ALLEGED MISAPPROPRIATION BY A SOLICITOR.

New Zealand Times, Volume XLVI, Issue 7673, 6 January 1886, Page 2

ALLEGED MISAPPROPRIATION BY A SOLICITOR.

At the Resident Magistrate’s Court yesterday, before Mr 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 2s 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 failiug to pay the amount of the above-mentioned cheque which had been entrusted to him by Alexander McMinn, and which represented costs ici a libel case to George Warren Russell, or to Messrs Izard and Bell, the latter’s solicitor, and converting the same to bis own use. Mr Jellicoe appeared for the prosecution ; Mr W. T, L. Travers for the defence.

Mr Jellicoe said the circumstances were shortly these: —ln the year 1884 Mr McMinn, with a Mr McKelvie, both of Palmerston North, wore 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 costa 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 bad 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 2a 2J. Mr Shaw wrote to Mr Hawkins, who was the Palmerston agent for Messes McMinn and McKelvie, asking Chat a cheque for the £B3 2a 2d should be forwarded, together with the balance of £l2 10s due to himself. On the 11th of November, 1884, Mr McMinn sent a cheque for £B3 2a 2d to Mr Shaw, That letter was accompanied by a letter from Mr McMinn to Mr Shaw, directing him to pay the £B3 2s 2J to Messrs Izaxd and Bell in settlement of their taxed costs. On the 15th of November, 1884, Mr Shaw telegraphed to Mr McMinn that the cheque had arrived safely, but that the other document meaning a promissory note for £l2 10s, the balance due to him<elf—■ bad 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 18tb of November Mr Shaw telegraphed to Mr McMinn “Kindly forward, 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 be had communicated with Mr McMinn ; that Mr McMinn bad some difficulty in,raising the money; and that be (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 telliug Mr McMinn 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 bad better show the bill of costs to Mr Hawkins, who would explain everything. la November, 1885, Messrs Izird and Bell, failing to get a settlement from Mr Shaw, - communicated with Mr McMinn, giving him to understand chat , their bill of coats for £B3 2s 2d must be execution would be taken out. Mr McMinn wrote to Mr Shaw, and received a telegram in reply, “ Costs still to your credit.” Mr Izard meanwhile had several times en-' deavored to see Mr Shaw, but was put off with various excuses, being told on one occasion that he was so ill, the doctor bad 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 bad ascertained that he bad obtained the money ao 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. Mi McMinn bad to arrange with Messrs Izard and Bell that be 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 Me Shaw ; that Mr Shaw kept the money »nd paid his own debts with It; and that Mir Shaw haa not paid the money up to the time of the prosecution. It would- be his (Mr Jellicoe’a) ddty, much as he might regret it, if the evidence bore out the facts he had stated, to ask for a committal! ''

Alexander McMinn, , the prosecutor, was then called, but did not appear. Mr Wardell : How do you account for his absence!

Mr Jelllcoe : I would rather your Worship did not ask the question. Mr McMinn was present when the remand took place. Mr Wardsll i H%ve you had any communication from him accouutb.*® fc* b'* ft l' aa,ice • Mr Jellicoe : No, your Worship, moment the telegraph messenger entered the' Oorirr, and banded a'telegram to Mr Jellicoe. Mr Jelllcoe explained "that it was from Mr McMinn, and proceeded to read it—“ Just reserved telegram from Mr Shaw, stating that settl'd with Ijicd 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 Jelllcoe said bn instructions were to go on with the case. He would call some evidence and ask for a remand. Ha bad received another* telegram from a witness at Palmerston North, stating that he could npt come, till to-morrow. The case had been allowed to bang over so long that it ought cot to be dealt with too quickly now. Mr Travers objected to the Court xecetv-

ing nny information second-hand from Mr McMinn. MrJellicoe said he was prepared to hand the telegram to his Worship. Mr Wardell : Doe-t the prosecutor plead physical incapacity for non-attendance ? Mr Jdlicoe could not answer the question, as he had not been allowed to read the telegram. Ge 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 informant. He knew the case was coming on to-day, and his absence cannot be accounted for by any telegram received to-day, as he ought to have been in Court at 10 o'clock to-day. Mr Travers had no objection to a remand j 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 earn® publicity, Mr Travers suggested that, under the circumstances, the case might be adjourned till next Thursday. Mr Wardell: That ia a civil case day, and I am afraid it will be a heavy one. . Mr Jellicoß asked that some formal evidence might be taken, as some of the witnesses were | ia attendance from Palmerston North. t 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 J produced had passed through the bank. It was paid to the Bank of 'New Zealand, at Palmerston North. The Bank of New Sonth ’ Wales had no branch in Palmerston North, » The cheque was paid on the 10th of Novem- * ber, 1884. The cheque was in Mr McMinu’a . handwriting, and the amount, £B3 2s 2d, had . been debited to his account. To Mr Travers ; The endorsement on the back of the cheque, 9 “ Credited to trust account, *’ witness did not * know anything about.

Mr Travers said bo 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 bad of it. It must have been dated that day. The case was then adjourned by consent till 2 p.m. on Friday. Bail was allowed ia two sureties of £IOO each.