S.C. 1901. DUTHIE V. VALUERGENERAL. is therefore clearly to proceed upon an erroneous basis. It is equally clear that to enter upon calculations as to the value of the buildings, the amount required to provide for a sinking fund sufficient to recoup their cost, and the profit-rental derivable from the land in its unimproved state, is fallacious and misleading. As it appears from the case that the Assessment Court has been guided by these considerations in arriving at its conclusion, we think that it has misdirected itself in matter of law, and that an appeal therefore lies, notwithstanding that the Assessment Court has found as the result of its investigation that the assessment is not above the marketable value of the appellant's interest in the unimproved value of the property. The appeal must therefore be allowed, and the matter must be remitted to the Assessment Court with a direction to ascertain the value of the appellant's interest in the unimproved value of the property in the manner above indicated. We allow to the appellant for the costs of appeal £10, and the fees of the Court. Appeal allowed. Solicitors for the appellant: Menteath & Beere (Wellington). S.C. HEARING. WANGANUL 1902. February 28; March 5. EDWARDS, J. REX v. ROWE. "The First Offenders' Probation Act, 1886 ”—Repeated Cases of Embezzlement. The provisions of "The First Offenders' Probation Act, 1886," are not applicable to a prisoner who has embezzled several sums of money extending over a considerable period, and has falsified his accounts, even though he admits his defalcations and offers to make restitution. UNDER NDER "The Indictable Offences Summary Jurisdiction Amendment Act, 1900," the prisoner pleaded guilty to eight charges of embezzlement from his employer. The money misappropriated amounted to over £50, and before his arrest he admitted further defalcations, amounting in all to £190, and extending over fifteen months. On being brought up for sentence at the circuit sittings of the Supreme Court at Wanganui, Mr. W. J. Treadwell appeared for the prisoner and asked that he be admitted to probation, or, in the alternative, that he be fined under the provisions of section 16, sub section 4, of "The Criminal Code Act, 1893." The prisoner offered, partly through his friends and partly on his own account, to make full restitution; and, except that he had, on his own admission, spent the misappropriated moneys in speculating on the totalisator, the Probation Officer's report was favourable. EDWARDS, J., remanded the prisoner until he had conferred with the other Judges, and on the 5th of March delivered judgment as follows: Prisoner at the bar, you have pleaded guilty to an indictment covering eight charges of misappropriating moneys extending over fifteen months, and have confessed to defalcations totalling £190. Further, it appears that you have falsified your accounts and returns to your employers. It is admitted that your means were ample to support yourself and your family. Excepting for these matters you have borne a good character, and are recommended for probation by the Probation Officer. You have a wife and young children, and partial restitution has been promised by your friends; the balance you have undertaken to repay out of moneys you may earn, until the whole amount of your defalcation has been made good. All these facts I have communicated to my brother Judges to ascertain whether, in their opinion, probation is properly applicable to such a state of facts. My opinion is, as I mentioned before, that it would not be proper to admit you to probation or to inflict a fine upon you. If, however, the consensus of opinion of my brother Judges had been that, having due regard to public example, probation could properly be granted under such circumstances, I should have reconsidered your case, giving due weight to the opinions of the other Judges as to the general principle. None of my brother Judges consider that in the public interest such offences as yours can properly be met by probation or the infliction of a fine. Criminal proceedings are not merely for the punishment or reformation of the offender-they are brought also that the laws of the country may be enforced and respected. Those who enter upon a career of crime must know that punishment will follow upon it. Offences repeated over a long period of time, and concealed by the falsification of books and accounts, are, in the opinion of my brother Judges and myself, not offences to which the provisions of the First Offenders' Probation Act can properly be applied. It is not the slightest excuse S.C. 1902. REX V. ROWE. that the proceeds of these thefts have been gambled away upon the totalisator. Beyond a doubt gambling is the prevalent vice of this colony, and the Court would be encouraging gambling if it accepted as an excuse the fact that a person had repeated the offence of theft on fifty different occasions during fifteen months in order to invest the proceeds in gambling. The alarming increase of gambling in this colony is shown to some extent from the returns of the totalisator published in the Official Year-book. From 1891-92 to 1900-1 the total amount invested by the public on the totalisator has increased from £506,078 to £1,168,732, an increase per head of the population of from 16s. 2d. to £1 10s. 3d. Those who enter upon a career of this sort must do so at their own cost. If they rob employers, if they make a practice of falsifying their accounts in order to pocket the moneys of those who trust them, they must understand clearly that it will not be looked upon as any mitigation of their offence that they have gambled away the proceeds, or that they have been pressed to pay gambling debts. I feel, therefore, that it is unquestionably my duty to sentence you to a term of imprisonment. I assumed in my communications to my brother Judges, and I assume now, that if you were admitted to probation you would not offend again; but it is impossible for me on that account to admit you to probation, although I shall take it into account in passing sentence. I am also deeply grieved that inevitably a great part of the punishment falls upon those with whom you are connected by blood or marriage; but that I cannot take into consideration. I shall, however, take into consideration in passing sentence the fact that you have pleaded guilty in the lower Court, and that the Probation Officer has reported that your previous character has been good, and that you are apparently sensible of the folly and wickedness of your acts. I shall inflict a sentence which, in my opinion, is the least possible, having due regard to the public interest and example. The sentence of the Court upon you is that you be kept in the common prison at Wanganui for the term of twelve calendar months, with hard labour. Solicitors for the prisoner: Treadwell & McBeth (Wanganui). [Reported by S. T. FITZHERBERT. Esq., Barrister-at-Law.] [IN THE COURT OF APPEAL.} BLUNDEN. THE INHABITANTS OF THE OXFORD Local Body-Tort-Excess of Powers-Damages-Bonâ fide Belief in Power- Acts. If a local body does an act honestly believing that it is exercising the powers given, to it by law, but the act is in fact in excess of those powers, and amounts to a tort, it is liable to any person damnified in an action for damages. Per Stout, C.J., and Cooper, J.-The powers of drainage conferred on County Councils by the various Public Works Acts, and exercisable in certain cases by Road Boards, are confined to the county area, and do not authorise the construction of drains and diversion of streams within the area so as to turn a river or stream on to the border of an adjoining county, and so destroy land in that adjoining county or force the adjoining county to continue the drain. THIS HIS was an appeal from a decision of Martin, J., giving judgment for the defendant in an action for damages brought by the appellant against the respondent Corporation. The following statement of the facts of the case is taken from the judgment of Stout, C.J., and Cooper, J. : — The appellant is a landowner in the Cust Road District, and the learned Judge in the Court below has found that his land has been injured to the extent of £200 by the overflow of water, silt, and shingle from a drain. The turning of the Cust Stream into a drain which runs through both the Oxford and Cust Road Districts was the cause of the overflow. The appellant's land extends from the boundary between the Oxford and Cust Road Districts eastwards in the Cust Road District. The drain into which the Cust Stream was directed passes through the Oxford Road District, and enters the Cust Road District alongside the appellant's land. The Cust Road District has not made sufficient provision by the drain in its road district to carry off the water, &c., that enters its territory adjoining the appellant's land. The facts concerning the drains are not in dispute, and may be summarised as follows: In 1873 the Oxford Road Board and the Cust Road Board, which were local bodies created by the Canterbury Roads Ordinance, cut drains in their respective districts. They were aided by money grants by the Provincial Government, and by contributions from the landowners. This drain did not at that time take all the waters of the Cust Stream, but only some small part of the waters. And no injury seems to have resulted to any land in the Cust Road District from the drains made. In 1880 the Oxford Road Board erected a dam which diverted almost the whole waters of the Cust Stream into this VOL. XX.-38. C.A. 1901. October 14; November 4. C.A 1901. BLUNDEN v. drain. In 1889 the Oxford Road Board took land under the Public Works Act in its own district so as to widen, and it did widen, the drain. The Cust Road Board has not interfered with the drain in its district since the dam was erected by the Oxford Road Board which turned the waters of the Cust Stream into the drain. The drain in the Cust Road District has gradually OF silted up, caused by the extra water, &c., brought into the drain higher up in OXFORD ROAD the Oxford Road District. The drain not being sufficient to carry off this DISTRICT. extra water, &c., the appellant's land has been damaged. INHABITANTS The following is the text of the judgment appealed from :MARTIN, J. : The writ in this action was issued on the 30th of September, 1899, and any claim in respect of which the plaintiff can recover must be limited to the period prescribed by the Statutes of Limitation before that date. It appears to me to be immaterial by whom the drain was constructed, or whether its construction and upkeep prior to 1893 were within the Board's power or not, because I think that for the six years preceding the commencement of this action the maintenance and improvement and upkeep of the drain was within the defendants' powers, and as a matter of fact they have maintained and improved it. That the plaintiff has suffered damage by the maintenance of the drain is beyond question, but his remedy is, I think, to obtain compensation under the provisions of the Public Works Acts, and this action for damages is not maintainable. Judgment will therefore be for the defendants, with costs according to scale; two extra days certified for. Damages assessed at £200 if Court should consider that plaintiff entitled to judgment if case taken to Court of Appeal. It will be seen from the above judgment that the damages assessed were for damage actually sustained within six years prior to the commencement of the action. Stringer, for the appellant: The cause of the damage is the damming and diversion of the Cust River in 1880. The powers which the Oxford Road Board then had were merely those given by "The Canterbury Roads Ordinance, 1872," sections 10, 35, 62, 65, and 68. It had no power to divert a watercourse. In 1876 "The Public Works Act, 1876," and "The Counties Act, 1876," were passed. The first-named Acts gave powers to County Councils, but the Counties Act has never been brought into force in the Ashley County. The Acts of 1876 gave no drainage-powers to Road Boards. This was not done until 1882. [It was here admitted that up to 1882 there was no power in a Road Board to divert a watercourse.] "The Road Boards Act, 1882," repealed The Canterbury Roads Ordinance, 1872." Under section 8 et seq. of "The Counties Act 1876 Amendment Act, 1882," on the Governor making a Proclamation, a Road Board could assume all the |