COURT OF APPEAL.

New Zealand Times, Volume XLIV, Issue 7490, 30 May 1885, Page 3

COURT OF APPEAL.

Friday, Mat 29. (Before the full Court.) REGINA V. BUCKLEY, In this case, which involved the question whether a man can be indicted for resisting a sheriff, Mr Justice Johnston read the judgment of the Court, by which the conviction was affirmed. Sentence to be passed at the next criminal sittings in Christchurch. REGINA V. vr. W. TATLOB. Mr Justice Williams delivered the judgment of the Court in these two coses, as follows First Case. The prisoner was indicted under the first part of section 74 of the Larceny Act, 1867, as having been entrusted as agent with a sum of money, viz, £7OO, with a direction in writing to apply such money for the purposes specified in such direction, and with having, in violation of good faith, converted such money to bis own use. The evidence showed that by a letter written from England on the 16th June, 2881, from Mr May to tfce prisoner, Mr May informed the prisoner that he proposed directing the Bank of New Zealand to pay to the prisoner the September dividend on his (May’s) shares. The letter requested the prisoner to invest this amount on first-class security. The dividends of the Bank of New Zealand appear to be declared half-yearly, one half-year ending on the 30th September. The dividend warrants for this half-year were issued in October. On the 10th September the prisoner obtained from the Bank of New Zialaud in Wellington the sam of £7OO on Mr May's account, which ha forthwith misappropriated. This sum was obtained by the prisoner on the strength of the letter he had received from Mr May, and on the representations by the prisoner that he had an investment for which be required the money. It did not appear that at that time at any rate the Bank bad been advised by Mi May to pay the anticipated dividend to the prisoner. The Bank opened an account in Mr May’s name, he not having any account previously, and they allowed prisoner to draw against this account by a cheque for £7OO. The cheque was signed by tbe prisoner as Mr May’s attorney. The amount so drawn was debited to Mr May in the account, and interest on it was also debited. When the dividend warrants were received in October, the amount of tbs dividend was credited to Mr May in this account. It did not appear that the prisoner was authorised by Mr May, by power of attorney or otherwise, to draw cheques in his name or to pledge his credit with the Bank for money advanced. Nor did it appear that the Bank had received any authority from M* May to hand over money to the prisoner by way of loan, to be repaid out qf a future dividend. Now, at the tinjo the prisoner got the money, no dividend had been declared, and although the declaration of a dividend In respect lof tbe Bank’s transactions for the half-year ending on the 3Qtb of the month may have been reasonably certain, yet it was possible for circumstances to have arisen which would have prevented the declaration pf ajdividend. The sum, therefore, paid by the bank on the 10th of September was nqt the dividend or part o! the dividend, because the dividend at that period bad no existence, and might never have bad any existence. Tbe sum was as the Bank treated it in their account, s loan to Mr May, made on the expectation that a dividend would be declared, and that out of such dividend tbe loan would be repaid. This loan, moreover, was raised by prisoner without Hoy’s authority. Under these circumstances, May cannot be said to have entrusted the £7OO to the prisoner, nor can it be said that this sum was a part of tbe dividend referred to in the letter of 10th June. The examination before the Official Assignee, pnfc in on behalf of the prisoner, which contained a statement by the prisoner that the £7OO was May’s money, really carries the matter no further. As, therefore, there is no evidence to support the statutory offence with which prisoner was charged, the conviction must ba quashed. Second Case.—ln this case the only questions which were argued were, first, whether the share register of the Bank of New Zealand was admisrible in evidence; and, secondly, if it were not admissible, whether the fact of its having been admitted would compel the Court to quash tbe conviction. With respect to the first .point, we think it ia possible that the share register was ' receirable in evidence, on one or other of the grounds contended for by the Attorney-General. If it be assumed, however, that it was not repayable, we do' not think that upon that ground alone the conviction ought to be quashed/' In Russell dh Crimes,‘ sth edition, tol. *3, p. 319, the learned editor states the rule in such cases to be a* follows "If the cose were merely made out by proper evidence in such a way as to leave no doubt of the guilt of the prisoner in the mind of any reasonable man, such a conviction ought not, It seems, to be set aside because some other evidence was given which ought not to have been received, but if the case without such Improper evidence were not so clearly made out, and the improper evidence might be supposed to have bad an effect on the mind of the Judge, it would be otherwise.'* This was in effect the opinion of the Judges expressed in the cases of Regina v. Oldroyd, R. & R., 88, and Regina v. Ball, R. K., 133. It la true that the decision of these cases did not ul imately depend upon the recognition of this principle, but the fact remains that in both these cases the principle was expressly recognised. This

doctrine appears, from a note made by Lord Denman to the case of Regina v. 35*11, to have been doubted by him (««e preface to Denison’* Crown cases). We 4° not ]bovr«ver,' that the extra judicial opinion'of eminent g Judge should outweigh the authority of the pages abpvo cited# Nor p*Q tye assume that Lord Penman intended to assert the iap* proper admission of any piece of evidence, however important, would be a ground for quashing a conviction. No doubt when evidence not strictly admissible has been ad* Knitted, the whole of the evidence and the clr* oumstancea of the case must be scrutinised with the greatest care. We concur with the opinion expressed by the Judges in Regina v. Bail, that the question as to whethpra cQQviption is infalidajed must depend on the nature of the particular case qnd the effect of the other evidence. Here a fact tp be proved was that May held certain shares in the Bank of New Zealand* In proof of that fact the share register of the Bank was put In evidence, there being no statute to make evidence of the entries contained it. Apart, however, from the share register, there was abundant and conclusive evidence, from. auUllfSlops of tbs prisoner aou #rc2l oibpr .qrcumstances. that .the shares were bfejd' py May# -To * contradict this evidence 6o evidence* on the part'of the prisoner ■feraa adduced. If the share register bad not |s©9n‘ in evidence# ancf’lf the Jury had beep specially askqd to Snd as to tbe ; ownership of |be share?, a finding that the sharps weye‘npt May ? s wpdld have been contrary to evidence. Had the proceedings been pf a civil nature, the C-OWQ stood in the position o! a plaintiff, snob a ffndlpg fin such evidence would have been, ground for a new trial. IJnder these ciscumatanoea, whether the share register .were admissible or not, we tee no reason for doubting the propriety pf the conviction, . Conviction affirmed# * ‘Hla Honor said that sentence would be prononpfed at the next criminal sittings of the Bnpremv Court In Wellington# oriiciit# assignee' in *■ the estate op # rZPPKBILIi,' ANfi OOROORAJI 7* THE VATOB, &o#, OF Tffß 01TT Of WELLINGTON. The Chief. Justice delivered a lengthy opinion in this matter containing the judgment of the Court,'which practically amounted to fk verdict for the plaintiffs. The Official Assignee recovers the £soo' deficit, and-Cor* oran recovers £lB9 and all the moveable

articles iu the works, except what wore taken over from the former contractor, brought by Corcoran ami by O’Malley and Pepperill, and assigned to Corcorau. The Corporation retain what th?y handed to the new contractors, and all work* attached to the freehold. The plaintiffs recovered tbe costs of the suit. KBULL V. BRADY. Mr Justice Williams gave judgment of tbe Court, saying it was almost impossible to construe the will, as it was so badly drawn, and practically deciding tho case in favor of the plaintiffs. NATIONAL BANK V. MEE AND REID. In this case Mr Justice Richmond read the judgment of the Court, making absolute the rule for a new trial of the lltb, 45tb, 46th, aod 47th issues, the plaintiff to bear the cost? of the rule in the medium scale ; all other coats to be settled by tbe Supreme Court after trial. RE BLOOMFIELD. The Chief Justice delivered the judgment of tbe Court, allowing the appeal and referring tbe matter back to the Bankruptcy Court, each party to bear his own costs in the Court of Appeal ; all other coats to be fixed by the Brnkruptcy Court. The Court then adjourned till Monday next, when judgments in the last two cases (Wilson v. Bank of Australania and Searle v. New Zealand Insurance Company) will probably be delivered.