two sheepskins had been found" in a lumber room upstairs (one containing bullet holes), and other skins were found in the yard. Kavanagh, however, had been unable to positively identify the carcass or the skins as his property, as his sheep wore only ear-marked.

Prisoner Endeavours to Explain. Prisoner, in giving evidence, stated that he was proprietor of the White Horse Boardinghouse .at Ngahanranga, but v.-as by profession a former, and had arrived from _ England about five years ago. He was in the habit of buying sheep from Mr. C'amerou, of Horokhvi. Receipts for these transactions were produced. " Mr. Neavo objected. This man,, he said, could not testify to Cameron's signature. His Honour: I suppose you intend to call Cameron? Mr. Dunn: No. your Honour. His Honour then observed that he would not rule the evidence out, but the jury would not be likely to pay much attention to it. If Cameron wcto not called it would certainly be subject to comment. His Honour then asked prisoner: Have you ever killed sheep here before? Prisoner: Yes. His Honour: I was not aware that the law permitted you to do so. Prisoner: For your own consumption! His Honour: I was not aware that the law even permitted that. Manoeuvre Frustrated. Continuing bis evidence, prisoner went on to say that lie had obtained two sheep from Cameron in August. 'He had also bought ono from him iu September, for which he could not find a receipt. Tin's sheep had been kept in the garden, but, on September 22, it had got out, and witness, who had no dogs, had been nnabio to run it down. He then got his gun, followed it up a track, and shot il. He skinned it on the spot, subsequently shot a couple of rabbits, and then brought tho skin home about tea time. A friend detained him until 9.30 p.m., when the latter wont back up the track to recover, tho sheep. It was while he-waVo'iithe'. way back that he was accosted by ActingDetectivt* Bailey and Constable Cumroing's. It was true that ho had not told them that he had authority to kill sheep on tho adjoining bills. His Honour: Do you mean to suggest that the two constables have both sworn falsely ? Before an nnswer could bo given Mr. Dunn essayed to proceed with the examination, but his Honour remarked: "I am asking the prisoner a question, Mr. Dunn! It is not usual "for counsel to interrupt." His Honour then repeated the question. The prisoner replied that ho did suggest that tho two police witnesses had sworn falsely. Referring "to tho discovorv of the peanflo under the mattress of'the bed, witness stated flw.t ho had put it there to prevent anyone from coming in and stealing it. One could not be too careful when boarders. were coining about the place. Mr. Dunn was continuing to examine at length when his Honour asked what was the use of. it nil. The whole of the previous cross-examination had been thrown away. What was the object in asking about tho skin and the sheep if the prisoner was going to tome here and admit that h«-.killed the sheep, and which ho said was his. J, Witness had previously knled several sheep for private consumption. He hud mostly killed them in tho wash-house, about one a week when there ware plenty of boarders. The sheep were generally killed when delivered, but, if not immediately required, were turned in-' to the- back garden among the cabbages.

Why Not State This in lower Court? While the prisoner was proceeding with his answers, his Honour asked. "Why did you not tell all this in the Court below?" Prisoner: I was never asked the question. Mr. Dunn: He reserved his defence, yotir Hnnonr. His Honour: Reserved his defence! In further cross-examination, witness said.that Frederick Smith, the kitchenman, saw the sheep escape from the oarden. Evidence was then given by S. J. Ti«dal!, gunsmith. Seen in Court and Put in the Box. _ At the suggestion of the foreman of the jury, l-mlerick Smith, the kitchenman, was called. He had not boon subpoenaed, but happened to be in Court. Frederick Smith,, labourer, employed as kitchenman by Bakor, stated that lie never knew where the meat came from. He had nothing to do with ordcrin* it He once saw a sheep that had been killed in the wash-house, but had never seen ?i" y iA 1 r e shoop in tta'fwrdwi. He knew •» I r ' f amcrc »> of Horokiwi, supplied milk to the house, but was not aware that he supplied sheep, pigs, and poultry. two witnesses, Murphy and Wilton, were called, but did not appear. 'They hadnot been-subpoenaed. Mr Dunn asked if his Honour would grant an adjournment. His Honour refused to do so. ]f the witnesses had not been subpoenaed then the party relying on them must take the risk. His Honour went or. to say that judging from the outlmo of the evidence given so far, it did not appear to have any direct bearing on the ca*e.

"Guilty." The jury retired af 3.5 p.m., and returned at iM p.m. with a verdict of guilty, the foreman stated that ho had been asked to say that the- jury attached no importance to the production in Court of I he other skins -and tho shot gun His Honour thought that the jury were quite right in making that remark. The prisoner would bo remanded until Saturday for sentence. MOFFITT ON TRIAL. THE DEATH OF GEORGE GUNTHER, A further stage regarding the recent Willis Street fatality was reached when Edward Moffitt was charged with having unlawfully killed George Gunther on October 31, thereby being guilty of manslaughter. Mr. A. L. Herdman appeared for the accused, who pleaded not guilty. Evidence tendered, for the prosecution yesterday was on similar lines to that given at the inquest, held, on November 3, and at tho Magistrate's Court a week later. It was alleged that Moffitt had been standing at the corner of Manners Street and Willis Street on the evening of October. 31, when he was accosted by the deceased (Gunther). According to tho testimony of bystanders, Gunther, 7Q.0 was about forty years of age, and

who appeared to ho the worse bir liquor had irritated Mould. The latter (old (inntlwr not (o argue, ami Hien pushed him away, and, when Gunlher ilid not gr away, MoffiH: struck him a blow, ami O.nlVv foil backwards. In his fall lit descended heavily against I'erretl's winfcr'"' - Uoiritl thrm " ,i,(ln oIV ~mvn Willis Street. Deceased was picked ii| by Constable Cnlloly and takoii lo Ihe surgery of Dr. Henry, the latter ordering his removal (n (he hospital. On arrival thorp Dr. Woodhouso had found terrain injuries (o Iho brain. Tlic.-l- lormiuatcd fatally. The witnesses for the pi-oseeulion examined vesterday wore-. Dr. ('. D. Henrv, i Dr. Y l . 1;. Woodhouse, Dr. W. Is. l-'vffc, . Consfabl" Culloty, Detective Abbot, Pop., aid Stuavt (half-brother of the necrosed), William Jlarlow, and John Bovau, Several of these were questioned hv members of (be jury. Dr. l-yffp, in the course of eridenee, stated that deceased had been suffering from a disease of the aorta, which made the artery brittle. The disease was not usual at. such an early age, but il might have bren caused by alcohol. To Mr. Herdman': The man mav have been hit before, and have been walking about with rupture of the meningeal artery. A push might'then cause severe bleeding of the artery, and the man might thereupon fall heavily and, fracture his skull. The fracture of .dsft>ased's skull was the biggost witness had ever seen. On the whole he thought that the theory above-mentioned was a moro feasible one than'that the. whole injury had .been caused by a blow from Moffitt. Witness remembered a case of a cabman in Lon.don who, after being in hospital for five hours, insisted on leaving, and dropped dead at the door from rupture of the meningeal artery. To a juryman: The longest case of a man walking about with rupture of the meningeal artery'that had come under witness's notice was seven hours. John Bcvan, resident of Brooklyn, was a. new witness. He gavo evidence as to witnessing the occurrence. His version was that Gunther fell directly to the pavement, and did.not strike the window-sill. To Mr. Herdman: It was not true t-hnt. Gunther made an attempt to strike Moffitt. When he fell he .went down as if he had been shot. At this'stago the case was adjourned until .10 o'clock this morning. The prisoner was refused bail. ■ THE OPERA HOUSE THEFT. PROBATION GRANTED. Two prisoners who had been found guilty of offences on Mondav were sentenced by the Chief Justice (Sir Robert Stout) yesterday morning. Mt. T. Neave, of the Crown Law Office, represented the Crown. The charge on which Frank Roberts stood convicted was theft of a hamper of leather samples. Mr. C. K. Dix, who appeared for Roberts, stated that the prisoner had previously been' of irreproachable character, and asked' that leniency be extended to him. Evidence as to character was given by J. G.Fanning, estate agent. _Mr. Dix said he understood that Mr. Neave had received a letter from the Union Company asking that the prisoner Da compelled to make restitution for the amount of depreciation of the goods, lie was absolutely penniless. His Honour: He has been in steady employment for 18 years. lie will be given probation for twelve months. He has cost the State a iot of money, and l:c added to this by not owning up to the offence. The Registrar estimates trie cost at .£32 Bs. Bd., on which you will havo to pay .£1 a month in reduction of this sum. CECIL BRAITHWAITE. AND THE ENGAGEMENT RINGS. Cecil Braithwaite had been found guilty of theft of three, diamond rings, value .£34, the property of Montagun Ileinemann, jeweller. Two of the rings had been pawned aud a third had disappeared. Mr. A. L. Hcrthnan, cu behalf of the prisoner, stated that Braithwaite was a native of Dunedin, where his people were yery well known. Some time lie had •been committed to the Rotri'Roa Inebriates' Home, and singe coming to Wellington from there be had commenced to drink again. Apart from this he had borne a good character. A Dunedin doctor, who know accused, gavo it as his opinion that drink was the cause of the young man's lapse. Counsel suggested that the best, way to deal with the prisoner would be to rccommithim to Koto Eoa Island. His Honour remarked that'ho was sure that it would not be too much to say that at _least a-third of the cases that'came before him at criminal sessions were due to drink. At some sessions it had bscr; as much as two-thirds. Probation might have been granted to the-prisoner if he had had a situation to go to in a No-License district. The bast thing to do with him would be to send him to Roto Roa for twelve months, lie should realise that his only safety, in life would be to be an absolute abstainer. "I am not asking vou to do anything I do not do mvself," 'his Honour added. Mr. Neaj-e asked if his nonour would make an order for the restitution of the rings that had been located. His Honour said that before doing so he would hear the pawnbrokers this morning.

THE WAIKATO SWAMP CASE. PLAINTIFFS. SUCCEED. ; In the Supreme Court yesterday, Mr. Justice Chapman delivered 'reserved judgment in what is known as "tire Waikato Swamp case." This was an action brought by Herbert Carter and Jnraes W. Bodv against John W. Chapman, of Wellington, for rescission of an agreement ' to purchase certain land in the Waikato, and also for recovery of the sum of ,£507 lGs. id.—the amount paid out of pocket by Carter and Bodv, tho nlaintiffs. Mr. T. M. Wilford, with W. J. Cracroft Wilson, appeared for plaintiff;, and Mr. A. Gray, with him Mr. C. W. Tringham, for tho defendant Chapman. The action first earco before the Court on March S last, and extended over several days. It was founded upon three alleged misrepresentations. Under an-agreement, dated February M, 1!H0, defendant sold to plaintiffs certain land in tho Waikato, a.iid tin land was afterwards, by virtue of tho agreement, taken possession of by tho plaintiffs, and'occupied by them. The first causo of action alleged fraud. It was that mis-statements were knowingly made. The second caus= of action omitted fraud, and relied upon the contention that the misrepresentation of something material entitled. plaintiffs to rescission (•! tiuv agrcewsai The first alleged misrepresentation wr.s that defendant statnd that the property fmuted a public dedicated road, known as Teieuhjue lto.-ui; tho second was that . the defendant, before inducing the purchase, represented (o the plaintiffs that the land was of such quality that if tho ti-trce which covered it. was burned off, grass would come up in throe week's, aiid cattle could bo put on within six weeks; the third was that ho declared that the land was not subject to flood in winter or at any time. In connection with the first point, the defence admitted,tho ronr???nh"tion, except with regard to the word "dedicated." At tho conclusion of tho evidence, the case was adjourr.?d sine die for the hearing of counsel's arguments. Subsequentlv the case wa.i brought up again a few weeks ago,, when counsel addressed the Court at great length. . In giving judgment the learned Judge remarked that tho parties gave irroconcilab contradictory evidence on most of the points. Ho snmmarised tho evidence as to whether au interview between Carter and Body and Chapman took place at the last-mentioned person's houso as alleged by the first-named, and camo to the con-clusion-that the story was not an invention on' the part of Carter and Body that it actually occurred.' Taking all the facts into consideration, his Honour said he felt compelled to say that the weight of the evidence proved that Carter and Body had made out that representations substantially as alleged were made by Chapman. - That they were substantially an inducing causo in bringing, about the sale was also made out. His Honour added.that-in considering this, one had to bear in- mind that uono of the men who were concerned in the transactions were fanners; most of them were attracted by a carefully-got-up show of produce, such ns does not grow in such, luxury in and about Wellington; that all tho representations made respectin" the land went in the same direction as the exhibit; and that. Chapman either told them or allowed them to assumo that these products came from the land he had for sale or laud like it. That Chapman invited Carter and Bodv to his house and'represented the lancl in glowing terms was made" out. The onus was

lon Carter and liodv. and his Honour l-ad felt great lv disinclined t.i I'm id against defendant, lint ho fuiiml himself lorcrd lo iln mi. It seemed |.i him I hat inorciv (<• oll'er this loud for-sale to a bonMinisher, a mechanical eiigiiiei-r, ami a butcher at what lie considered to lie more I linn three limes ils speculative value and at a pric so utlerlv di-pro-jmrlinneil to its cost, lvas in il.-elf a .-trong circum.-laiuc. His Honour said ho was content lo leave (ho whole quoslinn of tho Tciephono Load undetermined becim-e he thought Curler and ]!ad.v were rntilled lo judgment mi Hie grounds deail with. rlainiilTs were enliCed to the relief clninied and judgment, mu.-t bo fur the selling a>ide of the contract and i-epav. I'.'.g the piiroha.-o monev so tar as il. had been jiaid. with fi per cent interest. There would nave lo he an lVtuirv as, to Carer and Body's pxpemljinre and as to their expenses and losses incurred including interest. They would have costs a.--crmVing to scale. Seven riavs were allowed for (he further ilavs of'the trial, at *S n if' por (,a - v ' an(l lwo f»."Hier davsat •un ins. pe r day, together wi'.h witnesses' expenses imd disbursements to be fixed by the Kcgistrar.

TO RECOVER INCOME TAX. CORRECT PROCEDURE. A special case, stated for hearing in tl'e Supreme, Court, in connection with a claim by the Mudgwav Estate and Land Company, Ltd., against the Commissioner ot I axes, was decided before .Mr. Justice Uianman yesterday morning. The main action nas a claim lor ,£3i:-J lis. for inoomo tax'alleged to have' been wrongly assessed, and overpaid. In the statement of claim it was set out that the capital of the, Mudgwav Estate Company was .£II,OOO, divided into 200 share* of Mr, each. The shares were fully subscribed by twelve members. The principal objects of the company were to acquire. certain land in the Ilu'tt Valley district, with buildings. It was-al-leged that, on Sopteaibir- U, 1010. the Commissioner of Taxes wrongly claimed that the company were liable (for the year ended March 31. 1506) to pay upon .£4226, which, tho Commissioner held during that pericd. He assessed the tax at .£2ll Gs. It was further alleged that the Commissioner had wrongly claimed that the company were liahle to pay income tax for the, year ended March 31, 1910, on. •£2615 alleged profit. He had assessed tho tax at ,£132 ss. The company had paid under' protest, maintaining that the sums claimed by the Commissioner as profits were not profits, and, therefore, should not be taxed. Ilence the Supremo Court action to recover the amount overpaid. In his statement of defence, the Commissioner set out that the Mudgvre.y Estate Company had never signified its desire to have the objections heard by the Stipendiary Magistrate, in accordance with Section' 22 and Regulation 2S cf the Act. In consequence of this these objections had never been determined, i'lirther, that Court had no-jurisdiction to hear' the claim made by the company for any return of the sums paid. The sums hail been paid to the King, and formed part of the public revenue. If they were recoverabls by the company at all they were recoverable from the King, and not from the Commissioner of Taxes. Jt was agreed that, before the main action came on. certain points (law and procedure) should be decidsd by argument and decision on a special case. 'J.'lio questions for the consideration of the Court were:—

(1) Whether a. person, who has been assessed for income tax by the Commissioner of Taxes, and who has paid under protest tho amount of that assessment (but has not taken proceedings ' by wav of obiection and apnea! m accordance with Section' 22 of the Land and Income Assessment Act) can take proceedings in this Court for tiic recovery of tho tax so paid, sn iho ground'that tho assessment was excessive ? (2i And whether, if any such proceedings in the Court are allowable,.those proceedings can be taken by way of action against the Commissioner' of Taxes. Mr. A. Gray, with him Mr. Bolton, appeared for the Mudgwny Estate and Land Co., Ltd., and the. Solicitor-Genera! .(Mr. J. W. Salmond) handled the caso for the Commissioner cf Taxes. At' the outset of his.reserved decision tho learned Judge remarked: "It-is- admitted that -such, actions as this have been brought in New Zealand, but tho Solicitor-General explains that that course has been consented to or left to pass without .objection in cases where a question of law arose, but that such consent is not to be expected in surh costs since the passing of Tho Declavatorv Judgments Act, 1008. The matter therefore stands to be determined upon the construction of Th« Land and Income Assessment Act, After reviewing the position at length, and quoting numerous authorities, his Honour hold that both questions must he answered in favour of the Commissioner of Taxes.

WANT OF CONSIDERATION. I'.X. IMSllii\ii|:|;i:i). All appeal .ease Charles |' r ,|| ;,„| C„. v. Ila-aah M'.Mk., -..,..., ,|,.,.i,|.,| l,v Mr. •lU---Iit••.< C 1,.,],,.,;,,, j„ || u , Siiiirenm '''iiirl yesterday. ' Tin. was a roc|ii<s| f<> the Court In re. vot-o a decision |, v M r . w. (J. i;i,!,!,.|1, *.>.!.. delivered in the Magistrate's Court, Mellmglon. in l-'cbriinrv, l!llll , '1 "as vi mil dial Mrs. MWlloy's 1111-. l.aud l-adowe,l Dr. Martin eel lain'mnm-vs for mouical a11,.|..!ann.. and the amount had licoh lived a- .r:!l). this h.ing agreed upon as liehvc.-n t;-i. debtor and I'rull. and •'•'.. who were aclin;; us collectors I'm- Dr. I .Harliii. .\ pimui-orv nod. had lnwi : given l„ l-rait- ; ...,„| c„; ]. y .Mrs. M'Alley J ior Hi.- amount named, bill, when it bocamo duo. il liinl 1,,.,.|| dishonoured. Pratt ■ n»'l Co. had llieroloiv sniighl to nrov-r I Hie amount, end Is. intero-l Ihcrom in tho Ma:--i-t,a:.-v r.im-t. ; 1!. appeared thai Mr*. M'Alley refusal pa.VMivit (.ii I he- ground of waul of consideration. .There was uu evidence t<. show that thi-. debt had ever been ii-.-ii-n-M by Dr. Mnrti-i to i'ratt. ami („.,'.„■ Hmf he had auUim-i-od .('rati and Co. bv power of attorney tt> sue for il. \t. Miii, of .V2O was ever'duo l,v Mrs. ll'Allcv to I'ratt and Co., and the, latter had never rendered aay services, either lo Mrs. M'Alley or her husband. His Worship also held that want of consideration had been proved, and •rave judgment [or defendant Mrs. M'Allcy) with costs and witnesses' expenses. Pratt ami Co. appealed against this decision on the ground that it was erroneous in point of law. They contended that there was consideration' to support, the promissory note, that, tho magistrate had vnoagly assumed that, the burden of proof rested on (he plaintiff, whereas it rested on defendant, and that the magistrate should have noil-suited plaintiff." At. the hearing of tho appeal .Mr. .1. Jl. Ilogbeii appeared for the spoollants (Pratt and Co.), and Mr. E. C. Levvov for (he respondent (Mrs. M'Alley). His Honour was of opinion thai, the appellants had failed to show (lint fho magistrate was wrong in finding that, there had been no consideration. A promissory note given by the wife for Ihe husband's debt out of gratitude to the creditor could net 'bo said to have been given for consideration. Tho appeal would therefore bo dismissed with J.'s ss. costs.

TAITA HOTEL. APPEAL HE SUNDAY TRADING. Reserved decision was also delivered by Mr. Justice Chapman yesterday in Hie appeal case of Bryan r. M'Kcnzie. This was an application Hint the Court should reverse a decision of Mr. \V. K. Jlasolden, S.M., who. on September 20. 1310, had convicted Francis Elizabeth Bryan, licensee of the Taita Hotel, for keeping licensed premises open for the sale of liquor on Sunday, July 31, of that year. When the case was before the lower Court it had been proved to the satisfaction of the magistrate that two men had had liquor in the hotel on the date in question. But evidence for the defence was to the effect that the liquor had been given to the men to keep them out of the kitchen, that the liquor had not been paid for. and that it had I>con obtained from a cupboard in the diningroom, and, further, that the bar hud not been opened to procure it. The magistrate, however, held thai the 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. Xcave, of the Crown Lav/ Office, for the respondent. In the course of his judgment, his Honour said: "Mr. Young argued that the inference drawn by the ..magistrate from the evidence was riot the proper inference as he had to rely on the defendant's evidence and should have taken it as a whole. That, however, is not the proper way to treat evidence. Neither a magistrate nor a jury is bound lo Tegavd evidence in any prescribed way. He can select what he believes ar.d disregard what does not seem probabK". The ultimate explanation was not given at once. The explanation given was consistent with the suggestion that beer was supplied because the men were good customers and that was. defendant's practice at times to give beer with meals in order to retain customers who otherwise might dine at their own lodgings. The magistrate might also have thought that the evidence as to charges was not a satisfactory explanation. He might then have considered that there was sufficient evidence of system to show that the. house- was opened for the purpose of admitting these men in order to s?ll liquor to them or.what is the same thing .to supply it for some consideration. A magistrate is never compellrd lo accept any particular piece of evidence. .where there are circumMauces justifying him in rejecting it;, lie cannot bo compelled

I" lulio in ;;!<ilxi nr M'leet im'cl.anie.'i.llv. 11. iv I lliiitk I hem was evidciu-p which tin l ni:--:k!r;il«-. ill llcnting ;is pritiin liicii' I'viili'iicc th:il llio IkiH'c was c>|»'llnl lor llif wilr »f liciimr :li>.l lliimk wan hi, explanation wliirli ho was juslilicd in holding, iliil ikil hiilisliicliirilv answer lli.il. evidenci-. Til- appeal is' dismi.~-.il Midi .ITi !>■>. nijilv."