THE COURTS.

New Zealand Mail, Issue 779, 4 February 1887, Page 9

THE COURTS.

COURT OF APPEAL* Rsctna V. W ATE as. Judgment of the Cut-t delivered November 22, 1886. Upon full consideration of this ease we have come to the cnclnsion that the conviction is bad. The indictment charges the prisoner with forging an order for the payment o money, which order ia thereafter set forth a full length. From its form it purports to be a cheque, with the body of the cheque, where the sum be paid is usually written, not filled up, but with figures inserted at the corner, where they are usually placed in cheques. It nppears that, according to the curtoin of bankers, a banker could, if be pleased, refuse to honor suoli a document, but might do so if ho liked, and use it as a va’id voucher against the customer signing it. The first requisite of an order is that it should purport to be obligatoiy on the party !o whom it is addressed to pay it. “ h® has funds in hand to which it applies. The document set forth fails in this requisite, and cannot, therefore, be considered order, but would be more properly described as an authority or warrant. Had the indictment charged the forging of ‘ an o-der and warrant, the word ‘order’ mi e ht have been rejected as eurplusfigo, according to the ca’O*, and the conviction sustained. But, notwithstanding, the observations of Parke, 8., in Regina v Williams, in 2 Den. 0.C., we think that in an indictment, for a statutory forgery it is neoessary to aver of what description the document allowed to be forced is, and to use the term by which it is described in the statute ; and that if either by the indictment itself, or by the evidence, such term is shown to be inapplio able to the instrument charged, or proved to have been forged, the conviotion is* bad.

Regina ▼. Mathew. We are of opir*ioci that th© accused in tno present case cannot be convicted either under the 70tb section of the Lirceny Act, 1867, or under the 2nd section of the Larceny Amendment Act, 1870. . Although no doubt the accused, as captnm of ths corps, was employed in the pudio service of Her Majesty, and received the capitation allowance frohi the Treasury by virtue of his position as capfchin y yet having received it he was in no wav bound to account for its expenditure to the Crown or the Treasury. His position was that of trustee or the money for the corps, and the members of the corps only could call him to account for his intromissions in respect of it. The corps is recognized by the Legislature as a quasi corporate entity altogether distinct from the Crown, and capable through the intervention of trustees of holding property of its own. Under these circumstances we think that the acouse 1, in receiving the money, received it as the representative and agent of the corps, and that section 70 of the Larceny Act of 136/ does not apply to a case like the present. With respect to the counts framed under section 2 of the Larceny Act Amendment Act of 1870, it is clear that in, order to obtain a couvictionit must have been shown not only that the accused was a joint beneficial owner of the proportv alleged to have been en>bez> sled, but also that he had so dealt with the property that he could have been convicted and punished for embezahsment of it if he had not been a joint owner. Now, if he had not been a joint owner it would have been nscessary to prove that he was the clsrk or servant of the corps. We are satisfied that his position was altogether different. The 25th section of the Volunteer Aot oE 1861 contempla' 63 the property of the corps being vested in trustees for the benefit of the corps. The 27th section provides that where the property is not vested in trustees it is to bo vested in the commanding officer. His position, therefore, is that, not of the clerk cr servant, but of trustee for the corps. _ For these reasons we are of opinion that the conviclioa cannot be sustained.