LAW REPORTS. COURT OF APPEAL.

Dominion, Volume 3, Issue 736, 8 April 1910, Page 5

LAW REPORTS.

COURT OF APPEAL.

v SENDER OF THREATENING -LETTERS. ', 'AUCKLAND CRIMINAL CASE. PRISONER'S APPEAL FAILS. A case''.'stated, for' the opinion of the Court" of' Appeal by Mr. Justice Cooper was heard yesterday afternoon ;. _ /by the Chief Justice (Sir Robert Stout),' .f'/ Mr. Justice Williams, Mr. Justice. Edwards, and Mr., Justice Chapman. . >. ' The case was that of his Majesty the •'.-■: King versus Arnold Hare, heard at the Auckland criminal sittings on December 2V ]909. Mr. Myers appeared for the Crown, ■and Dr., Bamford (of the prisoner. ■.'.'.' . - '■.'.-The-prisoner had been indicted: (1) ■\. That, on August 28, 1909,.at Auckland, he stole a letter; (2).. that he<had in his possession a stolen letter; (3) that, ; oh August 28, with menaces, he de- ,■..;. J. jhanded £25 from.Thomas Edwin Clark, ' 'with intent to ■ steal • the- money'; ■ (4) ■■; -'-that, on August 30, with' menaces, he demanded £25 from' Thomas Edwin ■Clark,, with intent to steal the money; ...(5) that, on September 1, with menaces, '■.. he demanded £5 from Thomas Edwin Clark; with intent to steal the money; (6) that, between August 28 and September 1, he attempted: to steal £25.in money; and (7) that, on or .'about Sep- '' fember 1, he attempted to steal £25 in, money- - On being arraigned," the . I>nsoner|had pleaded not guilty. . Mr. Justice Cooper, .in stating the .'-.'■ case, remarked that the" following facts ■ 'had. been proved by the, Crown, and were undisputed:.A letter in the hand- . /writing .of Mr. R.. 0.. Clark, a shareholder in the company known as R. 0. Clark, Ltd., was found by the prisoner . 'on. August 27, 1909, on the/platform ' of the Government Railway Station. It was enclosed in an envelope which was damp and ungumnied. It bore ho -stamp, and did not appear to have been .\; ■ posted. The letter was addressed to , ~,"T.E: Clark, care of R: O. Clark, ■ Queen Street," and dealt with business v matters, the writer' remarking at' one . stage, "Be extremely 'careful'not to : carry any of these letters .in ' your .' pocket, or leave'any about; but stow them'away at your, place securely:" "*"• The prisoner read it, and-thdn wrote ■■'. an anonymous letter to, T.' E. Clark, "'..•'.'. saying;' .' . ! "- /-.'."■ ..-.,•.' "Ifound a letter addressed .to you, : containing . some valuable : information, both to] you and a lot of other people, •'••'.•■. including ■' myself. That ■ letter is now for sale to you for £25.' lam badly ■ in _ need of the money, and make my "price low, becauso I. don't like' the '.business; .but necessity: drives, also I don't want to be hard on you, as, from V. the .information v in the letter, I' can ; readily, .see that things 'are .not too' good with you also. The'letter was .; addressed from Wain's'Hotel,'Duncdin, ;■ but,-had not been posted! ... . Wheu' ■ you.buy this letter,..you. also buy forgetfulriess as to what it contains,'but .1 want no funny-business. The money will, have to be left at a certain place to be designated later by nie, when due . :' precautions will be taken by me) so • that you will not discover my identity. ' I.want you to advertise'in : the "Star" -.•' '; oh Saturday night or the "Herald"-on Monday \lf you want'the letter,7'ad- '"■ ! vertise in the.personal column,, in the words,- 'Will accept .your terms'.-' Re- ';'• : ,member.'any-funny business will result "' in':the'letter, or copies,'being, sent to interested people, which . I • will make all arrangements to have done in the case of'anything, going amiss. ?'ln the case.of your acceptance of the offer, ..': '.the letter will be returned to you by '; the following mail after , my. receiving '■■ the money, 'and that will end: the epi- ' Bode.as far as lam concerned, lam • well-wisher,: and perhaps -blackmailer,' but a man of his word." v . .' : .'Upon receipt of the letter; Clark'con-;-suited with Mr. Crawford, secretary of the company, and they communicated 'with the police.' On August 30, Craw- ; ,ford, an advertisement in the ' ."New Zealand Herald": "Will accept your terms." The prisoner then posted an unsigned postcard to Clark, stating, -."Noticed advertisement. Everything remains .the same." He. also posted to ~'. Clark an: anonymous letter)"-enclosing a ;- piece ■: of cloth and. a' : portion of the 'letter which \ he had found. In the .'letter .the prisoner directed that 1 25 should be tied on the piece . ~., of cloth and placed in a part of the "•'-■Public'Library buildings.. On August .;.. 31, Crawford -placed 25 halfpennies in the piece of cloth andplaced them' in : the place described in the letter. The .prisoner, found them, and substituted; .in, their place some ' pieces of. tin.. and. •.'.; four, iron writing-] to ,' Clark on August; 31, ; " Very smart. : . '.. Examine bracket. , Halfpennies don't '.. answer my purpose. Now see what I shall,do." On September 1, Crawford advertised, "Will accept your terms. Hold over. • Excuse copper. Wished to test genuineness. Write." On the ■ /.same day, the prisoner wrote the folpostcard to Clark: "Saw advertisement... Funny way of testing. . Looks as. if, trying to catch me, especi- : : ally as one of the halfpennies was mark- - ed. Am prepared to gives you one of the: least-damaging pages for the sum .: of £5 to show.that I am genuine. Then •.'. - when you get it you can place the rest, 'and.then you will .'get the rest'of the letter. lam top bard r up hot to be genuine. You can place'the money in the same place to-day between 4 and . 4.30, and-1 will keep my word. Either course will satisfy me, but the full . course will be much more satisfactory " to both parties." Five sovereigns were handed to Detective Cox, who marked them and placed them in the place de- ■-. scribed by the prisoner. . The detec- ■ fave waited and arrested the prisoner --■ when he came for the money. The' "■""■. Prisoner wrote, and signed a statement ■ admitting' these facts, and stating that be was an engineer residing at Avon- . dale. ••■'..-..,

-No evidence was called by the prisoner. His counsel submitted that no offence had been proved, and, in particular, that there was no evidence to go to the jury that the prisoner, had been guuty of. demanding, money, with menaces, within the meaning of Section 268 of. the Crimes .Act. He further , submitted that, no throat was contained : in< any of the communications addressed to;T. 8., Clark. " The jury found the i-P ns ?? er , • B»'lty. on - the first, third, , fourth and fifth counts of the indictment ~ -The questions for the opinion of tho . Court of Appeal, as'drawn up by Mr. : Justice Cooper, were:— ■'" ';.'''; 1.'.-Was there evidence to go to the jury upon which they could properly ■■ convict the prisoner of the theft of the letter? I '.- . . /2. Was there evidence to go- to the )ury upon which'they could properly convict-him of the offence set out in ■•'•: Section 268 of the Crimes Act? 3. Were tho communications sent by the prisoner to T. E. Clark threats?' •/■ ■ Dr. Bamford argued that tho Crimes Act had omitted to provide for the sending of a threatening letter, s, /The Court,held,'.however, that' the present case was sufficiently covered by . the general section making'it an offence . to demand money or property, with .-, . menaces.; The Court therefore affirmed the conviction) and Hare, who has. been allowed his liberty on bail, will now be brought'up for sentence..

. A NAPIER WILL CASE. A Napier case removed into the Court of Appeal by Mr, Justice Cooper was heard yesterday by the Chief Justice, Mr. Justice Williams, Mr. Justice Edwards, and Mr. Justice Chapman. •It was an originating summons, asking the Court tor an interpretation of tho will of Robert Holt, sawmiller, late of Napier, deceased. The plaintiff was John Holt, sawmiller, of Napier, and the defendants were John Holt, sawmiller, of Hastings, Sarah Leach Dean, wife of Oliver Dean, clerk in Holy Orders, of Napier, and Robert Holt, jun., accountant, of Napier, as executors and trustees of the will of tho late Robert Holt, together with infant children of James Holt, John Holt, Sarah Leach Dean, and Robert Holt, jun. .•.-.-■'

Mr. C...P. Skorrett, K.C., with him Mr. AY. G.' Wood (of Napier),' appeared for tho infant grandchildren of the testator; Mr. M. Myers and Mr. W. Sproule .(of Napier) for the four named persons benefiting under tho will; and Mr. H. A. Cornford (of Napier) and Mr. E. F. Hadfield for Mrs. Thompson (of Napier), who had an interest under the will. The testator had given his property, with, a direction to the trustees to carry on his sawmilling and other business for! forty years, giving power to apply any part the income to extending the business and'then to sell the business. He. then gave the income to four named persons, their children or remoter issue. At the end of forty years the whole property was to be divided among the; four named persons, their children or remoter issue. - It was contended. on the one band that the property. rested in the four named persons. An opposing argument was that the trusts were bad under tho rule against perpetuities, and that an intestacy resulted. The Court was asked for' a decision on this point. Counsels' addresses had not concluded when the Court- adjourned.

TRACK THROUGH A* RACECOURSE. Final argument was beard.in the Wanganui case which is brought for the purpose of determining whether the trustees of the Wanganui Jockey Club have power to prohibit the public from using a track across the racecourse; The trustees sued certain people in the Supreme Court for trespass and for damage done to a fence erected across the pathway, but they wero .nonsuited by Mr. Justice Edwards. Appeal was made in regard to that decision, and the case came before tho Chief Justice (Sir Robert Stout), Mr. Justice Williams, and Mr. Justice Chapman. The trustees of, the Wanganui Jockey Club—James Patoii Watt, solicitor; Gifford Marshall, solicitor; and Allan Cameron, fanner—appeared .'as appellants, and the respondents were Walter Henry Wilson, carried; Elliot Hodgson, gardener; Walter . Lyall, upholsterer; Charles James Halligan, plumber; Charles JR.tlpli Icatherland, mill-hand; and 'Robart Ford M'jnro, blacksmith, all of Wanganui. .:•■•' • Mr. C. P. Skerrett, K.C., with. him Mr. G. C. Hutton (of Wanganui), appeared for appellants, and Mr. Georgo Hutchison and Mi'. C. E. Mackay (both of Wanganui) for the respondents. The Court reserved judgment.. >.

A MOTION FOR COSTS'. In the case of John Campbell, of Auckland, versus the ' District Land Registrar, at Auckland, a matter which was decided at'the last sittings of the' Court of Appeal, Dr Bamford (of Auckland) moved for costs on behalf of the appellant. Mr. Martin Chapman, K.C.,' appeared for the respondent.- The Court—the Chief Justice, Mr. Justice iWilliams, and Mr Justice Chapmanreserved its decision, after hearing the addresses of counsel. • ~•

SUPREAIE COURTV ; CONTRACT FOR LOG HAULAGE. A BREACH AND DAMAGES. Judgment'was delivered yesterday by Mr.. Justice .Williaitis, in the Supremo Court case of. William ■. Burgess and John Mitchell v.. William Vickers, a claim for £200 fo- alleged breach of a log-hauling contract. Mr. K.' Kirkcaldie appeared, for, the plaintiffs, and Mr. C. B. Morrison for the defendant. . It was alleged on behalf of the plaintiffs, at the hearing on March 21, 22, and 23, that Vickers had . caused . a breach of a written contract by-selling the bush at Reikorangi, thereby putting it out .of the power of the plaintiffs to deliver the logs,, and of the defendant to take delivery of them.' r ,A counterclaim was lodged for £340, : Vickers seeking to recover this amount as. damages on the grounds of the plaintiffs' rion-perfoi;manbe of their obligation, to haul, a minimum quantity of 60,000 feet per month, and of their breach of a covenant to repair a bushhauler. ,

-In giving judgment his Honour said that/he considered, that the' weight of evidence was in favour of the plaintiffs' contention that the mill was unable to take the timber, that the plaintiffs were prepared to deliver, the v timber, and that no breach'of the contract on tho part of the plaintiffs had been sufficiently established. ' The root of. the j trouble was the condition of the mill, and the 'weakness of the financial condition of.Vickers. The. contract was to cut the timber where directed, and to deliver it on the trucks at tlie busb skids. ■ The term of the contract was three years, and the contractor was required to deliver : an average of -at least 60,000 superficial feet per month during the currency of the agreement. For, this he was to be paid at the rate of 17s. 6d. per 1000" feet.. . In these circumstances, there was a necessary implication that ' the mill-owner would not put it out of his power to carry, out the agreement. The subsequent agreement of June, 1909, did not put an end to the original agreement, but merely suspended its operation, that appeared to be the attitude taken up by all parties. The parties ceased to work under the • agreement of June, and then Vickers sold the mill' to Odlin, who refused to take over the contract of November; 1908. There, was not sufficient evidence of breaches of that contract by Burgess and Mitchell, wbicn would enable Vickers' to rescind . tho contract, nor was there sufficient evidence that the contract had been rescinded or abandoned by the parties to it. His Honour considered, therefore, that as tho sale to Odlin prevented Vickersfrom carrying out'his contract, tho plaintiffs were entitled to recover, and judgment would be entered for i-hem on the cla'im and counterclaim; As to the quantum of damages, his- Honour preferred to accept tho estimate of the value of the contract placed upon it by the plaintiffs about the time of tho breach, rather than tho estimate which they now placed upon it. "At tliat timo they, certainly did not consider it of much value," said his Honour, "and I asses's the damages at £50."

/MAGISTRATE'S COURT. (Before Mr. W. E. Haselden, S.M.) A WARNING TO SHIP-DESERTERS. Malcolm Christie and Timothy Barrett were charged a.t the Magistrate's Court yesterday wifcli having unlawfully deserted from the s.s. Mamari at Wellington on March 1 last. Both the accused pleaded guilty. Mr. Myers prosecuted 011 behalf of the Crown and asked that the accused be dealt with in an exemplary manner. Cases of desertions from vessels were frequent, and the reason that action was not regularly taken against the.offenders was that they invariably disappeared into the back-blocks for a

while until tlie affair had blown over. Again, the ships had to leave on their voyages and under the circumstances tho agents did not trouble to institute prosecutions. In this particular case, said counsel, tho offenders had been caught.' Their desertions, might, easily have resulted in consequences . which would have involved the loss of thousands of pounds, for the Mamari's large shipment of wool was timed to reach London, on a particular date, for tho wool sales. Any serious delay . would have caused the steamer to miss the sales. " His Worship convicted and sentenced each accused t-o one month's imprisonment with hard labour.

CHARGES OF/THEFT. Two cases involving charges of theft were,, on the application of counsel for the accused, • remanded till next week. Donald Baltrop, charged with having stolen, on or about April 6, three ladies' hats, five blouses, and thirteen ostrich, feathers from some person or persons unknown, was, on the application of Mr. Jackson, remanded till April 15, bail being' fixed at £100,, in two sureties of £50 each. Tho estimated value of the stolen goods was stated to be £12 10s.' lid. Charles M'Auley, alias George Jones,! who was represented by Mr. Jackson, was. charged .with having, at Lower Hutt on January 31, stolen from Frank Higgott two horse-cloths valued at £3 ■10s. Accused was remanded till Monday, April 11, bail being fixed at £50, in two sureties of £25, or one of £60.

i INSOBRIETY. •' William Egan, who had been convicted of drunkenness and discharged at Tuesday's sitting of the Court upon bis earnest protestation that he would reform—he then had five previous • convictions against his name—made his seventh appearance in the dock, ■; being on this occasion charged (1) with having been .found drunk, > and (2) with' having used obscene language' in St. Hill Street. He was convicted and sentenced to three months' imprisonment for each offence, the terms to be concurrent. - Mary Joyce, who had been twice previously convioted on charges of drunkenness within the last six months, and had. a total record \ of 28 appeared to answer to a charge of having been found drunk on' the Ferry Wharf, and was convicted and fined 205., the option being seven days' imprisonment. Similar penalties were imposed upon John M'Con'ville and David Alexander Wright, who were convicted upon similar charges. Each had two previous convictions against his name;

Three first-offending inebriates pleaded guilty to charges of drunkenness. Two of them were convicted and discharged, while the. third,' who . was stated by. Sub-Inspector Norwood-to. be in a very shaky condition, was remanded till Monday for medical treatment. ''■■■■'■■.

OTHER OASES. , A fine. of 205., with' the option of seven days' imprisonment, was imposed rn May Gibbons, who was convicted having.- behaved in . a threatening manner in Tory Street on April 6, occasioning a breach of; the peace. The' accused, stated, Sub-Inspector Norwood,was an old offender; with 14 previous convictions' on: various charges against her name., .'■■'''.. Two, firemen on the s.s. Turakina— William Watt and, Michael Driscoll— were convicted of having .used. obscene language on the Queen's Wharf on the evening of April 6, and each was fined £5, with the option of one month's imprisonment. • ■•//'

!hru;ii y . CIVIL BUSINESS. (Before Mr. W. E. Haselden,'S.M.) UNDEFENDED CASES. ' ( Judgment for • the plaintiffs by default was given in the following, oases :— ■ H. Oscar Hewitt and Co. v. Martin Porakino and Mrs. Kate Moses Peraniko (costs only), £2 45.; Wellington Furniture Union v. Bernard Diedricli and Son, £15; Lily Murphy v : . Robert Smith, >£16 9s. lid., with costs £1,155. 6d., damages to be reduced to ;Ib. in the event of the.return of:the gjoods within 24 hours; Smith and Smith, Ltd. v. Win. H. Ecclesr £3 4s. 6d., costs 10s.; United Asbestos Australasian Agency, Ltd., v. J. G.Carpenter, £3 7s. 3d., costs 10s. ; Commercial Agency, Ltd., assignee, and Picot 8r05.,. assignors, v. Mrs. K. Thomas,, 17s. 3d., costs. as.,;. Smith and Smith, Ltd. v. Harold Doorey, lis. Bd., costs 55.; John Rigg and Co. v. W. Danks, £3 16s. 9d.,' costs 135.; Agricultural and Pastoral Food Co., Ltd. v. : Angerstein and Jeffrey, £2 ss. 9d., costs 125.; Commercial Agency, Ltd. (assignee) and G. H. Clapham (assignor) v. John Sheehy, £5, costs £1 os. 6d.; Ellen Carrig v. Andrew Alexander Low, £4 195., costs 55.; Young and Tripe v. Crump and Hill, £3 Is. 6d., • costs 75.; R. and. E. Tingey and Co., Ltd. v. J. E. Dawson, £14 6s. 10d., costs £1 10s. 6d.

JUDGMENT SUMMONSES. • • In the judgment summons ease, George A. Adams v. T. "W. Twist, defendant, who did not appear, was ordered to pay £6 15s. on or before April 21, in default, six days' imprisonment. John Reginald Welsley, who also did not appear, was ordered to pay the Sims Hardware Co., Ltd., £4 6s. 1 8d., on or before April 21, in default four days' imprisonment. An order was refused in each of the two following casesFaulke and Giesen v. Joseph Saba, a debt of £11 lis.; ; and S. Rawnsley and Co. v. Fred. Butterworth, a debt of £19 6s. 6d, AN AGENT'§, REPRESENTATION. In non-suiting the plaintiffs in the civil action H. W. Davies and Co. (Mr. Gray) v. Francis B. Stalland (Mr. Blair), a, claim for £61 155., payment for an acetylene gas installation at defendant's hotel in Reefton, his Worship said that, according to the evidence, the plaintiffs' agent had represented to the defendant that this particular gas, under their system of installation, would last a sufficient number of hours on one charge,' to render it unnecessary for it to; be recharged during the evening, and that the cost of consumption would not exceed Jd. per hour per lamp. The contract between the parties was a •peculiar. one —it had to be fulfilled according to the representations of the agent. • But that individual had not been asked by either party whether ho had made the representations referred to or hot. Defendant's statement, therefore, stood uncontradicted, and. the plaintiffs, on the evidence, oould not recover. He would, however, direct that each party should j pay its own costs.

A "LUX" LIGHT. After a succession of adjournments, spread over a'considerable, period, tlio case of John Alexander Myers (Mr. Dunn) v. the Lux Light Company (Mr. Blair), a claim for £28—£18 recovery of part payment for a Lux lamp, and £10 damages—was settled in favour of the defendant company, whoso counterclaim for £9 16s. 6d., balance duo on tho lamp supplied to tho plaintiff, was allowed. Costs amounting to £3 ss. were allowed to the Lux Company. In giving judgment, his Worship said that the whole case narrowed itself down to the efficiency or non-efficiency of a lamp which was supplied to the plaintiff by the defendants. B'rom the evidehce aud the results of a test of the

lamp, he was of opinion that there was no inherent defect in the lamp, and that with proper handling it could do efficient service. JUDGMENT ON A COUNTER-CLAIM. Judgment was delivered in the case Mildenhall aud Easson, contractors, v. Thomas William Bron, a claim for £75 18s. 3d., balance alleged to be une on the erection of a house. . The defendant alleged unskilled performance of the contract, and counter-claimed for £100 damages. His Worship,- having perused certain expert evidence which had been tendered, decided that the defendant could not be held liable for the amount claimed, and must succeed in the counter-claim to the extent of £45, with costs £15 2s. . Mr. Wilford appeared for the plaintiffs and Mr. Dix for the defendant. .