THE COURTS.

New Zealand Mail, Issue 866, 5 October 1888, Page 21

THE COURTS.

SUPREME COURT.

Olsen v. Bailey. (Judgment .of Prendergast, C.J. Delivered! 27th September, 1888. This case was tried before me at Gisborne without a jury. The plaintiff and defendants are occupants of adjoining lands. The claim was for trespass on land by defendant’s sheep, and the oonsamptiqnbythem of the plaintiffs vegetables, and injury to his fruit trees. There was a wire fence between the lands which had, when erected, and for some time after, probably, been a sufficient fence within the meaning of the Fencing Act ; but, I conclude, on the evidence, that in consequence of the wires becoming slack, the defendant’s sheep were able to get between the wires, and so on to the plaintiff’s land. It is probable that some of the wires were broken in consequence of the plaintiff’s efforts to drive the sheep off his land. lam not able to conclude whether it was the original faulty erection of the fence, or the action of the plaintiff’s cows or horseß, or of the defendant’s sheep that caused the wires to become slack. Whatever the cause, it ceased on that account to be a sufficient fence.

There is no doubt that the sheep of the defendant trespassed on the land occupied by the plaintiff, and that they caused some actual injury by eating the vegetables and injuring the trees, but the defendant relies upon the fifth section of the Impounding Act as taking away the plaintiff's common law right of action for trespass. That section provides that ‘ no occupier of any unfenced land shall be entitled to recover any damages whatever by reason of the trespass of any cattle thereon ” ; and section 6 provides that every occupier of ‘ fenced land * may, recover. The term ‘unfenced’ is not interpreted ; * fenced land ’ is interpreted as meaning land enclosed by a sufficient fence within the meaning of the Fencing Act. In my opinion, the expression ‘ unfenced land,’ when used in this A.ct, means land not, ‘ fenced,’ that is not enclosed by a ‘ sufficient fence.’ The evidence does not satisfy me that any one of the trepassea was committed at a time when the fence between the plaintiff and the defendant was sufficient, for I am unable to conclude when it wr itbat the wires became so slack as net te bs ‘suffioient.’ There is no doubt that the sheep came on to the plaintiff’s land either between or uhder the wires. Even if it had appeared that the wires became slack through the action of the defendant’s sheep, so that the liability to repair the fence was cast on the defendant, under section 28 of the Fencing Aot. I should have been of opinion that the plaintiff’s remedy was when he discovered the want of repair, to have proceeded under the 26th and 27th sections of the Fencing Act. Section 5 of the Impounding Act would, iu my opinion, even in that case have deprived the plaintiff of his action for trespass. However, as already stated, I am not able to conclude that the fence was injured by the defendant’s stock, unless it wa3 when being driven by the piaiutiff, and such damage would not, I think, be that contemplated by the 2Sth section of the Fencing Act. Judgment must be for the defendant with, costs on the lowest scale. CRIMINAL SITTINGS. (Before his Honour the Chief Justice.) Monday, October 1. The October sessions opened at 10 o’clock. GRAND JURY. The following gentlemen were empanelled as a Grand Jury : —P. Howden, J. O. Graham, F. W. Haybittle, W. J. Gundy, W. A. Fitzherbert, Charles Tringham, E. V. Briscoe, H. Gaby, J. Gray, W- McLean, H. J, Morcock, P. J. Harvey, E. C. Biss, E. W. Morrali, W. Cock, A. E. Rowden, T. W. McKenzie, J. Kitchen, A. Young, E. Fraser Jones. Mr E. W. Mbrrali was chosen foreman. his honour’s charge. In charging the Grand Jury, his Honour said there were a number of cases on the calendar, but the majority of them were of a simple character, being for the most part instances in which foolish tradesmen had been imposed upon by valueless cheques and by false pretences. There

•was one charge of rape, no doubt of a very unusual character, for if the evidence was true, the person charged—quite a young lad—had committed the offence almost in the presence of another person —the sister of the girl. The girl in question was over 12 years of age, and the only ■observation he had to make was this, that there seemed, judging by the tone of the cross-examination in the Magistrate's •Court, to be a suggestion that she was a consenting party. If she consented, it was not rape ; but it was for the Grand Jury to say whether they were satisfied that there was consent, or that there was a prima facie case against the. accused. There were two charges of indecent exposure made against the same man. That was an indictable offence, and if the evidence was borne out it would appear that the accused exposed his person to some young girls. Another case of an unusual character was that in which a person was charged with marrying his deceased brother’s widow. In order to get married it was necessary to make certain declarations before the Registrar of Marriages in order to get a certificate. One matter 'on which the declaration had to be made was that there was no lawful impediment to marriage ; and the person who applied for such certificate must declare that he believed there was no such impediment. It was the law in England, and also here, that it was a lawful impediment if the woman was the widow of a deceased brother. It would be for tlie Grand Jury to say whether they considered there was a prima facie case made out against the accused—firstly, that the accused did marry his deceased brother’s widow ; and, secondly, that the accused believed there was no lawful impediment to marriage—that, although he believed there was lawful impediment, he declared there was none. The evidence the‘prosecution relied on was that the accused, when his attention was called by the Registrar to the similarity in the names, said that although that was.so, and the names were alike, there was no relation. These were all the observations his Honour had to make. CATTLE STEALING. The Grand Jury found a true hill against John Jenkins, James Parker, and William Higgins, charged with cattlestealing. The accused were set at the bar, and charged with having, on the Ist September, stolen a cow belonging to H. R. Holder, of Woodville. They pleaded not guilty, and were defended by Mr Hutchens.

The evidence for the prosecution went to show that on the date named the prisoners (one of them armed) were seen going on to a section where a cow belonging to the prosecutor was running, and subsequently part of the hide, ears And a horn, and an embryo calf were found buried under some moss, while a quantity of beef and the head (minus the pieces found in the bush) wore found in the aceuseds’ possession. The ears had Mr Holder's mark upon them, but the hide had been cub out where the brand was. The defence was that the accused, being out cattle shooting, shot the beast as a wild one.

The jury, after deliberating about half-an-hour, asked his Honour if a verdict of eleven-twelfths would be -accepted. His Honour said it could not; only a unanimous verdict could be accepted. The jury retired again and returned three-quarters of an hour later with a verdict of guilty. The prisoners were remanded till next day for sentence. Tuesday, October 2. (Before his Honour the Chief Justice.) ' SENTENCE. The prisoners John Jenkins, James Parker, and-William Higgins, convicted of cattle-stealing, were brought up for sentence. Mr Hutchens asked that the prisoners should be dealt with under the First Offenders Probation Act. His Honour refused to do this, considering that the case was nob one that could be dealt with under the Act. The prisoners were sentenced to 12 calerdar months’ imprisonment with hard labour in the Terrace Gaol. LARCENY OF A BOAT. Silas Pugsley pleaded not guilty to a charge of having, on the 15th July, stolen a boat, the property of O'. H. and E. F. Hawk. Mr Gully prosecuted on behalf of the Crown, and Mr Jellicoe appeared for the defence. The evidence for the prosecution was similar to that given, in the lower Court. For the defence Messrs J. Maginnity and Peter McEwen were called to prove the prisoner’s good character. The jury after retiring for a short time found the prisoner guilty. Sentence was deferred till Thursday in order that the Probation Officer might make a report. BURGLARY. William James Simmons pleaded not guilty to a charge of having, on the 18th July last, burglariously entered the shop of Nathaniel Nathan on Lambton-quay, and stolen therefrom a case of silverplated matchboxes valued .at 30s. Mr Tanner appeared for the defence. The evidence was similar to that given in the lower Court, and the jury, after deliberating for an hour and a quarter, found the prisoner guilty of stealing only, acquitting of burglary and of breaking and entering. The prisoner admitted having been convicted of felony at Christchurch in April last. He was then charged with having, on the 21st July last, stolen three shirts, the property of J. A. Higgin- ' botham, and with having on the same (late stolen a coat the property of G. W.

Smart, tie pleaded not guilty to both cliatges, the hearing of which was defei’red. Wednesday, October 3. (Before His Honour the Chief Justice.) RAPE. Georgo Hodgetts, a lad of 15 years, was charged with having on the 17tli July last, committed rape on tlie person of Mary Ann Scrimshaw, a girl 12 years of age, at tlie Taita. Mr Gully prosecuted on behalf of the Crown, and Mr Jellicoe was for the defence. The accused pleaded not guilty. The evidence for the prosecution was similar to that given in the lower Courts. Samtiel Steer, a settler in the locality, deposed to seeing the prisoner chasing the girl in Burton’s paddock on the morning of the 17 th July, Constable Harnett gave evidence as to arresting the prisoner, and several witnesses deposed to seeing the prisoner chasing the girl about in the paddock, hearing her scream, and so on. Martha Scrimshaw, mother of the girl, was also examined as to the child’s complaints and the state she was in. The girl Mary Ann Scrimshaw was examined at some length as to the assault. She deposed that he “ chucked ” her over the fence by the read, and after dragging her to the second fence near the bush, forced her to go underneath it, holding her by the hand. He then took her into the bush and committed the assault. She cried all the while, from the time when lie was chasing her till after the assault had been committed. She cried when he was chasing her because she thought he was going bo hit her with a stick. . .She had got on to the road again when the prisoner put her over the fence again. In cross-examination the witness said she was sometimes punished by' her mother for telling stories ; had never told her mother anything about other boys. Dr Wilford, who examined the girl on the same day as she was assaulted, gave, evidence as to the injuries she received. The child was decidedly undersized and badly developed. No witnesses were called for the defence.

Mr Gully,-in addressing the Court for the prosecution, submitted that the theory of consent which might be set up by the other side was a repulsive one, looking at the girl. Mr Jellicoe, in the course of his address maintained that the theory of consent was a natural one, and as they could not shut their eyes to what went on in tlie world, so they could nob shut them to the disclosures recently made in connection with the public schools ; and it was quite possible, he contended, that the girl had consented, and had only screamed when she was hurt. His Honour having summed up, the jury retired, and after deliberating for nearly an hour, returned with a verdict of guilty, but recommended the prisoner to mercy on account of his youth. Sentence was deferred till 10 a.m. this morning. (per press association.) Christchurch, October 1. At the Supreme Court criminal sittings, Eustace Frank Allen, for forgery and uctering, was sentenced to 12 months’ imprisonment; Andrew Black and Richard Chamberlain, robbery with violence, three years’ penal servitude; James Cotter, .rebbery with violence, one year’s imprisonment. No bill was found against Jane Norris, charged with child murder. A charge of horse-stealing against John Bowie, private prosecution, was withdrawn. October 2. In the Supreme Court to-day, Jabez Frost, charged with indecent assault, was acquitted. In the case of Robert Woods, charged with demanding from Mary Lockhead, with menaces, certain articles he had given her as presents when courting her several months ago, the jury were locked up for seven hours, after which they returned a verdict of not guilty. Dunedin, October 1.

Only one case remains to be dealt with to conclude the criminal sittings. John Cotcrell, for malicious injury to property, was sentenced to twelve months ; Alfred Harley pleaded guilty to forger}, and sentence was deferred ; Thomas Rabbit, for sheep-stealing, was acquitted. , October 2. At the Supreme Court to-day, A. H. Kinnmonb, charged with embezzling from A. Dormvell, was acquitted by the jury. Christchurch, October 3. The Supreme Court criminal sittings closed to-day. George Kyrison was sentenced to three years’ penal servitude for sheep-stealing ; Thonias Batchelor, a young man who had aided him, was sentenced to two years’ probation ; and William Batchelor was acquitted. IN BANCO. Thursday, September 27. (Before their Honours the Chief Justice and Mr Justice Richmond ) MIIIENZIE (appellant) V. GISBORNE HARBOUR BOARD (RESPONDENT). This was an appeal from a decision of the Resident Magistrate at Gisborne. The respondent sued the appellant for the amount of a rate payable under the Gisborne Harbour Board Empowering Act, 18S4, the Harbouis Act, 1878, the Rating Act, 1882, and the amendments thereof. It was proved that ths Secretary to the Board made a demand in writing by letter posted on the 4th October, 1887. The demand was dated 15th September, 1887 ; began in the words “I hereby demand from you within 14 clays the

sum of Ll2 18s 9d stated later ori that the rate was “ payable in two instalments on the Ist September and Ist March,” without naming any year ; and concluded with the words “ If not paid within 14 days after demand, a summons may be issued without' further notice, under clause 50, Rating Act, 1876.” The appellant at the hearing, claimed the right to cross-examine with the view of showing that the rate —was void for irregularity in its making. The magistrate ruled that in an action brought against a ratepayer, for tlie'recovery of a rate, no defect could be set up as a defence, and evidence to show that the rate sued for was a void rate was inadmissible. The respondent's case being closed the appellant elected to make no defence, and judgment was given for the respondent with leave to the appellant to appeal. Mr Bell for the appellant : Section 27 of the Rating Act 1882 seems, at first sight plain, but section 21 shows that the fact of the rate having been made in accordance with tlie Act may be disproved. The evidence sought on cross-examination was of the fact that no public notice was given under section 17. Henry v. Hutt County Gounoil, 3 O.A. 354. The demand ■ is insufficient; sections 23, 15, and 28 of the Act. The words in the form in the schedule are, “ Here state the period allowed for payment.” They here put in the 14 days fixed by the statute under section 26. What should have been filled in here was the date fixed for the payment of the instalments. If thei’e is any error in the demand, that invalidates the demand. Mr Brcwn, for the defendant Board, was not called upon upon the first point. On the point as to the sufficiency of the demand, he objected that it had not been taken in the Court below, and was not raised on the case. The Court decided to remit the case to the magistrate, for him to certify whether this point had been raised as a defence or nonsuit point. RE ASSETS COMPANY,' LIMITED. This was a case stated by the Assets Company, Limited, and the Commissioner of Stamps to decide the question whether the Company, which was a company formed to take over the assets of the Glasgow Bank, and had taken over as part of these assets land in the Poverty Bay district,, which it was using as sheep farms during inability to complete its title under the Native land laws, was liable to pay aivaiinual license fee under section 100 of the Stamp Act, 1882, as a company “carrying on business” in the Colony ; and if it should be held liable, whether it should pay the maximum fee of L2OO a year on its whole nominal capital. Mr Brown and Mr DeLautour, for the Company, contended that the Act was intended to apply only to companies incorporated in the Colony or elsewhere, but having their head office for the transaction of business in the Colony, and cited Brown v.. London and N.W. Ry. Co,, 32 L.J., Q.B. 318 ; Erickson v. Las*-., L.R. 7, Q.B.D. and 8 Q.B.D. ; Colquhoun v. Brooks, L.R., 21, Q.B.D. 52 ; Attorney-General V. Alexander, L.R. 10, Exch. 20; Scully v. the AttorneyGeneral, 5 H.: and N. 711 g and Cesena Sulphur Co. v. Nicholson, L.R. 1, Exch. D. 428. Mr Bell, for the Commissioner, was nob called upon. Elis Honour the Chief Justice : Seeing the nature of this Company, I have no doubt that it is carrying on business in New Zealand ; at all events, at present, whilst it is farming lands in the way in which persons ordinarily do who farm lands. This seems to have been a principle part of the business for which llie Company was formed, to carry on as farms the lands of the bank until they could be realised. It is contended that the Act applies only where the business of the Company is carried on in the Colony, and that that, according to some of the English cases, means where the place where the clirectois meet and the registered office are in the Colony. We might have come to this conclusion if the words of the statute imposed the tax only when the business of the Company is carried on in the Colony ; although I do not at all saythab that would have beenenough, but here the words are only “ carrying on business.” All we have to decide is whether, because the governing body direct the proceedings from England, the. Company does not carry on business in New Zealand. I have no doubt that the Company is carrying on business in New Zealand. His Honour Mr Justice Richmond : I am of .the same opinion. As a ground of my opinion I may cite a few words from the judgment of Lord Justice Cotton in the case of Erick sen v. Last on appeal at p. 420 of 8 A.8.D., where he says, “With reference to the argument which was much ’pressed upon us by Mr Bremner,” as here upon us by Mr Brown, “that a company does not carry on its business except where its place of management is, I wish to say that, however true that may he as regards the meaning of the words ‘ carry on ’ or ‘ exercise business ’ in some Acts of Parliament, it is not the true interpretation of those words in this Act of Parliament, where the object is not to see where a company is to be sued, but what duty on'profits it is to pay in this country.” In common language, a company is said to carry on business in many places. For the purpose of deciding where service is to be effected, it is necessary to select some particular spot, and the head office, a registered office is selected. But a company may have its head there, and its hands in many places. Here I quite agree with the Chief Justice that the words “carrying on business” are used in a largo sense. The clause extends by express terms to companies incorporated elsewhere. As to the other point, the words of the schedule are that the

duty is to be assessed on the nominal capital. The case of a Company having money invested in the Colony is nob this case. This Company existing wholly and entirely for the purpose of cultivating lands and hereditaments. Its. ratio existendi, if I may use the expression, is that it may cultivate lands in New Zealand and elsewhere. It is not the case of a mortgagee upon whose hand lands have been thrown. What the position would be of a mortgagee going into possession and cultivating it is nob necessary to decide. Here the primary purpose of the Company was the acquiring, improving, and cultivating lands in, amongst other places, this Colony. Both questions were accordingly answered in the affirmative, and £lO 10 costs were allowed the Commissioner. Friday, September 28. (Before their Honours the Chief Justice and Mr Justice Richmond.) THE PUBLIC TRUSTEE V. THE BANK OF NEW ZEALAND AND STAPLES AND YOUNG, This was a special case to determine the respective rights of the mother, widow, and daughter of F. W. Evans, late of Hunterville, publican (represented by the Public Trustee), the Bank of New Zealand, and Messrs Staples 'and Young, to the moneys payable under two policies i ll the life of Evans effected with the Government Life Insurance Department. The .case stated that Evans in September, 1880, deposited policies with the bank as a security for the payment of any moneys which might from time to time be owing by Evans to the bank in ■the relation of customer and banker without, however, then or afterward giving any agreement in writing. In September, 1883, Evans became bankrupt. The bank received dividends, but kept possession of the policies, there being still on the 21sc November, 1884, a balance of L 207 due to it. In December, 1883, Evans obtained his discharge. In July, 1886, Evans arranged for the supply of goods and for advances of money to him by Messrs Staples and Young, and as a collateral security gave an agreement in writing to transfer the policies to them. This agreement was never registered with the Insurance Department. In March, 1888, Evans died, leaving by his will the policies and all his property to the Public Trustee in trust for his mother, widow and daughter. At the.time of his death he was indebted to Staples and Young in sums intended to be secured by the agreement, amounting to more than the whole amount payable under the policies. The bank claimed to receive out of the policy moneys the L 207 and interest from the 21sb November, 1884, at 8 per cent; Staples and Young claimed to receive the whole or the residue after payment of the bank. The Public Trustee claimed the whole for the legatees. Mr Bell, for the Public Trustee : Section 29 of the Life Insurance Policies Act, 1884, does not abrogate all the pr ovisions as to registration being essential. Registration is not merely for the protection of the Company. Section 29 relates to the provisions of sections 8 and 9. An assignment must be in form absolute and registered, but if there are trusts they will be enforced. The agreement with Staples and Young was within three years of the bankruptcy, and could not be assigned (sub-section 6 of section 34), having been protected under section 32. Counsel for defendants were not called upon as against the Public Trustee, the Court deciding that registration was only necessary as against the Company, and that the policy had been protected by the Life Assurance Companies Act, 1873, and not by the Act of 1884, which protected only against a bankruptcy law then in force, and so not against the Debtors and Creditors Act, 1876, under which Evans had become bankrupt. Mr Stafford, for the Bank of New Zealand, on the question whether the bank was entitled to interest, cited re Kerr’s policy, 8 L.R. Eq., 331 ; Carey v. Dogue, 5 Pr. C.L. Rep., 104 ; and Williamson v. Williamson, L.R. 7 Eq., 542. Mr Edwards, for Staples and Young, cited ©roskill v. Bower, 32 Beav., 86. His Honour the Chief Justice : I think in this case, in regard to the legatees, that they have no interest in the moneys coming under these policies. These were Evans’ own policies ; these were not settlement oolicies, and it was perfectly competent for him to enter into any agreement; to assign. He did enter into an agreement to assign with the bank. It is true the provisions of the Life Assurance Policies Acts were not complied with as to notice or registration ; but these provisions do not invalidate the agreement. The question is whether the absence of registration and notice deprive a person, as against the policyholder, of equities which but for these provisions he would have. I think they do not. The question between the bank and Messrs Staples and Young is as to whether the bank is entitled to hold the policies as security, not only for the balance on the account current, but also for simple interest after the bankruptcy. That depends entirely on what the contract was. The'case does not pretend to say that there was an express contract. It says simply that there was a deposit as a security. I think it was to be implied from that, that if at any time the bank called upon Evans to perfect their security he would have had to do so. The question is what form of security would the Court have enforced. I think the bank would have been entitled to have a covenant to. pay . the balance of the account current on demand, and also to pay simple interest after the cessation of the relation of hanker and customer. That being so I think the bank is now entitled to be put in the same position, and to hold

the policies as security for the amount of the balance of the account current and for simple interest.' There are many'cases on express contracts as to interest where there lias been a failure to provide for interest after a certain time, in which it has been held that no more could be implied than was expressed. But, this case is quite different. - The whole contract has to be implied. His-Honour Mr Justice Richmond : I am of the same opinion. The cases of. Carey v Dogue and in re Kerr’s policy, which have been cited, show that the deposit. of these policies with intent to create a security had the effect of an equitable mortgage. From paragraph three of the case, it appears that tlie deposit was to secure the balance of Evans’ account current for the time being, and therefore it was a security for tlie balance of the account current at the time when, by Evans’ 'bankruptcy, the relation of banker and customer ceased. It may be law, as laid down by Lord Roriiilly in Crosskill v Bower, that the balance in the absence of any .contract for security oypuld. have ceased, to carry interest. . But the effect, of the deposit is to create.an equitable mortgage a right to interest. It isJiofc at all necessary to dispute anything in .the judgment of Lord Romilly, whose decision confirmed that in Attwood .y,Taylor, 1 M. and;G., 300. But the effect of’the- deposit has been to imply a right to ‘simple interest. Ou the other points' I do. Allot wish to add anything to what'thfuChief Justice has said. It was decided that the minutes of the decree should be settled in - Chambers, and the Public Trustee and the bank were allowed . cost's, Ll 5 15s each out of the policy moneys,, there being no other funds.in the ,estate. ; (Before his Honour the Chief Justice.) His Honour:', delivered written judgments in 'the Gisborne cases of Crawford and anotherV. Stevenson, and Olsen v. Bailey. ' ' ' ‘ , : ‘ '" NEW ZEALAND -NATIVE LAND. SETTLEMENT Rhodes’ trustees. This was an actionfor calls heard in Gisborne and reserved for argument in Wellington. Mr Bell, for the defendants, raised the defences , that at the time the calls were 'made one-fifth of the directors were not Natives, as ■ required by the articles of association, and that the Company had ; carried on operations outside the purposes of the articles and memorandum of,-association. Mr DeLautour for the plaintiff Company. His Honour reserved his decision.