INCOME TAX CASE.

Dominion, Volume 3, Issue 792, 15 April 1910, Page 6

INCOME TAX CASE.

CHARGES AGAINST BOWRON BROS. MAGISTRATE'S JURISDICTION. COURT OF APPEAL RESERVES JUDGMENT. Final argument wa's heard by the Court of Appeal yesterday in the proceedings which have arisen out of the Christchurch Magistrate's Conrt case, heard on March 1, 2, and 3 last, the defendants in that case being Bowron Bros., merchants, charged with making a false return for income tax purposes. Before any evidence was called, in tho Magistrate's Court, the solicitor for Bowron Bros, took an objection, stating that the magistrate had no ( jurisdiction to hear the case, because the informations had not been laid within three years after the date when the matter of the informations arose. This objection was overruled by Mr. H. W. Bishop, S.M., and the case proceeded, the magistrate reserving his decision (not , yet given). On March 5, Bowron Bros, commenced proceedings in the Supreme Court, seeking a writ of prohibition, restraining the magistrate from adjudicating upon the matter on the ground that he had no jurisdiction to do so. On April 1, when the proceedings were mentioned in Chambers in Wellington, the Chief Justice (Sir Robert Stout) consented to make an order that the point should go to the higher court. Hearing of the motion for prohibition was therefore commenced in the Court of Appeal on Wednesday before the Chief Justice, Mr. Justice Williams, rnf' Justice Edwards, and Mr. Justice Chapman. The plaintiffs were: William -Bowron, George Bowron, and George John smith, merchants, of Christchurch, formerly carrying on business in co-partner-ship under the style of Bowron Brothers, and the defendants were: Helyar Wedderburn Bishop, Stipendiary Magistrate, of Christchurch, and William Morris Tyers, inspector under the Land and Income Assessment Act, 1908. E Mr.:C. P. Skerrett, K.C., with him Mr. H. H. Ostler, appeared for Bow Ton Bros.,' and Mr. J. W. Salmond, Solicitor-General and Mr. T. W. Stringer, K.C., of Christchurch, for _ Mr. Bishop and Mr. Tyers. The Solicitor-General raised a preliminary objection on Wednesday that prohibition would not lie, at present, but he did not ask that the case should be decided on that- point. ' O" resuming k' s argument yesterday, Mr. Salmond said thaf the informations might.be laid within the period of limitation and the summonses issued outside that period, and the proceedings still be good. Mr Skerrett had submitted that there must be application, either expressed or implied, before, a summons could -be issued upon an information, and, until that had been 'done, the information was not 'laid." The application for a summons was not a step known to the law. The swearing of an information was the basis of the justice's jurisdiction, and he might forthwith issue a summons on an information laid before him, without any application being made. Counsel went on to argue that the proceeding before* the J.P. was the complete "laying" of the information, otherwise' it could have no legal significance at all. . Before which J.P.,he asked, was the information "laid" according to Mr. Skerrett's view?. Was it before the first justice? The argument for tie magistrate was that the law had made special provision that another J.P. might issue th« summonses, because the first J.P., before whom the proceedings had been commenced, might have died or have left the country, or have ceased to be a J.P. Was the information' "laid" before the second J.P. ? If so, what was the effect of the previous' proceeding? He argrad that Mr. Skerrett's contention reduced to a mere presence the. provision of the statute, which. allowed an information to be sworn before one justice and the eummons issued by another. The period of limitation was determined by the date of the first proceedings. . . ■ Mr. Justice Chapman pointed out that it frequently happened that a constable, commencing' proceedings . against a man in the country, had to come to town to take out a summons.

_Mr Salmond: It is an everyday. practice, your Honour, for one justice ito swear an information, and for another justice to issue the summons. When the proper time , arrives, I am afraid that if, in summary proceedings, it were necessary to take out a summons at the time of swearing the information, all of theso proceedings would be hopelessly bad, ab initio..

Mr. Justice Chapman: They would all have to be , written on brown paper. (Laughter.) , ' , Mr. Salmond w.emt on .to say that the proper course to be followed by a justice, before whom an information had been sworn, was to hand the information to the informant. And that, he said, had beet done in the present case. Any other course would be inconsistent. with the provision which allowed the informant to _ take the information before some other justice that a summons might be issued theircon. : . The justice must : not keep the information in his own pocket, and hinder subsequent proceedings.. It was the duty of a justice, in swearing an information, so to act as to facilitate subsequent proceedings. He contended that in the present caso a regular and proper practice had been followed.

Mr. Stringer .said that Mr. Skerrett's argument involved the reading into the Act of the words "and application shall be made for a summons."

In reply, Mr. Skerrett • said that, in tho opinion of the Solicitor-General, the essence of an information was the charge before the J. P. This meant accusing a man before the J.P., so that the J.P. should.act under the provisions of;the statute. In tho present case, had there been a "charge" under the Act? He submitted that there was no change at all. It was admitted that Tyers went before the J.P., and merely requested him to swear the informations. The circumstances were such as negatived the suggestion of any, intention of making a charge, or of requesting the J.P. to receive a charge. The J.P. had only been asked to perform the purely ministerial act of swearing the informations. They w.ere never presented with a charge intended, by the presenter to be a charge under the Justices of the Peace Act. The J.P. who "received" an information was to issue the summons. An information, he added, was only the record of a charge. The Court reserved its decision.