SUPREME COURT.

Otago Witness, Issue 2882, 16 June 1909, Page 18

SUPREME COURT.

IN CHAMBERS. Tuesday; June 8. (Before His Honor Mr Justice Williams.) Probates were granted in the estates of the following deceased persons : —Helen Smart, William Gaixkier, Jacob Shearing, and Louisa Partridge. Letters of adininistrajtron were granted in the estate of Janet Gtoalrcusra, deceased. Public Trustee v. Aitaheson and others. Motion to authorise defendants to defend action (Mr Woodhouse).— Accordingly. Re John N. Wilson. Petition for leave to sell lands, etc. (Mr Stephens).— Order tccordinglyIN BANCO. Wednesday, Juke 9. (Before his Honor Mr Justice Williams.) MACKAT V. MACKENZIE. This was an ajppeal from a decision of Mr W. G. K. Kenrick, S.M. Mackay had la-id an information against respondent, Ernest Dennison, Mackenzie, at TapaJiui, alleging aseault, and asking for sureties of the peace. When the matter came" before the Magistrate Mr Inder raised the point that two offences were disclosed, and that the information was therefore bad, or that* if the information did not disclose two offences it ■was simply an application for sureties. The magistrate, after hearing Mr Sinclair, for the plaintiff, decided, that he could not amend the information, and he treated it as an application for sureties, ' telling Mr Sinclair, however, that -he could lay an information for assault at once if he so desired. Mr Sinclair replied that he would be satisfied if the defendant was ordered to. sureties. The assault "was admitted by Mr Inder, for the purpose of an application for sureties, and Mr Sinclair called evidence in support of that application. Without calling'on the defence, the magistrate intimated that the evidence proved an" assault, which was not trivial, but did not justify an .application for sureties, only going to show that the defendant had no intention of committing another assault, and that, the informant had no cause for fear. Mr Sinclair then applied to have the information amended to one of assault, but the magistrate declined. Mr Sinclair then asked that the information be dismissed without prejudice, so that an information for assault could be laid. The magistrate replied that he was dismissing what he regarded as an application for sureties only, and not for assault. The question before the court was whether such decision by the magistrate was erroneous in point of law. Mr W. Downie Stewart appeared for the appellant, Alexander Mackay, and Mr C. G. White for the respondent, Ernest Dennison Mackenzie. Mr Stewart argued that the magistrate -was wrong in treating the information merely as' an application for sureties, instead of an information for" assault as well. The magistrate was also in error in stating that he could not amend the information. The •wording of the information might not be apt to a degree, but it was clear enough ftnd in the usual form. Mi" Stewart further pointed out that jthe idea of the suggestion of laying a fresh, information was that the case might be tried on its merits. An attempt had been made to get the case dismissed without prejudice, but the magistrate would not allow that. His Honor: The magistrate held that it was not an informal ease of assault. Mr Stewart went on to submit that the case should be remitted to the magistrate. The only grounds on which the case could have been dismissed would be that it had been trivial ; but it had been admitted thai it was not trivial. The sureties asked for were quite legitimate. The magistrate was wrong- in deciding that he had no power to amend the information. Tbe statute gave him ample power. Mr Whits contended that in addition to the ' information for assault, there should have been a request that defendant be bound over to keep the peace. If there was 'a defect in the information, it nas one of substance end form, and, therefore, under the- section, could not be amended. The magistrate had decided to hear one change, and the case proceeded. Appellant's application to have the case dismissed without prejudice was surely unsound, because no case could be dismissed without prejudice when the merits of the case had been gone into. The decision of the magistrate was right, and the information was what he held it to be — an information for sureties alone. Mr Stewart, in reply, urged that it was quite clear that the case of the question of asaault had not been gon© into on its meribs, and, therefore, could easily have been dismissed without prejudice. His Honor pointed out tha-t the magistrate had taken the case as one of sureties, and had along these lines gone into the merits of the oases.

Mr .Stewart again submitted that the whole difficulty arose from the original decision of the magistrate. His Honor: I think it is quite clear that the information was an information under section 19 of the Justices of the Peace Act — an information for assault — and' a request by the informant that the defendant should be bound over to keep the peace. The wording of the information might perhaps be a intle improved, but that that is the mep.iiing: of the information seems to me to be perfectly clear. The case of Regina v. Deny, used by the respondent, is really very strong authority against him. In that case there was an information for sureties of the peace, and an assault was stated to have been committed contrary to the form of the statute. That is co here. The complainant in that case, however, expressed a wish that the justices would not convict for the assault, and the justices convicted in spite of him. It was held that they had 1 no authority to do 60, but the judgment clearly shows that if the real wish of the complainant was to proceed for the assault as well as to obtain sureties the justicee would have had full jurisdiction to convict. I think, therefore, that the magistrate was wrong in the first instance. If wrong in the first instance the complainant really had no alternative but either to drop the case and take fresh proceedings, or to submit, to the ruling of the magistrate for the purposes of the case. Because a complainant submits to a ruling of the magistrate which is wrong it does not seem to me that he waives his right to appeal from such a wrong decision. The case referred to in Paley simply shows that where a person is brought before the court by any means whatever, and the court has jurisdiction to hear the oharge against him, and he submits to the ruling- and takes his trial, he cannot afterwards object. In such a rase, however, there was no erroneous ruling on the part of the presiding magistrate. I think, therefore, that the magistrate had full jurisdiction to convict for an assault, and that the assault being admitted he oitfrht to have convicted. The case will be sent back to the magistrate with directions to convict. The appeal Will be allowed. BOROUGH OF EAI.CLTJTHA V. FRANK BOWER. This was a case on appeal ' between the Mayor, councillors, and, burgesses of the Borough of Balohitha, appellant/3, and Frank Bower, respondent, from the judgment of Mr W. G. K. Kenrick, S.M., for £8 claimed by Frank Bower, the value of a cow destroyed by eating rhododendron leaves from the unfen-ced rubbish tip on a iwvre of the fK>rportion over which he held a grazing license. Mr John MacGregor appeared for tho appellants, and Mr R. R. Grigor (Balclutha) for the respondents. Mr MacGregor submitted in the first instance that the conclusion of the magistrate in givine. judgment for Bower was a wroncr one. The. magistrate had not mentioned upon what- authority he had proceeded." Coun&pl- then-- quoted several authorities to- show -that the conclusion arrived at by the -magistrate had been erroneous, and to show that -under tho circumstances "there Could have been no responsibility on tJie part of' the borough. Then there 'was the principal that no man •could enforce an act which he had abandoned. On both grounds the risk taken by respondent, (even if there was negligence) exempted tbe corporation, and from authority quoted it would be seen that there had been no negligence on the part of the corporation. Mr Grigor argued that the borough had made its meaning so vague that an ordinary man could hardly oomm-ehend it. For instance, the' words fri the grazing license " without responsibility" might mean that the appellant, respondent, or some other misjht be held as not responsible. His Honor said that as the grazing license was issued by. the borough, it was clear that, the boroueh, and none else, was intended by the words used. Mr Gripor went on to say that, a^iin-i-in<y that the borousrh- would not bo liable. Mr Justice Stephens had olearlv enunciated the principle of general delivery, to which Re found on!v four exceptions; that was to say, where the conditions were unreasonable in themselves. Tho effect of such a construction being placed upon the words "no responsibility" would mean that the licensee could make no use of his license. The widest scope of the words must be that the borough was not responsible in a certain degree .under certain conditions. Surely the words were not to bear the interpretation • -that the borough was at liberty to place poisonous matter on this area and yet- • retain no responsibility in reeard to damage caused thereby to leaseholders' cattle. He also contended that there was evidence of negligence on the part of the borough. Respondent's cow had been grazed' on this reserve, and poison had b&en loft within its reach. The rubbish heap should have been fenced off. or elf=e someone should have been on tho spot to 6<*a that t.he poisonous ereori stuff was not devoured by cattle. The licensee

was aware that the rubbish depot was unfenoed, but it was mostly a place for discarded tins ; and there were other means, besides fencing, for preventing cattle from eating poieonous substances. The matter might nave been destroyed, for instance. a matter of fact, it had been burned, but not till after the damage had been done. He therefore submitted that the magistrate's decision was rigbt. • Mr MacGregor having contested the lea-ding points of Mr Grigor's argument, His Honor 6'aid ' he was not quite satisfied, and that he would take time for consideration CRIMINAL SITTING. Thuksday, Junk 10. (Before his Honor Mr Justice Williams.) FOKGERT. Josejph Patrick Jackson (35 years of a,;?c) was brought before his Honor for sentence on a conviction for forgery committed at Alexandra. — Jackson said, on the usual question being put to him, that for five years and nine months he hsud been honestly working for his living, and he defied the poliice to prove the contrary. He asked; the oouirt to take into consideration the fact that he had been awaiting sentence since the 9th March. The- Crown Prosecutor said that prisoner had been convicted for theft from a dwelling, forgery, drunkenmess, forgery, theft, and came within the scope of the definition habitual criminal. His Honor said there seemed to be agaip in prisoner '6 record. 'He had come out of gaol in 1904, and nothing bad happened in 1905 and 1906, and not until prisoner had received a sentence of six months for theft in 1907. - The sergeant at Clyde had, in the depositions, said' that prisoner had worked around the district for nine months on farms, and stations. His Honor eaid the previous convictions rendered pirdsonea' liable to be committed to prison as a habitual criminal, and in that case he would be detained indefinitely. When he got out would be a question for the authorities. Looking, however, at the fact that he seemed to have been endeavouring to work honestly for several months his Honor did not feed inclined to treat prisoner as a habitual criminal, but he warned him that if, after serving the present sentence, he was again convicted it was almost a certainty that he would be confined for the rest of bus life. His Honor gave him that warning-. He d'idi not wish to put him in that position now. When he came out of gaol he would have to bahave himself, otherwise he would get a life e&ntenoe. Tbe sentence of the court would be that prisoner be imiprieoned for 12 months, and kept to hard labour. THEFT. William John Quan (28) was brought up for sentence on a conviction for theft of a watch at Dunedin. The Grown Prosecutor said prisoner's character was reported by the police ac bad. ' They regarded prisoner's case as practically a hopeiees one. His father was a decent man — a Chinaman. — and had done all he could for him. Hie brother had also done all he could for him, but it had been of no avail. He had been convicted of inciting to resist, and there were 14 other convictions against him, three of which were on indictment. The rest had been dealt with summarily. His Honor: The fentence of the court is that you be imprisoned for two years, and kept to hard labour. THEFT. Joseph Sweeney (25 years of age) was placed in the dock for sentence on conviction for theft (two charges). Prisoner, asked if he had anything- to pay for himself, eaid he had ridden the horse too far. and he thought it was just as well to ecll it. The Crown Prosecutor eaid prisoner's character was bad. There ware four convictions aeainst him for theft committed at Christchurch, Wanganui, and Mamaia. Prisoner was not regarded as being very strong- mentally. When in gaol he broke out into tears for what he h»d done. His Honor: What is to be done. It leaves mattere where they are. He will be under medical supervision in gaol. I cannot send him to a mental hospital. He cannot be treated as a habitual criminal you know. A fairly long- detention in jjaol should be the beet thin'? for him. The sentence of the court is that you be imprisoned for two years on each charge, and kept to hard labour. His Honor added that the sentences would be concurrent.

The conditions under which licenses' to use water power will be issued* by the Minister of Public Works were gazetted last week. It is provided, amlong other things, that the rent charge shall be 6d per horsepower per month on tho total horse-power capa.ble of being developed by the whole of the water .authorised to be us*>d, with a minimum of £2 10s pfr month. The rent < barge will be reduoed by one-half when f he water power is used solely for generating electricity for mining purposes.