SUPREME COURT.

Gisborne Times, Volume VI, Issue 207, 7 September 1901, Page 3

SUPREME COURT.

Before His Honor Mr Justice Conolly

ALLEGED SHE EE- STEALING,

In the case of Thomas Gillman and Pene Waru, of Mangapeka, who had pleaded guilty in the lower Court to a charge of sheep-stealing, Mr L. Rees appeared and applied that the provisions of the First Offenders Probation Act might be extended to tlie prisoners. He called John Alfred Harding, who stated that he had known Gillman for over twenty years as a straightforward, honest, hard-working man.

s His Honor said ho had before him a , i letter from Mr Andrew Reeves, the person f | whose sheep was stolen, testifying to the , | characters of accused, and stating that he , I had always found them trustworthy. . Such testimony," coming from the man who had been injured, was even stronger j than the evidence Mr Rees had brought. | His Honor, in giving judgment, said : ; “ Prisoners, you have pleaded guilty to this charge of stealing sheep. If it had , not been for your good character I should have sent you to prison. I have before me evidence of your good character for twenty years or more. I shall therefore admit you to probation for six calendar months, and order that you within three months pay the costs of the prosecution. Those costs are X'B 17s Gd. You must beware of doing anything of this kind in future, or you may be brought up before me and sentenced to prison as you might be to-day, and you must bear in mind that tin's conviction on your own confession will always remain against you. You j will receive instructions from the probation officer as to what you have to do.” !

IN BANKRUPTCY

John Adeanc, formerly of Gisborne, and now of Napier, applied for his discharge from bankruptcy. Mr Nolan appeared for applicant, and stated that in lH'j-l tho matter had been transferred to Auckland, but tho papers had since been transferred back. There was no opposition, and tho order was granted.

CIVIL SITTINGS.

I'OOCKIt V. MULDOON,

In the ease of Elizabeth Cooper, farmer, of Waerenga-a-hika, v. John Muldoon, farmer, Matawhcro, a claim for (a) possession of tlie land, (b) the sum of X4O for arrears of rent, being two quarters duo, (c) tho sum of XTo Os 8d for mesne profits for the occupation of the land from Jan. 1, l‘J9l, to tlie day of recovery of the premises. Mr It. N. -Jones appeared for the plaintiff, and Mr 11. J. Finn for the defendant.

Mr. Jones said everything in tho case was admitted, except it was qualified to a certain extent, with the exception of service of the notico to quit. Both parties relied upon the samo lease, the only difference of opinion being as to what the ellect of that lease was.

After hearing evidence His Honor gave judgment for plaintiff, possession of tho land to he given on the Oth November ; mesne profits instead of rent to amount to X'Hl 17s Oil, tlie rent for 18 weeks loss X!) 10s reduction, Xl9 7s. Costs were allowed on the lowest scale. ARBITRATION CASE.

In banco an application was made by Mr DeLautour, on behalf of Mr F. j. Shelton, to set aside the award made by tho arbitrators in tiie caso Oppenheimer and Co. v. Common, Shelton, and Co. Mr Grey, of Wellington, with Mr Nolan, appeared to oppose the application on behalf of Oppenheimer and Co. There was also a cross motion to fix the foes of the abitrators. Mr DeLautour said that an initial difficulty they had to deal with was that the arbitrators had not left any notes with their papers ; they seemed to have treated it as a submission, whereas it had been referred to arbitration by an order of His Honor, in terms of section 15 of the Act, tlie arbitrators to he appointed by counsel. Messrs Grey and Watson sat, but not being lawyers and not undortanding that they wore making an award under an order of tho Court, they had not supplied notes of evidence. To make up for tlie absenco of notes he had to put in affidavits of tho records taken by his clerk ; that he could see was not satisfactory, but lie did not seo what else could be done. 110 quoted authorities in support of tlie admission of the affidavits of evidence. He sought to put in tlie evidence taken by the Clerk as far as it was relevant; those affidavits had not been challenged as being incorrect, nor had they been supplemented. In tho event of a case going beforo the Court of Appeal, the absence of notes to guide the Court would be an insuperable difficulty, lie submitted that it was open to appeal, and did not think that would bo questioned.

In reply to Ilis Honor, Mr DeLautour said that in submission the rules of evidence were frequently set aside, but in cases of this kind it could only be done by consent. Mr DeLautour then went on to state tho grounds of the application, the main points being in regard to the evidence taken. lie went on to read tho affidavits.

Ilis Honor said that all the evidence, he supposed, had been considered by the arbitrators. He could not accept a portion of tho evidence. It seemed to him that ho was being asked to try without evidence a case that had previously been referred to arbitrators and decided by them. Mr DeLautour said that he was prepared to quote authorities for all that ho asked.

Ilis Honor: Have they boon asked to supply the evidence Mr' DoLautour: No, we have simply searched and found no record of it. Ills Honor: I do not know that they arc required to file it. Mr Grey : No, they arc not. Mr DoLautour said that a Judge’s evidence was supplied. His Honor said that the notes would not be left as a record in the Court; they would have to be applied for if they wero required ; if a person went to the Appeal Court, and desired to make use of the Judge's notes, he would not find them in waiting for him there ; lie would first require to make application for them. Mr LeLautouv said they knew that as a matter of faet the arbitrators had not taken anything more than rough notes. His Honor : Well, how I can decide the matter without evidence ? Mr DoLautour: I ask for an alternative that the matter bo referred back. I will be very glad to have the material if there is any : if there is no material we have a right to have the matter reheard. His Honor : I think you have a right to come here and appeal; the question is whether you have the materials. > Mr DoLautour : I admitted in opening that my clerk's notes were not the right material, but it was all that I could give. His Honor : Ido not think that the

clerk's notes can be taken. 1 submit at once that they are most improper material for a Court of Yppeal. They are not like a Judge's notes. Mr DoLautour said they would naturally be biassed. It would be impossible fora clerk to disassociate himself from the principals of his otlice. His Honor ; You may have ground for all these matters you set up, but you have no evidence that I can see. Mr DoLautour : All we can say is that the arbitrators have left no notes.

His Honor said that the first thing to ascertain was whether the arbitrators had taken any notes.

Mr Grey : How is your Honor going to review the judgment on the facts ? We do not admit that there is an appeal. The procedure is to set aside the judgment. His Honor : Mr DoLautour has by the eases he has quoted shown there is an appeal. Mr Grey : The report of the arbitrators is ineffective and inoperative until this Court has pronounced judgment. The report is only equivalent to the verdict of a jurv. His Honor : On which this Court has to give judgment ? Mr Grey : Yes ; it is of no value until the Court has given judgment. Mr DeLautour : The procedure is right, but material required has not been supplied by the Court. His Honor : Mr Grey will probably conteud that he is entitled to move for judgment in terms of the award. Mr Grey: We say that your Honor has no right to review the dqci|ion of the I arbitrators. His Honor: You say that there is no appeal ?

Mr Grey : This is a motion to set aside the award or refer it back to the arbitrators. I can quote authorities to show that it cannot be set aside or referred back, except under some circumstances. His Honor : Such as corruption. Mr Grey : Yes ; none of these exceptions are suggested. Mr DeLautour : My friend is relying on cases dealing with submissions. I distinctly asked him if he held that I had no right of appeal, in which ease the onus was upon him to show that. Mr Grey : He asked if I contended that he had no right to be here Mr DeLautour : As an appellant. His Honor: It is an appeal. Mr DeLautour lias to move to set aside the award, tho same as setting aside a judgment? Mr Grey : It is more than that. The jury has just come into Court, and your Honor is asked to set their verdict aside.

We move on their verdict for judgment,

and presuming we get an order my friend is in the position of moving to get that judgment set aside. Mr DeLautour again quoted authorities

in support of his view. His Honor: Tho more I consider this ease, the more I am in a difficulty to sec how I can possibly grant your motion, because there is no evidence beforo me at all, excepting the affidavits. If there are notes of the arbitrators they should be here; if there are notes I do not know what the position would be. The evidence taken by Mr Coleman might have been contradicted by other witnesses. Mr Grey said that in any case the arbitrators had arrived at an award. Ilis Honor : You seem to contend that i I eouM only set the award aside for something like fraud ; I do not agree witli that. |

I believe that I could set- it aside if it was

proved that they acted in a grossly wrong way, or committed a gross mistake ; but there is no evidonce that these things were done.

Mr DeLautour said that was why he had cited oue authority. Tho parties should not be penalised because the Court had not kept a record of tho evidence. His Honor : I suppose that arbitrators seldom do take a nearly verbatim record.

Mr DeLautour said that intelligible notes were required. The arbitrators were clothed witii the authority of tlie Court, and could well call in clerical assistance. On the eases ho had cited he claimed that there was a right of review. His Honor : So far I am with you. Mr Grey : We do not admit it.

Ilis Honor : I know that, but so far I am with him. If ho could produce evidence to show that the arbitrators acted in some way ontirely wrong, then I should be, as at present advised, inclined to at all events send the award back, if I do not set it aside. But Mr DeLautour has not brought any evidence except that of Mr Shelton. Mr DeLautour said that if there was the right of appeal, and the arbitrators, constituting the officers of the Court, deprived the parties of the power to appeal, that would be a mistake of procedure which the Court would rectify.

His Honor: They may have ample notes for all that I know.

Mr DeLautour said that a telephone message could soon be sent to Mr Gray. Plis Honor said ho could not take a telephone message as satisfactory. In reply to His Honor, Mr DeLautour said that the arbitrators had not been applied to for notes, but they knew nono had been loft with the Court. His Honor said he would leave his own notes in his private room. Mr DeLautour said that a Judge’s notes would be always available ; they would not bo regarded as privato property. A Judge might decide many cases before ho retired and appeals subsequently bo made, but tho notes would still be available, though the Judge had rotired. Theso

gentlemen clothed with a littlo brief authority would not carry their notes with them to their shoep runs. His Honor : Are we not wasting time? I havo intimated that in the absenco of evidence I can not refer this matter back again. Whether I make an order confirming it is a different thing. I do not think I will give an order confirming it. Mr Grey : We are prepared to show that tho award cannot be set aside or re-

forred back. Wo say that it is not an appeal. After further reference to this point His Honor said that ho would bo disposed to

adjourn tho application, not to dismiss it, Mr Grey urged that thero should not bo an adjournment. The arbitrators, he said, had been unanimous in their award. Ho was prepared to show that His Honor had not tho power to refer back or sot asido the award.

His Honor said that costs would have to go with an adjournment. If an adjournment were not applied for ho would be bound to dismiss tho application. Mr DeLautour : After Your Honor’s intimation I have no alternative but to ask for the adjournment to bring in what notes there are. Ilis Honor said that if there was no evidence available, ho thought ho would bo bound to dismiss the application.

Mr DeLautour: Then I would havo something to say about judgmont on an award not in existence.

It was agreed to adjourn the application until this morning, Mr DeLautour undor-

taking in the meantime to communicate with one of the arbitrators (Mr Gray), and procure an affidavit as to the notes of evidence.

Tho Court then adjourned,