SUPREME COURT.

Otago Witness, Issue 2513, 14 May 1902, Page 28

SUPREME COURT.

CIVIL SITTINGS. Tuesday, Mat 6. His HonoT Mr Justice Williams.)

THOMAS BHTOOKE V. BOBEBT LBS. A. claim to be declared the trustee, on behalf Of the defendant, of 650 shares in the New Zealand Goal and Oil Company, and that the defendant be ordered to pay to the plaintiff the sum of £500. . Mr J. H. Hosking appealed for th.c" plaintiff, fend Mr W. A. Sim for the defendant. -His Honor gave judgment as follows: — This case is a signal illustration of the great mistake people sometimes, make of not puttmg their business engagements into writing. Here •we have two gentlemen each I feel certain honestly believing he is telling the truth, turn each giving an essentially different account of the same transaction. The plaintiff rehea on «. verbal agreement entered into with tie defendant in England in about the month of Octob«r, 1898, respecting the taking up of Bhares in a company. It is admitted by the defendant that an agreement was entered into, but not in the terms alleged by the plaintiff, j It further appears that no request was made ] by the plaintiff to the defendant to perform ' the agreement on his part until August, 1901 — snore than two yeaTs and a-half after the time offhen, according to the terms of the agreement as set up by the plaintiff, the defendant ought jfco have performed it. The burden of proof flies, of course, generally on the plaintiff, but 5n the above circumstances it is manifestly more 'than ever incumbent upon him to make jout a case that is free from any reasonable idoubt. It appears that in 1898 Mr Lee had gone to England to dispose of the Kaitangata Company's property and other properties, and was engaged in promoting a syndicate to take them over. Mr Brydone also went to England in the same year on hi 3 own business. Mr ', Brydone had been chairman of directors of the pld Kaitangata Company, but had had no j Intention of being- -connected with the new . syndicate. Mr Lee, however, met him on bis j arrival in London, and Mr Lee and the other ; bsembers of 41ie syndicate induced him to assist in ita promotion. Mr Brydone took tip 10 : shares of £100 each, and Mr Lee took up 40 shares. The syndicate had been in 1898 registered as a joint stock company in England. It }9 common ground that the promoters wished fnore shares to be taken up in New Zealand. On the 21st September Mr Brydone wrote to Mr Lee : — " If it becomes necessary I may take up some more for Willie and myself." At that time, therefore, there had been no arrangement as to Mr Brydone taking any additional shares, »nd as Mr Lee left England in October, the arrangement must have been made between the 21st September and the date of Mr Lee's departure. Mr Brydone's evidence as to the Arrangement is as -follows:' — "Afterwards, as ,the negotiations were proceeding, Mr Lee told me that the promoters were very anxious to Shave more shares taken up in New Zealand, to j fehow the bona" fides of the concern. I think j ihe informed me he had applied for a considerable number of shares. He said he would ■ Bike to have taken up £500 worth more, only (he hadn't the money, and he asked me if I'd ] )take Tip £500 worth in addition to my £1000, j and that, as he would be in better funds when lie got back to New Zealand, he would then (take them, over from me." Mr Brydone then took up £500 worth- more, in accordance with*; Ihe arrangement. According to Mr Brydone, I ltherefore, Mr Lee wanted £600 worth more j ■hares, but had not the money to pay for them, ] fend Mr Brydone accordingly, at Mr Lee's re- j ftneflt, found the money and took up the shares, I Sir Jjee undertaking to redeem them after fae returned to New Zealand. This also wa3 the toosrtion taken by Mr Brydone in his letter of Ith© Bth August, 1901, and which is taken in the j statement of claim in this action. Mr Brydone j prould be therefore simply a mortgagee of the | shares, and as he could call upon Mr Lee to i redeem them, so could Mr ILee have called \ jupon Mr Brydone to transfer the shares to him on repayment of the money. Now, apart from | Mr Lee's statement that he had plenty of money ! lof his own, there are difficulties in the way of Mr Bxydoae's statement. One would infer from it that the money had to be found in [England before Mr Lee got back to New Zealand. When Mr Lee got back to New Zealand 3is would, according to his statement to Mr Brydone, be in better funds. It was then, according to Mr Brydone, that he was to take over the shares. If, therefore, no money at was payable in England in respect of the shares, and no money was payable in New Zealand till some time after 3£r Lee's return, therefore it is difficult to Bee why Mr Lee should have sought pecuniary assistance from Mr Brydone. As a fact, no knoney was payable in England. Mr Lee arrived in New Zealand' in December, 1838. ■&n instalment of 10 per cent, on the amount of the chares was payable in New Zealand ozr the 81et January, 1899, and the rest was payable by instalments in February, March, April, and Ifay of that year. After Mr Lee left England, (n October, 1898, Mr Brydone wrote three letters to him in New Zealand — one on the 30th November, 1898, from Edinburgh ; another on the 2nd December, also from Edinburgh; and a Ihird on the 21st of January, 1899, from Nice. In the first letter Mr Brydone 6peaks of his success in getting shares taken up in the syndicate, and of the good prospects of the venture. Speaking of the numbar of shares taken up, and that more can be got to bn taken up, he says : — " Dunedin people will be too late." The next two letters, however, refer to the particular shares in question. In the letter Df December 2Mr Brydone says :— " I have told Angus to see you about the five shares beyond the 10 which you got me to take, and which you said you would get taken up in Dunedin. I was satisfied with the interest I had in paidup6 and contributing without the five extra. &.11 the same, if yon have any bother with them they can remain at present." Mr Angus was tlx Brydone's attorney in New Zealand. Mr Lee states that Mr Angus did not see him »bout the shares. But the terms of this letter ire plainly inconsistent with Mr Brydone's Statement. By the statement there was an absolute engagement on Mr Lee's part to take over the shares after bis arrival in New Zealand. The shares also were Mr Lee's shares, jind Mr Brydone had no rights in them except is a (security for the money he was to pay tor them- The letter makes no mention of any inch engagement, but refers to a statement made by Mr Lee that h© would get the shares taken up in Dunedin, and g063 on to say that if he had any bother about getting them taken up they could remain at present. If there wa3 an absolute engagement by Mr Lee to take over the shares, what necessity was there for Mr Brydone to write in respect of the shares 'at all; and if Mr Lee was the owner of the ■hares, what business had Mr Brydone to give any directions as to their disposition? The Fame observations apply with greater force to the letter of the 21st January, 1899. In that letter Mr Brydone congratulates Mr Lee in having got off the £10,000 worth of shares reserved for New Zealand. He goes on to say : ," You will probably get somebody who will take that extra 600 of mine off my hands that you said Duncan would take. I have enough fcjthout, but don't hawk them." Here, again, lir Brydone more explicitly treats himself, and not Mr Lee, as the owner of the shares, )md gives directions about them which he would only be entitled to give as owner. Mr Bry3one arrived back in New Zealand in April, 1899. The instalments of £150. £150, and £W

on his 15 shares, due in January, February, and March, 1899, had been paid by his attorney. The instalments of £400 and £400, due in May and June, were paid by Mr Brydone. Mr Brydone did not request Mr Lee to take over the five shares, nor was any reference made to them, except that in December, 1899, on board tho steamer going up to Queenstown Mr Brydone states that Mr I/ec referred to his obligations to him, and said he would make them good. This Mr Brydone understood to refer to the shares in question. They had had a great deal of conversation on board the steamer about the management of the company. On the sth December, 1899, a dividend of 10 per cent, was paid on the shaie3 in the syndicr.tf, which Mr Brydone retained. In January, lOiX), there iras an estrangement between Mr Brydono aiid Mr I*ee, which has continued ever since. In February, 1900, a new company \va3 formed by the syndicate. It had been one of the objects of the syndicate to form a new company, but the "conditions on which it was to be formed were not finally determined till January , 1900. One of ihem was "that each member of the syndi- j cate ior every £100 worth of shares in the | j syndicate ivas to receive 130 fnliy-paid-up £1 shares in the new company. In June, 1900, Mi Brydone applied in person for, and Teceived, scrip for 1950 shares in the new corapany in exchange for the scrip for 15 shares in the syndicate. In September a dividend on these Ehares in the new company wp.s paid and retained by ilr Brydcne. It was not until Mr Brydone's "letter of August, 1901, that any ] reoueat vras made by Mr Brydone to Mr Lee to "tr.ke over the shares r.or, vrith the exception of Mr Brydone's letters from England end of the suggested conversation on the steamboat in December, 1899, had a word passed between Mr Brydone and Mr Lee about the shares between the original arrangement in England in October, 1898, and the letter of August, 1901. When Mr Brydone returned *o New Zealand in April, 1839, he states that for some time ufter hi-3 relusu a number oi shares in the j syndicate were sold at the cost price, and ] people were anxious to get into the company. | As ~<a fact, there were sales of shares in tho syndicate at tho cost price up to January, 1900, and sales of shares in the new company in 1901 at tae same rate. The lfst sales 111 June, 1901, of the shares in the new company I were, indeed, higher, being at the par vaiuc of the shares 4n the new company. No sale 3 were made after June, 1901, and m August it seems very doubtful whether the shares, if put - on the market, would have realised the money originally paid for them. Now, I understand, they are unsaleable. Suppose, however, tiiet the shares had advanced in value, and that j Mr Lee had now claimed that the shares were his, and had given the account of the origins.! j transaction that Mr Brydone has now given, j and that account had been contradicted by Mr j Brydone, but that the circumstances were in j other respects the same, could Mr Lee have hoped to succeed. Certainly he could not. The letters sent and received and the conduct of both parties are entirely inconsistent with the shares being the property of Mr Lee. That is a test in the present case, because what Mr Brydone has now to establish is that the shares were Mr Lee's from the beginning, anS fliat Mr Brydone held them as security only. This, I think, he has failed to do. It is far more consistent with what has taken place that, a« j the promoters of the syndicate were anxious to have as many" shares as possible taken Tip i in New Zealand, Mr Brydone should have j taken up these five shares at Mr Lee's suggestion, not for Mr Lee, but for himself, Mr , Lee saying that after his return to New Zealand lie would get them taken np in Dunedin, ■ or if he could not would himself take them ■ over and so relieve Mr Brydone of them. But this would imply that Mr Brydone was only to be relieved of them if he still continued to wish to be relieved of them, -even if this were not expressly stated. Mr Brydone could elect to keep the shares, and Mr Lee could not have compelled him to make them over to him. If Mr Brydone never requested Mr Lee to dispose of or take over the shares, but acted in such a manner as would clearly indicate to Mr Lee or anyone else that it wps his intention to keep them, and that he did not wish to bo relieved of them, he could not two years afterwards ask Mr Lee to relieve him of them. That some time during the year 1899 Mr Lee had conversations with Mr Watson on the subject of these shares is exceedingly likely, and that he mentioned he was under some obligation to Mr Brydone respect of them is also likely, because from Sir Lee's own point of view he was during part of that year at any rate under an obligation. But Mr Watson, has had no conversation with Mr Lee since 1899, and it wou'.d be unsafe to Tely on his memory for the precise language of conversations which took- place more th?n two years ago, and in which the insertion or omission of a word or two would make all the difference in their meaning. For the above reasons I am satisfied that Mr Lee's account of the original transaction is in substance more correct than the account of Mr Brydone. I therefore find for the defendant. Judgment for defendant, co,ts on th<> middle scale, as if £SOO had been cl<umcd , disbursements a:; 3 witnesses' expenses to he <\xec> by the registrar. IX BAXCO. TUESDAY, May 6. (Befoic His Honor Mr Juflicc Williams.) RC JOHN MTCHES. Ar. appeal from tlie deceision of the Stipendiary Magistrate at Ophir, convicting John Pitches of selling drink without a license. The appeal v. as on the grounds that the conviction was against the weight of evidence, that the evidence of the witnesses for the prosecution v.as unreliable and that tho defendant proved that he did not sell hquo" r-s alleged. Mr H. Solomon and Mr Gilkison (of Clyde) "or the appellant, Mr J. F. M. Frnser for Attlrg Detective Hill, the re?po:cleni. Mr Fraeer said the lact* of the appeal were these- The defendant wts a storekeeper at Ophir, and was the holder of a wholesale license. It was alleged by two witnesses, two young labourers iv the district, that on the evening of December 17 last they vent to Pitches's store an-d demanded and were supplied with whis-ky. 'or which they paid Is. The defendant did not deny the supply, but treated it as a gift, and, 111 a measure, as payment for some servic°s previously rendered by one of them. It was suggested in the court below that the action of the two witnesses for the prosecution wa3 prompted by some local feeling, more or less of a temporary character, agpiiist the defendant in connection with some action he had taken in determining the lease of a publichouse, the fee simple of which he owned. They denied that, but whether or not there was a sub-stratum of truth in the matter, and if the witnesses gave their evidence as they gave it ir. the court below, his Honor would see they were very straightforward and very honest in their s f atements. The question in dispute was, Was it a sale or a gift? If it was a sale the conviction of the magistrate nviißt be upheld. Mr Solomon said that was the position it was the only point to decide. Mr Fraser said the men went into the premises. At the end of the counter was a barricade of biscuit tits, and under the counter a tub with water for draining and cleaning glasses, with a black bottlo or two on the shelves behind. The defendant was fined £25, and from that decision he now appealed. Griffiths Thompson, labourer at Ida Valley, sis miles from Ophir, said he knew Henry Healy. of Ojohii. On the 17tk December last

witness and Healy went to defendant's premises in the evening for a paper to see about a Tace meeting. The defendant did not have the paper, and said the most likely -place to get it would be at the office of the paper in Clyde. Witness remarked that it did not matter muoh whether he saw it or not. Witness then asked Healy to have a drink, and they walked to the other end of the counter, the defendant going with them. There were some biscuit tins at that end of the counter, standing 7ft from the ground. In answer to •witness Healy said he would have whisky, and witness said he would have whisky too. Defendant then placed a bottle from a shelf on the; counter -with two glasses, and witness ?nd Healy helped themselves and drank the vhisky. Witness paid defendant 16 for the drinks. He put the money on the counter, and defendant put it in his pocket. Before going out Healy. asked detendant if he had got the shilling, and defendant said he had.- They then said " Good-night " to defendant, and v-alked out. Witness S2.w Acting Detsctive Hill later on that night, in company with" Constable Chisholm. Witness made a statement to Acting Detective Hill. Nest day witness vent back to the defendant's place about 10 o'clock and asked for another drink. Defendant said it was too early, and that he did no* think witness wanted the drink. By Mr Solomcu: In giving evidence in the lower co irt he swore " I was working that day on the Government works ; I came ju in the evening," but he made a mistake in saying {hat. That evidence was given on the 30th January, and he thought it wr.s the- 30th December. As 8i matter of. fact he was at home nt Ida Valley nntil the afternoon, leaving between 3 o'clock and 4 ( o'clock for Ophir. If Mrs Johnston, charwoman, said he had been knocking about Mrs Gavan's Hotel all the afternoon he would deny it. He had never done v.ork for Mrs Gavan. He always stopped at her hotel when he was in Ophir. He met Haaly about G o'clock, and knocked about the town with him for over two hours, going to one hotel after another, and having a drink here and there and playing billiards. At halfpast 8 o'clock they went to Pitches's place. Witness went to get a paper and to " put him up " Witness and Healy were perfectly sober v.-hen they ivere at Fjches's. 'Witnese really v/pnt to Pilehes's to inform on huh for sly-grog selling- He did not know that that was also Healey's object in going to Pitches^. At that time there was some bad feeling against Pitches because he would not grant Mrs Gavan a renewal of the lease of the hotel. Witness had no " edge " against Pitches on that account. Mr Solomon: Why did you wish to inform ; bout Pitches? — Because I thought two hotels vreTe enough in Ophir. Did you tell Healy that 9—9 — Xo And yet the same thought occurred to him? — It niay have. Is it not the tact th?t you and Healy had a " down " on Pitches, and resolved to get him into trouble ? — No, I had no " down ' on him. Further oross-axamined : On the following day ihe effigy of Mr Pitches was burned in Ophir. Witness had no hand in the making of the effigy The figure was made up in the wa.ph-b.0u3 3" at. the fo«ck of the hotel. Witness did not point the effigy out to Mrs Xohnston. md say, " What do you think of old John Pitches?" Witness and Healy kept away from the effigy. Witness did not say, in Miss Gavan's presence, th?.t if Pitches had given liirn £5 he would have -said nothing about the drinks. Mr Solomon: You ?.re a respectable mail, are you not ? — 1 think so. Don't you think this was an extremely mean and dishonourable thing to do? — I do not think it is. Did you iell 70m iathsr and mother you were going to do it? — No. Did it not occur to you thai the least you could do, if you intended to ta-ks the part, was to give the roan a warning' — I never thought about it. To Mr Fraser: He did not say to Pitches that he would say nothing about the drinks if he g?.ve him £5. lie expected no reward from anyone for the action he had taken. He had previously been in Pitches's place. To bis Honor: He had not previously been in communication with the police. Henry Healy, labouror, in the course of his evidence, corroborated Thompson's story as to the visits to the store. In cross-examination the witness said he would contradict — he thought -he would contradict anyone who eaid that he and Thompson were knocking about together (for two hours. Ho thought ihey met at 8 o'clock, and went straight to Pitches's. If Thompson said they met «t 6 <uud were together playing billiard 3 and drinking it might be true, but witness could not say — it was so long ago. Thompson suggested that they should go io Pitches'« and inform dn him for sly grog-selling, and witness said he would go. j Witness said tlipt there were two hotels in I Blacks, and they were quite enough without a J sly grog-shop. He would contradict Thompson ; if he said it was not made vp — he thought he j would contradict him. Witness thought they I had the conversation. If witness had been by himself he would have ju6t gone in and asked for a drink: he had often had a drink there. Teu days or so previously witness had lent a mail nameJ Love a hand to shear for the younger Pitches. He was not paid for that. The elder Pitche3 saw them working, and when witness remarked that it was dry work Pitches I said if he had known witness was there he ! would have brought a drink. Pitches did not 1 nay he would give witness one at another time. 1 Witness did not know anything about Pitches's j treatment of Mrs Gavan. The only motive j witness had was his belief that two hotels 111 the place were enough. Acting-detective Hill said in the course of his evidence that Thompsort and Healy were I quite sobar on the night of the 17th December. Witness, though in Ophir~for several days, had had no conversation with them prior to that night. Both men made n statement to witness. : That statement was left in the courthouse at ! Ophir. Mr Solomon, opening for the appellant, submitted that the evidence for the pro3eciUion was eminently unsatisfactory. His Honor" asked whether learned counsel knew of any decision on the question as to how far the two principal witnessed were responsible as accomplices. Mr Solomon replied that he did not think there was any, but he proposed to refer to the evidence from that point of view. He submitted that the evidence was so dreadfully tainted that if the matter had come before a jury the judge would have had to tell them to accept it with a larger amount of caution than that of a mere accomplice. It bad all the elements which went to discredit evidence. It was the evidence of informers ; it was the evidence of men who had a strong motive to taint their story; and it was evidence that stood cross-examination very badly, for the stories told hy each of these two men agreed only on the main fact and differed seriously in other respects, and he (Mr Solomon) submitted that the court must come to the conclusion that the part in which they agreed was the part that was concocted. Being questioned on points for which they were unprepared, these men had cut a sorry figure, and he would go so far as to say that they stood before the court convicted of downright perjury. It was not possible to say that these discrepancies were accidental. John Pitches, the defendant, said he originally held a retail license, but had of late years held a wholesale license. He had never sold drink on retail lines since he eot his wholesale

license, about three years ago. The tins in the shop were there for the purposes of his business. There were goods for sale in them. Witness had known both Thompson and Healy from childhood, and their parents before them. About 10 days before this incident witness one day found the boy Healy assisting his son in shearing. The "remark was made that the weather was hot, and witness said he did not know they were at work, or he would have brought something down for them. He also said he would shout for Healy some other time. About that time feeling in the town was running very high against witness as he had determined Mrs Gavan's lease of his hotel. The two young men came into his house one day between 1 o'clock and 2 o'clock. Thompson asked for a paper of a past date, but witness could not find it. Later on Healy said he had come for the drink witness had promised to him. Witness asked what he would hay«, and ho said he would have whisky, and .his friend being with him he was also supplied with a drink. They got the drinks out of a bottle on the shelf. Witness sometimes gave his customers a drink. The men paid nothing for the drink. It was not intended that they should pay. If they had paid they would not have got the drink] There was some remark about money,, but witness said that no money had to be paid. If one of the men put down- a shilling he must have, picked it up again. Next dayitthe two men came back to witness's" house for a- -drink, but got none. Later on, about race time, the two men caine«to him and said they would put "him dp. They had, they said, got £5 for it, but. if he would give them £5 each they would say nothing about it. By Mr Fraser:- It was possible that some of the servants had a tub of water under the counter for washing out the place, but as for a tub with a drainer for glasses he knew nothing of it. The place was not fitted up as a sly-grog bar. Witness was surprised to hear one of the witnesses say he had previously been supplied with liquor in the house. It was a falsehood to say he had been sly grog-selling for three years. After witness had heard that the men were going to inform they came to his store, and he told them to clear out. This was the first time witness had been prosecuted for sly grog-selhng. Constable Chisholm, stationed at Ophir, said tbat when Healy and Thompson made their : statement to the police he asked Healy if the drmks were paid for, and his leply was j that he could not say he saw Pitches take the 1 money as his face was towards the door. He also said that when they weie leaving one of them said: "Did yon get the shilling?" and the reply was, "It is all right ; I got the shiHing." WitnnsS ndvised them to try again ] so that they might see the shilling pass. He said that as they did not see the money pass ! the case was not a strong one. Next day witness saw Hoaly and asked him how he got on ■when he went back, and he replied that they had been in two or three times but could not get served. He also said, " I remember, now, Chisholm, that I saw the money pass." By Mr Fraser : He had never seen a draining tub" behind the counter. He was sure" that Healy said his face was towards the door. When the men made their statements they were perfectly sober. Pitches never said anything to him "about the men trying to get money out of him. Mrs Johustcn, resident at Ophir, said that Thompson used to be employed in Mrs Gavan's hotel, serving out drinks on show days. On the day in question witness saw Thompson in Ophir at 1 o'clock. He came to the hotel to cut some-sticks for her to boil the boiler. Next morning on going into tho wnshhouse she saw a, stuffed figure representing Mr Pitches. Thompson came in later and a3ked her what she thought of " old John." At breakfast time Miss Gavan mentioned that Thompson and Healy had informed on Pitches, and asked witness what she thought of the informers. That morning Thompson and Healy were going backwards and forwards all the morning. They said they were trying to get drinks, bnt that they had got none, as Pitches- had ordered them out. Thompson said: "If Pitches would give me £5 I would say nothing about it." He nad told that to Pitches, who ordered him out. By Mr Fraser : Thompson had told her he had been employed in the bar serving out drinks, but did not say how much he was paid. Counsel did not address the court. His Honor, in giving judgment, said: This case differs in very many essential points from the ordinary case of sly grog-aelling. Generally, where liquor is found on premises in any ovantity, that fact in itself affords a sort of presumption that there is something wrong. Here, however, the defendant had a wholesale license. No inference, therefore, can be drawn against the defendant by the fact that liquor is found on his premises, nor do I think that any reasonable inference can be drawn from tho arrangements in the defendant's store that it was a practice on his part to sell liquors by retail. That being so, the only evidence we have is the evidence of these two young -men. There is nothing at all which confirms their evidence. Looking at their evidence in the best light they are informers, and it is always reasonable to expect that there should be some corroboration where the charge rests on the evidence of informers. But there are informers and informers. A man may inform because he i« influenced by a sense of public duty, or he may be employed by the police for the purpose of detecting crime and aB the representative of the police, though his evidence may be eubject to question, yet if it is consistent and no doubt is thrown upon it, it may be reasonable to give credit to it. These two young men, however, were not employed by the police. They were, so to speak, amateur informers, and the pretention in their evidence that they were influenced by a sense of public duty is, in my opinion, pure cant. What they were influenced by, in my opinion, is that they wore partisans of Mrs Gavan. I do not say for a. moment that she was influencing them. I should be sorry* to suggest that, becauße I know nothing about it, but they evidently were taking sides with Mrs Gavan, and out of spite of Pitches— that is what it is— wished to get him into trouble. If people are capable of doing that sort of thing— of going to a man's place for the purpose of getting him into ; trouble, and not for any public motive but for j the purpose of private vindictiveness— they are, in my opinion, capable of concocting a story for the purpose of getting that man into trouble. The way they gave their evidence today 13, to my mind, exceedingly unsatisfactory, and. as I have said, their evidence is entirely uncorroborated. Then in the defendant's •favcor we have this fact: He has held a license of cr.e sort or another for 40 years, and has never been convicted of sly-grog selling before. He was asked the question in cross-examina-tion, and if he had been in trouble before in connection with the Licensing Acts it could have been elicited from him, but it was not elicited from him. I look at the case as any jury would look at it, and I am perfectly satisfied that any jury vould acquit the accused. There is a reasonable doubt, and more than a reasonable doubt, of the defendant's guilt. I think it is probable that the case has come before me in a more amplified form than it came before the magistrate, and the defendant's case has been more strongly brought out. As a rule, I have certainly great objection to interfere with the judgment of a magistrate on questions of fact, but it is, of course, my duty I urder the law as it stands to rehear the case and form my own opinion on the evidence in the shape in which it ia adduced before me. So doin£, I w satisfied there is a reasonable

doubt of the defendant's -guilt, and the defendant is entitled to be discharged, and the appeal is allowed. Mr Praser said the evidence was not the same as that of the lower court. The magistrate had not Mrs Johnston's evidence, so that, really, the same case had not been tried. His Honor agreed that that was so.