LAW REPORTS.

Dominion, Volume 3, Issue 868, 14 July 1910, Page 9

LAW REPORTS.

FULL COURT. MAORI CUSTOM AND AN ESTATE. SUCCESSION QUESTION. Tho Full Court was asked yesterday for a decision to guide the Native Appellate Court in dealing with tho estate of a deceased Maori, of Ciisboriie. The case was heard by Hib Chief .Tustico (Sir liobert Stout), Mr. Justice Williams, Mr. Justico Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. The parties were: Henry Willoughby (appellant), and Vara pa Waihopi (respondent). Mr. C. P. Skerrett, K.C., with him 31v. C. 11. Morisun, appeared for Henry Willoughby, and Mr. L. T. Uurnard, with him Mr. Hei (both of Gisborue), for the respondent Parapa Waihopi. Tho case arose out of tho affairs of Hie estate of a Native aboriginal woman, Heni Willoughby, iiliiis Heni Whakaaetenga, deceased, of Qisliorne. It was concerned Willi Section 'SI of the Native Land Court Act, ISM, and Section b'J of the Native Land Act, 19011. In tho case shiled by the Native Appellate Court for the opinion of the Supreme Court, it was set out that, on May 2G, IBO'J, the deceased woman hod been married, according to Knglish law, to Henry Willoughby, a European. She died on November 4 of the same year, intestate, leaving considerable real and personal property. She had no surviving relatives except her husband and brother (Parapa). Ml matters relating to the estate and to the appointment of successors thereto oamo before Judge Jones at a sitting of the Native Land Court, and that Court stated that Native custom did not provide for the succession of a widow or widower, so tiiat, according to custom, the deceased's brother, Parapa, was the solo successor. If tho case was one in which the ordinary law of the Dominion applied, the matter would come under the Administration Act, 1908, which provided that two-thirds of the estate should go to the husband, if ho was a European. Tho landti of the ilerensed woman, with the one small exception of lands acquired by exchange or purchase, had descended to her by ancestral right. Native custom was therefore applicable, in the opinion of the Court, and Parapa was entitled to succeed. This decision did not affect the personalty (valued at about .C 500), or the interest 'of the deceased in tho land acquired by exchange. Subsequently, the Native Laud Court decided, on March i, 1910, that the personal property should descend according to New Zealand law, .and Willoughby and Parapa were appointed successors. Appeal was made to the Nativo Appelate Court, which delivered an interim judgment, but intimated that final judgment would be given after receipt of the Supreme Court decision on the questions of law submitted in the case stated. In stating a ease for the Higher Court, the Native- Appellate Court followed out a recommendation of Mr. Justico Cooper, >rho advised that a Supreme Court decision should be obtained on the question as to when succession should be decided wlely by Native custom, and. when by New' Zealand la«. The issues of law upon which the Native Appellate Court (Chief Judge Palmer and Judge Gilfedder) asked the decision of tho Supremo Court were as follow :— 1. "Who is entitled to succeed to three of the four classes of laud comprised in the estate—(a) "customary" land held under orders of the Nativo Land Court; (b) laud held under Native Land Court orders entitling tho persons named to receive Crown grants; and (c) land granted under tho Poverty Bay Grants Act, 18ii<J— the Native Appellate Court having found as a lact that there is a Native custom applicable to each of the said classes of land, and thus, according to such custom, the respondent, Waihopi, is entitled to succeed? 2. With reference to the class of land acquired by exchange or purchase and to the personal estate, tho Court desires to leave open tho question as to whether or not there is a Native custom relating to tho said class of land and the said personal property, and tho Court desires the opiuion of the Supreme Court as to whether, if the Court is of opinion that there is a Nativo custom in respect of the succession to such class of land and such personal property, the appellant or respondent is entitled to succeed. Before argument was entered upon the Chief Justice said that thero appeared to be nothing for tho Court to decide in tho first question, seeing that a Native custom existed governing that class of land. Jlr. Skerrett replied that he did not deny that thero was a Native custom, but the Court might have to consider whether it applied in tho present case. The Court heard lengthy argument and reserved judgment.

COURT OF APPEAL.

[ PALMERSTON CRIMINAL CASE. CONVICTION UPHELD. 'Their Honours the Chief Justice (Sir Robert Stout), and Justices Williams, Edwards, Cooper, and Chapman hoard argument yesterday-, in tho case of the King v. Archibald Sluir, a Crown case reserved by Mr. Justice Cooper for the opinion of tho Court of Appeal. Mi 1 . J. W. Salmond (Solicitor-General) represented the Crown. Muir had been arraigned at Palinerston North for theft, upon four indictments. These.were subsequently consolidated into ono indictment of thirty-seven counts. Each count referred to a separate cheque which was alleged to have been stolen from the National Mortgago and Agency Company, Ltd. Muir was tried at Palmcrston North three times— before Mr. Justice Chapman, on February IG, 1010, when the jury disagreed; before Mr.' Justice Coopor, on May 23, when the jury again disagreed; and before Mr. Justice Cooper on May 30, when tho jury found him guilty on tho last threo counts of the consolidated indictment. No evidence was called by Muir, and at tho conclusion of the case for the Crown, counsel for tho prisoner submitted (1) that thero was no evidence to go to the jury in support of any of the counts in the consolidated indictment; (2) that tho prisoner ought to have been indicted for obtaining the money or cheques by false pretences; and (3) that whero the evidence disclosed tho offence of obtaining money or cheques by false pretences a prisoner could not (upon an indictment for theft) be convicted of the offence of obtaining money or cheques upon false pretences; and (4) that the indictment was not capablo of amendment, or, if capablo of amendment, ought not to have been amended. No application was made h.v the Crown for any amendment. Tho evidence disclosed that the prisoner represented to tho National Mortgage Company, his employers, that one Ivor-son had been supplying -bone, fat, and horns. Cheques were drawn to pay for these. It transpired that Hereon did not exist, and that tho prisoner was converting the cheques to his own use His Honour deferred sentence pendiu" the opinion of tho Court of Appeal on certain questions of Jaw. The Court of Appeal decided that tho conviction must be upheld. Their Honours expressed tho opinion that there was sufficient cvulcnco to convict the prisoner both at common law and under the Crimes Act.

SUPREME COURT.

FERRY COMPANY DEALS IN LAND. TAXATION CASE. A decision was Riven yesterday in the action between the Wellington Steam J) ernes Company, Limited (plaintiff) and the Commissioner of Taxes (defendant) n special case stated for the opinion of the supremo Court. Tho case was argued before Mr. Justice. Cooppr some time np;o, j\lr. V. 6. Dalziell appeariuK for the plaintiff company, and Mr. ,T. W. Salmond (Solicitor-Gen-eral), and .Mr. T. Nenve for tho Commissioner of Taxes. The fuel* which Jinil been placed before the Court were that. In March, IflflO, tho nlaintitt' company was formed fur the

purpose of acquiring the ferry business, tiifcTtlter with land, owned by J. 11. Williania. Since IS!)/, Mr. Williams had carried on the lorry business across Wellington harbour. In Uiib", he acquired 75? acres of land at. Days Bay, winch laud was used by him and later by tho company, as a recreation ground in connection with tho forry business. In November, 11)04, the directors of the company, in view of increased demand for suburban propertv, subdivided a portion of tho limit into building lots, expending over .£3001) in roacling and subdividing. In subsequent, years, a largo number of these lots were sold by the company to Gil separate persons. Tho total amount of the sales was .£17,611) 18s.; and tho profits made by tin l company upon the sales were staled to be: year ending March, 11)00, Jts(i!)3; Year ending March, 1(11)7, ,£1053; vear ending March, !!'««. .£3095; and year ending March, 1909, £oi"Tho profits' made in respect of the general working of the company were stated to be .£2390, .£707, JC2I2, and =£179 for tho samo years respectively. lit March, WOO, the company transferred the business of the ferry service, and all boats, plant, and other properly, except land, to a new company, ea led the Wellington Harbour Ferries, Limited, in which' the plaintiff company ownoo. nearly all the shares. Tim shares not held by tho plaintiff company were held by the Miramar Ferry Company, Limited, whose business and property were similarly acquired by the new coinpuny. lne plaintiff company had never dealt with any land except that purchased from Williams. ~ , ~ ,„., The price originully paid by Mr. Hiiliama for the whole of the land sold to the plaintiff company was JSMfIS. -Lhe Government valuation of the unimproved value of tho land on March 31, 1907, was over .£30.0011. The pluintilf company had, vear by year, been assessed for land tax on this land, and had paid the following amounts yearly: 1901, .£2O 7s. Bd.; 180.!. ,£43 os. 5d.; 1903, JM-1 Ms. Id.; 1904 X 4.> lis. Id.; 1900, .£OO ss. 2d.; 1907, JC227 12s. 7d.; 190S, Is. Id.; 1909, .£l7O IBs. lid. In January, 1907, the Commissioner ot Taxes demanded from tho plaintiff company inconio tax upon the profits derived from tho sale of the sections which had been disposed of prior to that date. Ihe company objected to the payment of the tax, and, on further consideration, theCommissioner advised the company that he waived his claim for taxation upon those profits, on tho ground that they were not liable to taxation. On December 31, 1909, however, tho Commissioner mado a demand on the company for payment of incoran tax on the prohls derived from - tho sale of the land in pre•rious rears, tho claims being as follow: 1905-G,\£lsl (is.; 1900-V, .£59 125.; l?0(-b, ,£132 lis.; 1908-9, £i 135.. The plaintiff company paid these amounts under protest, and brought an action to recover J2341 65., ou the ground that it was not liable to pay income tax on such sales. Tho question stated for the opinion of the Court, was: Whether income tax .vas payable by tho plaintiff company im the profits derived by it from the sale of this land, on the ground that Die company's ordinary business comprised dealing" in real properly, 'witlim the meaning of Section 79, par. (c) of the Land and Incomo Assessment Act. JjIJo, or on any other ground? His Honour, in giving judgment, remarked that the question to be answered by tho Court depended uuon. whether the profits which the plaintiff company had made from tho ualo of lund were moume derived from business" within tho meaning of Sections 71 and 79 (c) of the Act of 190 S. The provisions oi these sections applicable to tho present case, eaid his Honour, wero that where the taxpayer was a company its income derived from business included all profits falling within the definitions of "income derived from business," and all profits from investments of any kind other than investments in land, but including profits derived from the purchase, sale, or other disposition of real property, if the taxpayer's ordinary business comprised dealing in such property, but not otherwise- .... , In his Honours opinion it was clear that a company might buy land and afterwards sell it at a profit, if its memorandum of association contained sufficient power, and that such profit was not taxable. In order to render the profit taxable it was not sufficient that the transactions yielding flueli profit should bo within tho power of the company, but such transactions must bo carried out by a company whoso ordinary business comprsicd "dealing in such propertv" and not otherwise. Mr. DalzicU's main argument—and his Honour wished to slate that his argument throughout had been a very able 1 one—had been that tho primary and dominant object of the company was tho purchoso and conduct of a ferry business, and that the land was prchased by the company as part of the business. Construing the memorandum of association as a whole, his Honour found himself unable to accept this branch of Mr. Dalziell's argument. In his Honour's opinion, therefore, if the company had carried on the business of dealing in real properly, it had dono so because. its ordinary business comprised dealing in such property. The. profits derived from such dealings were "profits derived from 'business" within tho meaning of Section 79 of the Act, and were therefore profits upon which income tax.was payable.

MAGISTRATE'S COURT.

(Before Mr. W. G. Riddcll, S.M.) MUFF, BINOCULARS, AND FURS. CHARGES OP SHOP-LIFTING. Catherine. Moore,, a foreigner, appeared on remand in answer to the following three charges:—(l) Of tho theft of a sealskin muif, valued at £&, the property of tho D.1.C.; '(2) of theft of a set of binoculars, a leather collar bag, a purse, and a hand-bag, valued at Ml 4s. lid., the property of William Holliday; (3) of theft of a'fur valued at JC2 10s„ the property of Charles Adams and another. Mr.' T. M. Wilford appeared for accused, who had entered u plea of not guilty when charged on Monday last with the theft of tho mull'. Albert Arthur Corrignn, manager of tho D.1.C., stated that ho knew accused by sight, his attention having been drawn to her on Juno 27 last. In consequence of what transpired on that date he followed . her along Lnmbton Quay, and accosted her outside Georgo and Kersley s premises. Ho asked her to come back to tho D.I.C. as ho wished to speak to her. Accused complied and in his office he asked her to give an explanation as to how she*" came to have a muif in her possession, which was the property of the D.I.C. Accused, in reply, said: "If tho police know about it I will say nothing." /Witness explained that a police officerwas present during tho interview. _ The fact that the article was missing, witness continued, was discovered as the result of stock-taking in the fur department, and accused had been seen moving about that part of tho establishment in a suspicions manner. In the interview mentioned witness told accused that he had no desire to givo her in charge, but merely wished to recover tho muif back, and put a check on shop-lifting, which had been somewhat troublesome of late. Tho police officer, however, interposed and stated that tho matter was out of his (witness's) hands. Tho officer then left tho shop and when he had gone accused remarked : "I will give you back the muif if you will not give me in charge." Tho police returned shortly afterwards, and accused was arrested.' Gertrudo Harbroe, saleswoman at the D.I.C, said about Juno I,'t she saw accused walking round the mantle showroom in which department she (witness) was "second sales." Asked whether anything could bo shown her, licensed replied that she was waiting for a friend. Witness subsequently noticed accused bend, turn round, and walJc away. Five days after tho mnff was missed, witness saw accused in lurkcatdio and Staines with tho arliclo in her possession, aud reported tho matter to tho manager. William Edwin Ilolliday, stationer, Lambton Quuy, said that on May >H last ho imported a new line of binoculars. In the early part of Juno ho discovered! that ono of the cases was empty, and tho pair belonging to that case had not been sold. Tho binoculars produced were brought to him by Detective Abbott, and wero one of the six pnirs imported. Their value was £5 15s. Dotcctive Abbott also brought to him a collar box, a bag, and a lady's purse. Tho bag and purse belonged to his stock, ami had not been sold to anybody. Charles Adams, member of the firm of C. Adams and Co., drapers, of Cuba Street, stated tlmt on May 1H Innt u fur was missed from the shop. A fur,

produced in court seemed to be exactly like that one, though he could not swear positively that such was the ease. Continuing, witness stated that two days previous to the alleged theft, several furs had been procured locally for the inspection of a customer. They' were hung over a screen, but on going'to inspect them, he found that one fur was missing. It was valued at .£2 10s. Norman Abbott, acting-detective, said that on June 27 accused admitted stealing a muff from the D.T.C. She informed him that she lived in Willis Street, but it tool; him about an hour to extract from her tin; correct address. In company with Detective Kemp and Mr. Nelson, of the D.1.C., they then went to the address given—a boardinghouse at which accused occupied a room. While in the room witness picked up a fur. Accused then said: "Oh, that is mine. I bought it in Christchurch." She, however, could not give tho name of the shop where it was bought, but said: "From where I lived 1. could sec the wharf." Accused also mado a written statement to tho effect that the fur, collar box, purse, and bag were all purchased by her in London nineteen months ago, ami that a gentleman gave her the binoculars prior to the time when she intended sailing for London from this countvr. Accused reserved her defence, pleaded not: guilty, and was committed for trial. Bail was allowed, self in ,£SO, K nd one surety of ,£SO. THE HOTEL WINDSOR CASE. Arrested on July 1, on suspicion of being ono of the "principals" in the recent attempt to remove valuables from the room of Mrs. Firth, of the Hotel Windsor, James M'lntyro made another appearance before the magistrate yesterday, and, after evidence, was committed to stand his trial a.t the criminal sessions of tho Supreme Cou't. The charge was one of stealing jewellery and other articles of a totil value of ,£9O. Mr. V. W\ Jackson nppeircd for accused. ! Catherino Mary Firth, manageress of the hotel, stated that, about 2.45 o'clock on the afternoon of July 1, she and her daughter entered her bedroom and discovered a man inspecting the contents of tho drawer of a dressing-table. She exclaimed: "What are you doing here?" and the man turned, 'and replied: "I havo made a mistake. I want Mr. Brosnahan's room." There was a boarder nairjed Brosnahan on tho premises. M'lntyro then tried to push his way out past witness, but she and her daughter succeeded in closing tho door and locking him in. An alarm was at once raised, the lift man came on the scene, and together (hoy entered tho room, only to find that the man had decamped, apparently through tho fire escape. Subsequent search of the room showed that a considerable quantity of jewellery had been gathered together. Witness discovered that a gold chain, with a spade guinea attached, a dia.no.id ring, and a cake of soap vera missing. The cake of soap produced was of the some sort as that used in the hotel, and was specially imported by witnes.«. Prisoner was very liko the man she had seen.. "Now," added witness, "thai I see him in the light. I know he is tho man." The man she saw in her room was wearing a'green cap, and dark bluo suit. ' Percy Daniel .Thompson, storcman and cleaner at tho Windsor, said that on the afternoon of the alleged theft, ho was working on tho back-lift, close to the firo escape, when a man came hurrying down the escape from above. ' Witness noticed a gold curb chain with a coin attached hanging out of the man's left trousers pocket. The escape led into Chow's Lane, and there was a drop of about eight feet at the foot of it. "Getting to the corner of Victoria Street the accused mounted a bicycle and rode off. Witness identified M'lntyre as 'the man ho saw. John Loader, cook at the Hotel Windsor, gave similar evidence to that of the previous witness. Angus Turner, tobacconist, Wiliis Street, stated that he knew accused by sight. Shortly before his arrest he (witness) saw him and another man in the

vicinity of his shop, which was in the Hotel Windsor Buildings. The man who was with accused was named Brosnahan. M'lntyre was in the shop about 1.45 p.m. on the day of the alleged theft. Detective Cassolls, wiiu made the arrest, said that lie went to the Trocadcro _at 4.30 p.m. on July 1, and on proceeding upstairs tn room No. 40 he found the door locked. After a little delay accused opened the door. He had his boots and coat off, and had evidently been lying on tho bed. He yawned and stretched himself as witness entered. Witness said: "Hulloa, been having a, sleep! 1 " Accused replied in the affirmative. "How long have you been here?" "Since twelve o'clock." "You haven't been out since then?" "No." "Weren't you in the Hotel Windsor this afternoon?" "No." Witness thou searched the man and found in his possession the cake of soap produced in Court. Accused was staying at the Trocadero under the name of Dixon. His cap was under the bed, and witness pit htin to pack up his thine,*, and the cap was also put in with his belongings. Detective Hammond said that ho went to the Hotel Windsor at 3 p.m. on the. afternoon of the burglary, and proceeded to Sirs. Firth's room, which had been ransacked. Witness afterwards went along to room No. 11, on the same floor, and found tho door locked. lie stood on a chair, and on looking over tho fanlight saw a man named Brosnahan in the room. Brosnahan was afterwards arrested by Detective Cassells mid himself on another charge. M'lntyre, who reserved his defence, pleaded" not guilty, and was committed for trial. Bail was allowed in two sureties of .£IOO, or one surety of JS2OU. OTHER CASES. George Brown, a youth, was charged with an offence against a girl under the age of consent. Mr. T. 31. Wilford appeared for accused, who pleaded not guilt)', and w.as committed for trial. Bail was allowed in tho sum of .£3O. Joseph Scott, on a charge of violating the conditions of a prohibition order, was convicted and fined ,£2, with tho option of seven days' imprisonment. On a further charge of insobriety, accused was convicted and discharged. An old woman, Frances Curry, alias Jones, appearing on remand t»n a charge of vagrancy, was committed to the Ohiro Home for a period of six months. John Patrick Coyle, with a number of previous convictions against him for insobriety, and declared to bo a habitual drunkard, was committed to thp Pakatoa Inebriates' Home for twelve months. A first offending inebriate who did not appear forfeited his bail, 10s. CIVIL COURT, (Before Mr. W. R. Haseldcn, S.M.) SHEEP-WORRYING CLAIM. Further evidence was given in the caso of Georgo James Mitchell v. Charles Seagal 1 , a claim for .£ls 155., alleged to bo the amount of damage sustained by the plaintiff through losing sheep worried by the defendant's dogs. Mr. C. R. Dix appeared for plaintiff, and Mr. H. F. O'Leary for defendant. At the cnoclusion of the case, his Worship (Mr. W. R. Haseldcn, S.M.) congratulated counsel on the manner in which they had conducted tho case, and the prompt and businesslike manner in which they put tho evidence before him. Judgment was reserved.