LAW REPORTS.

Dominion, Volume 5, Issue 1280, 8 November 1911, Page 3

LAW REPORTS.

« SUPREME COURT. IF INCOME TAX IS OVERPAID? HOW GET ONE'S OWN? A special ease, stated for hearing in the Supreme Court, in connection with a claim by the Mudgway Estate and Land Company, Ltd., against the Commissioner of Taxes, came before Mr. Justice Chapman yesterday morning. Tho main action was a claim for .£313 lis. for income tax alleged to have been wrongly assessed, nud overpaid. The Mudgway Co.'s Idea. Ia tho statement of claim it was set out that the capital of the Mudgway Estate Company was .£II,OOO, divided" into 200 shares of ,£55 each. Tho shares were fully subscribed by twelve members. Tho principal objects of the company wero to acquire certain land in tho Hutt Valley district, with buildings. It was alleged that, on September 14, 1910, tho Commissioner of Taxes wrongly claimed that tho company wero liable (for the year ended March 31, 1906) to nay upon which the Commissioner hold during that period. Ho assessed the tax at .£2ll 6s. It was further alleged that the Commissioner had wrongly claimed that the company were liable to pay income tax for the year ended March 31, 1910, on £26:15 alleged profit. He had assessed the tax at .£132 ss. The company had paid under protest, maintaining that tho sums claimed by the Commissioner as profit? were not profits, and, therefore, should not be taxed. Hence tho Supremo Court action to recover the amount overpaid. The Tax Department's Notion. In his statement of defence, the Commissioncr sot out that the Mudgway Estate Company had never signified its desire to have the objections heard by the Stipendiary Magistrate, in accordance with Section 22 and Regulation 23 of the Act. In conscience of this these objections had never been determined. Further, that Court had no jurisdiction to hear the claim made by the company for anr return of the sums paid. The sums hail been paid to the King, and formed part of the public revenue. If they were recoverable by the eompanv at* all thev were recoverable from the' King, and not from the Commissioner of Taxes. Tho Points to be Settled. It was agreed that, before tho main action came on. certain points (law and procedure) should be decided by argument nnd decision on a special care. The mixtions for the -consideration of the Court were:— (1) Whether a person, who has been nssresed for income tax by the Commissioner of Taxes, and who has paid under protest the amount of that assessment (but lias not taken proceedings by way of objection and appeal in accordance with of the Land and Income Assessment Act) can take proceedings in this Court for the re-' covcry of tho tax so paid, on the ground that tho assessment was excessive ? (2) And whether, if any such proceedings in the Court are allowable, those proceedings can be taken by way of action against the Commissioner of Taxes. Mr. A. Gray, with him Mr. Bolton, appeared for the Mudgway Estate and Land Co Ltd.. and the Solicitor-General (Mr. J. W. Salmond) handled the for the Commissioner of Taxes. Argument occupied the whole of the morning. Decision was reserved. WAS THERE CONSIDERATION? P.N. DISHONOURED. An appeal case—Charles Prait and Co. v. Hannah M'Alley—was heard by Mr. Justice Chapman in the Supreme Court yesterday aftornoon. This was a. request to the Court to reverse, a decisionj by Mr. \V. G. Riddell, S.M., delivered in the Magistrate's Court, Wellington, in February, 1910. Doctor's Bill and Doctor's Agent. It was set out that Mrs. M'Alley's husband had owed Dr. Martin certain moneys for medical attendance, and tho amount had been fixed as .220, this being agreed upon as between the debtor and Pratt nnd Co., who were acting as collectors for Dr. Martin. A promissory note had been given to Pratt and Co. by Mrs. M'Alley for the amount named, but, when it became due, it had been dishonoured. Pratt and Co. had therefore sought to recover the amount, and 4s. interest thereon in the Magistrate's Court. •What iha Magistrate Said. In the course of his judgment on the tho case tho magistrate had said: "M'Alley told Pratt and Co. that his financial position was desperate, and he proposed becoming bankrupt. He, however, thought ,I'hat Dr. Martin should be paid, and it was arranged with Pratt and Co., that. Mrs. M'Alley should givo Pratt and Co. a promissory note for ,£2O. This was done on April C, 1903, and four days later, M'Alley had been adjudicated a bankrupt Iho promissory note' had been dishonoured when it matured, and Mrs. M'Alley refused payment on tho ground of want of consideration. There was no evidence to show that this debt had ever been assigned by Dr. Martin to Pratt nnd Co., or that he had authorised Pratt and Co. by power of attorney to sue for it. No snm of .*"2O was ever due by Mrs. M'Alley to Pratt and Co., and tho latter had never rendered any services, either to Mrs. M'Alley or her husband. Pratt and Co. and Mrs. M'Alley aro direct parties to tho promissorj jmti,, and it is clear that, as between temselves, there was no consideration." His Worship also held that want of consideration had been proved, and pave judgment for defendant (Mrs. M'Alley) with costs and witnesses' expenses. And Now? Pratt and Co. appealed against this decision on the .ground that it was erroneous in point of law. They contended that there was consideration to support tho promissory note, that the magistrate had wrongly assumed that the burden of proof rested on the plaintilF, whereas it rested on defendant, and thai the trate should have non-suited plaintiff. Mr. J. M. Hogben appeared for the appellants (rratt and Co.) nnd Mr. E. C. Levvey for the respondent (Mrs. M'Alley). After argument his Honoui reserved decision. RIGHT MAINTENANCE SOUGHT. CLAIM BY RELICT. A claim by a widow for further relief nnder the will of her husband camo before the Chief Justice (Sir Robert Stout) in the Supreme Court yesterday. Tho parties to the action were Ellen Scally, widow of Patrick Scallv, late contractor, of Woodville, plaintiff, and the Rev! Thomas M'Kenna, priest, of Pahiatua, Patrick William Corbv, hotelkeeper, Wellington, William M'Caftery, Woodville (trustees of the will of deceased), Elizabeth Corby (wife of P. W. Corby), and P. W. Scally, farmer, of Woodville (bcneficiarcs under the will), defendants. Mr. A. W. Blair appeared for Mrs. Scallv. and Mr. C. B. Morison appeared for thj? trustees and the beneficiares under the will cited. The value of the deceased's will was stated to bo between ,£BSOO and X9OOO. Mrs. Scally was bequeathed the furniture, etc., insurance money, .£75 per annum for life, and given the right to occupy a house mentioned in the will. Tho annual value of this portion of tho estate wns estimated by Mrs. Scally at .£lO5 ICs. Gd. There were various other bequests of small amounts, and Elizabeth Corby and P. W. Scally were the rt-Milna:? legatees. Mrs. Scally claimed that her husband had failed to make adequate provision for her maintenance, and claimed (under the Family Protection Act, 1908) such further relief as tho Court might think fit. His Honour reserved decision.

MAGISTRATE'S COURT.

(Before Mr. W. G. Eidclell, S.M.) OVER A QUARRY "SPIDER." A eharge of having stolon one "spicier," worth £7, the property of Jiislian John Powell, was made against Frank Freder-

ickson at the Maßistratc's Court yoslordny. The theft, it was alleged, had been comuiitled al the quarry between Lower Ilutt and Day's Bay. Frederiekson pleaded not guilty, and was remanded till November 10. Bail was allowed. ABSENT FROM S.S. K.'JICOURA. Lindsay Templeton Bell was charged with having absented himself without leave from the steamer Kaikoura while the vessel was at' Bluff on October -G. lie was remanded to Dunedin. OTHER. CASES. John Rhend was deemed to ho a roguo and a vagabond. He was convicted and ordered to appear for sentence when called on, and was directed to take employment offered by the Department of Labour. Guy Cockburn was fined 10s. for having been drunk, and »C 2 for having used certain language. Pet'er jl'Carthy was fined 10s. for intemperance. CIVIL CASES. THE CARPENTERS' AWARD. (Before Mr. W. G. Riddell, S.M.) The Inspector of Awards proceeded against Messrs. Brown and Johnston, builders, to enforce a penalty for a breach of the Wellington Carpenters' and Joiners' Award. The allegation was that, in June, the defendants had employed a non-unionist carpenter when unionists could have been procured. Mr. H. Buddie represented the defendants and put a caso which his Worship said showed extenuating circumstances. . A fine of 10s., with costs Cs., was made. INDEBTEDNESS.

(Before Dr. M'Arthur, S.M.) In the following cases judgment' for tho plaintiffs by default was entered:— The Drapery and General Importing Company of New Zealand, Ltd., v. Agnes Smith, -CIO 18s. lid., costs £1 15s. Gd.; Tho Le Grove and Lawrence Co., Ltd., v. Wm. Clarkson, .£lO 16?., costs .£1 10s. 6d.; Reginald Herbert Webb v. Henry Lambert, X 96 12s. 4d., costs £5 Bs.; Annie Jenkins v. Thomas G. and Marv G. Lennox, XI lTs. 6d., costs Bs.; A. w. and F. C. Brailsford v. T. S. Scot't, .£2l 155., costs -CI 35.; Wellington Piano Co., Ltd. v. John Leonard l'hiliips, J5lO, costs XI 3s. Gd.; B. Ellis v. J. j. Cronin, costs, 125.; Tho Lo Grove and Lawrence Co., Ltd. v. John C. M'Bride, £10, costs, <£1 10s. 6d. Gini Angelini was ordered to pay .£24 6s. 3d. to Wilford and Levi, by November 28. iti default 21 days' imprisonment. In the case of J. T. Harris v. J. R. Welsby, a claim for £2 14s. Gd., judgment debtor was ordered to par the amount by November 21, in default three days' imprisonment.