COURT OF APPEAL.

Dominion, Volume 4, Issue 1100, 12 April 1911, Page 4

COURT OF APPEAL.

" UNFORTUNATE " LAWYER'S LETTER. , LAW SOCIETY ACT. THE CASE OF JOHN F. PULLEN. A lawyer's letter was the root of an interesting caso heard, in tho Court of Appeal yesterday, in jvhicli the Auckland Law Society moved that the rule nisi, granted by tlio Supremo Court at Auckland on October It), 1910, in tho caso of John F. Pullcn,- solicitor,' bo mado absolute, and that ho bo struck off-the roll, or bo suspended from practice.- The ground of action was that Pulleri had been guilty of professional misconduct. Tho caso related to a private letter written by Pullcn to iYlr. ft. Mahony, solicitor. \ Tha Lottar. The letter was as under:— "Sir. C. E. Greenhead, of Waiuku, las instructed us to apply to you for a. refund to him of the costs and expenses incurred by him in the action G rcenhoad v. Griffiths, and incidental thereto. Tho action, wo are informed, was heard in Juno, 1905,. and judgment, went against Me.. ,Gi'eeuhead with.£3o costs. Mr. Greenhead claims, from you a refund of this £30, "with fuH compensation for tho loss which lie has sustained, through your, (as he alleges) wilfully misleading tho Judgo ro certain documents purporting to be deeds of lease and agreement which, ho also alleges, wcro prepared by you on April 7, 1898, out. were never signed by him. Ho further alleges that, at the hearing of the case, certain documents were produced, tho dates of which had been fraudulently altered to tho detriment of his

„, muraumg wiu uiiugu ion was re certain documents purport- ranted i uig to' be deeds of lease and agree- which t :l ment which, ho also alleges, wero Mr J j prepared by you on Anril 7. 1898. i, n hnon

case. Mr. Greenhead .states most.-positively that had he known at the hearing of these alterations he could havo proved that the documents were falso Mr. Greenhead also alleges . that you misled tho Court with regard to a statement of account in that your statement of. claim alleged that Mr. Greenhead had received a certain sum of money which had been in your possession since May, 1904, but which up to June, 1905, had not neen paid to him or recorded in the estate ledger."

• The letter proceeded to state that Mr. Greenhead claimed that the.judgment went against him improperly, 'and he claimed a refund of £704 8s Bd. In conclusion the letter states: ','Wo are fully aware of tho seriousness of Mr. Greonhead's claim, but ho is quite determined to prosecute it, and states that he requires from you an early iepljY in default, of which ho will personally prefer a chargo against you in connection with the documents now alleged by him to hayo been forgeries.' , . Mr. Mahony declined to reply to tho letter or to nay tho money demanded. Subsequently ho (Mr. Mahony) was served with a summons, the allegation being thathe had .committed forgery. An6th"6'r*<surhmons was : also served. ~ The charges were investigated by Mr. .dismissed without calling upon Mr. Mahony for a defence;

.-<; :-.PUllciVs Explanation of It. Jn Hsii6ply Mullen ''stated that, sev- ?# t TOj\W wnn .Sl4< l hnd interviewed TO ~ vlt ?ii^?rlo him in Bis grievances agairi'st./Mabony.. Notwithstanding. Gree'nhead's' many expla--' nations,? ; he- (Pullen) Had 'been unable ■to ..understatiil the allegations,';and had ;lnv'ariabljf , -;adyised Win., that he' vivas wasting time,,.'.and moiidy in , clinging' io : a caso.; ; whieh: had. been...finally dealt ,- vitb. .. Gieenheadj ■ .-however, •' had pontinued tqvwritevtohim', and-had .informed him that, bii.-Jurio.-4, 1910, he Bad interviewed the Minister for Justice, and, as a result, ho was determined to have-his,claim ventilated in a Court of Law. These continued visits ■fayl Greerihead and his letters had become extremely irksomo to him (Pullon), and he had been arlxious to end his connection with "the'business,-'but' ■no? felt,,,that it was due to Mahony that. Jie; should be informed of the naturo of .the allegations. So he had hurriedly., drafted the.letter, and.when the copy was brought to him, Jio had signed, it without.reading.it. Ho was now aware;;that certain expressions might'-be viewed as conveying a'thre'at, 'but,.w'hilc.he admitted that the letter was unfortunately .(and perhaps unwisely) worded, his .only; intention was to., inform .". Mahony ' .of." • Greerihead's claims. -. ..:.•'.

There was also- an affidavit by Thos. Henry Dawson" (Pullen's partner). In ttis Dawson stated "that Mahony had told him that ho folt.i sure ■: that , if lid could show Pullen,tlie:varioHS documents; and papers which 'ho held-.'i.'ho could convince Pullon/that' tho;allegsitions were ...groundless. : Mahoriy ' had treated the; matter in.the most friendly manner, arid.had seemed to liold the view that an interview with Pullen would convince, him that Greonhead had no real griovance,. and no claim. Another affidavit was by Grcenhead. In this Greenhead stated that, the informations, lyere prepared by 'him', without assistance from Pullen. 'Piillenhad not, in any way, counselled such proceedings, but had, in,fact,.endeavoured to dissuade him from going on with' tho matter.

In a further affidavit Mahony denied oertain of Pullen's statements. ,

At the hearing yesterday, Mr. T. Cotter appeared for the Auckland Law Society and Mr. E. ,Earl for.Pullen.

Enter—"An Honest" Old Lunatic; , '"

Mr. Cotter thought that Mr. Greenhead seamed to have got the idea that the whole thing was a conspiracy against him on the part of everyone else concerned. Ho had a "bee in his bonnet." "As:"far as Lean understand him," said Mr; Justice Edwards, "he is an honest old lunatic. He is absolutely insane upon the matter.". Mr. Justice Denniston remarked that he had had the whole preposterous story brought before him when in Auckland, but he had refused to have anything to do with it.

Mr. Earl said that lie was not thereto defend the letter which Pullen was unwise enough or unfortunate enough to write to Mr. Mahony. Ho would prove 'that, oven if the letter was the letter of a fool, it was. certainly not .the letter of a rogue or a raan with any fraudulent or criminal intent. Pullen, who had been a warehouse-employee, had studied law 111 his leisure time, and had been admitted to practice about five years ago. Ho was an impulsive ami'impetuous man, but he had not written tho letter with tho desire to extort money, but merely to convey Crcenbead's intentions. ■ What ho should have rlono was to order Grconhead out of his office. Pullen was a captain in the Territorial Forces, and thcro had never been a breath of suspicion against his integrity After argument at somo length, Mr! Earl submitted that this was not a case of so serious a character ns to justify suspension from practico or striking from the rolls, but a case in which the Court would express its reprobation of tho error of Pullen in writing tho letter. Judgment was reserved.

UNANIMOUSLY TURNED DOWN. BY THE WHOLE BENCH. An application was made by Angus Black for a new trial on a charge of theft'from the person. Tbo statement of the case set out that Black had been convicted at Christ-

Ichurcli in, November, 1910, and had 'been sentenced to four years' imprisonment for robbery. He asked for a new trial on the grounds that ho was not guilty; that the verdict of the jury was against the weight of evidence; that tho evidence was not sufficient-to prove, beyond reasonable, doubt, that ;ho was guilty, nor to rebut the presumption of innocence; that the evidence against him was as consistent with innocence as guilt, ..mid that ho should therefore havo been acquitted; that tho Crown Prosecutor had stated that he would show that the three men indicted (accused being one) were comrades, and that they had been acting in concert before tho robbery. No evidence to support this last' statement had been called, but it was not withdrawn, and .may nave influenced the jury against -Black. Tho chief witness for the prosecution had sworn that Black was not within several prosecutor when ho was robbed, , .'n|i'd2'.tliat, up to the time, of the robberyV-:%;-had nothing to do with it. This'had'-iiot boon contradicted. Tho evidence, of the landlady of tho hotel'in which tho men were seen drinking, and of her son, went no further .than to show that Black, was one of a group of four shut up to await tho arrival of tho police, and--his presence did not warrant the inference that he had acted in concert with them before the alleged robjiory, and was not sufficient to prove ' that ho was legally a ,party to the robbery. 1 Mr. D. AI. Fiiullay appeared for Black", Land Mr. J. AV. Salmond for the Crown. Mr. Findlay argued that tho evidence as a whole was capablo of bearing the construction that the man was innocent.

Tho Chief Justice did not think if necessary to call -. upon tho SolicitorGeneral to reply. His Honour's opinion was that the jury had been warranted in coming to tho conclusion whieli they did. .:>;' Mr. Justice AVilliams concurred. Had ho been on the jury lie would have'had no difficulty in finding Black guilty. Mr. Justice Denniston' was satisfied that there had been evidence to go to a jury, and evidence on which the jury was justified in convicting. Mr. Justice Edwards held tho opinion that the jury could have como to no other conclusion than that Black was a party to tho crime. : Mr. Justico Chapman also concurred. The conviction was affirmed. TkE DARBY BANKRUPTCY. '.' CONVICTION AFFIRMED. . 'Finality was reached yesterday morning in the appeal and motion for a now trial'. , in""the case of Walter Francis Darby, bankrupt, of Auckland. At tho conclusion of the appellant's case on Monday tho Court iiad _ stated that it would consider the position, and, if necessary, call upon-' the Solicitor-Gen-eral to open tho case for tho Crown. On resuming yesterday morning the Chief Justice (Sir llobert Stout) stated that tho Court was of opinion that it was not necessary to call upon Mr. Salmond.

Tho.Chief Justico said tliat the had raised two points: (1) "Whether there was' any evidence of the guilt of tho, .prisoner which-should-have been submitted to the jury; (2) whether the verdict of the jury was against tho weight of evidence. The first six counts of the indictment charged. the, prisoner with offences against'the section of the •Bankruptcy"Act which"--said" person adjudicated a bankrupt shall be deemed,4-p ~have .comniitted ..a .crjme. if 'ho liad contracted debts' without 1 having reasonable or proper expectation of being able to pay iliein. Tho scveritli count was a charge of having'failed to keep" "such:' books of "account as were usual.and proper iu.jjlw(hujmp|jy.carried on:by,the bankrupt." jDqaling,-first with the seventh count, his H Honour 'said that the evidence against Darby was not equal to the evidence'that had appeared in most cases i.if wilful neglect tn keep any proper entries.at .all. In this caso there seemed to have been no wilful act, but there was negligence. That, in his Honour's opinion, did not affect the question of y guilt, but could only affect the question'of how tho Court would view tho transaction when the question of punishment came up for consideration. As far,.as the question "cf the books was concerned, it did not seem to be a very serious case, but his Honour could not say that :there;>;\vas no- evidence; -or ,that,.,:tho jury'was ; 'wrong i iri- saying-; -that: tho bcoks were not properly kept. After dealing' with various phases ~ of ~the case, his Honour said that it did not seem to him that .the-Court.could r hold either that there was no evidence to go to the jury, or 'that the verdict was against, the', weight of>, evidence. The conviction must be affirmed. "'

Mr. justice- Williams concurred. It was not necessary, ho pointed out, that there should be any wilful default on the part of tho bankrupt in regard to books. It might be accidental, but tho failure to perform a duty stipulated by the statute was. an offence. There was abundant evidence in this case that the bankrupt's books did nqt. sufficiently set forth his business transactions, and discloso his financial position. Tho offence of the bankrupt was perhaps a very venial one'. Ho accountant, but", even so, thobookswere not properly kept. The verdict of the jury on tho other sis counts was, in his opinion, justified by tho evidence.

t-Mr. .Justice Denniston. ■ was. satisfied that there was evidence to go to" the .jury on. all tho counts, and that' the conclusions arrived,at by the jurro were not against the weight of'evidence. It was not sufficient that books should bo kept—they must \bo;thq proper books, and bo properly kept. A man might have an admirable set of. books, and yet they might not bo properly used. Had proper balances been struck, what had happened would have been an impossibility. In his opinion it was clear that .the bankrupt had been living from hand to: mouth in his business, and_he must havo known the position.'lie was in. Ho did not think the verdict was against the.weight of evidence. In his opinion it was justified.

Mr. Justine Edwards also concurred with , Mr. , Justice Williams. The verdict arrived at by. the jury was the only, one that they could have arrived at under tho circumstances. 'Where a trader appeared to bo keeping his business floating purely by accommodation bills, he couid not hope to come through unless some happy chance improved his position. The bankrupt's business had been kept afloat merely by accommodation bills. The' verdict of the jury on all the counts was the only verdict that they could have arrived at.

Mr. Justice Cooper was of the same opinion. Ho did not think that any man would have conducted his affairs as this man had done unless ho was in desperate straits for money. • Mr. Justice Chapman concurred. Ho did not think, looking at all the matters, that the Court would bo right in interfering with the verdict. Tho conviction was affirmed. Mr. F. Earl, with him Mr. E. W. Burton, appeared for the appellant, and Mr. J. W. Salmond for tho Crown.