LAW REPORTS.

Dominion, Volume 5, Issue 1435, 9 May 1912, Page 3

LAW REPORTS.

MUSIC TEACHER'S CONDUCT. BASE BETRAYALBROACHING ONES TELEGRAMS. OTHER TYPICAL CASES. Three prisoners appeared fur sentence in the Supreme Court, before .Mr. Justice Chapman, yesterday morning. Mr. 11. 11. Ostler represented tho Crown. A music teacher, named Arthur Joseph nicks, forty-one years of age, was placed in the dock for sentence on a charge ol criminally assaulting one of his pupils, a girl fourteen ycara of age. .Mr. A. L. Ilerdman, who appeared for Nicks, reminded his Honour that the jury had recommended tho prisoner to mercy. Wicks was in the prime, of life, and there was nothing to show that he had not hitherto lived a food life. He had a wife and two children. Counsel asked his Honour to impose onlv such ,-, sentence as would enable the prisoner to serve it and then make a fresh start. His Honour intimated that he intended to give some effect to the jury's recommendation to mercy, but, beyond that, he could not go. No doubt the prisoner was fortunate that he did not stand convicted on a much more serious charge. Ho (his, Honour) knew that there wore a great many people in a community like this who could not afford separate private tuition for their children in their own homes. There were cases in winch a girl had to be entrusted alone, to some teacher male or female, and it was in this w,v that this girl had been sent to the prisoner. Apparently the relatives of tin child had reposed implicit confidence, in Wicks, and Wicks had been guilty of a gross breach of trust.

, His Honour went on to say that the prisoner h;td also been Riiilty" of a greai wrong to his own profession, and had done something which would shake public co< jideuce in men who wore engaged in teaching music. It was an appalling fact that this was the fourth case of a music teacher being found guilty of a grossly immoral act. that had come under hi's Honour's notice during the past two or three years. He would leave the question for explanation to those who wore engaged investigating such matters. His Honour then passed what he considered a necessary and an adequate sentence—four years' imprisonment with hard labour.

"RELIED ON HIS EXPERIENCE." BUT ENDED IN GAOL. ' . James Henry Hope was placed forward for sentence on a charge of-unlawfully selling liquor in a shop in Lower Cuba Street on March 31. • Mr. P. W- Jackson, who appeared for Hope, mentioned that tho offence on which his client stood convicted wns not a crime against the person. His Honour: Yon arc lecturing mo. on a subject about which I have heard something befoi-c. Will you kindly say sonietliijijj about this case. Air. .T.vjkson then proceeded to state that his client, was 65 years of age, and, though the last few years of his life had been clouded by unhappy circumstances, he had to his credit.over 37 years of honourable service in the police. Counsel suggested that a line would meet, the case. His Honour remarked that the prisoner hud not been long in New Zealand, but it appeared as if he had sot himself to deliberately defy the laws of this country. lie was an old policeman and must have -token pnrt in preventing these kind of offences in the neighbouring States. From the evidence in the enfe, it appeared that his shop had been the resort of loafer?, who knew that he was trading in liquor, and relied on his experience as an old policeman to protect them. He would be sentenced to six months' hard labour. JURY TOOK LENIENT VIEW. NOT SO THE JUDGE. An old man, nnmed James Pnrcell O'Brien, who had been found guilty of common assault, asked Unit his Honour might t'ikc into consideration his (prisoner's) age, and the fact that he had boon working to earn an honest livelihood since he was thirteen years of age. There were a number of previous convictions against him for various minor offences, tie had been fifteen , years in Now Zealand, aiid had worked mostly in the Mastcrton district. His Honour described the prisoner's offence as ''disgraceful and shocking," and expross2d the opinion that the jury had taken a very lenient view of it. A sentence of twelve months' hard labour was passed, this to be followed by three years' detention for reformative treatment.

OPENED TELEGRAMS. OFFENDER SENT TO GAOL. The criminal trials of (he Supreme Court wore continued yesterday before Mr. Justice Chapman. .Mr. H. H. Osjlcr, of the Crown Law Office, represented the Crown. "Tom Phillips', wires" figured largely during the hearing of the case which cccupied the attention of the Court yesterday afternoon. Thomas Henderson, elms Busbridge, alias .lames Patrick, alias Fitzpatrick, was charged with opening telegrams which had been dispatched im different dates from various places lo T. Phillips, Wellington. Mr. A. L. Herdmau appeared for the accused, who pleaded not guilty. Evidence for the prosecution ,ivas to Mie effect that on a certain day in DctimWr last, while two , tclegr;i|ih inessong-rs, named Walter Harold Ouphton nut! Mark Leainan, were engaged looking for (.lie addressee of a telegram in Taranaki Street, they called at a hairdresser's shop occupied by Henderson. , On that occasion Henderson told them that he was Trm Phillips's cousin. He promised that, if they would bring him "any wires f' r 1 urn Phillips" ho would give them "a shilling O" two." Oughton and Leant an demurred, and Henderson then said: "Hring some seals for me to seal them agitir, after opening them, as I don't sviint Phillips to know anything about it." Subsequently, on December 21, rnd.on several days following, the messengers too'c Phillips's telegrams to Hcn.:l'--on, and received money for doing so. Henderson's practice was to open the telegram, note the contents, seal it down a?ain. and return it to the messonKrs, who would then deliver it to Phillips. The telegrams mostly contained the results of races, and the dividends of wintiers. Police suspicion thickened, and. on January 2(i. Henderson disappeared from his shop in Taranaki Street. Xo trace of him could be found until February 18. On that date ho was arrested by Detectives Kemp anil Hammond. There were six witnesses for the prose-rnt-"'on. Mr. Hordman did not call evidence in defence. TTe submitted that tl>« Crown hod failed to provo the case. That ease rested on the testimony of the two inesspiiTers, whose evidence should bo treated •.vith extreme caulion, as they were in foot accomplices. If the jury camp to tlio conclusion that I ho evidence, of these, boy? differed, then.it might also be reasonable to infer that thev were not honest. Tlip jury retired at 4.1.1 p.m.. and returned within five minutes with a verof tuilty. Mr. Ostler stated that accused was 30 years of n<?e, and. was described ns "an electrician." There werp previous conviction 1 ; aeninst him for theft, foreery and ulterintr, and stowine away. Furthermore, the general police report, was not favourable. It stated t hat Ilendc-r----sonV tobacconist's shop was merely a Hook for a belfrinz business, most of hie client? Ix-iti" Touii'i men. His Honour stared that he would trp.it the different offences o? one clinrs". but Im i-nuld hiive to fnke intn consideration the fact" that nriKiner Ind several .iliaies, and that hi< character wa.' a bad on?. The offence mu'.t be recotrn:.=.2d o* oii» of considsrable danger to the public. Prisoner

would be sentenced to eighteen months' hard lnliiMir on each charge, liic .-entciices to be coiuMirrenl.

APPEAL COURT.

CONDITIONS OF AN OPEN I'OLKT. . IJUSINI-SSOF IXSUIiANCE. A deposit of .t 10,00(1 was the subject <if contention in a case which was ye.-lw-day decided by the Court of Appe-.il. It was brought for ihe purjio-e of determining whelher eel-lain of J.lnyd's mider-writi'i-s were i-an-ving cm the bii-iiifs.s of insiiiaiice in New' Zealand (Ihrnugli the agency of Jlalgely and <' ; ,., |.|,|.), ~i such manlier an to I.Ming them within the •scope of P.u-t 111 ~f th« I'oreigi, Insurfllico Compaiiic.-,' Deposits Act, UIIIS. For the hearing of the appeal, She Court couiliriscd Chief (Sir Kobcrl Stout), Jlr. Justiws Williams, .Mr. Justice J),-n----nistoii, and Air. Ju.-tice Cooper. The parlies were JJalgety and Co., Ltd., company incorporated in England, but carrying on business in Now Zealand (appellants), and the. Solicitor-General (resliondent). In the original action heard in the Supreme Court before Mr. Justice Sim, the lacts had been agreed upon and coinniiltwl to writing. In November, IHflil, JJalgery and Company entered into an agreement with certain of Lloyd's underwriters with respect to the insurance of motor-cars against fire, theft, and accidental damage. According to the recognised usage of Lloyd's I'liderwriters, on which basis the contract was made, the contract of insurance contemplated that the underwriters should issue an open policy in favour of Dalgety and Co. In PMcficc, however, no such open policy was actually issued by the underwriters to Dnlgety and Co., biit there was a contract embodying the terms of the policy. It was contended by tho Solicitor-General thnt the underwriters were carrying on tho business of insurance in isew Zealand, through Dalgety nnd Co. as their agent?, and that a deposit of ,610,000 should therefore be made by the underwriters in accordance with Part 111 of the Foreign Insurance Companies' Deposits Act, l'.lOS. No such deposit had been made. In the alternative it was contended that the business of insurance was carried on in New Zealand by Dalgety ■iml Co., and they should therefore pay the deposit. Mr. Justice Sim held that the deposit of .CiO.OOO must be made, and it was trom this decision that. Daigety and Co., Ltd., appealed. -Mr. C. 11.I 1 . Skerrott, K.C., with Air. C. H. .uorisoii, appeared for the appellant?, and the Solicitor-General (Mr. J. W. Salmond) appeared in person. . The Chief Justice, after briefly reviewing the. method of business, said: Surely this mode of carrying on is an insurance business. Whether Ihe owner can sue the underwriters in London or elsewhere does not alter the fact that an insurance has bei'ii effected in New Zealand, and the owner has as a proof of his insurance, nay, holds his contract of insurance in the certificate issued." II: is in my opinion rpiile beside the question whether the relationship between the insured and the insurer is what is called under an open policy or not. He has become an insured person by virtue of an agreement or contract made in Now Zealand. I ain of opinion that the appeal should be dismissed. In another judgment, the other three Judges also expressed the opinion that the appeal should be dismissed. Costs on Ihe middle scale were allowed tho Solieitor-licnsral by agreemeni,

. RIGHTS OF ADOPTED CHILD. NOT EXCLUDED FROM WILL. The Court of Appeal yesterday delivered reserved decision in the case in which it was asked for a declaration as to the rights of an adopted child of the wife of the late Anders Anderson, slicepformcr, of Feathorston, deceased. The cose previously came More Mr. Justice Chapman in the form of sin originating summons in tho .Supreme Court. By .his .Honour's direction, the caso was removed into tin; Court, of Appeal for argument. On tho Bench at the hearing were (he Chief Justice (Sir Robert Stout), Mr. Justice 1 Williams, Mr. Justice Denniston, Mr. Justice Edwards, nnd Mr. Justice Chapman.'The Public Trustee, as executor o[ the will, was plaintiff, and the adopted child —Elisabeth Dorothea Blinder Pilkington, wife of William Andrew Pilkington, farmer, of Pukekohe, defendant. Mr. C. P. Skerreft, K.C., with him Mr. J. W. Mncdonald, appeared for the Public Trustee, and Mr. T, Cotter, K.C., of Auckland, with him Mr. C. J. Sclnuiuer, of Auckland, for .Mrs: Pilkington. On August 1, 1562, Martha Andersen, wife of deceased, adopted Elizabeth Dorothea Blinder M'Kinly, Uien aged seven years. On May 10, 1907, Mr. 'Andersen made his will, and, in it, he provided as follows:—"I bequeath to my adopted daughter, .Elizabeth Dorothea Blinder Pilkington, the sum of four hundred pounds, but, in case she preilecN.se me. leaving any children surviving, then I direct that suck children, who shall respectively attain tho ago of 21 year?, shall take in equal shares the said sum of .£100."

After other legacies, testator directed tho income of his estate to be paid to his wife for her life, or until her second marriage-. Th« estate was then to go to "All my children or any child, who being a son or sons, shall attain the age of 21 years, or, being a daughter or daughters, shall attain that age or marry under that age, and if more than one in equal shares." Mr. Andersen died leaving no children of his own', and, on .May 15. 1908, probate was granted to the Public Trustee. Mrs. Andersen died recently in Ballarat. The questions for the Court to determine were :— (1) Whether, on the true construction of the will, Mrs. Pilkington was entitled to share as a child of deceased. (2) Whether, if sh« came under the description of a child of deceased, she was excluded by reason of having attained 21 and married before the date of the will. Tho Chief Justice held that Mrs. Pilkington was entitled to the residuary eslate. nnd ordered that the costs of ali parties should be paid out of the estate. In this judgment Mr. Justice Williams, Mr. Justice Edward?, and Jlr. Justice Chapman concurred. Mr. Justice Denniston dissented. CLAIM FOR COMMISSION. APPEAL DISMISSED. It was the unanimous decision of the Court thai thu appeal should be dismissed in the case of M'Kean v. Brice, ais appeal from a Supreme Court decision of Mr. Justice Sim, who had aw&rdeu res. pondeut- (plaintiff in Uio original action) the sum of J!7.i as commission on the snle of a property. On the Bench at the hearing wero the Chief Justice (Sir Robert Stout), Jlr. Justice Denniston, Jir. Justice Cooper, and Jlr. Justice Chapman. Jlr. T. S. Weston appeared for t.Jie appellant, and Jlr. C. B. Collins, of Jlarton, for the respondent. In the original action, Francis Richard Hammond Brice, commission agent, of Jlarton, claimed ,£15(1 from Thomas M'Kean, farmer, of Taumarunui, as commission on the sale of a property. It was then set out that on February 11, 1910. Jlrs. M'Kean (wife of Thomas M'Kenn) entered into an agreement with Jlessr?. Smith pad Stiles to sfil to them, for .£2901, a seetioa of Crown laud in the Hiiniia Survey District, held by her under a liceusi! to occupy wilh" right of purchase. Of ihe purchase money .£. r >oo was payable in cash. As to the balance, the equity of redemption of eei-iiiiu properties (belonging to the purchasers) in Wellington was to he aci-epkd by Mrs. if'Koan in part satisfaction, and the xcmninder was to be secured by a second mortgnge. Briec, it seem;, hail been endeavouring since May, 1909, to find a purchaser for the property, and for wme time had been in 'negotiation with one Beard. The object of the Bale, to Smith and Jtiles appeared to have b<--er. to enable them to re-sell to-Beard, for they sold the section to him at the price of .£3lßl. The Land Board, however, refused permission for i>. transfer to Beard, who sought to impose a condition us to the future sale of the section. Beis-d then agreed to re-sell to one Prince for JM.i5 13--. This proposed transfer was approved by tho Land Board, out the transaction could not be. completed, as Prince eventually refund to carry it out. Tim spr-Hon was sub=er|iient.ly r.okl by Mr?. M'Kean to (mother purchaser i'or .f290».-and this transition i>as duly completed.

, I lie f|iK-slion r-tiljinilt.fcl In Ihu Sii|ir«nie I iiiirl Wiis lihellier, in lhe>e ciiTiiin--liincr--, Uric: , *• ■ ■ lilJc-tl l.i reciivi-r an" iii respeel of Ihe yilc lii Nnilli aud Alii, Mr. Sim, win, heard I lie ea-e, Kaye jmlKiiienl; fur Jlrire fur ,t7."i. 1.-'rnm •I"-* ilecMiin M'Keaii appealed, cm Hie j!»IIMI(l (lull, j! lVils ~|T()lieullS ill pilillt 111 law ami lad. ' i" tho appeal. lli<> C'oiirl awimled re-iiioiulent u>*[* ». from a i!ilamo. ALLEGED LIBEL. XU HillUK (IF ri'JiI.ICATIDX. Tliiii the appeal ,1,,mi,l l x . k:;~ lie opinion i,f Ihe .|,|,|jjes (Mr. .lu.li TO Jeiiiiistim. Atr. .hisliee Kdwanls. and Mr. • lisli.-e (1. ( .p,.r) in the can- cf An K elini v. 'ililicii-an appeal friim a decision of In(,!iic;i .ln~tiee (Sir Knhcil Sloul) di-livered 1» die Siipi-eiiie (.'unit hist vear. J n (In-oi-iKinal aetinii, CJini Angi-lini sued Carlo AlUifo to recover .£.-,(1(1 dama K es for alli'Ked ilh'l. llenlle B ed that Antic,, in a leller I , ') ji. Hind party, had published fai.-e ami miili(;imi« .stiitemeiits rvpardiiiK him (AnKelini.p. Jn (he letter eertain family mailers were referred to, but: it was proved lint Carlo Aiiticu had not written the letter, tliim K h lie had dietated it. Tiie Chief Justice non-suited Angelim on tin I Rioiind that he had produced no proof of publication. It wa* from this deeision that Angi'lini appealed. Jlr. 1.-'air raiVed two preliminary obieeaons to the appeal: (I) That the decision appealed against beinif :i nou-suit on ;... of law the jiruper pri)ee<iure was a motirn for a.new trial, and (2) the appeal was made too lat*. After some discussion, counsel agreed that the appeal should pincow, .;:i riie understand!!!!; (hat, if appellant succeeded, respondent should not bo called upon to pay costs. Mr. .iuslfco DennUtnii yesterday delivered the judßinent of tho Court, in the course of which he said:—"\Ve are able to approach the nuestion, which is neatly nnd clearly raised by the present cafe, untrammelled by authority. K appears to us to be one to which only one answer is possible. ... It is essential to the communication to another parly of a de- | famatory writing that such writing should l>6 in existence before such communication, and this i=, of course, a complete answer to the proposition iliat the creation of such defamatory writing from dictation can be a comnuiiiieution of it t the person who is creating it. It is a communication of its contents—which ithe publication of a slander from the mouth of ths person dictating, but can only become a libel if s-uh-equeiitly shown by him, or by his direction, to some nerson other than the nersen <U> famed."

Alter quoting authorities, the Court was of opinion that publication did not amount to more than slander. "I'tir these reasons," the judgment concluded, "we are satisfied that his Honour the Chief Justice rightly held that there miiso- evidence of publication, and that the appeal should be dismissed with casts."