LAW REPORTS.

Dominion, Volume 6, Issue 1577, 22 October 1912, Page 3

LAW REPORTS.

COURT OF APPEAL. CRIMES ACT & MARTIN TIER, "HABITUAL" OR NOT? MAJOEITT VERDICT SAYS "NO." A somewhat important interpretation of Section 29 of the Crimes Act was delivered by the Court of Appeal yesterday morning. Put briefly, it means that the Court has decided that one, indictment, ono plea, one conviction is the principle that must bo applied when deciding whether an accused person has been convict«d on "four previous occasions" so as to render him liable to be declared an habitual criminal. The point arose in connection with the case of Martin William Tier, who' was sentenced at the last criminal sessions in Wellington. The Chief Justice (Sir Eobert Stout) presided at the hearing of the appeal, and" associated with him were Mr. Justice Denniston, Mr. Justico Udwards, Jlr. Justico Cooper, and Mr. Justice Chapman. The Conviction of May 13, 1910,—First Indictment./ 4 On May 13, 1910, Martin William Tier appeared before the Court to answer a number of charges of house-breaking. The charges against him were framed in two indictments as follow: — First count: Breaking and entering and theft (warehouse of Gollan and Co.). Second count: Receiving stolen property. Third count: Breaking and entering and theft (warehouse of H. Morris and Co.). Fourth. , count: Breaking and entering and theft (warehouse of John Kier). Fifth count: Breaking and entering and theft (shop of V.-E. Simpkiss). Second Indictment. First count: Breaking and entering and theft (sHop of J. E. Lindberg). Second count: Breaking and entering with intent to commit theft (shop of J. E. liindberg). Third count: Breaking and entering and theft (shop, of E. Tearce and Co.). Fourth count: Receiving stolen A verdict of guilty was returned on the first indictment, and on the second indictment Tier pleaded guilty.' Three days later lie was sentenced to two years' imprisonment with hard labour.

The Conviction of August 9, 1912. Tier's next appearance before the Supremo Court was on. August 9 last, when he pleaded guilty to breaking into the shop of Clias. Hill ami Sons, on Lamblon Quay. Mr. Justice Chapman then sentenced him to iivo years' imprisonment with hard labour, and declared him an habitual criminal, under Section 29 of tile Crimes Act, which provides that a prisoner appearing for sentence may be incarcerated for an indeterminate period if he has been convicted of certain offences on "four previous occasions." Special Case Stated—Majority Decision ■Yesterday. In making the declaration, the Judge relied on the convictions of May 13, 1(110. As the case appeared to bo somewhat different from any previously decided", his Honour stated a special ■ case for the Court of Appeal .under Section 442 of the Crimes Act, the question being whether or not he- had correctly declared Tier an habitual, criminal. ' , When the special case camo on for hearing, Mr. H. 1 , . O'Leary appeared .for I'ier, whilo the Solicitor-General (Mr. J. W. Salmond) appeared for the Crown. When giving decision yesterday, the Chief Justico and Mr. Justice Denuiston expressed the .opinion that the declaration' that Tier was a habitual criminal should stand. Mr. Justico Edwards, .-.Mr. Justico Cooper, and Mr. Justice Chapman, however, hold that on a commbn-senso view of the statute, Tier could not be considered to have been convicted on more than two previous occasions. The. declaration should therefore bo quashed. . The result of the judgment is that by a majority verdict the Court amends Tier's Fcntence by striking out- the declaration of habitual criminal. ' TORTUOUS.STORY. LAND CASE GOES ON TWO TEARS.

It is more than two years now since litigation commenced in the Supreme Court at .New Plymouth in connection with a sale of 1022 acres of land in the Mimi Survey District. The case subsequently came into the Court of Appeal towards the end of 1911, but was not finally disposed of until a decision was delivered yesterday morning by the Court of Appeal. Those on the bench yesterday were the Chief Justice (Sir Robert Stout), Mr Justice Williams, Mr. Justice Denniston, Mr. Justice Edwards, Mr. Justice Cooper and Mr. Justico Chapman:

Original Hearing-June, 1910, at New Plymouth.

In the original action, heard at •'New Plymouth in June, 1910, W. Greenwood, farmer, at Okau, .proceeded' against William Schmidt and William Bellshaw, both farmers, of Tongaporutu, to' recover the sum of .£259 .as damages .for alleged fraudulent misrepresentation ■in connecwith the safe of 1022 acres of land in the Mimi Survey District. The sale price w.as .£6OO. The alleged misrepresentation was that Schmidt Vnnd Bellshaw through, their agents, had informed Cireenwood that tliere were 122 acres in grass. It was alleged per contra that the area in grass was only 49 acres. Schmidt and Bellshaw denied making such a representation as to the area in grass, and they also denied that the actual, acreage in , grass was only 49 acres. They, however, admitted having informed Greenwood that "they believed there were about 100 acres in grass," but simultaneously they had also given him to understand that no survey had ever been made.

After the first hearing, the parties were given U days, to como to an agreement, but did not do so, and Greenwood was nonsuited. He subsequently had a survey made, and brought a further action (as if it were a claim for compensation in an action for specific performance of the agreement for sa!e) claiming ,£271 damages. It was agreed that the Judge's notes' of evidence in tlio previous action should be. taken in conjunction with the evidence of the surveyor.

Finding of August, 1911. On-August 23, 1911, Mr. Justice Edwards found that there had been fraudulent misrepresentation, and gave judgment for Greenwood for ,£lB7 10s. and costs '.£35 4s. fid. From this decision Schmidt and Bellshaw appealed upon the ground that it was erroneous* both, as to finding of fact and determination of law. Next Stage—No Fraud. . When the hearing came on the Court decided t» deal only with the question of fraudulent misrepresentation, and, if necessary, to take separate argument on any remaining point. Ixjforc a fuller Bench than first fat. It was subsequently decided that there had been, no fraudulent misrepresentation.

Further Stage—Compensation? This reversed the decision of Mr. Justice Edwards on that point, so that at a. later sitting it became necessary for the Judges mentioned above to consider tho question of whether compensation was payable in respect of warranty and innocent misrepresentation. At tho hearing, Mr. 11. D. Bell, K.C., with him Mr. J. H. Quilliam, of New Plymouth, appeared for tho appellants, and Jin Martin Chapman, K.C., with him Mr. B. Spence, of Stratford, for the respondent. . i Last Stage—Decisions Too Lengthy to Read. Yesterday the Chief Justice announced that, as the decisions were very lengthy, they would not be read, but the effect or thorn would be , stated. Hβ was of opinion that the appeal should be allowed with costs on the lowest scnle us from a distance. Mr. Justice Williams, Mr. .Justice. IJennUtou. -Mr. Justice Cooper, mid Mr. Justice Chnpmun were of tho snmo opinion. Mr. Justice Edwards ditscnted and con.

sidered that the appeal should havo been ] I