THE COURT OF APPEAL.

Dominion, Volume 5, Issue 1248, 6 October 1911, Page 3

THE COURT OF APPEAL.

LEGAL INTERPLAY. AND THE BODY IN THE RIVER.. Is it necessary for conviction on n charge of concealment of birth, that the body of tli© child must be recovered and identified? This question was argued before the Court of Appeal yesterday in the case of the King versus Mary Brown. The Chief Just.iec (Sir Robert Stout) presided, and, fitting with him, were Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. The Body in the Avon. In April last the body of a baby was found in tho Avon Eiver, Christchurch. As 'tho result of inquiries by tho police, a woman, named Mary Brown, was charged with concealment of hirtli. Sho came up for trial in Auenst last, when the principal evidence against her was a confession, which she had made to a detective. It was admitted by the Crown that the body found in the river had no* been satisfactorily identified, and, at the close of the case, counsel for the prisoner asked Mr. Justice Denniston to direct tho jury to acquit on the ground of insufficient evidence a.s to identification. As authority, in support of this contention, he quoted the case of Itegina v. Mary Ann Williams. "Guilty," and Why, Mr. Justice Denniston, however, refused to accopt tho statement of law (as reported in that ease) as a binding authority. Ilis attitude, ho iaid, was baf.ed oil the ground that the report was only an extract of a summing up, and must be read as applicable only to the circumstances of that ease, and not as laving down a general principal. He, therefore, directed the jury that, on tho evidence, they might find the prisoner guilty, and the jury did so. As, however, the dictum in Regina v. Williams had been adopted (solely en its authority) in several recent English text-books, Mr. Justice Denniston postponed sentence, and reserved the case for the Court of Appeal. Tho opinio'n sought was whether tho direction, given to the jury by Mr. Justice Denniston was a proper one. The Solicitor-General (Mr. J. W, Salmond) appeared for the Crown yesterday,and Mr. W.'J. Hunter, of Christchurch, for the prisoner, Mary Brown. The Lav/ and its Interplay. Mr. Hunter contended that Mr. Justice Denniston had misdirected tlie jury. In cases of concoalment of birth, it was necessary (before a conviction could 1m recorded) that the body should bo recovered and identified. In reply the Solicitor-General put forward the contention that tho alleged rulo that a conviction for murder required the finding of the body was not a rule of law at all, but a mere caution to be observed in estimating the sufficiency of evidence; that, if it is a rulo of law, it applied only where the evidence was merely circumstantial, and not whero there was true evidence ' of death, such as the confession of accused; that the rule applied oulv to homicide, and could not be extended to any other olfences. Decision was reserved. INTERESTING DEVELOPMENT. A NICE POINT.

RESERVED FOR FULLER COURT. An interesting development was reached in the Court of Appeal yesterday in the case of Schmidt and liellshaw v. Greenwood. This was an appeal from the decision ol Air. Justice lidwards, delivered at M««- Plymouth, on' August 2.1. It was partly hiard on Wednesday and reported in yesic-rday's issue. On tho Bench wero the Chief Justice (Sir 1 Robert' 'Stout), Jlr. Justice Deuniston, and Mr. Jusl'ico Chapman.

Mr.H. D. Bell, K.C., with him Mr. J. 11. Quillinm, of New Plymouth, appeared for the appellants, and Mr. Martin Chapman, K. 0., with him Mr. R. Spcnce, of Stratford, for tho respondent. When tho caso was called again yesterday morning the Chief Justice said that tho Court had been considering the position, and tho question arose as to whether tho Court should not be enlarged. One of the members of the Bench (Mr. Justico Chapman) had already given a judgment on the principal point at issue, viz., whether compensation is allowable for misrepresentation made innocently and without a warranty. Another member of tho Bench (Mr. Justico Denniston) had expressed an opinion on tho samo judgment when the case was before the Court of Appeal. What had counsel to say on the mallei'? Jlr. Bell asked if tho Court could noi dispose of questions other than that referred to. Mr. Justice Denniston: You mean tho question of fraud? Mr. Bell: And warranty. Mr. Chapman remarked' that the question of warranty was closely mixed with the question of innocent misrepresentation, and suggested that fraud only should be argued at present. It was decided to adopt this course and. if it still remained necessary to settle the other points, a fuller court would hear them. Argument relating to the question of fraud was then concluded, and the Court reserved decision. SALE OF A LEASE. BY WHAT ACT IS IT 'GOVERNED? j An originating summons, brought in the Supreme Court, New Plymouth, and removed by consent of the parties to the Court of Appeal was heard yesterday afternoon. On the Bench wore the Chief Justice, Mr. Justice Denniston, Mr. Justice Edwards, and Mr. Justice Chapman. The parties to the action were Arthur William Budge, farmer, of Stratford, plaintiff, and Thomas Bayly, grocer, of Hamilton, Lewis Bayly, el'ockbnyer, of Wnnganui, and Horace'Bayly, /armor, of Kai Iwi (executors of the will of James Bayly, decea*;i), and Thomas Elliott, farmer, Waitara, defendants. Tho Commissioner of Crown lands, Auckland, and tho Attorney-General were also cited. Mr. Martin Chapman, K.C., with him Mr. J. H. Quilliam, of New Plymouth, appeared for the plaintiff. Mr. H D Bell, K.C., with him Mr. 6. H. Fell, appeared for the defendants (the Bavlvs and Thomas Elliott). Tho Attorney-General and the Commissioner of Crown Lands wero represented by the Solicitor-General (Mr. J. W. Salmoml). The question for tho consideration of tho Court was: Where a lease of a small grazing run was granted under the provisions of the Land Act, 1885, are the lessees, on the expiry of the term of lease, after the missing of the Land Act, 1908. entitled only to a renewal thereof on. tho terms fixed by the Land Act, 1835, and is tho samo subject to the condition? of renewal contained in Section 20D of the last-mentioned Act, or is tho samo subject to the Land Act, 1008. and are tbo conditions of the said last-mentioned Act applicable to such renewal? It appeared from plaintiff's statement that, by deed of lease dated. September 1, 18SS, an area of land, comprisins 8810 acres in tho North Survey District, Auckland Province, was demised to James Bayly (now deceased) and Thomas Elliott for a term of 21 years. In accordance with tho provisions of Section 209 of the Land Act of 1885, Bayly and Elliott obtained a renewal of the lease in 1909. In the following year Bayly died, and his executors (Thomas Bayly, Lewis Bayly, and Horace Bayly) and Elliott raid the grazing run to the plaintiff (Arthur William Budge). Doubt then arose as to whether the renewal of the lease was effected under the Land Act, 1885, or under the Land Act, 1908, and whether the rights of renewal of tho lessees were to be determined by Section 209, and the succeeding Sections of the Act of ldßs, and wero defeasible, or whether (hey were to bo determined under Part V of tho Act of lIWB, ami wero indefeasible. Tt was agreed, however, to complete tho sale of the land and to get a judgment of the Court of Appeal on the question, and, if the purchaser (Budge) obtained, December 111 next, a declaratory judgment that th? lease was not a lcaso with a porpetual right of renewal, then. tho vendors {tho executors of Jame6

Bnylv and Thomas Elliott) would allow ft' reWo of £5000 oIF the purchase money. All costs of obtaining tho judgment would bo paid by tlic purchaser (Budge) up to <£300. Argument hnd not concluded yesterday evening when tho Court adjourned unlit this morning.