THE APPEAL COURT.

Otago Witness, Issue 2203, 21 May 1896, Page 15

THE APPEAL COURT.

Wellington, May 13.

Argument in the Appeal Court ia the case of Trengouse and Co. v. the Official Assignee was concluded this morning, when judgment was reserved. The case of the Diatricfc Foundry Company (Limited) v Kilgourwas thea artfuad. Thii ia an appeal from a decision by Mr Justice Denniston. The appellant company purchased the foundry busine'-s from the respondent, the latter agreeing that he would toft commence business again as a'i ironfounder in Greymouth or Reefton. The District Foundry was subsequently slarfced at Reefton in the name of the respondents daughter under the management of the respondent. The appellant brought an action against the respondent, seeking an injunction and damiges. The action was tried before Mr Justice Ddnnhton and a. jury. The jury fojiud that the business was the bonafide bueincs-i of the daughter. Gn that fi-idiug Mr Justice Ddnui&tou held that the app«U int was not entitled to recover, and gave judgment for the respondent, with costs. Argument was concluded during the afternoon, when the court reserved its decision. May 14. Ia the Court of Appeal judgment was reserved in the case of tbe District Foundry Company (Limited) v. K%ou*. Argument was then proceeded with in the c«S3 of Fanzellor v. K<irr. The motion is for a nonsuit or for a new trial in an action' for malicious prosecution The plaintiff had been charged with stealing sheep and acquitted, and brought an action against Eerr for damages, the jury awarding him £300 ■ Toe defeudanb contends that he did not direct tb» prosecution, and that; the information was laid by the sergeant of police. A majority of tho court, consitting of Justices Williams, D-inniuton, and Conoliy, allowed the m >tion for a nonsuit on the ground that there was no evidence to go to a jury that the dffeud&nt procured the prosecutiou of the plaintiff. Co?ts were fillowod defendant on the Supreme Courli scale. The Chief Juries dissented fro:n the decision of. the other members of the court. I " May 15. In the Appeal Court to-day the case Regina v. Farrell and others was argued. The ca.se is one started by District Judge Kettle on a quegI tion of' law reserved by him for the opinion of tbe Appeal Court under part section 412 of | " The Criminal Code AcS 1893." The accused were indicled at Hawera for conspiracy to i defraud the creditors of one of them (Farrell), in contemplation of his bankruptcy. The acts and dflarations of Farrell subsequent to his bankruptcy were admitted ia evidence against all the accused, in proof of their common design, and the question reserved is whether the eyider.ee was properly admitted. The court unanimously granted a new trial in the ca*e, on the grounds that a public examination of Faiwll ia bankruptcy was not a declaration by him in pursuance of the common design charged. The court ordered the accused, who are ia custody, to be admitted to bail before justices at Hawera, each in £100 and one surety of £50 each. May 18. Argument ia the cage of Regina v. Annie Brown was commenced in the Court of Appeal to-day. The case is one stated by the Chief Justice for the opinion of the Court of Appeal under subsection 6 of section 412 of tha Criminal Code. The accused, Annie Brown, was indicted jointly with her husband, John Henry Brown, for performing an illegal operation. They were tried separataly, and both were convicted. In the case of Mrs Brown the jury, in answer to a question put by the Chief Justice, found that she was niauUd to the male accused, aud acted under his marital control. There was no evidence that in what she did one acted under compulsion by threats. The Chief Justice referred for the Court of Appeal the question whether sinoethe Criminal Code Act bicame l*w nuritil control or comtnaud (without actual compulsion) Is a defence. The Chief Justice directed the jury th^t if they thought the crime concerted between the two aciused, then the acts and declaration of each in furtherance of a common design, though Dot in the presence of the other, were admissible against the other. A further question reserved was whether this direction was coireot. Mr Jellicoe appeared for the accifed ; Mr Gnlly and Mr Gray for tho Ccown. Mr Jellicje contended that the finding of the jury was a distinct acquittal of the accused as' an accessory before the fact in the senss of counselling or procuring her husband to commit the offence. He submitted also that it acquitted her of being an aid or abettor within section 73 of the Criminal Code. The case had been left to the jury aB one fouuded on an agreement or combiflaHon between the two accused before such purpoae. The common law had always treated hmbind and wife as one person, and he submitted that that principle was continued uuder the code, and that there must be two parties to im agreement. The verdict was an acquittal on the general ground that it amounted to finding that the accused acted as the iu'-trurneab of her -husband, and without any will of her owu. Section 24- of the code did no more than remove the presumption of compulsion from the mere presence of the husband. Rt-adiug sections 21 and 24 together, the code did not, apart from this, m-.ke any alteration of the doctrine of coercion of a wife by her husband, which section 21 h*d the effect of preserving. The acts and dfclarations of the husband after the actual performance of the operation were not part of the transaction, and were therefore not evidence against the ' wife. Argument for the accused waß not concluded when the court rose during the afternoon on receipt of tile news of the death of Mr Justice Buckley.

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