COURT OF APPEAL.

New Zealand Times, Volume XXVIII, Issue 6025, 9 October 1906, Page 2

COURT OF APPEAL.

LAST SESSION FOR THE YEAR,

The final s-cssions of the Court of| Appeal for the current year opened at j 11 o’clock yesterday morning before; their Honors Sir Robert Stout, Chief, Justice, and Justices Denniston, Edwards. Cooper, and Chapman. A QUESTION OF SUPERANNUATION OR COMPENSATION. The first case called on was that of the Government Railway Superannuation Board v. Ann Fustier, in which Dr Findlay appeared for the appellant Board, and Mr Adams (of Dunedin) for the respondent. As this was an appeal against tho decision of the Chief Justice, his Honor retired from the ijench. Dr Findlay, in opening the case, said that tho plaintiff in the Court below was Ann Fastior, the widow and legal personal representative of Walter Aristide Fustier, who died on the Bth of June, 1(103. At tHe time of his death Mr Pastier was employed as’ohicl clerk at Dunedin in the Goods Department of the New Zealand Government railways, and had occupied that position from January 10th, 1331. H© had, however, since November Ist, 1870, been employed as chief clerk in various departments of tho Governmentrailway service. On May 7th, 1003, the deceased. W. A. Fasticr, wrote tho following letter to his department, addressing it to the Goods Agent at Dunedin:—"Sir, —Owing to physical disability (partial paralysis of the whole of tho left side) I am reluctantly compelled to apply to be placed on the superannuation fund. Regretting tho necessity for this step after my long connection with the railway service, 1 have, etc., W 7. A. Fastier.” This letter was delivered to the officer in charge of tho railways in Dunedin about May 10th, 1903, and submitted by him to the head office in Wellington on May 14th, 1903. By letter, dated 19th May, the head office instructed him to arrange for a medical examination of Mr Fastier, and he was written to, asking what time would suit him for such an examination. It was agreed that it should take place on June 3rd, 1903. He was medically examined upon that dato, and the medical report was forwarded to Wellington on Juno sth. 1903; but Mr Fastier died before tho resignation was ever considered by the Minister for Rail-

ways or the officer in charge of uu t Railway Department. Mr Fastier left a widow and twelve children, of whom two were under the ago of fourteen years at the time of his death. _ The plaintiff in the Court below claimed that upon the coming into operation of the Government Railways Act, 1887, Mr Fastier became entitled by virtue of section 12 of the Civil Service Act. 1866, and subsection 4 of section 62 of the Government Railways Act, 1887, to receive the amount of compensation ho would have been entitled to receive under section 12 ahovementioned had ho been retired from the service of the colony at that date, the payment of such compensation being postponed by virtue of the provisions of subsection 2 of section 76 of the Government Railways Act, 1887, and, accordingly, that upon his death this compensation became payable to his estate. The plaintiff further claimed that if the compensation did not become payable in this way, her deceased husband was.entitled to the payment of compensation on the receipt by the railway officer in Dunedin of his letter of resignation. The amount to which Mr Fustier would have been entitled under section 12 of the Civil Service Act of 1866, on the coming into operation of the Government Railways Act of 1887, if he had then been retired from the service of the colony, was £255 Os sd. He had elected to become a contributor to tho Government railway superannuation fund, established by the Government Railways Superannuation Fund Act, 1902, and up to the date of his death ho had contributed in all tho sum of £6 18s 3d to that fund. The defendant Board had Offered to pay the plaintiff the sum of £lB per annum during her widowhood, and the sum of 5s per week for tho two young children until they attain the ago of fourteen years; but the plaintiff claimed that she was entitled to elect to be paid a lump sum in lieu of this allowance, and that this lump sum should include tho sum of £255 Os sd. His Honor the Chief Justice at the trial, held on October 14th, 1905, adjudged that the plaintiff should recover against tho defendant Board £255 Os o-j., with £36 18s costs. Dr Findlay said that the Board would willingly, as far'as they could, meet the claim of the widow in this, but his Honor’s decision exposed them to a liability which they were bound to have settled, and they asked tho Court: ‘‘ Did every officer in tho railway sen vice of this colony become entitled absolutely upon the passing of that act in 18a7?”—that was to say, that, no matter however much he might have misconducted himself he still had that amount accruing to him. The case for the plaintiff was that tho passing ot the act created new rights. The case wna of considerable importance beyontl the mere facts of this case, and it was for that reason that the Court was asked to reconsider his Honor the Chief Justice’s judgment. Mr Adams contended that the Legis. lature had dealt with such claims as absolute vested rights, and the widow in this caso was entitled to take the benefit of the statute law, and have the money paid out to her. At the conclusion of the • argument their Honors reserved judgment. APPLICATION FOB A NEW TRIAL In the caso of the King v. Francis Henry Bruges, Mr Myers’ appeared as counsel for the Crown, and Mr Russell for the appellant. Court consisted of their Honors the Chief Juscice, Justices Edwards, Cooper, and Chapman. Mr Russell, in opening the case to the Court, said it was an application to set aside a verdict and for a new trial on the indictment upon which tho appellant Bruges, who was a solicitor oi the Court, w-as recently tried and convicted in Christchurch, The indictment contained two counts —first, that Bruges and his managing clerk, James Goodman, had stolen £260 from one Henry,Tuck in 1901, and, secondly, that they stole the sum of £2OO from the same person in 1903. The accused pleaded not guilty, but were both convicted by the jury after a long trial; and Bruges was now applying for a new trial, on the ground that the evidence tendered in the case did not disIcse such facts as would enable any reasonable men empanelled as a jury to have found against Bruges. It wonl' 1 bh submitted in argument that the evidence did not disclose any guilt on Bruges’s part *- Tho Chief Justice: Why didn't yor ask for a direction that there was no evidence to go to tie jury? Mr Ruseell: Because there was evidence to go to the jury—for instance, a statement by Tuck that he asked

Bruges for the money or papers and when Bruges asked Goodman about them Goodman said “You know about them as well as I do.” So there was evidence to go to tho jury.. The first head was tho evidence which bonded to show direct criminality on tho part of Goodman, and secondly tho evidence tendered by the Crown of other offences of the same kind, which had beau committed by Goodman on dates subsequent to those mentioned in tho indictment, and on one date before, which evidence was admittedly tendered for tho purpose of showing distinct and positive knowledge on the part of Bruges. Tho third head of the case was tho conduct of Bruges), upon which the Crown relied in order to show that Bruges was a participator with Goodman in the theft. of tho moneys on tho dates mentioned in tho indictment. It was evidence tendered in support of the two charges that Tuck had been defrauded ty Goodman, who to his knowledge was Bruges' managing clerk. Goodman, it was said, camo to Tuck and told him that a man named Laurence wished to borrow £2OO on certain property in irtmstchuroh. Tuck immediately went to view the property and was accompanied by Goodman, and being satisfied with tho appearance of the property (it being worth three or four times the amount stated) he agreed to lend the money, and the same day sent a cheque to the office and Goodman paid it into a general account. Thu following day lie drew it out again in payment of a debt owing to one J. Thompson. It was paid in on March Bth, and drawn out on the 10th. The evidence showed that Goodman’s representation. that Lauronoe required that Sum of money was a pure fabrication, as he had never asked for money at all. The evidence on tho second count was very much tho same, and tho representation was of a similar nature and equally false. Goodman alleged that a man named Mason wanted £2OO am l took Tuck to see the property. -Again Tuck sent the money along and again it was put to an improper use. It was admitted right through tho case that there was not a shred of evidence to dhow that Bruges had any direct knowledge of these two transactions.

Mr Russell had not concluded his argument when the Court adjourned until 10.30 o’clock this morning.