THE COURTS.

New Zealand Mail, Issue 751, 23 July 1886, Page 13

THE COURTS.

SUPREME COURT.

Hamilton v. Pbaseb and Others. (Judgment of Richmond J., delivered 14th , July, 1886.) In this action the plaintiff prays the issue of a mandamus to the defendants, who are the Licensing Committee of Cook Ward, commanding them to grant the renewal of the publican’s license for the Army and Navy Hotel, such renewal having been refused by the defendants at an adjourned sitting of the annual licensing meeting held on the 15th June last, on the ground that the licensing of the house in question was not required in the neighborhood. After hearing counsel for the • plaintiffs in this case, and in the two other similar cases which will be disposed of by the present judgment, I intimated my opinion that this peculiar question, whether there be what the Licensing Act calls * a necessity ’ for any particular public house, is to be absolutely and finally determined by the Licensing Committee of the district elected annually by the ratepayers. The principal sections giving jurisdiction to deal with applications for the renewal of licenses are sections 42 and 78. By the former section such applications are to be ‘ heard and determined ’ by the Committee. These are the regular terms by which a judicial discretion is created, and a judicial duty imposed. By section 78 it is enacted that ever/ licensed person shall, subject to objections as therein before provided for, and to the discretionary power vested in every Licensing Committee bv the Act, be entitled to obtain from the Licensing Committee a certificate' authorising the renewal of his license, on producing such license, and upon payment to the proper officer of the annual fee due in respect of such license ; provided such license has not been allowed to expire, or has not been forfeited or become void from any causo whatsoever. Under this provision the license has a prima facie right to renewalbut this is subject to the discretionary power in the Committee referred to by the section. There can, I think, bo no reasonable doubt that the discretionary power referred to includes the power created by sections 63 and 75, of refusing renewal on the . ground, amongst other things, that the licensing of the house is not required in the neighborhood. It was argued by Mr Edwards that section 75 has no applications to renewals. I incline to think he is wrong in this ; as the section gives a discretion in granting or refusing ‘ certificate for any description of license. A certificate from the Committee is required to authorise the renewal as well as the issue of a license. The renewal of a license means the grant of a fresh authority to vend liquors for a new term not .comprised in the original license.- To renew a license is therefore to grant a new license, and to grant a certificate for renewal is to grant a certificate for a license within the meaning of section 75. However, the question thus raised is not of importance; for, granting that section /5 does not extend to renewals, the reference in section 7S to section 62 is incontestable.. The Committee are entitled of their own motion to take notice of objection, and amongst objections, of this particular objection that the house is not wanted. That this is an objec tion not only to-the grant, but to the renewal of a license is put beyond doubt by section 81. Now this question, whether a particular house for the sale of fermented and spirituous liquors is wanted or not, is one of so vague and peculiar a character that the necessity for

referring it to some special tribunal is obvious, j The central principle of this Act is to place j its decision in the hands of these elective Committees. Out of their hands this Cour has no authority to take the question. Tfc would be absurd for a Judge to attempt to determine it : neither is there any authority for referring it to a jury. It is, and must always remain, a matter of opinion, and not a matter of asoertainable fact. Men will differ upon it extremely. A party of shearers out on a drinking-bout might consider 100 yards too loDg a run between bar and bar ; whilst a total abstainer would hold that a single tavern in the whole of Cook Ward was one too many. No one can mediate between these opposite views- There are no definite and generally allowed principles on which the question can be decided. The decision of the Committee must be final; for this Court is not cognizant of any principles on which it can be reviewed and another determination come to. The case of the Queen v. Price, L.R., 6, Q 8., 411, may appear to be opposed to this conclusion. That case arose on the Imperial Statute, 26 and 27, Vic. c. 29, sec. 7> enacting that where dftsgsia''witness shall answer every question relating to any corrupt practice at a Parliamentary election wnich he shall be required to answer, and tbe answer to which may criminate or tend to criminate him, he shall be entitled to receive from the Commissioners appointed to inquire into corrupt practices at sijuh election a certificate stating that such witless was, upon his examination, required by the Commissioners to answer, and. had answered, all questions of tbe. kind referred to ; on production of which certificate any proceedings against him for corruot practices are to be stayed. The Commissioners, in the case before the Queen’s Bench having refused to grant a certificate to a particular witness, on the ground that they were of opinion that be had not bona fide answered all questions, the answers to which might criminate or tend to criminate him, it was held thib their decision was not final and conclusive, and might be reviewed on mendamus. . Now this undoubtedly was a very strong decision; and it was the unanimous decision of the Court of Queen’s Bench, presided over bv Lord Chief Justice Cockburn, and of which Lord Blackburn was at the time a member I think, however, the case distinguishable. The decision turned on tbe point that, upon the ascertainment of a certain fact—viz., that the questions had been asked and answered, the Act conferred on the witness a positive legal right right to a certificate, and that the Commissioners had no discretion in the matter. Lord Blackburn said :—‘Whenever it is a matter of discretion, all we can do is to compel the officer to take the matter into consideration and decide upon it. But where the common law, or the Legislature, has cast on a person the obligation, where certain facts exist, not to form his opinion, or exercise a discretion, but to do a certain thing, then no doubt there is a preliminary inquiry whether those facts exist, and no doubt the person called on to perform the obligation must, to some extent, exeroiae common sense, and see whether the facts do exist. If tbe facts exist we have then the power to issue a peremptory mandamus ordering the person to do the thing which the law makes it incumbent upon him to do.’

The decision, therefore, turns on the point that the Commissioners had no discretion, and that it was a matter of fact, ascertainable by tbe Court above with the help of a jury, whether or not the questions had been asked and duly answered. Such a matter as that was one which the Supreme Court was quite able to deal with, and which might arguably be said to be capable of absolute determination one way or tbe other. In this respect the case of Regina v. Price differs from the present ease. Here there is no certain fact which can be established, but a question which after any amount of investigation must remain a matter of opinion. Fortunately, I am not, however, driven to make out a distinction between the present case and Begina v Price, although for the sake of making clearer the grounds of this judgment I have done so. Regina v Price seems to me (speaking with the profound respect which is due to the eminent persons who decided it) to have gone too far ; and I am glad to find that it has been dissented from in the more reoent case of the Queen v. Holl, in the Court of Appeal, L.R., 7, Q.8.D., 575. It was there held on the construction of the same statutory provision that the decision of the Commissioners refusing a certificate is conclusive, and cannot be reviewed by mandamus. A fortiori is the decision of the Licensing Committee conclusive upon the present que tion. Much of what Lord Bramwell says in Regina v Holl applies to the case before this Court. * I ! ,’ he says, ‘ the certificate of the Commissioners is to be the expression of their judgment and opinion, how can you substitute the judgment and opinion of any other tribunal ? Suppose it is referred to a jury, or the Court undertake to decide for themselves. If there was an allegation in the mandamus that the witness had answered bona fide, are the Commissioners to say, “We certify that tbe jury who tried this cause are of opinion that the man bona fide answered?” Would that be the certificate the statute requires ? Obviously not; and it cannot have been intended, because a jury, or the Court, if you please, or any other tribunal, is of opinion that the man answered bona fide, and the Commissioners remain of opinion that he did not, that they should certify to a falsity.’ So here I say if the Licensing Oommitteee be of opinion that there is no necessity for this public house they ought not to be compelled to give a certificate which implies the contrary. The certificate under the statute is to be the expression of their own judgment and opinion, and not of that of any other tribunal. The Lord Justice Cotton also disapproves of Regina v. Price, and says:—‘l think notwithstanding the decision in Regina v Price, I ought to express trmy opinion that when the Commissioners have, as they have done here, exercised their judgment in the matter left to them to decide, the Court has no right by mandamus to interfere, and to substitute the decision of a jury, or any other tribunal than that of the Commissioners, on a matter which the Act of Parliament has, in my judgment left to them.’ Lord Justice Brett goes no further than to express ‘extreme doubt whether Regina v. Price can be supported. On the whole I feel myself fully warranted in saying that the, present case is not governed by Regina v. Price; nor do I think that the judges who

decided that case would give a similar decision in this case ; there being here a clear discretionary power personally vested in the committee.

It remains however to be considered whether the committee having this exclusive jurisdiction over the question have exercised it in accordance with the provisions of the statute, and in good faith. The plaintiff charges that the defendants were biassed and partial in their decision and sets forth in tbe 17th paragraph of his claim the following seven grounds for his allegation : (a) That the de fendants had previously unlawfully attempted to cancel the liccuse of the plaintiff’s hotel without hearing the merits of the application then before them and were only compelled bywrit of mandamus issued by this honorable Court to hear the said application; (b) that prior to the last mentioned application the defendants had stated their intention of closing the said hotel ; (c) That subsequent to the issue of the said writ of mandumus, the said defendants frequently stated that they wou'd close the said hotel, at the next ensuing quarterly sitting—to wit —the sitting to bo held on the 7th day of June, then next ; (d) That prior to the sitting of the said committee on the 18th day of June, the defendants as the p'aintiff believes held a meeting and determined to refuse the renewal of licenses for the hotels mentioned in the 16th paragraph of the statement of claim, (i.e. the three hotels in question) ; (e) That after such last quarterly meeting the defendants instructed James Ames, clerk of the Licensing Bench to pre. pare a notice to the plaintiff, and the licensees of the said hotels mentioned in paragraph 16. of the statement of claim, to the effeot that the renewals would be refused ; (f) That such notice was prepared and would have been served upon the plaintiff but the defendants were advised not to send the said notice out, and therefore substituted the notice set out in paragraph 7, of the statement of claim. [To be continued.) -i

IN BANCO.

Tuesday, July 21. (Before their Honors the Chief Justice and Mr Justice Richmond.) AMES V. PHAHAZVN. This case was mentioned and ordered to be spoken to when the Chief J ustice shall sit alone. KEMPTON V. THE NATIONAL FIRE INSURANCE COMPANY. This case, an action on a fire insurance policy, wa3 tried some time ago when judgment was given for the defendants, on the around that a subsequent insurance was not communicated to the defendant company. Mr Chapman now moved for judgment for the plaintiff on the ground that the condition in the policy relating to subsequent insurances was not so framed as to make its performance a condition precedent to the right to recover. The condition was as follows :—“And .in case of any subsequent insurance being effected during the continuance of this policy, the same must be notified to the company in writing, and allowed by endorsement hereon.” The condition further provided that the Company should have the right to cancel tbe policy, also incorporating average clauses .in other policies, and providing for contribution. Mr Chapman for the plaintiff argued that tbe condition was uot a condition precedent, it did not io clear terms show that a vested right was tobedivested. The lauguage was different from that of another condition, where a clear intention to avoid the policy was shown. The policy must be construed in favor of the insured. He cited May on Insurance, p.p. 204, 205 ; Harris v Ohio Insurance Company, 1 Bean. 425 ; Australian Agricultural Company v Saunders, L.R. 10 C.P. 668 ; Bungen on Fire Insurance, 66,172, 3rd Ed. Mr Travers and MrGully for the insurance office were not called upon. His Honor, the Chief Justice : The question is whether the third condition was a condition precedent to the right to recover. Nothing has been said in the argument to convince me that this construction can be admitted. It is a term of the contract that is a condition, and if it is not performed the iueurer is not liable. The clause relating to notice is followed by an option to the Company to put an end to the policy. Ic would be contrary to the contract to put on it the construction submitted.. Mr Justice Richmond : I am of the same opinion. It is argued that the words on the first part of the condition do not apply to the second member of the clause. I do not think this is so. The clause might bs clearer, but I think it is clear enough for the present case. The body of the policy makes the conditions endorsed part of the policy, and this is one. If it is not a condition precedent I do not know how to make one. The part relating to endorsement cannot apply while the insurance stands on the policy. _ I agree that the judgment must stand. Motion refused, with £7 7 a coet3. SMITH V BULLER This was an appearfrom a judgment of Mr H. S. Wardell, Resident Magistrate, at Wellington. The Magistrate found that, the defendant in 1885 retained the plaintiff to perform certain legal work. The work was performed, and a bill of costs rendered. Dates were omitted from the bill, but the defendant was not prejudiced by the omission. Judgment was given for the plaintiff. The defendant appealed on the grouud that there was no evidence of retainer. The evidence before the Magistrate was the oath of the plaintiff who swore he was retained, and that of a witness, Mr Carkesk, who supported him, and that of the defendant who denied the retainer but admitted the interview between himself and the plaintiff and Mr Carkeek, at which the retainer was given. Mr Carkeek guaranteed the cOjts. Tee bill was mads out against tbe appellant, sent to Mr Carkeeb, who delivered it to the appellant. Mr Jellicoe, for the appellant : Thera is no evidence of retainer. There is oath against oath, but in the absence of a wrtitea retainer the presumption is against the solicitor. Peddie v Smith, 8 J., L.R., 667. There was no proper delivery of the bill. The bill was rendered to Garkeek. Law Practitioners Act, 1882, section 27. The bill is not a proper bill, the dates not being placed in. Dunne v Wright, 19 L.J. CP., 137. William v Barber, 4 Taunt, 806. We cannot tell whether two attendances charged are not, the same attendances. Bownson v Earl, 4 C. & P., 44. His Honor the Chief Justice : We need not call on Mr Elwards. We dc> : not- doubt there was evidence on which the Magistrate could find there was

a retainer. The original instructions were given by Mr Carkeek, bat it was even then contemplated that the appellant would give the instructions. In the end all three came together, and Dr Bailer swears the appellant gave instructions. If he had refused, it is possible Dr Buller might have gone on. bat it wss always anticipated Smith would come iD, Carkeeb remaining liable as a guarantor —that explains why the Bill was sent to Carkeek. He was requested to present the bill to Smith, and this was done. That disposes of the question of delivery. As to the form of the Bill, it is true too many dates are omitted, but, I ;think, the bill is a bona fide compliance with the provision of the Land Practitioners Act. If the client finds >'! himself embarrassed by the omisßion of dates, tbe taxing master can order them to be furnished. I cannot say, in the absence of any complaint by Mr Smith, that the bill was i not a compliance. Mr Justice Richmond concurred. Appeal dismissed, with £7 7s costs.

IN HE nukumara, no. 89. This was a special case stated by the Native Lands Coart at Wanganui for the opinion of the Court. By Crown grant, dated Bth July, 1869, the above block of 1244 acres was granted to Heteraba Tautahi and nine other Natives, their heirs and assigns, as from the 7th February, 1868, under the Native Lands Acts. The grant contained no restrictions or alienation. By deed dated the 6th June, 1868, the whole of the grantees leased 800 acres of the block to one M. Handley for 12 years. Afterwards and prior to 1880 four of the grantees died, and otherwise than by the lease the deceased are not known to have dealt with the land in any complete transaction. On the 2nd February, 1880, Heteiaba Tautahi filed his declaration of insolvency and James G. Crawford became his creditors’ trustee. In the debtor’s list of assets he included his interest in this block of land. A memorial of the bankruptcy was registered against the land, and by deed dated 33th February, 1882, the creditors’ trußtee conveyed to Mr George Hutchison the interest of the debts in the block, which deed also was registered. The purchaser now applied for a subdivision in respect ®f the portion of the land to which Tautahi was entitled before becoming insolvent, and the question submitted for the Court was whether the purchaser was entitled to the interest claimed by him. Mr Hall for the purchaser : The case of in re Henare Potae ex parte Cattell and Buckley (N.Z.L.R., 1 S.C. 214) is distinguishable from the present, as it is a decision under tbe first part of section 88 of the Waste Lands Act, 1873. In this case the land, having been alienated by lease, the Natives remained adjoint tenant by virtue of the proviso to that section. Section 12 of the Native Lands Act, 1869, while making them joint tenants, tenants in common preserved exiiting rights. At the time of the conveyance to Hutchison, Tautahi was a joint tenant. Ex parte Locke (4 N.Z. % Jar. 15.) As to tbe meaning of the term alienation in section 79, acts of a similar nature may be looked at. In re Dickenson v. Fletcher (L.R., 9 C.P. at p. 6). In the following Acts alienation included leasing. Native Land Purchasing Ordinance, 1846 ; Native Lands Act, 1867, sections 13, 14, and 20 ; Native Lands Act, 1869, sections 12. to 16 ; Native Lands Act, 1873, No. 56, sections 30, 79, 55,92,97 ; Native Land Duties Act, 1873 ; Native Grantees Act, 1873, section-4 ; Native Lands Frauds Prevention Act, 1881, section 2. His Honor took time to conßiderhis judgment.

CRIMINAL SITTINGS. , Thursday, July 15. (Before his Honor the Chief J ustice.) SENTENCES. John O’Brien, who was found guilty the previous evening of stealing a gold ring, and pleaded guilty to a second charge of larceny, was brought up for sentence. It was stated that prisoner was now serving a sentence of five years for robbery, and had previously been convicted on other charges. His Honor said prisoner must have been only 16 years of age when first sentenced in Christchurch for horse stealing. He would consider his decision as to the sentence, and ordered prisoner to be brought up next day. Henry Field, who pleaded guilty the previous day to stealing on different occasions two saddles, was sentenced on each charge to 12 months’ hard labor, the sentences to run concurrently. PEBJUHY. William James Livingstone pleaded not guilty to having committed corrupt perjury in the Resident Magistrate's Court on the 15th June last, when giving evidence against F. S. Cooper, licensee of the Victoria Hotel, Abel Smith-street, in a charge brought against the latter for allowing an unlawful game to be played in his licensed house on the night of the 17th May, 1886. Mr Bell, Crown Prosecutor, conducted the case, Mr Shaw appeared for the accused. Tbe facts of the case, as sworn to by the accused in the Resident Magistrate’s Court, were as follow -Livingstone went into the Victoria Hotel on the night of the 17th May, and found four men and the licensee playing dice for drinks and money. Livingßtone desired to join in the game, but was not per-' mitted. He then applied for a glass of shandygaff, and was offered a glass partly filled with beer and. filled up with the contents of three ginger-beer bottles. Livingstone declined to accept the liquor, whereupon. Cooper refused to serve him. Some angry remarks were then made by Livingstone, who subsequently laid an information' against the licensee for allowing an unlawful game to be played in his house. At the hearing of the case in the Resident Magistrate’s Court, three of the men who were alleged to have been present at the time taking part in the game, swore positively that no dice were used on the occasion, and no game of any kind indulged in Tho case against the licensee was thereupon dismissed, and a prosecution for perjury against Liviagstone at the next .sitting of the Supreme Court was ordered by the Resident Magistrate, Mr H. S. Wardell. ’ r Mr Bell, in the course of his opening address, contended that the accused had been actuated by malice in laying the informafeio i. . ~ '■ : <i J. B. Blair, J.P., proved signing the information, Constable Gleeson the administration of the oath to Livingstone in the Resident Magistrate’s Court, and Mr H. S. Wardell, l R.M., testified to the correctness of the deposi-

tlons taken at the hearing of the case against the licensee of the Victoria Hotel.

Alexander Irwin, groom at Somerville’s stables, Abel Smith-street, remembered the night when Peters, Honnor, Mitchell and himself were in the Victoria Hotel together. Saw defendant come in some time after 11 o’clock. Cooper was behind the bar serving drinks. Cooper refused accused a drink, and some words ensued, during which accused said he would make it “ interesting or merry for him ” (Cooper). Saw no game going on from the time accused went in until he went out. No dice were played that night, either by witness or any of the others present. Cross-examined by Mr Shaw : Had been dis-

charged by his employer, but not for drunkenness. Remembered seeing Constable O’Dono- / van on the 21st May at Somerville’s stable. Hid not remember telling the constable that “we then threw to see who shall pay for the drinks.’’ Would swear that he did not say so. Was not doing any work at present. Was staying at the Victoria Hotel. Had not paid anything while he had been staying there. Did not remember telling Mr R. Somerville that he did not think Divingstone had found them playing dice, but if he had been there the night before or the

night after he would have seen it going on. If Mr Somerville said he had he could not contradict him because he did not remember. Had seen dice thrown in the house on other occasions. Did not remember if the throwing of dice was a prevalent custom in the house. George Mitchell cabdriver, remembered being with Honnor, Peters and Irwin at the Victoria Hotel between 11 and 12 o’clock p.m. Saw the accused come in from the back of the hotel. Heard accused call for some liquor, and put down half-a-crown. He refused the drink given to him by Cooper, and after some remarks, threatened to make “ it interesting ” for him. Cooper ordered him out of the house. Neither witness nor anyone else threw dice or gambled. Peters paid for drinks and then Honnor. The others had no money. Cro3s examined by Mr Shaw • Was inside the bar but the others were not. There were parlors in the house, and people might have gone in and out of the b»r. Did not. notice them. Had not seen dice played for money. Hal seen drinks thrown for. Could not say if Cooper threw the half-crown back to accused.

Albert Peters, horse trainer, deposed to beiDg at the Victoria Hotel on the night and in the company previously referred to. Paid for drinks. Saw no gambling going on. W. H. Honnor, horse-trainer, was at the Victoria Hotel in May in company with Peters and two men from the stables opposite. Hid not notice any others there. They all stayed in the passage of the hotel. Saw accused come in from the back part of the hotel. No dice were thrown, and no gambling took place. Hid not think dice could have been thrown without him seeing it. Crossexamined by Mr Shaw : Remembered talking with Mr R. Somerville. If Mr Somerville swore that witness told him, “we were all three pretty well on the spree, and I don’t know what took place,” he should say he was not speaking the truth. At Napier witness signed a statement to the effect that there were three other men iu the House. Re-examined by Mr Bell : Hice coaid not have been thrown in the bar without witness seeing it.

Frederick Stephen Cooper, licensee of the Victoria Hotel, said that he had served accused with drinks after the information was laid. Witness corroborated substantially what had been deposed to by the former witnesses. Cross-examined: Had no dice-box in his bar. Would rather not answer the question whether dice had been thrown continually in his house. Mr Bell put in a letter, dated May 17, from accused to Inspector Shearman, reporting the licensee of the Victoria Hotel for allowing ‘‘Yankee grab’’ to be played on his premises between five men and the landlord, and offering to appear as a witness in the case. This closed the case for the Crown.

Mr Shaw called Constable Donovan, who said he was sent in May last to make inquiries in reference to a charge against the licensee of the Victoria Hotel. Saw Irwiu, who told him that when he and others were at the Victoria Hotel dice were thrown for drinks after the first drinks had been paid for, but not “ Yankee grab.” Was perfectly certain that Irwin made the statement, because be made it on two occasions. By Mr Bell : Irwin said that no money had been staked.

R. Somerville, coach and cab proprietor, had asked Honnor what took place, bat he did not seem to remember what had taken place. Had spoken to Irwin, who told him there was no “Yankee grab” that night, but that it went on other nights. By Mr Bell : Had had a conversation with Divingstone, who told him what had happened, and said he would lay an information against Cooper, but witness advised him to take no notice of it. Divingstone was a cousin of witness, and had Bince asked witness to find out from the man what he could. Witness had been bail for accused.

Christopher Somerville said he heard Irwin say Divingstone was foolish for laying the information.

Henry Ringstal, hairdresser, said he had been at the hotel several times late at night since the present landlord kept it, aod. on some occasions found men playing “ Yankee grab,’’ The witness and Cooper had taken part in the game. Could not say how many times he had seen the game played there. Remembered one occasion about Raster. Had known the accused for 14 or 15 years, but was not particularly friendly with him. This was all the material evidence. Counsel having addressed the jury, his Honor briefly reviewed [the evidence. The jury retired at a quarter to 6 to consider their verdict, and returned at 7.15 with a verdict of not guilty. The accused was then discharged. The Court adjourned until 10 o’clock next day.

Friday, July 16. (Before his Honor the Chief Justice.) SENTENCE. John O’Brien, who had been found guilty of stealing a ring, and pleaded guilty to another charge, was sentenced to five years’ penal servitude ou each charge, the terms to run concurrently. FELONY. Thomas Gibson was arraigned on the charge of stealing a cheque for £27 17s 4d, the property of the Petone Town Board. Mr Bell prosecuted, and Mr Jellicoe defended.

After legal argument, a plea of not guilty was recorded.

F. W. F. Jackson, clerk of the Bank of New Zealand at Dower Hutt, said in February, 1884, there was an account at that branch to the credit ot the Petone Town Board, which was operated upon by the Chairman and Clerk of the Board. The cheque produced, dated February 15, 1884, was signed by prisoner and two members of the Board. The cheque was cashed ou 20th of February, 1884. Did not remember to whom he paid the money. Recognised the handwriting of prisoner in the body of the receipt produced. William Hopkirk, book-keeper for Waddell, McCeod and Weir, said he sent in an account to the Petone Town Board at the end of 1883 or beginning of IPB4. Never received the cheque produced. Hid not know the signature on the receipt. W. J. Kirk, chairman of the Petone Town Board, found the receipt produced amongst the Board's vouchers in September, 1884. The writing on the receipt was Gibson’s. The account was passed for payment on 12th February, 1884, and the cheque was written out by Gibson and signed by two members of the Board.

His Honor thought there was evidence sufficient to go to the jury Mr Jellicoe addressed the jury at length on behalf of the prisoner. H. J. D. Augarde gave expert evidence as to the handwriting on the voucher and cheque, and said that they were not written by the same hand.

Council having addressed the jury, his Honor summed up, and the jury retired to consider their verdict at 6.30.

The jury were unable to come to a verdict up to a few minutes before midnight, and at that hour were locked up until the following morning.

The Court accordingly adjourned until 10 o’clock next morning.

Saturday, July 17. (Before His Honor the Chief Justice.) GIBSON’S CASE.

The Court opened at 10 o’clock, when the jury, which had been locked up since 6.30 the previous avening, returned into Court with a verdict of guilty against Thomas Gibson for stealing a cheque for £27 17s 4d, the property of the Petone Town Board. Prisoner was recommended to mercy, however, on account of the loose manner in which the financial business of the Board, of which prisoner had been clerk, had been conducted. The jury were then discharged, and the Crown Prosecutor entered a nolle prosequi on the charge of forgery. His Honor said he would pass sentence on Moulay, but on Mr Jellicoe iutimatiog that be would be unable to attend ou that day, his Honor said he was prepared to hear counsel if he had any remarks to offer. Mr Jellicoe moved to arrest judgment, on the ground that the evidence had not proved that prisoner ever had the cheque.

His Honor said that had been left to the jury to decide, and he saw no reason to interfere with theic verdict.

After argument, Mr Jellicoe addressed the Court in mitigation of sentence. The offence had been committed tsvo years ago, and during that time, although prisoner had been away, he had suffered considerable anxiety. Prisoner had a wife and family, and his wife had been in a bad state of health, necessitating at one time her admission to a luuatic asylum. It was feared that if a heavy sentence were passed upon her husband now, she would have a relapse, and be required to go into an asylum again. He (counsel) hoped these facts would be considered by his Honor in passing sentence.

His Honor said he had very little doubt iu his own mind on tUe point raised by Mr Jellicoe as to the delivery of the cheque, and saw no reason for reserving it for the Court of Appeal, but before he passed sentence he would consult with Mr Justice Richmond.

In answer to a question by his Honor, Mr Bell said after prisoner went South, he lived under an assumed name. Nothing was known against him previous to the committal of the offences, but he understood that in addition to the loss of the cheques, several other sums of money had been misappropiatsd. Mr Jellicoe said he understood nearly all the money had been refunded by prisoner’s friends.

Mr W. J. Kirk, being called, said that Mr Gordon, prisoner’s brother-in-law, had offered to pay £4O to the Board if the prisoner was not convicted. Witness gave an explanation of all the circumstances, and said that he had intimated to Mr Gordon that the Board would not prosecute if the money was paid. His Honor said it was a most extraordinary case, but it did not affect the prisoner’s criminality. He hoped that after considering the jury’s recommendation he would be able to treat the matter leniently. There was no doubt that the practice of allowing clerks to cash cheques was a bad one, and if he were a bank clerk and was asked to cash cheques drawn in favor of particular persons by the clerk of a corporation, he should consider it his duty to inform the manager of the fact, and it should be the duty of the manager to acquaint the corporation of the circumstance. Sentence was deferred until Tuesday next. On prisoner being asked if he had anything to say why sentence should not be passed on him for the first charge on which he had been convicted of embezzlement, Mr Jellicoe, aftsr alluding to the joining of two offences, said the facta proved upon that indictment that prisoner was entrusted with a cheque to pay Messrs Blundell Bros., and that he cashed the cheque without authority from the Board. Having cashed the cheque without authority from the Board, prisoner had not received the money for or on behalf of his master. If the jury had convicted Gibson of larceDy upon that indictment, counsel took it that there was evidence to warrant them in doing so. They bad, however, convicted him of receiving and taking moneys for and on behalf of his master, and there was not a tittle of evidence produced to prove it, and the books were not produced. If the Court proposed to give judgment on tho question of embezzlement, counsel would ask_that the points he had raised be reserved for the Court of Appeal. His Honor had no doubt about these points. It was competent for the jury to find the prisoner guilty of stealing the cheque, larceny of the money, or embezzlement. They thought he had not stolen the cheque, but considered it proved that he cashed the cheque and received the money. He had manifestly received the money for his master, althongh it was not his duty strictly to cash cheques.

(Queen’.v Gale.) With regard to the joining of the two offences, forgery and larceny, he had already said that in his opinion it was fairer to the prisoner that the charges should be separated, although he had failed to see how the prisoner was embarassed. No real ground had been shown why sentence should not be passed on that indictment, but still a person might be very clear on a matter and yet be wrong. He would, therefore, consult Mr Justice Richmond. The prisoner here said that the Crown Prosecutor had stated that he absconded. He had done nothing of tke k>nd. He went over to Blenheim to get a situation, but found it was filled. He then went down South, and C ot work. He had been iu communication all the time with his wife, and had forwarded money for his family. The Board had held a meeting, at which he was present, and it was decided that if the money was paid there would be nothing farther said about the charges. His Honor said prisoner would be brought" up for sentence on Tuesday morning. It must not be supposed that because he quashed the .second indictment of forgery and larceny he considered the prisoner embarrassed on the first. It was because there was a novelty in joining the two offences vhich he thought undesirable. Prisoner was then removed. LARCENY.

The last case on the criminal list was about to be called on when it was discovered there was not a full panel of jurymen present iu consequence of the jury which had been locked up all night having received permission to go home.

Both Mr Shaw, who appeared for the prisoner (Richard Aldridge), and Mr Bell declined to waive their right to challenge, and it was decided therefore to take the case on Monday morning at 10 o’clock. The Court then adjourned.

Monday, July 19. (Before His Honor the Chief Justice.) LARCENY.

Richard Aldridge, alias R. Carl, pleaded not guilty to stealing 14s 3d. the money of Henry Angier, fish-hawker, of Cuba Btreet, on the morning of April 23 last. Mr Bell, Crown Prosecutor, appeared for the Crown ; Mr E. Shaw represented the accused.

Henry Angier stated that between 9 and 10 o’clock on the date referred to he was outside his house attending to bis horse, when prisoner walked into his house. Witness asked him if he wanted any fish, and he replied no, but wanted to tell witness how to get a good living. A conversation then ensued. Witness and prisoner were in the front room of the house, and witness changed his clothes, while they were there. Witness went out of the room several times, leaving the prisoner iu the room. Witness bad between 14s and 15s in silver in the trousers which he changed and 3d in a waistcoat. Changed his clothes after having fed bis horse. Prisoner was left several times in the room alone for a few seconds after the clothes were changed. When prisoner left the bouse witness noticed that he went in the direction of Abel Smith-street. Immediately after witness went to take the money out of the trousers which had been hung up and found the money gone. He then ran up Abel Smith-street and cooed to Aldridge to stop, but the latter, after looking round ran away. Witness followed and found a milkman holding the prisoner iu Willis-street. Accused him of taking the money, but be denied it, and turned out his pockets, 3d only being produced. Prisoner was then given in oharge. An expressman afterwards came up and told witness that the money had been thrown into a front garden. Went to the spot with a policeman, and the latter went in and picked it up. William Smith, milkman, said he saw the prisoner on April 23 running up Abel Smith-street. Saw Angier running after prisoner with his boots off. Witness, who was just about to turn into Willis-street, jumped out of his cart and stopped prisoner in Willis-street. While witness was detaining him until Angier came up, he saw prisoner, put his hand over a fence, but did not see him drop anything. Angier theD came up and demanded 14s 3d from the prisoner, who denied that he had the money, and stripped some of his clothes off. Prisoner was then taken in oharge by a policeman, who afterward picked up the missing money out of a garden near where witness had seen prisoner put his hand over the fence. John Madden, constable, said that ou the 23rd Apiil, about 10 o’clock and he saw the prisoner and others in a milk cart in Upper Willis-street. Henry Angier accused prisoner of stealing his money. Afterward went to a place pointed out by Smith, and fouud the money in a garden divided from the footpath by a fence, The prisoner was then arrested.

Counsel havivg addressed the jury, his Honor summed up. The jury retired at 3.30, and returned alter an hour’s deliberation with a verdict of guilty. More than half-a-dozen previous convictions were recorded against prisoner, drink, according to Inspector Browne, being the cause. His Honor commented on the mtanness of the theft, but expressed his desire to give prisoner another Gbance if it could be shown that since bis last conviction he had shown a disposition to obtain an honest livelihood. He ordered him to be brought up at 10 the next morning for sentence, inquiries to be made regarding him in the meantime. This case being the la3t on the criminal list, the jurymen were relieved from farther attendance.

The Court adjourned until 10 o’clock next day.