LAW REPORTS.

Dominion, Volume 4, Issue 1124, 11 May 1911, Page 3

LAW REPORTS.

COURT OF APPEAL. CUSTOMS DUTIES ON SAMPLES. DEPARTMENT WIXS. The appeal case of George "ami J)oughty v. the Kins, was disposed of by the Court of Appeal yesterday. This is a case of considerable interest t;> importers, as it makes the question of the proper method of assessing Customs duties on goods imported us samples. The parties were Arthur .Inliu (icorge mid William Kichard Doughty, both of Wellington, merchant.*, trading as George aj\d Doughty (appellants) ami the King (respondent). The. appeal was against a judgment delivered by the. Chief Justice, on October 8, 1010, and. the function at issue, a? stated by him, was whether the Customs Department had rightly assessed the duty payable on some goods imported into the Dominion. The'goals were termed sample goods—one of each kind of a great number of drapery goods were imported as a sample of the stock "on sale in the wholesale warehouses in London. Tho market value of the goods in London was not disputed, and the assessment here had been made en such market, value as was provided hv in Section 3S of tho Customs Law Act, IDOS. The suppliants had, however, been allowed certain discounts on such market values, varying from 25 to 30 per cent., and they claimed that, this discount, should be allowed and (lie market value to the value after allowing these discounts. His Honour, in the judgment appealed against, look the opposite Mr. C. B. Morison, for the appellants, concluded his argument yesterday morning, and the. Court then intimated (hat it would nDt require Iα hear counsel for the respondent (Mr. H. D. Bell, K. 1 ,.). Their Honours, who were unanimous in dismissing the appeal, then delivered oral judgments. Mr. .Justice Donniston, in his judgment, dismissing the appeal, said that sample "cods were never sold and could not bo sold in the English market for horn? consumption, and the contention that the price they would realise would bo below the fair market value could not therefore be of any weight. The fact I ha. a certain construction of the words oj the statute had been acted upon practically unchallenged, both here and in Australia for 30 year?, did not constitute evidence as to tho proper construction of the statute, but the opinion, action, and conduct of mercantile men might be lcoked on as valuable in osc-rlniiiiii.!? tli? ineanins of any technical trade term used nv.-a statute dentin?. with commercial matters. Mr. Justice Kclwards agreed that tho anpeal should be dismissed. If Mr. Morison's contention were to prevail, it would be possible for any per-on, not necessarily a commercial man, to go to a umversalVovidcr like Whiteloy s, or the Army and Navy Stores, select a numb?v of articles, have them packed in the ■■ame case, and then chini that that selection of gcods was reduced in value because it would be inmost impossible to "find a purchaser for them.

Mr. Justice Chapman, in a cr.ncurriii!; judgment, said the Lesis-laturc monnt tho reference to "fair market value" to standardise l.ho value of goods, ami never iv tendod it to apply to a particular class of goods, put up in a particular way, or produced for a particular purpose. 3h\ Jii.'ticc Sim nlso agreed that tlio appeal should be dismissed. ■ Tho goods in this case were goods to be exported, and' were prepared not for the Homo market. Unless there was tome evidence to show that there was .a market, in Y.nvland for samples'as samples, Mr. Jlnrifon's argument could not prevail. The Customs Department rightly treated (he invoice price as the' market vnlue. and followed the statute in not allowing for the discount.

CONVICTED. CRIMINAL CASE RESERVED. A criminal case heard in the Supreme Court, at Wellington last November was finally settled by the Court of Appeal yesterday. Ernest Edwin Thompson, of .Shannon, had been charged;with attempting to procure a certain preparation for an unlawful purpose. . It transpired I hat. the chemist at I'nlmerstoii North from whom he sought to purchase the preparation handed him • instead something riuiln harmless and ineffective. The Chief Justice (Sir Robert Stout) directed the jury (hut. this circumstance did not afreet the guilt of the prisoner. The jury found him guilty, but the Chief Justice reserved for the Court of Appeal the question whether-Dm prisoner could or could net Ijc'lawfully convicted in view of. (he.fact that, what he bought was in--1 nocuous and ineffective. The Court, of Appeal Chief Justice. Mr. Justice Dennistoii, Air. Justice Kdwards. Mr. Justice Chapman, and Mr. Justice Him) were unanimous in holding that the prisoner had been lawfully convicted. Mr. (i. H. Fell appeared for the prisoner and Mr. J. \V. Salmond, Solicitortieneral for the Crown.

FULL COURT. TWO DOCUMENTS IN ONE. NOVEL CASK. A question which is said in have never previously been argued in a Now Zealand Court, ami to be like iw English case, was brought into Hie Full Court yesterday. Junics M'Donald, of Hamiltun, labourer. . deceased, had executed a document containing within itself a power of attorney and a. direction as to thn dispofal of liis property after his death. Could such a document (Hie Court was asked) be regarded in whole, or in part, as a will?

The document bore date 1002, and was executed in' conformitv with Hip Will Act, 1837. It. was headed as a deed poll— the usual form for powers of attorney, and it appointed the fiev. Henry Mason, of Huntly, William Vnnt, of jSgnniawahia, and Edward Hall, of the same place, to be the deceased's attorneys to sell all his property with full general powers and apply the proceeds Idi- his benefit", and if any surplus vara in their hands, to expend and apply a competent part in and about his funeral and testamentary expenses, and to pay the balance to his brother Thomas M'Donald, and if ho should be (lead, to pay the balance for the benefit and advantage of the episcopal and Wesleyaa Churches in Ngaruawahia in equal shares. Deceased further directed the powers to be irrevocable. lie died in October, 1906, in the Hamilton Bcspital, having been an inmate of the Waikato Old Men's Home. His estate was valued at .£l6O.

The attorneys never acted under tho document in.question. One of them, Jlr. Hall, died before Jlacdonald and at the latter's death, the estate consisted of land 'and cash in the savings bank. Deceased's brother, Thomas JPlionalrl, predeceased him, and the next: of kin were not known. The attorneys, on Urn assumption that they were executors, according to the tenor, appointed the Public Trustee in their place. Application was made on behalf of the Public Trustee to his Honour, Mr. Justice Cooper, for a grant of probate, but after hearing argument, ho reserved the whole question for argument before the Full Court.

Jlr. ,1. M. Jl'Donnld accordingly appeared in Cqurt yesterday as counsel for the Public Trustee and argued in support of probate. Jle remarked that the deceased appeared to linve lieen of an economical turn of mind and to have tried In f-nve expense by pulling ii power of attorney and n. will into oiip document. Jlr. Justice IMwards: Very laudable! Air. Justice Denniston: But ho may have fallen between two stools.

■Jlr. Justice Kdinirds: One cannot bo surprised if he did not know (he difference between two such documents, as ho could not read or write.

Mr. Justice Denniston: But he evidently siot a solicitor to draw this remarkable document.

Jlr. Mucdonnld. proceeding with his argument, stated that tho text books all showed that a document to be testamentary must be ambulatory or revocable and must take effect only on the testator's death, but that there were it number of ca=cs ty show th.il a document could be in part only testamentary, and in deciding whether a. document, wns testanientr.ry or not. Jte Courts regarded neither (lie form Hip testator used nor the name lin gave the document, but considered what were his intentions. Though the deceased had purported to make the document irrevocable, the law would not en-

force that intention, as a power of attorney, mis always revocable, and roulrl only be mnde irrevocable when gnnterl lo an attorney emipird with an intcre.-t, nr in favour of a purchaser for valuable consideration, in this case, the objects of the deceased's iiuemled bounty were volunteers in law, and therefor? Iho document was revocable, and part of it only was to come into operation on deceased's death. Accordingly, it was contended c>n the authorities submitted that tho Court could decree probate of so much of the document as was intended to operate alter deceased's death. Decision was reserved.

MAGISTRATE'S COURT.

(Before .Mr. W. 0. Riddcll, S.M.)

OPERA HOUSE FRACAS. ALLEGED ASSAULT WITH A BOTTLE. SENT TO HIGHER COL'ET. Hearing was concluded in the case in which William James Hamilton, described ns a carter, was charged with assaulting Francis M'Cann on May n, a Wellington, thereby causing him actual borlilv harm. Sub-inspector Sheehan prosecuted, and Mr. T. 51. Wilford appeared for,accused. The evidence of one witness (the stage manager of Marlow's Dramatic Company) hail been taken on Monday, and the remaining witnesses for the pioiccuiion were now called.

Dr. Mackin stated that M'Cann came to his surgery on Friday last at 11 p.m. lie had been bleeding freely, and there was a T-shaped, contused wound , on the right side of the upper lip about an inch long, and, on the lower lip, t'-liere was a deep wound also about an inch long. The wound hi the upper lip was of a contused, lacerated nature, and necessitated a plastic operation, while .stitches were required for the lower lip. One tooth had to be removed, and two others were found to have been loosened by the injury, which appeared lo have been caused by :i blunt instrument.

Francis M'Caiin, labourer, residing in Oxford Street, who was employed as a scene-shifter at the Opera House on May 5, saw accused at the stage door of ('he Opera llotii-e that -night. 'Witness told him In use better language, as there were ladies upstairs. The language-com-plained of continued, and, when witness spoke to accused again, the latter knocked him down a (light of stops. Witness picked himself up, and grappled with accused, who took a bottle from his pocket, and smashed it across his (witness's) face, knocking him down and "nut. . When witness came 10, his injuries were attended lo by Dr. Mackin. Mr. Wilford: I suppose if I crossexamined you tor ten years you wouldn't admit that this was not tho man who struck you?—" 1 am certain that it i» the man wiio struck mo."

Continuing, witness admitted that he might have struck accused when ho grappled with him, but denied asking anyone (after the affair) if accused had a black.eye. Witness also denied having been engaged in a row with a man who rode (he horse across the stage, am! denied having seen him even. He did not know that that man was "Tim" O'Gorman, or that he lived at the Nag's Head Stables. When witness struck accused, ho did not knock him on the ground, or render him insensible. After _ striking accused, witness, may have "taken to" O'Gorman, and the latter may have taken to his heels. Witness did not know that O'Gorman had lett Wellington bv steamer on Monday.

'Thomas Joseph \Vil>on, labourer, rssidin<T at 130 Frederick Street, who w.is employed by the .Marlon- Dramatic Company as "sup?r" on May 5, deposed to witnessing a disturbance on the stage of the Opsrii House in which accused and another man were concerned. M'Cann spoke Id Ihcin, and was knocked down by accused, and, when M'Cann got up agnin, h? was struck an the. mouth by accused with a full bottle of bsir.

Constable Hall, who was called to the Opera Houy.' after the assault, also gaveevidence. In answer to a question by Mr. Wilford, witness said that Hamilton had complained of being "abused," but it was not on account of that, that witness went to the Opera House. He was already on his way when Hamilton spoke. Constable Cummins slated that, after arcused had been arrested, 1 and while on his way to tho police station, lie admiiled being at the. Opera House, and staled that he had been assaulted, but denied having had a bottle or having seen one used.

Mr. Wilford proposed calling two witnesses for the defence, but his Worship intimated that, on the evidence given, the c-ass would have to go before a jury, and the defence was therefore reserved. Accused was committed to the Supreme Court for trial, bail beiiijj allowed in !lio same amounts as previously. FALSE EEPKEfJEXTATIO.XS. Edith Alma YalWs, a married woman appeared on renuiirl, charged ivitli imp.>ing on three, residents <.f Caiteilmi by means of certain verbal fal-c representations with n view (a obtaining money. Mr. T. M. Wilford, who appeared for acVitscd, tendered pleas of guilty 11> the ch:iri:>. The facts of the case, as outlined by I'hief Detective Broberg, were to the ■effect, that: accused was n former resident nf Australia, and had been separated from her husband. She arrived in Xew Zealand from Sydney on I'ebniarv S last in company with an artist, and. a 'little while afterwards, obtained permission to hold an , art union in connection with some pictures painted by this artist. The pictures had been exhibited, and accused had canvassed the city with tickets. She then proceeded to Cartnrtjn under an assumed name, and approached Mr. F. Feist withthe tickets," giving him to understand that the art union was in aid of her brother, who was seriouslv ill in a hospif.il. Mr. ,lames Moiicrielf was approached with a similar story, and his sympathy was so aroused that he bought 10s. worth of tickets, and also gave a donation of IPs. to the fimil, and, in like manner, Mr. William Booth was also induced to contribute. Tho Chief Detective mentioned .that accused had no money when arrested, and that she had a 5-ycar-old son dependent on her.

Speaking on behalf of accused, Mr. Wilford staled that there was another side Id the story. His client, had b-3cn married to a man who had become such a drae on her, she was forced to obtain ii separation from him, and was granted custody of the child of the marriage. After arriving in New Zealond. she had tried hard to sell the art union tickets on their merits, but had failed. She was taken ill, and, after coming on , , of the hospital, had been without money to p.iv for food for herself and child. In the midst, of her trouble two men came from Sydney and kidnapped the child from the honso where she was staying, but Airs. Vallis immediately Rave chase, and, after a struggle in the street, recovered the child. In her distress she made false representations to sell the tickets, and

"sorted out" certain wealtihy men to whom she told the story of the sick brother. She now threw herself on the mercy of the Court, and. if given a chance, promised to returu t)in J?2 which she had obtained by the false representations.

Tho Magistrate, after reminding accused that she was liable to six months' imprisonment, recorded a convicliou, and ordered her to comq up for sentence when called on, a condition beine that she refunded the ,£2^ KEPT HIS MASTER'S MONEY. A middle-a<;ed man, named Alfred lelix Stevens, was chnreed with that, on different dates, he collected sums of money amounting to ,P 2 11s. Id., in terms requiring him (o account for (he same lo Albert Wardlo, and that he failed lo dn so, thereby committing theft. There were seven separate, charges, to all of which accused" pleaded guilt v. Chiof Detective Brobcrg staled that,'for twelve months past, accused had been employed as a driver by Mr. Wardle, a milkman at l\aron. Part of accused's duty was to collect moneys, nnd it was in this connection that he had committed the thefts. Inere was a previous conviction for un offence of a. similar nature against' accused in February of last year. The Magistrate remarked that, .-is* accused had not profited by fho clinncn which ho I'.ail previously I-een Riven, he could jio'. bo ti-OT.terl so'leniently on (his occasion. He would be S"nteneed Inline? months' imprisonment on each chnrge, the sentences lo b« concurrent.

orioi smokek fixed. Chung Yong pleaded guilty to a charge ■of unlawfully smokiug opium, and to a further charge pi liara , ,' opium in his

possession suitable for smoking. For the first offence he wns fined £o, with costs and interpreter's fee, the alternative being -1 day.-' imprisonment and, on the second charge, lib was fined J! 1(1 and Courl costs in default one month's imprisonment. An application for time to find Hie money was refused.

OTIlKi: CASKS. William John Carpenter, for whom Mr. I'. W. Jnck-c-n appeared, was further remanded until to-morrow morning on a charge of n-siulling Nicholas Kit-hard Normile, and causing him actual bodily harm. Bail was allowed in the same amount as previously. Harry IVarce, a well-known wrolier, was yesterday arrested by Detectives Itawlo and Cameron, and charged with failing to provide for the future maiii-ti-iianci' of his unborn illegitimate child. He was brought befom the magistrate and remanded until to-morrow morning. On the application of Mr. 1 , . W. .larkson. bail was fixed at .1:70 and two sureties of £SH each. On charges of drunkenness, Archibald West and Charles Skidmore were fined Ids. each, with tho option of 48 hours imprisonment. James Joseph Wilson, an inmate of the-Ohiro Home, was convicted of drunkenness and ordered to bo placed in tho Ohiro Home. MOUNT COOK POLICE COURT. At the Mount Cook Police Court, hefore Mr. T. S. Lambert, J.l'.. Peter Mulcahey, charged with drunkennc.-s, pleaded guilty for the twenty-first time Id similar charges, having on his list lour convictions within six month?. Accused was adjudged a habitual drunkard and sentenced to two months' imprisonment. Thomas Mitchell pleaded guilty to a charge of drunkenness in Vic toria' Street. .He was fined Ids. or 'IS hours' imprisonment. Two first-offenders were aho dealt with. Due had bailed himself out for 10s., and not appearing, lie was fined the amount of his bail, or the usual alternative. The other pleaded guilty,, and was admonished, convicted, and discharged.