LAW REPORTS.

Dominion, Volume 6, Issue 1806, 19 July 1913, Page 14

LAW REPORTS.

COURT OF APPEAL. POLICE EFFORT & GAMING ACT. THE CASSELLS' RUSE. ROSS'S CONVICTION TO STAND. "Letters of Cassells," charts, publication, and'such matters have been before the public fairly frequently sinco the police began to operate under the provisions of the new Gaming Act. What is •also known as the "Cassells" ruse" has entered into some of tho cases, and the broad features of that ruse are now fairly well known. Another stage, affecting the police effort, was reached in the Court of Appeal yesterday. This was an appeal by David Ross against a decision by a Wellington magistrate convicting him in a certain case in which the mysterious letters "Y.Z." figured to a considerable extent. A lengthy and somewhat interesting judgment by tho Court (Sir Joshua Williams, Mr. Justice Denndslon, and Mr. Justice Sim) left the original conviction against Ross still standing. In this case Mr. M. Myers was for Ross (the appellant). The respondent (Detective-Sergeant Cnsa.'lls) was represented by Mr. H. H. Ostler. The judgment of their Honours was as follows:—"The magistrate found Ross guilty of the offence of publishing to Cashjlls a notification as to betting within tlie meaning of Section 30 of the Gaming Act, 1908. The evidence before the magistrate justified him, wo think, in finding that the two copies of a treble betting card received by Cassells through the post had been sent to him by Ross, in. consequence of a letter by Cassells of July 12, 1!)12. This card was similar to the card which Mr. Justice Chapman had under consideration in the case of Scott and Marlindale v. Kemp. We agree with Mr. Justice Chapman in thinking that such a card may be construed as a circular setting forth the terms on which tho person, club, or association (named or indicated therein) is prepared to make bets with regard to the specified horse races. We agree also that such a circular may to? a document within the meaning of Section 30," and may be treated as containing the notification specified in that section. The Mischief Aimed At. "The principal question raised on the present appeal was: What amounted to publication. within the meaning of Section 30. It seems to us that to send such a circular to one person only is not, of itself, such a publication. If it were such a publication, then merely to send to another person a document, setting forth the terms on which the sender is prepared to make a bet on a horse race, would come within the scope of the section. But plainly the Legislature did not intend to prohibit the priate communication of sucil an offer to one individual only. "The mischief aimed at by the sec- ' tion was the publication by bookmakers of advertisements relating to bet-' ting, and the notification contemplated by the section is something that, like ail advertisement, is addressed to the public. In order.to constitute an oftence under the section, the notification must have been intended for more or less general circulation, and must have been communicated to the public. That public may be a limited onb, and may consist (as Mr. Justice Chapman held ■in the ease already mentioned) of the customers of the particular bookmaker, and such other persons as, in the ordinary course of events, might a:e tho circular. "But that is not the way in which the magistrate has construed the section, lie has convicted tho appe'llant of publishing to the informant a notification as to betting within the meaning of Section 30, and has thus decided, in effect, that a publication to one person constitutes an offenco under the section. That, in our opinion, is not the meaning of the section, and, therefore, a conviction in that form cannot) be supported. The question then is whether the evidence before the magistrate proved such a publication of the circular as is contemplated by the section. It was held in Scott and Martindale v. Kemp that, in certain circumstances, the sending of such a circular to one person only may be proof of such a publication. Do, then, the circumstances justify the .conclusion that there has been such a publication in the present.case? It seems to us that they do.-. Coming to the Facts. "There is first of all the fact that tho cards were sent, as the Magistrate has found, by Ross to Cassells. Ross then sent to Cassells the letter of July 2G, 1912. That letter was enclosed in an envelope addressed to Ross, but Ross is not named in the fetter itself. It was a letter to Tf.Z.,' and requested htm to book a certain bet. To that letter Ross replied on July 27 in these terms: 'Your letter, dated July 26, was handed to me to-day by llr. Bevoridge of the Grand Hotel, requesting mo to book you a treble. I bwg to inform you that I have ceased doing business for some considerable time.' Now, tho request contained in. the letter of July 26 was made, in terms, not to Ross, but to 'Y.Z.' Ross, however, treated that request as one made to himself, and thereby admitted, in effect, that he was 'Y.Z.' If 'Y.Z.' had not been his business sign, Ross surely would have said ill reply: 'I am not "Y.Z." You had better apply to him if you wish to make a bet.' It seems to us, therefore, that, on tliis evidence, it was open to the Magistrate to conclude that the letters 'Y.Z.' were Ross*s business sign as a bookmaker. Having arrived at that conclusion it was open to him to conclude also that the card had been printed for Ross, and that he was still carrying on business as a bookmaker. If he was still carrying on business, as a bookmaker, then it is quite unreasonable to suppose that he would have gone to tho trouble and expense of compiling and printing tho card unless it was intended for circulation among his customers. If it was intended for circulation in that way, then the Magistrate is justified in finding .that suoh a ctrculation hod taken place, and that there had been, therefore, a publication of tho circular within the meaning of tho section. If the conviction has been drawn up, it ought to be amended under Section 10 "Df the Inferior Courts' Procedure Act, 1909, so as to state the offence as a publication of the circular, but not to any particular individual." Ross's appeal was dismissed, with costs, J3lO 10». PERJURY CHARGE. LAW POINT IN AITIvEN CASE. A phase of tho case against Samuel Francis Aitken, which was reserved by his Honour the Chief Justico (Sir Robert Stout) for tho opinion of the Court of Appeal, was argued by Messrs. T. M. Wilford (for Aitken) and H. 11. Ostler (for tho Crown). It was stated that the facts were that Aitken had been found guilty on a charge of perjury, and that the charge against him was to the effect that at the hearing bf an application made by him for a certificate which would state that he was fit to hold a publican's license, ho falsely swore that he was married; but that tho Chief Justice had reserved for the Appeal Court's decision tho question of whether the Magistrate who heard the application under Section 85 of the Licensing Act acted in a judicial capacity, and that in the meantime no sentence was made. Tho decision of the Court of Appeal on the point was reserved. SARAH SKELLON. HER CONVICTION CONFIRMED. The case of Sarah Elizabeth Skellon. who at Auckland in May last was tried on a charge of lier having unlawfully used an instrument or other means with intent to procure the miscarriage of a certain girl, was before the Court for tho decision of a law point. Mr. H. H. Ostler appeared for thi> Crown, and Mr. H. P. von Haast for Skellon. Before tho Supreme Court at Auckland tho prosecution adduced evidence to the effect that the accused had supnlied the ffirl with certain pills. The "Jury /■q.twi this ewfcnss ms .ooijeot. wi.J;

that the prisoner wng guilty of the charge. However; Mr. Justice Cooper, who presided, doubted if the supplying of the pills was an attempt to commit the crime charged in tho indictment. He, therefore, reserved tho point for the Court of Appeal, which, after hearing argument yesterday, held that the prisoner could not be convicted unless the indictment were amended. Further, the Court held that under Section 392 of the Crimes Act it had power to amend the indictment, and that under the circumstances it should make the amendment and confirm tho conviction. GHANDCHILDREN AND WILL. The construction of the will of Edward Howee, deceased, was decided by tho Court of Appeal. Tho case taken before the Court was an appeal from the decision of his Honour the Chief Justice (Sir Robert Stout). Edward Howe bequeathed half the residue of hie estate to the children of his deceased sister, Jane Newsome. The will provided: "If any of the children of my said deceased sister, Jane Newsome, shail predecease me, leaving issue which shall survive me and attain the age of twentyone years, such issue shall take and if more than one then equally between them the 6hare which would otherwise have gone to such deceased child." The question for determination was whether the children of James Newsome, tho son of Jane Newsome, who died before the testator made his will, were entitled to a share of the Tesiduo under the portion of the will above quoted. The Chief Justice decided that these children were entitled to a share, and this decision has now been upheld by the Court of Appeal. A paragraph appended to the judgment stated that tho order of the Supreme Court ought to be drawn up in such a way as to make it clear that Mary Jane Newsome and Florence Newsome are not entitled to any share of the estate until they respectively attain the age of 21 years. PALMERSTON NORTH CASE. LEASE MATTER. The judgment of the Court of Appeal was delivered in the case of Ignatius Hamilton Loughnan (appellant) v. the Palmerston North Borough Corporation (respondent). This was an appeal from a decision of Sir E. Stout, C.J., on an originating summons to determine the construction of a lease from the respondent to the, appellant. Tho lease is for 42 years from June 1, 1597. at a rent payable half-yearly. The reservation of rent is expressed as follows:—"At the yearly rent for the first seven years of the said term the sum of .£62 10s., for the succeeding seven years such a sum of money as will when added to the sum from time to time payable by the lessees for rates, taxes, and assessments (except land or income tax) upon or in respect sf the said premises, ivith all improvements thereon, amount to .£125 per annmm, and for tho succeeding seven years the rent shall be increased by 10 per Mint, upon the amount payable during the previous period of seven years, and for tho succeeding 21 years the rent shall be increased by 25 per cent, upon the highest amount of rent payable during the previous period of 21 years." The Court considered that the main luestion. for decision was whether the 10 per cent, was to bo added to the sum of £125 or to the rent, to be separated from it and ascertained as rent. For the irst seven years the amount was fixed it .£62 10s. For the next seven years ;he yearly rent was such a sum as was found by deducting the rates from .£125. That might fluctuate in amount as the rates fluctuated, but it did not necessarily involve' an increase. The question to bo mswered was: What is the meaning of 'amount, payable" in the provision respecting the third seven years? The L'ourt did not think that this expression lad any different meaning from "amount" >f rent payable" used in reference to the 'ourtli period of 21 years. The appeal was allowed, and it was leld:—(1) The rent for the second period s ,£125, less the amount of rates, etc.; 2) the rent for - tho third period is the iverage of the net rent for the previous ioven years, ascertained as above, with 10 per cent, added. Costs were allowed tho appellant on ;ho lowest scale. MAORI LAND COURT CASE. THE JUDGE'S, ORDER. Court of Appeal judgment was delivered n the matter of an order made by Judge 3utlor under The Nativo Land Court Act, i 894, concerning a block of Mangatainoka and. The position was that a certain irder (appointing successors in a Native estate) made by Judge Butler had been et aside by the Chief Judge of tho Native jand Court. The Court of Appeal said, in the course if its judgment: "There was, in fact, leither mistake, error, nor omission in ;he order of Judge Butler, nor was there leeided by him 'any point of law erroneiisly'; and it is at least doubtful if the Uhief Judge had anj; jurisdiction under Section ,39 of the Native Land Court Act, 891, to set aside.tho order of Judge Buter, and to set up a will that, so far as he land dealt with in this case is conenied, was a nullity." The Appeal Court was of opinion that lie Native l.and Court should treat Judge 3utler's ordor as valid. RIGHT TO LIGHT. CHRISTCHUROH TRANSACTION. A Christcliurch case, in which Edward J. J. Stevens and another were plaintiffs, md the National Mutual Life Association if Australasia, Ltd., was defendant, also, fas the subject of a decision by tho Appeal Court. Tho whole case concerned tho right to ight, or otherwise, of tho National Mutual Lifo Association in regard to a jiiilding on a certain section fronting on Hereford Street, Christcliurch. ' Judgment was in favour of the defendint association. MUCH FOUGHT ACTION. A matter which has already caused a Mnsiderablo amount of litigation was the aibject of a judgment of the Court of i.ppeal yesterday. Tho appellants were: Pe Wani Epiha and Ihipera Epiha, and he respondents wore Merea Wikiriwhi, our otljer Natives, and Chief Judgo fackson i Palmer, of tho Nativo jMid Court. The appeal was dismissed on tho majority decision of his Honour Sir Joshua Williams, his Honour Mr. Justice Cooper, and his Honour Mr. lustice Chapman. His Hononr the Chief lustioe (Sir Robert Stout) dissented, and tvas of the opinion that the appeal should i>e upheld.