SUPREME COURT.

Lyttelton Times, Volume CXVII, Issue 17285, 28 September 1916, Page 10

SUPREME COURT.

IN BANCO

A sitting of tho Supreme Court was hold yesterday in banco, his Honor Mr Justice Denniston presiding.

LAW PRACTITIONERS’ ACTION

An application to issue a rule nisi under the Law Practitioners’ Act Amendment Act in the case of the New Zealand Law Society and Robert Daniel M'lvor, solicitor, of Kaikoura, came beforo tho Court.

Mr Johnston, who appeared for the society, said that tho society did not press to make tho order absolute, as the defendant .had rectified his failure to havo his trust accounts audited according to tho law. The defendant’s books had now been properly audited. The Law Society asked that defendant should pay costs. Mr Hunt, on behalf of defendant, stated that the reason of delay was that his client had been ill. His Honor: What, for two years?

Mr Hunt, No, your Honor. Defendant had been fined for his first lapse. The audit had been accepted and hi 3 client did not object to pay costs.

His Honor remarked that no doubt there had been mixing of trust and firivato accounts. Such a practice ed to dangerous positions. Ho would expect every solicitor, in his own interests, to see that the law was rigidly complied with. If that were done there would bo no need for excuses at all. In the present instance there was non-compliance in one instance and a second .offenco of the Act. A satisfactory feature was that the accounts had been audited and found to bo in order, But for the special circumstances there' would probably be some penalty under the powers provided. Ho would not so act in this instance, but it did not follow that he would not. do so in future. His Honor said he would make an order as to costs, subject to arrangement with the Law Society.

RESERVED JUDGMENTS,

KNIGHT v. BADGER,

His Honor delivered judgment in the action brought by, Ennna Knight, on behalf of herself and others interested in the estate of Mark Dixon, deceased, against. Edith Aidant Staplyton Badger as executrix of Wilfred Badger, deceased. The plaintiff, a daughter of Mark Dixon, had asked that accounts filed in regard to the administration of the estate should be referred to the Registrar of the Supreme C.cUrt to certify what sum, if any, was due by defendant, and applying that defendant be ordered to pay such sum as might be found to be duo by the defendant to the children of the testator. His Honor, in a lengthy judgment, said that no persons other than the sisters had any right in disturbing the accounts. Only ono of those aske for the interference of tho Court. Her individual interest was small. She would have no prospect of succeeding ns long as tho deed of release was not vacated, and no steps had been taken to impeach it directly. Plaintiff had in his Honors opinion, no valid grounds for the . relief she asked Judgment would be for the defendant with costs on the lowest scale

THE GAMING ACT

BOOKMAKERS’ APPEAL DISMISSED.

His Honor delivered judgment in the appeal made by Robert Michael Cox and James Phillip Walsh against the conviction recorded against them ot being tho occupiers of certain rooms situated in the Royal Exchange Buildings and used by them as a common gaming house. Mr Cassidy represented t^His honor’s judgment, after detailing tho main points of the case as reported in the proceedings in t-lie lower Court, stated that the matter tor consideration and decision was whether the facts of tho case justified tho conclusion thattho room was used for the purpose of betting with any persons whomsoever, bv messenger, agent, post telegraph, telephone, or otherwise. , Tho appellants, stated his Honor’s judgment, relied upon an exception that all letters and telegrams wore not conveyed by the proper authorities to the room, but were in tho case of letters, placed in a post offico private letter-box, whence they were taken by one or othei o ( " tho appellants and m the case of telegrams to the delivery to one or the other of them to take them out of the section of the Act under which they were convicted. That m his Honor s "Opinion, had not resulted Betting was a process involving several steps. It was not effected by mere proposal. There must be nn offer and an acceptance which hound the acceptor only after it had reached the proposer or his agent, which might, bo by the post. “The wording of the section is peculiar,” his Honor stated. ‘‘The prohibition is not against betting u against opening, using or keeping any premises for betting by any of the moans indicated, which include post, telegraph, telephone or otherwise. It appears idle to me to contend that the room in question was not kept for the purpose of betting by post or telegraph. It was contended for the appellants that this construction of the section would prevent a bookmaker from carrying on his lawful occupation of laying diroct odds —straight-out bettino-. .- . . Betting on horse racing°'is not, in all forms, illegal. Wliat is < known as straight-out betting, laying or taking definite odds on the result of a horse race, is legal. . . . The only legitimate betting is therefore either what is known as straightout- betting or backing on a portico)lar horse at- definite odds,, or on the ground on the machine.” The judgment also stated that there was clear proof that the appellants were using the premises for the purpose of betting by telephone. ’The only occupation of the appellants was betting. Tliere was a strong prima facie case of betting through the telephone. Appellants had not attempted to answer the case from this prima facie aspect. Tho appeal would be dismissed, with seven guineas costs against each appellant.

AN OPIUM CASE APPEAL

DECISION RESERVED

An application was mado by Mr Cassidy, acting on behalf of William Clough, of Greymouth, for prohibition against the action of Thomas Hutchinson, S.M., of Greymouth, in altering his’first decision in convicting and discharging applicant in an opium case to imposing a line, of £SO or three months* imprisonment. Mr Raymond, K.C., appeared for the Crown. Air Cassidy said that on February 3 last Clough had been found in possession of a. large quantity of opium in a form suitablo for smoking. Clough was arrested, and on the same day was charged on two informations. The first information was laid under tho Opium Act 1903. and Clough was charged ' with being in possession of opium in a form suitable for smoking.” He pleaded guilty. The second information, mado under the Customs Act, 1913, charged Clough “ with being in possession of certain prohibited imports, to wit, opium.” Clough objected to plead on tho second count, on the ground that ho had already pleaded guilty to the first charge. Both informations were based on the samo facts. Tlio Magistrate convicted Clough on tho first ehnrgo, and no fine was imposed. On tho second charge, under the Customs Act, li» fined him £IOO. An appeal

was lodged to set aside the decision oq the ground that two convictions cannot bo based on the same facts against the same person. The appeal was heard before his Honor Mr Justice Sim, who set aside the last judgment and ordered the Magistrate to amend the decision on the first information, which Mr Hutchinson did by lining Clough £SO or three months’ imprisonment. Mr Cassidy contended that the Magistrate had no power to altor his first decision, and asked the Court,, in the present appeal proceedings, to issue a writ of prohibition against the Magistrate altering his first decision. Mr Raymond, for the Crown, contended that tho Magistrate, in doing what ho had done in the first information, did not mako a complete adjudication! but merely postponed the essential part’ of his judgment, intending to punish Clough under tho second charge. Mr Raymond contended that the Magistrate was justified in his view and had acted rightly. After authorities had been quoted, and after hearing further argument of counsel, his Honor reserved his decision.