LAW REPORTS.

Dominion, Volume 4, Issue 1083, 23 March 1911, Page 3

LAW REPORTS.

SUPREME COURT. POLICE SWOOP ON A DINNER. INTERESTING CASE. tiie hotel licensee appeals. An appeal from the decision of Mr. W. G. Eiddell,. S.M., in the case of the Police v. Marshall John Donnelly, formerly licensee of the Nevr Zcalander Hotel, was heard before Mr. Justice Cooper yesterday afternoon. iMr. H. D. Bell, K.C., ivith him Mr. G. i'cj, was tor appellant and Mr. H. H. Ustler appeared for the Crown. In his statement of the case the magistrate said that the information alleged that, on August 8, defendant (then licensee of the New Zealander Hotel) allowed liquor, purchased before closing VJ le ' i'° be cons »<ned on his premises fltter hours. He had been convicted and fined 20s. Hoy/ it all Happened, On the night in question the blers lootball Club had held a emoke concert in the dining-room of the hotel, liepresentatives of the club had previously called on the Inspector of i once and had asked that the gathering should be allowed to continue j Cr w P ' m "i ' lat ' ' )eon informed that,, so long as the meeting was orderly, no proceedings would bo taken against any of those present for being on licensed premises after 10 p.m. without lawful excuse. But, 'at tho samo time, they were told that no ' uor m us ' k 6 c . ons,lme( l after 10 P-ni. I lie proceedings had commenced at 7.30 and were of an orderly character. For some time the appellant (Donnelly) remained in the dinJ n n" room in which the concert was held and his intention was to remain there until after 10 p.m. in order to ensure that no Jiquor was consumed I after that hour. During the evening, however, appellant' had been called out of the dining-room as his bar- . man had been taken suddenly ill, and he (Donnelly) was the only person available to take up duty in the bar. Before leaving the dining-room appellant informed Ilarry Waters (a vicepresident of the club, and a promoter of tho concert) that' no liquor was to be consumed after 10 p.m. Waters undertook to see that this instruction was adhered to. At 10.35, when appellant was completing the work in tho bar the police knocked at tho door, and admitted immediately. After inspecting the bar they went into tho diningrcorn, and saw several jugs of beer on the | table; also a number of glasses contain-1 ing beer. There was no direct evidence of any actual consumption of liquor after .10 p.m. Waters had stated that the jugs had been filled with beer about 9.55 p.m., but he was not prepared to say that no beer had been consumed after 10 o'clock. . Why the Magistrate Convicted. The magistrate had found that defendant had left Waters "in charge of the dining-room," and, as Waters was unable to say that no beer had been consumed between 10 p.m. and 10.35 p.m., lie (the magistrate) had decided that the case, as stated, afforded no, ground of answer or defcnco to, the information. The question for tho opinion of - the Court was whether tlie magistrate's determination was erroneous in point of law. Should the Licensee Have Left the Room? , Mr. Bell urged that the magistrate had show.n that the appellant was perfectly honest, and that nothing but necessity had caused tho difficulty. If the. magistrate had been able to show that Donnelly's explanation, was humbug, or that Donnelly had deliberately gone away from the.room, it would have been a very different matter.. Mr.. Fell, remarked on the absence of any evidence tending to show thai, after 10 r o'clock, consumption of liquor had laken place. Mr. Ostler argued that it had been held (under circumstances singularly like those of this case) that "consumption" was proved even though there was no direct'evidence cn the part of witnesses for the prosecution.. He admitted that it was a formidable point, which hinged on the meaning of the word "allowed." It was difficult, lie admitted, to see cn what grounds the magistrate had come to his decision, but his (Mr. Ostler's) suggestion waf that he had found the licensee guilty because the matters "stated in justification Wcr'e no justification. This was the only point on which the magistrate could have validly found Donnelly guilty. .It was the licensee's duty to sec that no breach of the law took place, and this duty should have come before any other. The duty undertaken by Donnelly in the bar was not itself a legal duty, but it led to the non-discharge of a duty which was paramount. His Honour said that nil the circumstances were against the suggestion that the appellant connived in a breach of the law. He knew that the police might come in at any minute, the more especially as authority had been given by the Inspector of Police that the, concert should be kept going after 1 10 p.m. on certain conditions. Mr. Ostler urged that, if it were allowed that I he licensee could go and do some work which he said was necessary in the I house, or which even tho magistrate held was necessary, there could never he a conviction uiider this section of the Licensing Act unless the ofTenco actually took place in the presence of the licensee. After hearing legal argument at length his Honour reserved decision. UNCERTIFICATED DWELLING. BY-LAWS BACKED BY THE COURT. An interesting case in which the City Council proceeded against Joseph Jas. Moore, carter, of Maranui, and applied for an injunction to restrain him from committing a breach of the by-laws was heard at a Banco sitting of the Supreme Court yesterday before the Chief Justice. Mr. "J. O'Shea appeared for tho City Council. Defendant appeared on his own behalf., Moore filed no defence. In answer to questions by his Honour he said that ho hardly understood what all tho trouble was about. Ho had been summonsed by the council so many times. His Honour remarked that defendant appeared to have permitted a building to be occupied before a certificate was issued, and that he had persisted in the breach in spite of the warnings from the council. Defendant urged that the house was not let to anyone, but was occupied by his His Honour made it clear that this did not make any difference. Defendant went on to say that he had written to the City Council, and had understood from a councillor that tho caso would be withdrawn upoii the completion of certain alterations. His Honour: Councillors have no right to make such a bargain. You should have got a letter from the Town Clerk. If you have.no defence I must issue tho injunction, and give you a chance to arrange matters with the council. If you do not do that you will be liable 1 to get into trouble, and be sent to saol. Defendant remarked that he was not altogether his own.'master, as h© was buying the house on deferred payments. His Honour informed defendant that, that being so, he must see the owner. Tho injunction would issue but would lie in the office for a week. On the suggestion of Mr. 0 ohea, his Honour agreed to extend the period to six weeks in-order that Moore might bo given every opportunity. In conclusion, his Honour remarked ihat the matter should really have been settled in. private. Much expense and trouble would have been avoided if this had been done. The question of costs was reserved until it was seen what the ultimate result was. INTERPRETATION OF A WILL. ESTATE OP F. G. E. ROACH. A reserved . decision was given yesterday by his Honour the Chief Justice in tho matter of the interpretation of the will of Frederick Gerard Eeichardt Eoach, late of Wellington. Plaintiff ill the action was Henry Wright, administrator of tho estate, and the defendants were Era and Rita Eoach, beneficiaries, and Eva Eoach and Frederick Yi Connell, esecutore .under thi jviJl.

Tho questions stated and the answers wore as under:— (1) Are the policy moneys received by (ho executors (X'lOCO) in respect of a policy in the New I'ork Life Insurance Co.. and the sum of .MSG 12s. in respect of a policy in the Government Life Insurance Department liable to be applied in payment 01 the debts of the deceased? —"So." (1) Shouid the assets of the estate be marshalled, and llio funeral and testamentary expenses be paid out of these moneys in exoneration of the residue of deceased's estate available for his creditors?—" No." His Honour held that as the appointee in this ease was a statutory officer, ivlio was appointed to administer the estate according to the law, the doctrine of marshalling did not apply. Tho original executors of the policy moneys, who had collected and deposited these sums before the appointment, of "Wright, remained the trustees of theso moneys. The Court held that the policy moneys should bear the funeral and testamentary expenses of the deceased prior to the appointment of Wright, and also the succession duty chargeable on these moneys. Each party must pay its own costs. Mr. 11. F. Von Haast appeared for plaintiff, and Mr. F. E. Ward for defendants. LATE HERBERT HILL'S ESTATE. DISTRIBUTION .SCHEME. An application in connection with the will of the late Herbert Hill was made before Mr. Justice Cooner yesterday morning. Mr. Treadwell appeared for the executor (Mr. 0. Eeere) and for some of the beneficiaries, and Mr. A. Gray for the beneficiaries who are minors, and of whom he is the guardian ad litem. Mr. Treadwell said the action was an originating summons for the purpose of obtaining tho sanction of the Court to a scheme of partial distribution of the estate. Counsel was commencing to give details of the proposed scheme, when His Honour remarked that there should be some evidence before the Court, beyond the appearance of counsel, that the parties interested had been independently advised. He (his Honour) knew nothing about the value of the properties concerned. As far as the adult beneficiaries were concerned thev, of course, were competent to make what arrangements they liked in regard to their various interests, but it ought to be shown to the Court that they, especially the ladies, were not acting merely on their own judgment, but that they had independent advice. The minors were in a different position; a guardian had been appointed to protect their interests. He was not going to sanction a proposition when it was impossible for the Court itself to have any information about the value of the properties concerned, or as to whether the adjustment was an equitable one. It ought to be shown that the parties had come to a decision after full and independent consideration. Mr. Treadwell: Mrs. Johnson and Mrs. Scott expressed themselves satisfied. His Honour: Have you yourself made independent inquiry ? Mr. Treadwell: No. Mr. Gray: I am in the same position. His Honour said his view was that counsel representing tho ladies should make themselves familiar with the whole matter, and advise the;n as to whether this was a proper arrangement. He thought it would be better to refer the matter to the Registrar to report as to whether the adjustment proposed was proper and equitable, and as to whether the parties had been independently advised. For that purpose the further hearing was adjourned to a date to be fixed.