LAW REPORTS.

Dominion, Volume 6, Issue 1746, 10 May 1913, Page 14

LAW REPORTS.

IMPORTANT CASE. LATE E. J. RIDDIFORD'S ESTATE. THE DEATH DUTY. FULL COURT SETTLES AMOUNT. Several important appeal judgments were delivered yesterday morning, but more important than these, perhaps, was the Full Court's decision in the matter of the death duty on the estate of the late E. J. Iliddiford. Over .£IOO,OOO was claimed by the Crown as gift and death duty 011 the estate. This becamo apparent from the remarks mado by counsel in the Court last month in a case stated by the Commissioner of Stamps,- under Section 00 of the Death Duties Act, 1909, and concerning the will of the lato Edward Joshua Riddiford, who died on May 2, 1011. On account of the importance of the issue, the case i was selected for a Full Bench of the Supreme Court. It came on before the Chief Justice (Sir Robert Stout), Mr. Justice Mr. Justice Dennislon, Mr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman. The appellants were Eleanor Caroline Riddiford, Edward Vivian Riddiford, Daniel Henry Strother Riddiford, Eric Leslie Riddiford, and Oliver Ashby Bunny, the executors of the will of Edward Joshua Riddiford, dcoeased. The respondent was the Commissioner of Stamps. Mr. C. P. Skerrett, K.C., with Mr. M. Myers, appeared for the appellants, while the Attorney-General (the Hon. A. L. Herdman), with Mr. H. H. Ostler, of the Crown Law Office, appeared for the Commissioner of Stamps. Main Points of the Case. According to the statements of tjie Commissioner of Stamps, Edward Joshua Riddiford had from his youth been engaged in the business of shcepfarming, and was a specially experienced and highly successful 6heepfarmer. On June 6, 1907, the late Mr. Riddiford (being then of the age of 65 years) executed a deed of partnership with his four sons — Edward Vivian Riddiford, Daniel Henry Strotlier Riddiford, Eric Leslie Riddiford, and Lionel Edward Riddiford (since deceased). The capital of this partnership consisted of certain lands, vested in the late Mr. Riddiford, together with the live stock depasturing, thereon. The deed and an agreement sstting out the shares wero subsequently completed by all parties, and in the month of September, 1910, the Commissioner of Stamps assessed the deed' of partnership (under the Stamp Acts Amendment Act, 1891, and the Stamp Acts Amendment Act, 1895), as a deed qf gift executed by the lato Mr. Riddiford in favour of his sons in respect of the land and other property, constituting the capital of the partnership. This deed of gift duty so assessed amounted to 12s. 7d.. and it was paid by the late Mr. Riddiford to the Commissioner of Stamps on December 18, 1910. On that date, however,, Mr. Riddiford's solicitors wrote to the Commissioner stating that the_ duty was paid under protest. Nothing further occurred in the matter until the death of Mr. Riddiford on May 2, 1911. The Commissioner of Stamps then came to assess the estate of the deceased for death duty under the Death Duties Act, 1909. In doing.so, he included • in the dutiable estate, the whole of tho land and other property, which was included in tho deed of partnership. He assessed this for estate duty (according to Section 5 of the' Act), taking the value of tho land as <£256,303 (value at time of death of deceased), and the value of the stock at <£72,220 (value at date of execution'of the deed of partnership). He also assessed tho estate for succession duty (under Section 15 of the Act), in respect of the whole of the land, taking tho value as at the time of the death of deceased. From the total amount of death duty thus computed, the Commissioner deducted ,£12,238 12s. 7d.—tho amount of deed of gift duty paid bv the late Mr. Riddiford in December, 1910. Tho appellants, being dissatisfied in point, of law with tho assessment, required tho Commissioner of Stamps to stato a case for tho opinion of the Supreme Court, under Section 60 of the Death Duties Act. 1909. The appellants contended that no estate duty or succession duty was payable in respect of the property included in the deed of partnership. In the alternative it was contended that estate duty only, and not succession duty, was payable in respect of this property, and that such duty was assessable only on the value of the property at the date of the deed of partnership, and not on its value at tho death of the deceased. In his opening remarks at the trial, Mr. Skerrett mentioned that the amount involved was represented by the difference between the sum of JJS9.2-10 (claimed by the Crown) and the sum of .£51,000 (as reckoned by the appellants). The sum of ■£89,2-10, referred to, was exclusivo of the amount of J!12,208 previously paid in December, 1910. Points Decided Yesterday. When delivering judgment yesterday tho Chief Justice answered the questions submitted to tho Court in the following terms:— Whether estate duty is payable in respect of the property included in the deed of partnership ?—"Xes." Whether such estate duty, if payable, should be assessed on the value of the property, at the date of the deed, or on its value at the death of deceased? —"It should be assessed on the vuiue at the dato of the death of the deceased." Whether succession duty is payable in Tespect of the property ■ included in the deed? —"Yes." Whether such succession duty, if payable, should be assessed on tho value of 'he property at the date of the deed, or on its value at tho death of tho deceased?—"lt should be assessed on the value at the dato of the death of the deceased." His Honour held that the Commissioner was entitled to costs on the highest scale. Mr. Justice Edwards handed down a judgment in which he and the other members of the Bench agreed with the v ; e\v taken by the learned Chief Justice. Appeal to Privy Council. Mr. Myers, on behalf of appellants, formally moved for leave to appeal to the Privy Council. He also asked for a stny of proceedings, but mentioned that a considerable sum, something like ,£70,000, had already been paid to the Crown. Leave to appeal was granted and also the stay of proceedings.

APPEAL RE TOWAGE. DISMISSED WITHOUT COSTS. Beserved judgment was delivered by tho Court of Appeal in the case in which iMr. Justice Edwards, Mr. Justice Cooper, and Mr. Justice Chapman sat last week to hear an appeal from an Admiralty Court decision on a claim for salvage in conncction with the towing of Hio disabled sailing vessel AVang'anui on September 21 and 22 last. ' The claim had been first heard in November last. On that occasion, the Chief Justice (Sir TCobert Stout) presided, and with him as assessors wero Captain D. J. Watson and Captain E. J. Gillespie. There wero two actions, and botli wero taken tosjethor. The first case was that in which tho owners, master, and crew of the steamer Arapawa proceeded against the ship AVanganui, her cargo, and freight to recover the sum of <£1500 for salvage. In the second case tho owners, master and crew of the steamer Kapiti made a claim for JE3OI {or services rendered. Jt appeared nt that timi that negotiations had been opined up to settle the question :if salvage, but the parties could not agree upon I lie matter, and as plaintilts considered (lie amount, tendered (JCIGO) was not sutlicicnl, they decided to como to the Court. In the courso of a considered judgment,-

th© Chief Justice, who had consulted the assessors, said: — "It is a pity tho masters and seamen wero not consulted and their advice sought in the circumstances. I consider this should have been done. "I am of opinion that, looking at all the circumstances the Court should award the sum of .£3OO, without costs, and dcduct Jiia for costs to tho respondent. Tho notice reserved tho right to contest that -6300 was a fair sum, and this being so no further de-' duction should be allowed. Tho Court is not asked to declare what sum fihould be paid to each vessel; only to declare tlio portion that should be allotted to the crew. lam of opinion that ,£75 should be awarded to the crew. The balance, .£2OO, must pay the ships and tlio costs tho owners have been to in the As to tho distribution of the £~Oi seeing the sum is not large, tho fair distribution would be, in my opinion, pro rata according to the wages paid the master and crew." Judgment was given accordingly. From this decision the owners of tho Wanganui appealed on tho ground that it was erroneous in law. Mr. C. B. Morison. Iv.C., -with Mr. W. n. D. Bell, appeared for tho appellants, while Mr. E. K. Kirkcaldie appeared for the respondents. Jlr. justice Chapman yesterday read o judgment of the Court in which tho appeal was dismissed ffis Honour made the following remarks at tho conclusion of tho judgment: "Though we cannot regard the pavment into court as an unconditional tender, w£ think that the resnondents should have accepted it, and that almost all the cost.of this litigation would j have been saved without loss to them it it had been accepted. For this reason we do , not think fit to order the appellants to i pay the costs of this appeal. I CRIMINAL APPEAL. INTERESTING POINT DECIDED. An interesting point in criminal procedure was decided by the Court m dealing with a Crown, enso reserved by. his Honour in connection with a criminal trial, which took place in Auckland in DecernU?r last, viz., II.M. tho lung v. Charles barker and Edward Bailey. Tho Attorney-General (tho Hon. A. L. Ilerdman) appeared for tfie Crown, liu.prisoners were not represented, but' during the course of his address the Attor-ney-General mentioned that ho would endeavour to put the case from the prisoners' point of new as well as from that of the Crown. The Points at Issue. A general verdict of guilty had been returned against both prisoners on a charge of stealing .£l7 10s. in money from the person of Alexander Eastgate on November 28. Eastgate ond the prisoners were all carters in regular employment in Auckland, and were all well known to one another. Tho affair took place after they had been frequenting hotels Ivgethor on tho afternoon of the dato mentioned. It came out in evidence at the hearing that the prisoner Barker had been subjected to a lengthy questioning by the _ police officers after he had bam taken in custody, but counsel for the prisoners did not object to the police evidence regarding statements made by prisoner at the time referred to. liis .Honour, however, placed this evidence beforo tho Court of Appeal. In addressing the jury for the Crown at tho -trial in Auckland the Crown Prosecutor (Mr. J. A. Tole, K.C.) made the following observations, or observations to the same effect: ■ ■ "You aro sworn to give your vordict according to tho evidence. Eastgato has sworn that the prisoners robbed him, and ho has not been contradicted. You must believe him." Tho Evidence had shown that tho only persons Who could contradict Eastgate were tlio prisoners, but his Honour passed by the observations of tho Crown ProH -cutoT, because he thought it inadvisable to call tho attention of the jury to them. Wliifn, however, in the course of the next few sentences, Jlr. Tolo repeated tho same observations, his Honour said: "It seems to me, ill. Tole, that yon are infringing the statute." Mr. Tolo replied: "Oh, no, your Honour, I have niatio 110 comment, llis Honour said/ "Iti seems to mo that vow have." Mr/Tolo 'said, "Oh, no. I have said tie same thing hundrods of times. lam bound to tell you, gentleman, that Eastgate's evidence has not been contradicted. ' On tho prisoners being brought up for sentenco on December 7, Mr. . Hacks-tt, who appeared for the prisoner Bailey, asked ms Honour to roservo for tho consideration of tho Court of Appeal tho question: Whether ot not the observations of the Crown Proscoutor were an in-' fringement of Scction 423 of the Crimes Act, 1908? i His Honour consented to reserve this question, and also decided to submit other questions for the determination of the Court. These other questions referred to the police methods of dealing with one of t'iio prisoners. . The comment of tho learned judges thereon is referred to in another column. \ The Finding of Appeal Court. As to the.other question, the Chief Justice was of opinion that the Crown Prosecutor did not infringe tho provisions of the statuto in the statements ho made. In this opinion, Jlr. Justice Williams, Jlr. Justice Denniston, and Jlr. Justice Cooper concurred. Jlr. Justioe Edwards, while conceding that tho provisions of the statute had n&t been infringed, expressed tho opinion that what the Crown. Prosecutor had said at tho trial was, in effect, comment, and opposed to the spirit of tho statute. A liko opinion was expressed by Jlr. Justice Chapman. The decision of the Court was that the convictions of the two prisoners should bo affirmed. "GUILTY." JURY'S VERDICT INTERPRETED. Another Auckland criminal appeal which cam© before tho Court early last month, in the form of a case reserved by Jlr. Justice Edwards, was decided on a majority verdict. The Bench was occupied at the hearing; by tho Chief Justice (Sir Robert Stout), Mr. Justico Denniston, Jlr. Justice Edwards, Jlr. Justico Cooper, ami Jlr. Justico Chapman. Original Hearing. It appeared that in the Supremo Court at Auckland on December 2 last two charges of stealing cattlo were preferred against Edward Bourke, a farmer, of Jlatahuru, a settlement near Himtly. In addition, ho was cliargcd with having five of the stolen cows in his possession at Papakura, on June 4. He pleaded not guilty, but after fairly lengthy evidence had been taken, tho jury brought in a verdict against the accused on the third count. When Bourke appeared before his Honour for sentence on December V, Dr. Bamford, who represented tlio accused, pointed out that the exact text of tho jury's verdict was as follows:— "We find tne prisoner guilty of being in possession of stolen property and being a party to iho salo of it, but we respectfully urge leniency, as there is not sufficient evidence to show that ho actually stolo tho cattle." Dr. Bamford askefl that his Honour might state a case for the Court of Appeal for tho purposo of deciding whether tho findings amounted to a verdict of guilty. In his own opinion tho findings constituted a special verdict and was not a general verdict of guilty. flis Honour, after hearing counsel on bolli sides, decided to state a case for the Court of Appeal, and in the meantiine Bourke was admitted to bail. The questions submitted to tho Court yesterday were: (1) Was tho verdict of the jury a verdict of "Not Guilty" under tho first and second counts? (2) Was the verdict of tho jury a verdict of "Guilty" under tho tSird count? The Attorney-General (the Hon. A. L. Herdnnm) appeared for tho Crown in the Court of Appeal, while Dr. Bamford, of Auckland, again appeared for Bourke. Appeal Court's Opinion. Tho Chief Justice, in tho course of a fairly lengthy judgment, expressed the opinion that tlie verdict of the jury was one of "not guilty" on tlio first and second counts, but "guilty" on tho third cc.unt. Jn this opinion. Mr. Justice Denniston and Mr. Justice Cooper concurred. Mr. Ju-tiro Edwards dissented. He thought that tho prisoner was entitled tj a now trial, and that an order of the Court should bo made accordingly,

Mr. Justice Chapman thought that tho verdict was, nn tlio face of it, inconclusive, and also contradictory. Tho majority decision of tho Court was that the verdict of "guilty" on tho third couut should bo sustained. grazing cattle. AN APPEAL ALLOWED.' Judgment of tlio Court was delivered by Jlr. Justice Williams in tho case in which the appellants were: Francis Arthur Rich (civil engineer), Annie Reardon, Ernest Read Bloomiield, John Charles Smith, and Alfred Chadwiek Brown (company manager), all of Auckland, and in which tho respondent was Lindsay Johnstone, farmer, of Whata Whata. In the original case the plaintiff (Johnstone) was a farmer, and tho defendants (Rich and others) tho owners of 2099 acres in tho Oronga Block, Hauraki district. Defendants had agreed to graze 115 cattle, and to not put them on' the part of tho land where the tall fescue grew. But tho cattlo had been grazed there, it was alleged, and they had considerably depreciated in value, and could not be made fat cattle for that season. Tho. dcfenco had been a denial that tho cattle had so depreciated in value. The Chief Justice had given judgment for plaintilf for .£lO5, less £25 165., the amount of a counterclaim by defendants for grazing fees. • From this decision Rich and others appealed. The Court of Appeal yesterday allowed the appeal, with costs on tho middle scale as from a distance, and also gave judgment for tho appellants on the counterclaim for the sum of .£25 16?., with costs five guineas. CROWN'S BONA FIDES. ATTACK ON THEM BY A LAWYER, An attack upon tho bona fides of the Crown was mado by Sir John Findlay yesterday morning in opposing an application bv tho Solicitor-Cicneral .for leavo to appeal to tho Privy Council in the case of the Solicitor-General v. The Tolcerau District Maori Land Board, and others. In the Supreme Court last year the Solicitor-General applied for a writ of prohibition to prevent the board from registering the confirmation of a transfer of certain Native land. The Court of Appeal Judges, before whom the caso was eventually argued, delivered decision early in the present sessions, and ruled against the Crown. Mr. H. H. Ostler, of tho Crown Law Office, appeared yesterday morning in support of tho motion for leave_ to appeal. Sir John Findlay, K.C., with Mr. G. S. Kent, of Auckland, raised opposition to the motion. Mr. Ostler intimated that the Crown did not desire to apply for a stay oi proceedings, but merely for leave to appeal. Sir John Findlay declared tliat in taking this action tho Crown was not out to promote its own interests. The object was to promote tho interests of a section of tho residents of Auckland by delaying the transfer of this latod until legislation for a specific purpose was introduced to Parliament. Sir John Findlay said further than the Mayor of Auckland had sought the intervention of tho Minister (an Auckland representative) in the last Administration, in order that the City Council might acquire tlio land for speculative purposes. Mr. Justice Cooper: A garden saburb, I believe. Sir John Findlay proceeded, and in tho course of further argument, stated that if leave to appeal were granted, the partition orders affecting this land would bo held up by the Native Land Court judge pending the decision. There would be a virtual stay of proceedings, and much loss would ba incurred by those of tho parties to the sales that had entered into contracts. Tho proceedings (Sir John Findlay contended) were bogus, the Crown not taking this action in pursuanco of any right which it had by statute or law. A little later, Sir John Findlay referred to tho proceedings as an abuse of the process of tho Court, and finally asked that, if tho Court ruled against him, it

Bhould protect tho interests of his clients by directing that tlio leave to appeal should not bo treated as tantamount to a stay of proceedings. After hearing Mr. Ostler in reply, thoir Honours delivered oral judgment, expressing the unanimous opinion that tho Solicitor-General had a right to appeal that was beyond the discretionary power of the Court. It was finite immaterial what wero tho motives at tho bask of tlio application, and tho Court of Appeal should not givo a direction in tho matter to tlio Native Land Court. Leavo was accordingly granted.