ALLEGED MISAPPROPRIATION BY A SOLICITOR.

New Zealand Mail, Issue 723, 8 January 1886, Page 23

ALLEGED MISAPPROPRIATION BY A SOLICITOR.

At the Resident Magistrate’s Court Tuesday, before i»Xr Wardell, R.M,, Edward Shaw, solicitor, was charged with having, on the 15th November, 1884, been entrusted by Alexander McMinn, of Palmerston North, with a cheque for £B3 28 2d, drawn by the latter on the Union Bank for a special purpose, and that he did convert the same to his own use. The accused was further charged with failing to pay the amount of the above-mentioned cheque which bad been entrusted to him by Alexander McMinn, and which represented costs in a libel case to George Warren Russell, or to Messrs Izard and Bell, the latter’s solicitor, and converting the same to his own

use. Mr Jellicoe appeared for the prosecution ; Mr W. T. L. Travers for the defence. Mr Jellicoe said the circumstances. were shortly these : McMinn, with a, Mr McKelvie, both of Palmerston North, were sued in the Supreme Court by Mr Russell, to recover damages for libel. The action was tried at Wanganui, Mr Shaw appearing for Mr McMinn and Mr McKelvie, with the result that the latter had to pay Mr Russell's costs. Prior to the taxation of the costs of Messrs Izard and Bell, who appeared for Mr Russell, Mr Shaw had sent in his bill to Mr McKelvie. He (Mr Jellicoe) would show that at the time the costs were taxed Messrs McMinn and McKelvie did not owe Mr Shaw a penny. Out of £44 10s Mr Shaw had received £32 on the 12th October, 1884. On the Ist of November, 1884, Mr Shaw attended the taxation of the costs of Messrs Izard and Bell, and the Registrar had allowed £B3 2s 2d. Mr Shaw wrote to Mr Hawkins, who waa the Palmerston agent for Messrs McMinn and McKelvie, asking that a cheque for the £B3 2s 2d should be forwarded, together with the balance of £l2 10s due to himself. On tbe 11th of November, 1884, Mr McMinn sent a cheque for £B3 2s 2d to Mr Shaw, That letter was accompanied by a letter from Mr McMinn to Mr Shaw, directing him to pay the £B3 2s 2d to Messrs Izard and Bell in settlement of their taxed costs. On the 15th of November, 1884, Mr j Shaw telegraphed to Mr McMinn that the cheque had arrived safely, but that the other document —meaning a promissory note for £l2 J 10s, the balance due to hinnelf—had not been received. Instead of handing the cheque for £B3 2s 2d to Messrs Izard and Bell, Mr Shaw had paid it to his own account at the Bank of New South Wales, his account being overdrawn at the time, and what remained after squaring his own account was quickly drawn out and given in cheques to others. On the 18th of November Mr Shaw telegraphed to Mr McMinn ward, that matter may be completed”— referring to the promissory note. Mr McMinn sent the promissory note at once. It was drawn at three months after date, and was made payable at the Union Bank, Palmerston North, on the 15th of March, 1885. From time to time Messrs Izard and Bell had applied to Mr Shaw for- payment of the money. Mr Shaw made various excuses;—to the effect that he had communicated with Mr McMinn ; that Mr McMinn had some difficulty in raising the money; and that he (Mr Shaw) would get the money from Mr McMinn, and pay them. On the 10th of January, 1885, Mr Shaw acknowledged the receipt of the promissory note for £l2 10s, at the same time telling Mr McMinD that the costs were so high, in consequence of the too liberal expenses allowed by the Registrar to the witnesses, and telling him that he had better show the bill of costs to Mr Hawkins, who would explain everything. In November, 1885, Messrs Izard and Bell, failing to get a settlement from Mr Shaw, communicated with Mr McMinn, giving him to understand that their bill of costs for £B3 2s 2d must be paid, or execution would be taken out. Mr McMinn wrote to Mr Shaw, and received a telegram in reply, “ Costs still to yonr credit.” Mr Izard meanwhile had several times endeavored to see Mr Shaw, but was put off with various excuses, being told on one occasion that he was so ill, the doctor had given orders nobody was to see him. Mr Izard telegraphed to Mr McMinn, stating he could not get the money, and threatening execution unless a settlement was made. Messrs Izard and Bell wrote to Mr Shaw, telling him they had ascertained that he had obtained the money so far back as November, 1884. Mr Shaw replied, “ Yes, I did get the money, and placed it- to your credit on my books.” He (Mr Jellicoe) had Mr Izard’s authority for stating that there was not a penny owing ■ to his firm at the time to Mr Shaw.

Mr Wardell : I presume there are contra accounts kept between the firms. Mr Jellicoe would rather say not. Mr McMinn had to arrange with Messrs Izard and Bell that he would see their claim settled, and there was no alternative left but to enter into the present prosecution. It was obvious that the money had been sent by Mr McMinn to Mr Shaw ; that Mr Shaw kept the money and paid his own debts with it ; and that Mr Shaw had not paid the money up to the time of the prosecution. It would be his (Mr Jellicoe’s) duty, much as he might regret it, if the evidence bore out the fasts he had stated, to ask for a committal. Alexander McMinn, the prosecutor, was then called, but did not appear. Mr Wardell : How do yon account for his absence ?

Mr Jellicoe : I would rather your Worship did not ask the question. Mr McMinn was present when the remand took place. Mr Wardell : Have you had any communication from him accounting for his absence ? Mr Jellicoe : No, your Worship. Just at this moment the telegraph messenger entered the Court, and handed a telegram to Mr Jellicoe. Mr Jellicoe explained that it was from Mr McMinn, and proceeded to read it—“ Just received telegram from Mr Shaw, stating that settled with Izard and Bell ” Mr Travers objected to the reading of the telegram. It was not a proper course for Mr McMinn to communicate with Mr Jellicoe. He should justify his absence on proper grounds. Mr Jellicoe said his instructions were to go on with the case. He would call some evidence and ask for a remand. He had received another telegram from a witness at Palmerston North, stating that he could not come till to-morrow. The case had been allowed to hang over so long that it ought not to be dealt with too quickly now. Mr Travers objected to the Court receiving any information second-hand from Mr McMinn.

Mr Jellicoe said he was prepared to hand the telegram to his Worship, Mr Wardell : Does the prosecutor plead physical incapacity for non-attendance ? Mr Jellicoe could not answer the question, as he had not been allowed to read the telegram. He was in a position to prove that Mr Shaw had sent a telegram that morning to Mr McMinn. He proposed to ask that the sworn information should be read, and that a remand should then be granted. Mr Wardell: I must have some evidence. I cannot understand the absence of the in. formant. He knew the case was coming on to-day, and his absence cannot be accounted for by any telegram received to-day, as ht ought to have been in Court at 10 o’clock to-day.

Mr Travers had no objection to a remand ; but Mr Jellicoe’s remarks in opening the case would obtain publicity and prejudice the case.

' Mr Wardell : Any remarks you may make, in opposing the remand, will obtain the same publicity. Mr Travers suggested that, under the circumstances, the case might be adjourned till next Thursday. Mr Wardell: That is a civil case day, and I atn afraid it will be a heavy oae. Mr Jellicoe asked that some formal evidence might ba taken, as some of the witnesses were in attendance from Palmerston North. Joseph F. Clapperton, acting manager of Union Bank of Australia, Palmerston North, was then sworn. He stated that Mr McMinn had an account at the bank. The cheque produced had passed thiough the bank. It was paid to the Bank of ’New Zealand, at Palmerston North. The Bank of New South Wales had no branch iu Palmerston North, The cheque was paid on the 16th of November, 1884. The cheque was in Mr MoMinn’s handwriting, and the amount, £B3 2s 2d, had been debited to his account. To Mr Travers : Tbe endorsemeut on the back of the cheque, “ Credited to trust account,” witness did not know anything about. Mr Travers said be thought it right to state that his client had a receipt in his possession from Messrs Izard and Bell for the money. , • Mr Jellicoe said that was the first intimation he had of it. It must have been dated that day. A' , The case was then adjourned by consent till 2 p.m. on Friday. Bail was allowed in two sureties of £IOO each. THE PROSECUTOR’S ABSENCE ACCOUNTED FOR. In tbe Resident Magistrate’s Court Wednesday afternoon, Mr Jellicoe made an explanation of the absence of his client, Mr McMinn, on the previous day, when Mr Edward Shaw’s case was being tried. He was unable oa the previous day, he said, to explain the absence of his client, but he was now able to do so, having discovered two telegrams from Mr McMinn, both dated the 4th inst. The first of these telegrams was in these words : “Been confined to bed by serious illness for several days. Very shaky, and dread journey, but hope to arrive in time.” The second message* sent at six o’clock in the evening, was as follows : “State of health absolutely prohibits me from attempting tbe journey to day. If case remanded till Wednesday, could come by 1 Jane Douglas on Tuesday evening. Could not undertake journey overland under present circumstances.” Mr JelKcoe added that if he had had those telegrams on the previous day, >■ he could have explained Mr McMinn’s absence. ■ ' v. Mr Wardell said he had felt anxious to have some reason for McMinn’s absence. ; l Mr Jellicoe said he only returned on Mon- • day from a holiday trip, and having had to go through a mass of papers he had missed the telegrams. Mr Wardell said telegrams ought not to be overlooked. He certainly did not, on the previous day, understand the absence of the prosecutor. Mr Jellicoe : And certainly I did not, sir. The matter then dropped.

At the Resident Magistrate’s Court on Saturday, Jane Dobson, a young girl about 11 years of age, charged with stealing a pair of boots from Messrs R. Hannah and Co.’s shop in Cuba-street, an 5 a pair of stockings and some laces from Mr Stone’s shop, was discharged with a caution, as Inspector Goodall stated that the prosecutor's—did—not desire to press for punishment, the girl being so young. Mary Ann Walker, about 18 years of age, was remanded till Monday on a charge of stealing 17 yards of silk from Mr. C. Smith’s shop in Cuba-street. An old man Darned John Herman Kuschner, who stated that be had been 21 years in the colonies, was remanded till Tuesday on a charge of vagrancy. James Johnston was fined 20s, or three days’ imprisonment, for drunkenness ; and Michael Reilly and three first offenders were fined ss, or 24 hours’ imprisonment, for the same offence. Messrs E. Baker and W. Beetham were the presiding Justices. Two civil cases iu which several Maori residents at Porirua sued the Wellington and Manawatu Railway Company for the value of two horses, which the plaintiffs alleged had been killed on the railway line through the fault of the Company, came off before the Resident Magistrate’s Court Wednesday, but, after hearing a portion of the evidence in one ease, were adjourned.