Supreme Court—Wellington.

New Zealander, Volume 1, Issue 8, 26 July 1845, Page 3

Supreme Court— Wellington.

On Monday, June I6th, Mr. Justice Chapman gave judgment, as follows, in the case of Timothy O'Meara, convicted of forging and uttering a Government debenture :—: — This is a motion to arrest the Judgment in this case, on the ground that the debenture set out in the indictment, and described in the set of counts as an " undertaking for the payment of money," and in another as a ** warrant and order for the payment of money," does not come within either designation, so as to satisfy the statute of 11 Geo. VI., and 1 Will. VI., c. 68. The prisoner was indicted at the last sitting of this court for forging and uttering a debenture for one pound. At the trial, the objection, which is the ground of this motion, was taken by the ltarned counsel, but although I had some doubt as to the 'second set of counts, I thought the debenture was 'properly described, as an undertaking for the payment of money. I, therefore, so instructed the Jury, and certainly on the clearest evidence, they found the prisoner guilty of uttering,— the learned Counsel having leave to move in arrest of Judgment should he think it advisable so to do. Iv England a Crown case on a point reserved is heard and determined by the fifteen Judges ; — here the appeal is merely from the necessarily hasty decision of the Judge who tries, to his more deliberate Judgment. This circumstance at all times impresses me with a very vivid sense of the responsibility which is cast upon me, and I feel this, the more intensely were the liberty of a subject, criminal though he may be, is at stake. With this feeling I have weighed with the greatest care the wording of the debenture, and of the itidictmeut, as well as of the ordinance and the statute, and after the closest attention to every suggestion in the prisoner's favor, whether thrown out by the learned Counsel, or occurring lo myself, I can come to no other conclusion than that a debenture is an undertaking for the payment of money, and therefore that the indictment is good. The operative words of the debenture are as folj lows :— " On presentation at the Colonial Treasury, at Auckland iv New Zealand, on and after the l Oth. day of April, 1 846, or on or after such earlier day as 'may be fixed by the Governor, after two months notice thereof in the Government Gazette, the bearer will be entitled to receive One Pound sterling." This is signed by the Governor and counter-signed by the Colonial Secretary, and across it is an eutry of the d<ite of its issue signed by the Colonial Treasurer, both these officers being members of the Execu ive Council. These debentures are issued by the authority of au ordinance, {a) in which they are declared lo be "payable at the Colonial Treasury at Auckland." We have tjie authority of English decisions for considering this ordinance as the contract between the Government and the public, and the debentures are drawn in strict accordance with a form prescribed thereby. It was in evidence, and it is a matter of notoriety, that they do in fact.pass current as money, and taking- the common iraprirt of their language into consideration, strengthened by the language of the ordiuance and by the fact of their general currency, I think that a debenture is in truth and in fact as an undertaking on the 'part of the Government, to pay the sum expressed on its face ou the day named. It is contended that there are no words of undertaking or of payment, and that the debenture does not even go so far as to say the bearer shall receive, but merely imports that he shall be entitled to receive. I think the distinction considered iv conjunction with the words of the ordinance, too small too effucc the character of the instrument. It acknowledges the title of the holders, and names the day when, that title shall accrue, and the ordinance, (of which the Court must take Judicial nothe,) enacts that the debentures made in the form prescribed shall be "payable at the Colonial Treasury." But it is argued, that admitting it to be an undertaking, there is a previous condition, namely — notice in the Gazette, which renders it not absolute, and it is urged that the comma after the word Governor makes this condition relate to the 10th April as well as to the " earlier day." The word thereof (to which the term " earlier day," is the next antecedent), destroys this interpretation, and the plain sense is obtained by reading from the word or down to the word Gazette as a pareuthesis ; that is, that notice is only to be given in case an earlier day of payment shall be fixed by his Excellency. The learned Counsel referred to a despatch ol Loid Stanley's, animadverting on the issue of the debentures, but the Court can take no notice of a despatch, and it is well settled that it a forged instrument is legal on the face of it that is sufficient to support an indictment. That point was decided in R. v. M'lutosh, (A) and has recently been reconsidered and confirmed in Pike v. Car. (c). If the view I have taken require the support of authority, 1 think. Goldstein's case, (rf) which was quoted by the learned Counsel for the Crown furuishes it There, the instrument was much less formal than the debenture. It ran as follows : " No. Treasury note of one dollar in currency > according to the standard of 1764, valid in all payments in full. (Signed) " Allenstein," On the other side, Treasury note of one dollar currency j office of realization, JConigsberg." This was held to be an undertaking, warrant, »n<J order, uuder the 43 Geo. 111, c. 139, relating to securities of a foreign Prince, and although the learned Judge who tried the prisoner intimated that less strictness was required in interpreting a foreign than an English instrument, yet I have faded to dis* cover, alter a very patient search, any authority for that dictum, except that the punishment under that act was uot capital— a reason which no longer exists. Indeed, much of the refinement of the Judges in 9up* porting nice technical distinctions as objection to'in- : dictment for forgery arose out of the former severity

v)f the laws. Their humanity rendered them not sorry to find even a weak reason Jor preserving fhc life of a fellon creature, whereas., now that the reason ib at end, the sr\<ne humanity has disposed them to guard the innocent against the ruinous consequences uhieh may arise from the unrestrained prevalence of forgery. A comparison of recent aud older cases will illustrate this. As to the ohvious hearing of Goldsteins' case upon the present, I am disposed to adopt the words ol the late Baron Ahinger, in a case of a very different nature, (c) t( I am glad that authorities have been found in suppoitot the view I took ol this case at the trial, but for my own part, 1 think no authorities were wanted, and that the case is one which common sense alone enables us to decide — understanding of course with due regard to legal principles." At the trial I expressed a doubt whether the counts laying the debenture as a" warrant aud order," could be -supported; but on further consideration I think the instrument is bruh. Without any further instructions from the Governor m Council, the Treasurer will be bound to pay the money. It is signed by the head of the Executive, whom the Treasurer, as an Executive officer, is bound to obey, and there is an assignable person, namely— the bearer, to whom ! he must pay it. Having paid the amount, it is the Treasurer's voucher and warrant. Indeed, fhe Courts have always considered that what is a warrant in one point ot view is an order in another. In Mitchells case, (/) the words are held to be synonymous. It is objected that it is not directed to any individual, but n.erely authorises presentation at the " Colonial Treasury 1 ' at Auckland. I think this guide sufficient, and indeed in Goldstein s case, the Treasury note is directed not to the officer, but to the office. ~ For tlie ioregoing reasons I think the indictment good, and the judgment of the Court must be recoided against the prisoner. Sentence ten years transportation. O) Sess. 111. No. 4. (//) 2 East, P. C. (0 Moody, C,c.70 (rl) Ross and By, c. 4.03. (c) Smith v, Man able, 11 Mcc & W. 9. (/.) 2 East, I*. c. 9J«.