SUPREME COURT.—CRIMINAL BUSINESS.

Otago Daily Times, Issue 263, 23 October 1862, Page 5

SUPREME COURT.—CRIMINAL BUSINESS.

Wednesday, October 22nd. His Honor, Mr. Justice Gresson, took his seat at 10 o'clock. . • CEIARGE AGAINST AN ATTORNEY, John Patren (on bail) was indicted for that, on the Ist July, he being bailee of money, the property of Saul bolomon. did fraudulently convert the same to his own use, and the said money did thereby feloniously steal, take, and carry away. Mr.Barton, for the prisoner, submitted that he was not a bailee, within the meaning of the Act. The Judge sniu he should allow the case to proceed, but would reserve the point. The Grown I'wswomv stated the case; and the fo'lov/ing evidence wo.s given : — Sail: iSoicmo') stated that he was a general dealer in Ivlml -ggan-stnefc. On Wednesday, the Ist July) ho found bailiff- in pof-'e^ion of his premises ; and he at oiice sent for the prisoner, who had been his solicitor ever .since he arrived in Dunoflin, twelve months ago He asked the prisoner what business the Lailiffs had'tlu-re; and the prisoner, after reading the writ, said that, they hs'.d no business there, for that it was himself and not the prosecutor wlio owed the money. The officers declined to leave without a settlement; aud the pi isouer went with him (the prosecutor) and Mr Itutlieitord to the Sheriff's oiiice. Some conversation passed; and the prisoner asked the Sheriff if he. mi.i:ht be allowed, to nay the money under prote-t. The Sheriff replied that he should be satisfied with that course., but the prisoner must first cousulb Messrs Richmond nnd Glilies, the agents. He and the prisoner then proceeded to the ofiice of Messrs .Richmond .'md Gillies, and left again after a conversation between the prisoner and Mr Gillies. Outside, the piisoncr said that the money would be paid under protest, so that he could bring an action against the {Sheriff for illegal distraint. The prisoner then asked him (the prosecutor) for the inor-ey, LI3; and after giving it hf; anked for a receipt which the prisoner gave him. The document ptoiluced was the one. He (the prosecutor) asked whether he had not better go with him to the Hieriffs, but the prisoner replied, " i\'o. jounced not bother fuitber; lhe bailiffs will he out in h:\li-iui-hour." He then went on his own business, and in the afternoon, finding the bailiffs still in hi-* house, \w asked why they were thue, as the money hud been paid. He.sent for the prisoner, who came nt once and said, in the presence of the Sheriff's officer, thai, tbe money was paid and the briiiffs tad no i)ush;es;i them, He also gave one of the bailiffs bs teding him fogo, as ilie money was paid and ;tll was right. The bailiffs left, and the prisoner told him (the prosecutor) that all w;is over and he need v,ot trouble further On tiie next morning, he went out on business but. within an hou1' he was scut for, ami on getting home he found the haiiifft fhere, ll<> asked what they wanted there again ; and th y replied that tlie money had not been paid, that they were sent by thf Sheritf to do their duly, ai.d that they were not to be louder fooled He (lhe prosecutor) went to the {Sheriff, arid, in consequence of what passed, he paid Li>j liAi. llu. to siitivfv the .same claim a.-> be had paid the Ll3 for. On leaving the Sheriff's office, at th? Couvt-houße, he-saw the prisoner iv a boat. Ho returned to the Court, obtained a warrant, rzd ;v.?i! LI , for a horse for an officer to go to Port Ulsa!m<u.s trad arrest the prisoner. , '

By Mr Barton : I never heard before this moment that the prisoner carried on business as a solicitor at Port Ohalineis. I never saw an advertisement to that effect.

John billies paid that he was Sheriff. On the 2oth June he.received a writ of Ji.j'o. against the (.rosecutw. Otlicers were put in charge, and that day, or the day after, the prosecutor and prisoner called at his ofnee, and the prisoner stated that the warrant ought to have b^en against himself, and not against the pro ec-.uto'-. Ec also paid s»methin« about paying under protest, and he (the witi.ess) replied that 'that was a matter for the agents, Messrs Richmond and Gillies, to whom he directed them. Some time afterwards the bailiff call* d ; anil he (tie witness) sent him back to ket p possession of the prosecutor's pns iui.-es. The prosecutor subsequently calu-d ; • and alter a conversation, he paid in Lls, aftenvards returning on the same day and payingl the balauce up to LIG 19s lid.

Ctiarles F. Rutherford, sheriff's officer, said that on the 30ih June he received the warrant produced. He called, (hiring tlio af ernoon on the prosecutor, aud was referred to the prisoner as his solicitor. He was not to be found, and next day, he 'vine witness) put Ralph Darling into poss"?RJ;m on the prosecutor's premises. In consequence of ■what the pro->.-cutor said, he went to the prisoner, who said that then; was a mistake— that probably the proceedings oujiht to have been against hiiu-elf. They Wtnt to th« Sheriff, and the prisoner *aid that he would deposit the money under pro'est. He (the witness) called agaiu at the prosecutor's to learn what had been done ; and after some time th" primmer c lied, said it. was al! right, as the money had bcr-n paid to the Sheriff, aud that the man had no business in possession. He (the witness) took Darling away, but replaced him in possession ntxb day, pursuant to the Sheriff's instructions. He saw the prosecutor pay the money to the Mu-riff. Mr Barton, in adiire.-sing the jury, said he should seek to show that even morally the prisoner had a ■very lair case to submit to them, and that legally there was no ca.'.c against him. The prisoner was charged with fraudulently converting property of which ho was bai'ee. In the famous ease, Cofff/s v. Ji'inurd (I, Smith's Leading Oases), there were six dtfuuiions given by Holt as to kids of delivery to a bailee. His Honor would agree that this charge could not come uiuier any of the first four definitions The fiftb was—"When goods or chattels are delive.rf.-d to bt; carried, or when something \n to be done about than, for a reward to be paid by the person ay ho delivers thorn to the bailee, who is to do the thing about them." The sixth was where goods were delivered, but the something to be done was to be clone giattdt. usly. In all the estah"blished cases, the essence of bailment was heid to be that the goods delivered were to he re-delivered in svecia. Oearly, this money we? not so delivered to the prisoner. Any money representing £13 paid to the fcherifl. would have been quite as good as the specific moneys to that value alleged to have been given to the prisoner. Or he inighi have paid paid the original £13 into a bank, and afterwards paid to the Sheriff a cinque upon that bank. This showed that the prisoner could not have been a bai cc. There was the further fact that a bailte had been held to have a lien upon the gooos ior any reward agreed to be paid ; and fiiihoivh the section in the local act declared that "money" should be included in the term "property," it alterwards provided that a bailee miyht become guilty although he might not have broken bulk vr otherwise determined bailment. Tho>e words must be fairiy construed b.s confining the operation of the section to cists where bulk had been broken, or bailment had been determined. " Breaking bulk " could not .imi.r with v sum '>f money loosely handed over' an" there was no such thing in the case a* determination of bailment There was no evidence of refusal and demand of this money, which was held to be the most oidinary evidence in pi oof of conversion. Another moot w.s Ink! «iown o be the lapse of a reasonable time without the bailee doing a-certain act-or aCfri)e Judge asked whether the fact that the prisoner had not applied the money according to his ownuiulertahing, was not evidence to go to the jury of tiaudultnt co "version. ; _ Mr li-M-tnn said that an nttovney was not an a«ent hi the bame bouse as a mere messenger. The prosecuturVs own story was that the pn.-oner said he would pay the money under; protest, so. that he cou d proLed against the sheriff for an illegal. ch>tramt..that £ the mode of settling a question betwe^u the Sies themselves.' In doinK this,the prisoner was Sing upon a difficult legal point; nnu what more* SSba-bl! tlian that, in initiating: proceedings he fhould take tiwe.to write a carefully-worder protest ? ThereT was' no evidence pf what passed between Air Sg, the authorised agent- pf^e^enfcjmd.th-

prioner. "Without any payment, there might have been an.cgreeutuit between; them which would justify the prisoner saving that it was " all right,/' This occurred inthe evening, and the prisoner was arrested nextmorninpr, havii-gstarted for Port Chalmers in time'to arrive there before the sitting1 ot the Magistrate's Court In tueh a case, was the interval from one afternoon or evening, until the next morning, sufficient to constitute what the law called a " reasonable time," so as to become proof of conversion] He thought not. There was another point, that the Ll3 alleged to have heen given fo the prisoner was not enough for the «'iscliarge of tbe offices ; the Sheriff having stated tliat the Him demandable on entering was Ll6 Hslld. The learned counsel concluded by urging- that the prisoner-was entitled to the full benefit of any doubt which the jury might feel as to the case. The Crown Prosecutor repliedupon the law, and the cases quoted by Mr Barton. The Judge explained that the Ordinance under which the indictment was laid, simply carried out the provisions of an Act of the Imperil Parliament, passed m 1857. and inter, ded to meet a class of cases in which there had often been a denial of justice, through it being impo-sihle to say that there liad been a legal taking and carrying away of property which was charged to have heen wrongfully appropriated. He should rule that the term bailee meant a person to whom property of any kind was committed, upon a certain trust to do something about it. It was entirely for the jury, whether the prisoner, being a bailee, had fraudulently converted to his use property of the prosecutor ; but they must remember that whether Ll3 was enough for the purpose alleged by the prosecntov had nothing to do with the case- If the jury believed that the prisoner had fraudulently converted that money, they were bound.to convict him. After an absence of nearly two hours, the jury returned into Court with a verdict "of Not Guilty. The Judge : Although acquitted in this case, Mr Patten the facts that have come out are sufficient to warrant me in making an order that you show cause why you should not be struck off the rolls of the .Supreme -Court. Patten : Within what time, your Honor ? The Judge said the matter must come on before he left Dunedin. Mr Barton suggested that it might be postponed to the next sitting, Mr ratten giving an undertaking not to practice in the meantime. The Judge could not consent; Supposing he made an order to strike it off, it would have to be confirmed by the Court of Appeal, and that Com t would sit in t!:e int.eival between this and the next sitting of the {supreme G.urt of Otajro, J t was agreed that the matter should be named on the next day. RECEIVING STOLEN PROPERTY. Michnel Morgan <32) was indicted for stealing a silver watch, a gold chain, and a scarf, the property of Peter O'Loughlin, a second count charging that he received them knowing theni to have been sto'en, It appeared that the articles, with others,- were stolen from the Waitahuna Restaurant, Waitahuna. on the Bth February, thrf piace, of which the prosecutor was manager, having been broken into. In June., a detective olh'cer went to search the prisoner's teut consequent upon another robbery, and the prisoner .showed the officer the prosecutor's watch, of which at that time the officer knew nothing. The prisoner got into gaol, and in July the officer went again to the tent. lie found the watch in some bedclothes which were tightly rolled up ; the chain was hidden in the chimney, and the scarf was also con cealed. On being liberuieJ, the prisoner was agaiu apprehended. He told the officer that he bough- the watch in Melbourne ; but now (being undefended) he (old the jurj that he won it. in a raffle at the Full and Plenty boarding house, Elizabeth-street, Melbourne. The jury found the prisoner Guilty of receiving the articles, and he was sentenced to six months' hard labor. The Court rose at half-past two o'clock, there being no case ready for trial.