MAGISTRATES COURT, HAM IE TON.

Waikato Argus, Volume I, Issue 39, 8 October 1896, Page 2

MAGISTRATES COURT, HAM IE TON.

Wkuxkkiuy.— (Before (.'apt. Jackson, S.M.) VAN lIAKM V. MCKNIOIIT, CIU.U, £l2 (is.—Mr Dyer for plaintiff.--• Judgment for plaiutiu" for halt the amount and half costs, ISs. Two months was allowed in which to pay the amount. KATE CASES. In two rate eases brought by Capt. MePherson, as representative of the Kirikiriroa and Taotaoroa Road Hoards judgment was given for amount; claimed 'and' costs. TIIK COMMISSIOXI-tR OT TANKS V. H. 33. TWSTIIAAf, AS AIiKNT I'll]: EDWARD JOHN I'EAItSON. This whs a claim for £ls 10s 3d for Income Tax, in respect of the business carried on by Mr Pearson in New Z°a land, during 1593-4-5. Defendant; had filed a written statement of defence under the spc-dal procecdure provided by " The Land and Income Assessment Act, ISO!," and therein claimed that Mr Pearson bavinj been dcnvcilcd in New Zealand dining the peiiod in question was entitl ;d to an exemption of ,t'3CO of his income, and therefore no tax was payable. Ml U'Noill niw appeared for the. plaintiff and Mr Swari rick for the defend nit. I>y iinangeincnt between counsel formal p-cofa were dispensed with, and the question limited to the single i.ssue whether Mr Pearson was domiciled in New Zealand at the time in question. Mr Swarhrkk quoted •' Wovt'ake <n International Law" to show what; constitu'cd '' domicile," end how a person required a " domicile it choice," and then cal'id George Pearson.

Ceo. Pearson, the first witness on aliirmation, said : 1 am the son of :he late Iv. .1. Pearson, and came to New Zealand in ISO2, shortly after my fntiter from New Sr.iuh Wales. My father was a native of England, but I think he had been ill New ?oulh Wales from four to six years before coming to New Zealand. The family followed sunn afterwards and came to Hamilton. My mother died eleven i r twelve years ag' 1 . When the family first came to Hamilton all the ehildicn were very young. Since 1802 to ISSI my father has lived in Hamilton with the exception of two years spent at the Thames, but he still had his home in Hamilton. lie was in Hamilton up lo 1800; but in that year lie went to Sydney to start a branch of his bus'ness there. On h ; s first visit he remained from three to six moot lis. My father did not, establish the branch on his first visit, lie died in duly, 1800, ill Auckland, in an hotel in upper Symond'.s street. Taking the years ISO.'! I ,"i my father spent the summers in New Zealand and the winters in ."Sydney. During that time my brother Willinm John managed the Sydney husiiio-.s for him. lie went to Sydney in the wintertime as he was troubled with rheumatics. As far as I can remember, my father had always a house in Hamilton, ;in I the home belonged to him at the time of his death. The fiirnimre in the house also belonged to him. My mother was buried in the Hamilton Fast cemetery. My father took two graves and had a headstone placed in the centre and left a space for tin: inscription of his own name. He wished to be buried there and his wishes were carried out. My lather was a burgees of Hamilton, and 1 have known him vote at the Municipal elections several times, lie always considered and spoke of New Zealand as his home. l'.y Mr O'Neill : My father went from England to New South Wales, I think, about forty-one years ago, lie was married at the time. My filth r'a object in poinc over to Sydney the second time in JS!)0 or 1801 was to establish a branch business. He rented business premises yearly at first ond then for live years. lleforc his second marriage lie lived with a friend in Sydney, but on marrying about lour years ago in Sydney he lived ill his wife's house and Ir.oj lived there ever since, except when in New Zealand. My two brothers (William and Thomas) were emplojed in the Sydney busirc-s, and received wages from in}' father, who owned the business. My father made a will in Sydney. The probate has been applied for there, but lias not, yet been granted. In the will he is described as being " of Sydney.'' My father was the, owner of the house in Hamilton, ami when he was in it lie was master of it. This is the house occupied by Mr Tristram. I do not think Mr Tristram pays any rent. He lives there to look aft"f the houses ami carry on the business. 1 think my father purehiucd the two grave sections when my n.other died, and at that time expressed a wish to be buried there. Tlfs was b fore he was married a second time I have not heard him express the wish since. He usually came to New Zealand in November ami went away agu'n in March, his reasons being to see that the I r.siue.-. was I eing properly managed and to i-pond Christmas at ii >mo. He occasionally did so between March and Novuuher, but 1 cannot swear that he did so in INO3. ISSI-I, or 180."). All my brothers "and sisters arc married ; th two brothers who w rkel in Ihe Sydney business did not live with my I flier Mr 10. J. Pearson was in New Zealand a good deal last year ; he was po-ecu! ii g an action for inl'riugemoal of IPs pateut, and within a lev weeks of its nmchis'ou he died. His w if', was with IPm at the time: she did no!, always come over with him, but had. done mi Ik fore. 1 believe it was my father's int nHii to it turn to Sydmy at the ciur.dlision of the e.l e. His widow has done so. My father went ti Sydney to establish a pertnai cut business and took two of Irs sons, and rot for a, mere temporary purpose, but 1 do not know whetm r he iuti tilled :o make it his permanent ho i e.

ISy the Com t : .Mr f.dher btou.dit no female servant when he came to live in Hamilton, and engaged no servant to wait upon his wife ; he always used the one that was in Mr Tristram's house at the time. 1 do not, km w who paid ih't servant. On occasions 1 believe my father has lived in lodgings in Auckland for a week or so with his wile. lb, 1 lie; been in Kotoua and Te Aloha to the. baths at <l,H'e;ent times, and usually spent a Week or so thee 1 believe an i eon.-ider New Zealand was my father's permanent li'inie. I behove my fa'her paid rates on his property in New Zealand, both ihe btis'nt.s'j in New Zealand and New South Wales belonged lo my father. The will gave Mr Tristram no claim upon (he house in Hamilton. I think my father's time daring the yen's ISO 3 01 and 0") was pretty nearly equally divided, lie had no real property in Sydney. I do not know whether he owned any furniture there. He has not always lived in the one, house in Sydney, but in several. Two of them, 1 think, belonged to his wile. I cannot say who paid the rent lor the houses, his wife did not own -1 suppose my lather would pay it. The. evidence of the next witness, Henry Kxfoial Tristram, was mainly given iii corroboration of that of Cud. Pearson. He said : 111 ISOII Mr Pearson resided in Hamilton tfast, and he lived there up to ISOO. He established a soap business in ISS!, and managed it himself until 1800, when he left the business in my charge and went to Sydney. He returne 1 after about si-, mouths, but. again went, over in lS'.lf for the [impose of csta.b'isliing a business branch the e. He did so, and came back to New Zealand in 1802. In that year the New South "Wales Government put a duty on the foap, aid Mr Pearson finding the duty and freight too heavy, started a soap factory in Sydney and conveyed the New Zealand sand over duty free. The Sydney business was ii'ainged by his two sons, William ami Thomas, until his death in ISUIi. Ho owned no freehold property in iSe.v South Wales. Mr Pearson was so'e owner of the Hamilton business, and purchased the property on which it •stands in ls'JO. He owned the house- in

which I live, and also most of the furniture. Whenever lie our.e to i[.u:ilt< n Iks stayed in the house as a matter of right, and one bedroom was always reserved for him. The rates on the property were always paid with his money, and his nanriO is 'on tho rdl as owner. lie only went to Australia to escape the cold New Zealand winter, and always t-peiit ihc summer months here, lie bought two plots in the irimiiton Past Cemetery, and always intended tint he should l)C buried there himself. I have even heard him express the wish since ins second marriage. At Ihe last general election Mr Pearson voted at the Hamilloi East polliu" booth. He always .'poke of Hamilton, and never by any chance alluded lo Sydney as lis home. Cross-examined by Mr O'Neill : 1 do not think Mr I'oJrson spent, more of his time in !-7ew South Wales than in New Zealand, and since. 1800 most of Irs time has I.o' n spent in the latter colony. In July, ISU-, he was m.rriel in Sydney to a lady possessing considerable means. and they lived in Sydney when net in Now Zealand. I'.y the Bench : Mr Pearson paid me by the week, and no deduction was made for house rent or use of furniture. Winn Mr and Mrs Pearson lived with me they offered to pay f r their bond, but i never ehaivcd then). Charles '.John Wright I'.arton, Town Clerk, said Mr I'earson was a burgees of 1 laioillon, and had been trea'ed as an owner and pecupier. Mr O'Neill thou addressed Iho court on behalf of plaintiff, who pointed out that it was the duty of the defendant to prove Mr t'oavson'- domicile to have been in New Zealand or he could not claim the exemption. This he maintained the defendant had entirely failed to do. lie quoted tho uisc of in re Ksehmann, which he said was on all four* w itli the prc.-cut ease, and sho.vod that the defendant's domicile was in New South Wales. In reply, Mr Swaibriek cited Moorlloti.se v. Lord, Jopp v. Wood, The Laudcsdale peerage, Maxwell v. McClune, and other ease's to show that a doniiyi'e ot choice bavin:; once been established could only be changed by the person in epicstion taking his residence in another country with the deliberate intention of remaining there and of breaking off from his old domicile. It was practically admitted that Mr I'enr.-oii Will domiciled ill New Zealand in 1S!)0, and there was not the slightest eviMer.ee of his intention to abandon that domicile since an ! he must be assumed to have retained it. Capt. Juekion reserved judgmev.t until next Court day.