SUPREME COURT.

Dominion, Volume 4, Issue 1049, 11 February 1911, Page 14

SUPREME COURT.

CIVIL CASES.

INTERESTING BOOKMAKINC CASE. APPEALS ALLOWED. A decision was given by Mr. Justice. Chapman yesterday in the- case, of the. Auckland bookmaker, Victor M'Duff, who, on October 29, was sentenced to a month's imprisonment by Mr. W. G. Riddell, S.M., at 'Wellington on a chargo of larceny of £1 from James Marshall on tho Trontham Racecourse. M'Duff appealed,against tho decision, on a point of.law. His Honour, in his judgment, stated that thcro were two appeals each relating to a separate sum of £1. The appellant, under tho assumed name of "Bob Watson," obtained a licenso under which. ho carried on his calling as a bookmaker at a raco meeting at Trontham, Wellington, on October 22, 1910. Ho attracted tho moro gullible section of the public by offering even money against a horso called Danubo for tho Champion Plate. Many, people, including Marshall and North, pajd him each £1 on tho terms that if Danubo won they wero each .to reccivo£2 on: presenting tlwir tickets. 'There wero very few backing any other horse at tho terms for Danubo was moro favourablo than other bookmakers wero giving. After tho betting had closed and shortly boforo tho race, appellant took from - his bag somo of tho money handed to him by patrons and divested himself of it by placing it in tho custody of somo person whoso natno was now unknown. There woro other indications of dishonesty which woro referred to by tho magistrate. Danubo won tho raco and tho holders of winning tickets presented them, claiming £2 each. Appellant informed them ho could only pay them thoir money back. Somo of them elected to tako this and wero paid. James North demanded tho refund of tho £1 paid by him; but this was refused.' While appellant was thus slowly doling out refunds in silver, ho .was attacked by investors who knocked him about. Silver to an, unascertained amount was knocked out of, his hand and disappeared. Somo person in tho crowd put his hand into appellant's pocket whero, thero was gold and silver, toro tho pocket, and got tho money. The magistrate's finding was that this was not resisted, and was really connived at by appellant. His Honour took it, tiiorefore, that it was a dishonest act, liko that of getting rid of money be-fore-tho raco. When tho appollant was in danger from the crowd, ho'was taken in hand by tho police, who found £1 Bs. upon him and kopt him in safety in tho steward's room. Whilo sheltering there, ho' paid £2 10s. to investors who ,woro claiming their money., but ho failed to pay either £11 or £5 10s. to Detectivo Hammond who nresonted tickets for olovon holders. Tickets hold bv Marshall and North wero amonrr these. Appellant, when charged with tho thoft in the steward's room, said that ho never refused to pay and offered to go and borrow money, but took no steps to get it. Ho did not deny an imputation mado then.of havinct irot rid of tho money before the raco was run. Ho did not give or call evidenco at tho hearing. The Maclstrata's Findings. Tho conclusions stated by tho magistrate and which hound the Court, so far as they woro conclusions of fact supported by tho mattors abovo stated, woro thus formulated by him: (a) I dotormined that tho monoy handed by James North and James Marshall to defendant' Was cripablo of being stolen, although it could not bo recovered from him by civil process. (b) That in tho ordinary courso of ovents, tho defendant would, but for his acting in tho manner ho did, havo sufficient inonoys after tho raco to repay all investors who had backed Danube.

(c) That liis deliberately permitting a third person to take,from him a.part of tlio raovtoys handed to liim by investors before- the raco amounted^'to a' fraudulent act indicating an intention on his part not to pay, after the- result of tho rnco ; was known, some of tho persons who had dopositcd'their moneys, with him. . • , •

(d) Tliat his statement after tho raco "that ho was afraid ho:could only..pay investors their monoy" back was' untrue and known by tho defendant to bo untrue.

(c) That defendant's acts.amounted to thoft of certain deposits among which wero thoso of James Marshall and James North. '

Tho ningistrato accordingly convicted the accused 6f theft on each charge. His Honour went on to say that in order to determine, whether.tho appellant was ■guilty of; theft it was necessary to ascertain tho exact facts as found, and to oxamlno the relovnnt provision of'the. Crimes Act, 1908, in order to sec> whether the facts as found niado out this-'or, any crime. It was import- - ' ant to notice at tho very outset that cnclrof the investors paid his money' to tho appellant upon n complete and undisputed bargain that he should rcccivo £2'in-tho event of Danubo winning. Thero was no bargain giving him the. right to claim the. return, of his £1. Such a return formed no stipulation in connection with tiio actual agreomont, and never Was in tho contemplation of either party. It was an immaterial circumstaneo that tho £2 could not bo recovered by process of law.' Tho fact remained that it was tho only thing that tho depositor bargained for. "I will assume," said his Honour, "that thero was in somo senso a. right to set aside tho;bargain and claim a return of tho £1, but that was inconsistent with tho bargain, and was a right that aroso irrespective' of the bargain, and only from tho moment when it was set aside." •

Continuing, his Honour said ho accepted th" magistrate's statement, of tho.law which assumed that tho £1 was a deposit irrccovorablo by reason of tho concluding words of Section 69 of tho Gaming Act, 1903, though if tho deposit had been in tho hands of a stakeholder tho case would liavo been different. Ho thought, however, that tho result would bo tho same." if it could bo assumed that tho stako could bo recovered from tho bookmaker just as it could bo recovered from a stakeholder after repudiating tho debt. '. Tho appellant was in their viow in possession of a doposit which coasod to bo his by reason of tho depositor's repudiation of tho bargain after tho race had been run, but which ho was entitled by law to keep in his possession as long as ho chose.

If this was a crimo it was because, it was described as a crimo by the Crimes Act. 1903. In the portions of Part IX of that Act, relating* to theft, that crime was exhaustively defined. Tho definition included all that would answer tho description of larceny at common law, and. a good deal more. Section 238 rcforred to inanimate things which wero, or might be, mado movable, and Section 239 referred to living things. Thcso ti\ o. sections exhausted tho cataloguo ot things capablo of being stolen, and Section-2-10 defined theft to bo tho fraudulent, taking or tho fraudulent conversion to tho tiso of any norson of anything capable of being stolen. Now it was quite clear that Section 238 referred to movable, tangible things, and not to , rights of action or things liko lights of action, and it was, to his Honour's mind, equally clear that Section 240 only referred to tho things catalogued in. Sections 238 and 239, as capablo of being stolen. One must inquire then whether tho thing here jaid to

havo been stolen fell within tho definition. Ho was quite satisfied that it did not. It was not a sovereign or a pound note. That disappeared in tho bargain, and the depositor nover expected to seo it again. It was not even a sum held for tho depositor, identifiable in tho limited senso in which money in currency was identifiable in equity. Tho sum of £2 was a debt in ono senso, and tho sum of £1 was a debt in somo senso arising at a different date, but each was a debt merely, irrespective of whether it wnj recoverable at law or not. There remained only tho provisions of Section 242. That section had rcferenca to tho fraudulent disposal of money received on terms requiring the person receiving it to account to any person for- tho' amount, though not tho identical money received. In no senso could tho caso fall within this scctiom Tho £1 was not received on terms, but was paid and received under the agreement referred to. Appellant never agreed to any terms. Ho was simply to pay tho bet, which was a different sum from tho stake, if ho lost tho bet. The caso was a simple caso of a dishonest repudiation of a bet, and there was nothing stated, which could make it anything else. If thero had been a finding by the magistrate that tho wholo transaction was a planned trick to get hold of £1, and this finding had been supported by tho general facts of tho. caso, tho result might have been different. Thero was no such finding. On the contrary, the, real basis of the finding of .dishonesty was tho act of tho appellant in getting rid of the money after tho betting was closed, and after tho race was run, and this finding was supported by tho facts. His Honour said he had not thought it necessary to refer further to facts supporting tho findings of the magistrate, and he accepted thempcorrect, but held them to bo immaterial. A wclshcr might bo just as dishonest as a thief, but it did not follow that ho was a thief as defined by law.

In conclusion, his Honour said rofcTence was mado to tho decision of Mr. Justice Edwards at Wanganui, in a caso of ono Barnes, which, judging by a nowspaper report, seemed to havo been very like this. Tho facts wero found by tho learned judge himsolf on a general appeal, and the result was substantially the samo as that at which ho (Mr. Justico Chapman) hadarriyod on facts found by tho magistrate. So far as questions of law arose, they wero tho samo as thoso which ariso hero, • and, added his Honour, Mr. Justico Edwards'Sj opinion appeared ■. to coincide with his own. ' '■ > .

In each caso the appeal was allowed without costs. .

Mr. Herdman appeared for appellant, and Mr. Ostler for respondent.

ARRANGEMENT OF FIXTURES. A sitting in .Chambers was-hold yesterday morning beforo Mr. Justice Chapman, when tbo Court was enabled to lis dates in tho following civil and divorce cases:— Monday, February 13 (provisional)— Stephen Edward l'owrio v. Path John Sullivan, possession/-of. land and' £5, mesne profits. Undefended divorco cases aro set down for' 2 p.m. -.:..' Tuesday, February 14 —William Ferguson Massoy v. The "Now ' Zealand Times" Company, Ltd., £2000.damages for alleged libel (before a : jury: of 12). ■Wednesday, February 15—Frederick Hales and others ■ v. - William Russell Dovcreaux' and Dovcrcaux, King, and Company, £500 and interest, money'rccoived (before a jury 'of 12); Herbert Gladstone Hill v. ■J. B. Maciwan and Company, Ltd.,'£sl-Bs. lid.; and interest for salary during: counterclaim for £100 damages for alleged breach of contract. •',-.' •■'■

Thursday, February 16—Herbert Carter and James William Body v. John Wells Chapman, declaration of rescission of agreement. <• '■'..'...

Friday, February 17—James Plowors v. Wellington Wharf Labourers' Industrial Union of Workers, mandamus, etc.; William Taylor and Robert, Taylor ;v. Martin Kennedy and Felix Campbell. £150 damages for alleged breach of contract. ■ ■' ■ . ■ ■ ..

Thursday, February 23—Charles' H. Izard v. Mary Ann Wilkins, possession of land. -

■Friday, February 24—Ro Grcon, a bankrupt. '...■■.

Monday, March 6—Bankruptcy, 10.30 a.m.

Another sitting will havo to bo held to fix dates for other cases on tho list .which aro as' under: —

' Beforo a Judgo alone.—Eleanor Thorns v. Editli Dorothy Ellis arid Jolin Eli- Ellis, injunction! Evelyn * Ruby Rogerson 'Burns v. Alico Scott' and others, transfer of land devolving on intestacy. '

Beforo a Judge and.common .jury of twelve.—William Oablo v. Alexander A. Reyncll, £10P0, damages for bodily harm.

Before a Judgo and common jury of four.—Gini Angclini v. Carlo Antico, £500 damages for alleged libel. ■ Before a' Judgo alone.—Sidney Cooper Lcary v. John \V. Rice, £801 los. ad. and interest ior shares bought; Robert Johnston v, Frederick, John William Oascoyno and Henry'. John Ferguson, executors of assignment and £2500 damages for alleged breach of contract; Richard Free Badhara v. Georgo i\l. Yorox, £335 14s. 2d., for goods sold; James Howio and John Matthews v. Isabella Rose, specific per-; formanco; Lionel Wilfred Hill v. William Witts and Edith' Matilda Witts, damages for alleged ,libcl; Archibald M'Lood and others v. William Hcbcr Brightwell, £215 duo under contract; Cashmere Estato Co., Ltd. v. John Craig M'Korrow, £360. 2s. 9d., duo'under agreement; Easson, Ltd; 'and others v. William Heber Brightwell, £619 45., duo under contract'; Georgo Bolton v. : Martin Joseph Leo and Amy Louisa Leo, injunction and £10 damages for trespass; Frank O'Brien Loughnan and others v. Wilholm Fnrquhar Eggors, £433 Bs.- 4d., and interest duo under agreement. s

DIVORCE.

Tlio following divorco cases aro set down for hearing:— Boforo a Judge and common jury of. twelve—Margaret Amelia Mitchell v. William Robert Mitchell. Beforo a Judgo alone.—Lavinia Duncan v. Walter .Watson, Duncan; Teresa Margaret Anderson v. Erik Albert Anderson; Elsio Mary Heron v. Charles Edward Heron; Ellen Masfield v. Georgo Edgar Masfield; Gcorgo Leo v. Ellen Helena Charlotto Lee: Leonard Phillip Parker Double v. Edith Mary Double and James Symons. A PARTNERSHIP TRANSACTION. PROMISSORY NOTES. In the matter of Messrs. Hudson and Marriott, of Lovin, in liquidation, an application was heard in Chambers before his Honour Mr. Justico. Chapman, calling upon Marriott, ono of tho members of tho company which consists of the two shareholders to show cause why his proof of debt should not bo rejected by tho official liquidator. Marriott had proved for £150.' being 15 promissory notes of £10 each which had been given by Hudson to him and endorsed by tho company, for tho salo to Hudson of his (Marriott's) shares in tho company. Tho question for his Honour was whether it was necessary for Marriot* to provo that tho company had received consideration on tho transaction.

Aftcr hearing argument at somo length his Honour reserved his docission. -

Mr. Toogood appeared for Marriott imd Mr. ,von Haast for the official liquidator* ' '