THE COURTS.

New Zealand Mail, Issue 674, 30 January 1885, Page 22

THE COURTS.

SUPREME COURT.

IN THE SUPREME COURT OF NEW ZEALAND, WELLINGTON DISTRICT.

(Judgment of Richmond, J.) Delivered 17th December, 1884. Homeward Bound, &c. Company (appellants) v. Anderson (respondent). Richmond J.—On this appeal two questions are raised ; whether the manager of the company was duly authorised to make to the plaintiff the offer of employment contained in the telegram of the 21st September ; and whether that offer was unconditionally accepted by the plaintiff. If the acceptance -was unconditional, the Company’s revocation of the offer was-too late ; for the acceptance was complete on the despatch of the plaintiff’s telegram and letter of the 24th September. On the .first question I am of opinion that there was evidence to go to the jury that the manager was duly authorised. It is argued that the resolution of the Ist August, 1883, purporting to authorise Messrs Beeche and Hobby to transact all the business of the company during the absence of a quorum was ultra vires. The rules of the Company do not form part of the case on appeal, but it sufficiently appears that the appellants rely on the absence of anything in the rules empowering the Directors to delegate their powers to a smaller number than three of their body. I am not disposed to contest the assertion that the resolution of the Ist August, as affecting to delegate all the powers of the Board, was invalid. At the same time it was competent to, the Board to employ any one whom they might select as their agent in the transaction of a particular business. It would be impossible to maintain that all contracts, save uch as the manager is empowered to make under section 21, must be entered into by a full Board of Directors. This would be contrary to the express terms of section 40. I doubt even whether it would be competent to a conip&ny by its rules to disable itself from contracting by agents in the manner contemplated by section 40. At all events no such rule is alleged to exist in the present case. Therefore the only question is, whether the offer to the plaintiff was made by any person acting under' the express or implied authority of the company. Mr Hobby’s evidence on this subject was conclusive, if the jury believed it. In his statement' that there was a meeting of the Directors about the 21st September, at which it was discussed and decided that the plaintiff should be sent for, he is not corroborated by any other witness ; and there is no entry in the minute-book of such a proceeding. Yet the general statement of this witness that the offer was authorised by the Board is rendered highly probable by the proceedings at the meeting of the 28th September, and by the terms of the manager’s letter of the 29th September. As was pointed out by the District Judge, neither in the proceedings nor in the letter is there any repudiation of the offer which had been made to the plaintiff; but he is informed “that circumstances have occurred which prevent the company from proceeding with the working of the diamond drill, and therefore the Directors are not in a position to avail themselves of your services until such time as the obstacles which have occurred are removed.” For these reasons I hold that the verdict cannot be set aside on the ground that there was no evidence that the offer was authorised by the company. I am also of opinion that the offer was -unconditionally accepted by the plaintiff. The construction of the plaintiff’s telegram and letter of the 24th September, ISS3, was for the judge and not for the jury ; but as the jury have reached a correct conclusion no harm has been done in leaving the matter to them. The plaintiff in his telegram says “Will accept —come about three weeks—letter.” Now there might be some doubt whether a positive stipulation for three weeks’ • delay before starting would not amount to the proposal of a new condition though for aught that appears to the contrary three weeks was a reasonable. time to be allowed. But the plaintiff does not leave the matter upon the terms of the telegram. By his letter of the same date he offers, I think, upon a fair construction of his language, to shorten the period if the Directors require it. In the beginning of his letter he seems to say it will be impossible for him to leave before about the middle of October. But this is controlled by what follows : The letter appears to be without punctuation. I think it should be read with a full stop after the words “ wire me.” In the next sentence he say she “ will try and get clear ” of his property at once, before he comes away—so that he does not insist upon being allowed to remain long enough to do so. The whole means, as I read it, that he is most anxious to be allowed three weeks to sell his things, but does not insist upon it. I do not say -that this is absolutely clear; for it is not impossible to regard the letter as meaning ihat he will throw the appointment up un-

less lie can have till the middle of October to complete his arrangements ; but I thiuk on the whole that the construction I adopt is the true one ; and I do not see my way to disturb the judgment of the Court below. The appeal will, therefore, be dismissed with costs, £ls 15s.

CRIMINAL SITTINGS. Friday, January 23. (Before His Honor Chief Justice Prendergast.) fraudulent conversion of trust moneys. William Waring Taylor was arraigned on a charge of frauduently converting to his own use, with intent to defraud, a sum of £roo, which had been entrusted to him by James May for investment on first-class security, on 10th September, 1311. The accused, who pleaded not guilty, was defended by Mr E. Shaw, with whom were Mr H. Gully and Mr R. C. Kirk. Mr Jellicoe, with him Mr M. Richmond, appeared for the prosecution. The following jury was empanelled :—J. H. Hudson (foreman), I. James, W, Mudge, B. Stagpoole, E. S. Styles, D. Bell, W. Fisher, K. Stewart, J. W. Caverhill, G. Stoekbndge, M. Kelliher, and Bruce Goudie. Mr Jellicoe, in opening the case for the prosecution, explained that in 1881 Mr May commissioned the prisoner to draw £7OO, amount of dividend accruing to him, from the Bank of New Zealand, and to invest it as he deemed best. Taylor accordingly drew that amount in anticipation of the dividend, and, although he bad at that time an account at the National Bank of New Zealand, opened a fresh accouut at the Bank of New Zealand, to which he paid in the amount mentioned ; and subsequently, it would be proved, the £7OO was paid in satisfaction of a debt owed by prisoner to Mr Lloyd, of Birmingham, through that gentleman’s agents in Wellingfcon. The following witnesses were called : It. M. Kane, agent for the Bank of New Zealand at Kaiapoi, deposed that in September, 1881. he was accountant at the Wellington’branch of the bank. Prisoner, in that month, applied to draw in anticipation of the dividend which would be payable to James May in October following, giving witness to understand that he had an investment ready. The money was not paid over at the time, but on Saturday, 10th September, prisoner presented a cheque tor £7OO signed by himself on behalf of James May, and received the money. Previous to this Taylor had presented to the bank the letter from Mr May, empowering him to draw the money and invest it. Taylor paid the £7OO into the bank, opening a fresh account to do so, and subsequently he presented a cheque for and drew the £7OO from the second account. Cross-examined : The cheque (the first one) was signed by William Waring Taylor as attorney for Mr May. Never saw the power-of-attorney, but knew that there were standing instructions in the bank in reference to Taylor acting for May. There was a aeutence in May’s letter to Taylor stating that he would advice the bank to pay the dividend. The bank did not ieceive any such advice from Mr May, but the money was paid over on instructions from the head office at Auckland. H. M. Woodward, manager of the Hank or New Zealand at Manaia, deposed that in September, 1881, he was teller at the Wellington branch of the bank. The cheque produced was cashed by witness, and paid in £2O notes. \y. H. Levin, merchant, of Wellington, said in 1881 be was acting for Mr Lloyd, of Birmingham. Prisoner had paid him sums of money from time to time until he had liquidated his debt to Mr Lloyd. On 10th September of the year named, after bank hours, prisoner paid witness £IOOO in reduction of that debt. The sum was made up of a cheque for £3OO and £7OO in notes. William Cock, Mr Levin’d cashier, remembered that gentleman handing him the £IOOO on the date mentioned. He paid the money into the National Bank to Lloyd’s credit. ... Jouas Arundel identified the handwriting of the late Mr .May in letter produced. Among the deceased gentleman’s papers, he found letter (produced) from prisoner, who wrote that he had an application to lend £BOO on property at Taita, the letter being dated at Wellington in September, 1881. From this letter, assumed the money had been invested. Witness, when making a supervision of the prisoner’s books, found no entry or description of an investment of £7OO. Crossexamined : Believed Mr May did nob know that his money had been drawn. Did not know whether or not Taylor had a power-of-atcorney from Mr May. James Reston, accountant to the Official Assignee, depDsed that he found the copy of Mav’s letter to Taylor in the prisoner’s safe. His Honor, at this juncture, expressed his disapprobation at the practice of heaping documentary evidence upon the jury. The letter, however, was put inExamiuation continued : Discovered, when making an examination of Taylor’s books, that The statement there in reference to Lloyd’s accouut did not agree with Mr Levin’s. H. W. H. Hawke, a clerk formerly in the employ of the prisoner, identified Taylor’s writing in a letter-book (produced). This was the case for the prosecution. Mr Shaw asked the Court to rule whether the evidence disclosed any offence under the Bafe custody counts of the indictment. Mr Jellicoe withdrew those counts, and his Honor intimated that he should tell the jury there was no evidence on them. Mr Shaw thereupon asked his Honor if upon the evidence of direction in writing the case was not within the statute. He submitted that Mr May never having had possession of the money could not entrust it to Taylor, and the case, therefore, as iu a precedent he quoted, was one of embezzlement, if anything. Mr Jellicoe quoted an authority to show that the direction in writing was a legal direction, and that entrustment could be made through a third person. His Honor thereupon remarked that under the provisions of the case quoted the safe custody counts in the present indictment should be retained. Mr Jellicoe agreed with this suggestion, but did not press the counts. Mr Shaw asked his Honor to direct the jury that the letter from May to Taylor was an authority to receive these moneys, and to invest them in suchj way as he might dtom best ; and, that beiog so, it was immaterial whether the money was invested in his own or other property. Hia Honor said of course be should direst

the jury thafi'tbe first-class securities were in the discretion of Taylor. He declined, however, to direct the jury that there was no offence within the statute.

Mr Shaw tendered the judge’s notes as evidence of the fact that the first disclosure in connection with the trust had been made by the prisoner. After a brief discussion, the defence calling no witnesses,

Mr Jellicoe addressed the jury for the prosecution, and Mr Shaw followed for the defence.

His Honor, in summing up, explained to the jury that the “ safe custody ” counts having been withdrawn, they would not be called upon to express an opinion on them. There was evidence that the money had entrusted to Taylor, but the question of direction was for'the jury to decide. It seemed to him that Taylor’s dealing with the money was contrary to the direction. Then the question for the jury was whether or not there was a violation of good faith. It should be borne in mind that immediately on receipt of the trust, almost before it became money, the £7OO was paid in satisfaction of a debt owed by the prisoner, and there was no evidence whatever of investment in any way whatever.

The jury then retired, and were re-called by his Honor, who explained to them the protection afforded by law to a person who had himself made the first disclosure of his offence. The. question whether or not this had been the case in the present instance would be left to the jury. The question, he thought, was one for the Court, but he proposed to take the opinion of the jury upon it, and he did not think it out of place to express his opinion that the prisoner did not himself first disclose the facts. His Hojior produced the judge’s notes taken at the time of the examination in bankruptcy, and pointed out that, as a matter of fact, the questions asked by the examining counsel were statements of facts which Taylor verified. For instance, when JVIr Stuart asked Taylor whether he remembered drawing a cheque for £7OO as attorney for James May, he replied no. It could hardly be said, in such an examination as that, that the prisoner was making disclosures for the first time. The jury then again retired. After an absence of ten minutes they returned with a verdict of guilty on the counts. submitted to them. They were also of opinion that the prisoner did not make the first disclosure. The jury were then discharged. Several poiuts having been reserved for the Appeal Court, Mr Shaw made an application in respect to the release of the prisoner on bail. His Honor said that in the) previous conviction he had deferred passing sentence until the points left for the Appeal Court had been settled. In this instance also he should reserve his decision on similar grounds ; but he was not prepared to say - that the same course in admitting the prisoner to bail would be followed. His own opinion was quite to the contrary, and therefore he did not propose to let Taylor out on bail. So far as the bail itself was concerned, he had not the least doubt but that recognisances satisfactory in amount wonld be offered, but the amount of bail was not such a material point—the question was whether he (his Honor) was satisfied that the prisoner would answer when called upon at a future day. Mr Shaw said he could only answer, as to that, by pointing to the circumstance that the prisoner had been on bail for many months, and had always answered to his name. The practical effect of his Honor’s decision would be that the prisoner, a man of 65 or 66 years of age, to whom confinement would be a s -.vere blow, would be imprisoned for some six months, when probably he would, be liberated by the Court of Appeal. His Honor : The time is long, no doubt. Mr Je licoe : .1 should like to point out to your Honor that, if not incarcerated, Taylor would have some six weeks after the sitting of the Coart of Appeal in which to put New Zealand behind him. His Honor : I do not think it necessary for you to reply, Mr Jellicoe. Mr Shaw said Taylor was an old man, and feeble. A term of imprisonment now would necessarily shorten his life. With due respect, he pointed out that if his Honor had been justified in reserving his sentence upon the points raised, then it might be put to the Court that his Honor was robbing the prisoner of part of his life by incarcerating him. His Honor did not think that was the right way to put it. The prisoner would have been in gaol now, having been convicted on two charges, had it not been for the consideration of arguments raised at his instance and the postponement of the trial with his assent. Doubts iu respect to the matter were not very strong in his (Judge Prendergast’s) mind. It came back to this, that at the prisoner’s instance the sentence had been postponed, and the time at which the next sitting of the Appeal Court would be held involved a long delay. Mr Shaw said of course the defence looked at it iu this way, that his Honor would not have reserved the points had they not been important. . His Honor said another thing which had great influence on his mind was the fact that the prisoner bad in the past shown an utter disregard of the pecuniary interests of others. That being the case, he was not sure that a person capable of such conduct would properly respect his bail. Air Shaw asked whether his Honor would grant permission to make a motion in Chambers in respect to this matter. His Honor replied in the negative. Mr Shaw asked whether the court was anxious only in respect to the amount of bail. If so, the defence were prepared with substantial bail. His Honor-rep sated that, outside the actual amount of the bail, it was for him to be satisfied. The offences upon which the prisoner had been indicted and found guilty showed that he would not be likely to be impressed by the gravity of his offence. Therefore strong inducements would be offered to the prisoner. Air Shaw said of course that would apply to any person on bail. In this case there were reasons for a respite of judgment. He could only add that the decision of his Honor would inflict very great harm upon Taylor by imprisonment for an offence which might turn out to be wrongful. Subsequently Mr M. Read, the gaoler, applied to the court for information as to how ' the prisoner was to be treated.

His Honor explained that Taylor was given over to the gaol as a prisoner for safe custody.