THE EFFECT OF A FRAUD.

Otago Witness, Issue 2840, 19 August 1908, Page 13

THE EFFECT OF A FRAUD.

AN INNOCENT SUFFEEEB.

WELLINGTON, August 11. A fraud comnutted by A. E. Elliott ■vvas referred to in the ca&e Janjes Jcrtin Ames, Wellington, accountant, v\ Elizabeth Milsom, face specialist, decided today by Mr Justice Chapmaji. There was, said njs Honor, no important disputed fact, pr conflict in the evidence, and the question was which of two innocent parties was to suffer by the ffaiid of one Elliott, who is now undergoing imprisonment for fraudulently obtaining this and other sums. He had undoubtedly swindled the defendant of large sums representing years gf hard earned savings irrespective of this dispute. Thei plaintiffs claim of £370 arose in this way,, He came into contact with Elliott, whom he knew personally, and who was in business as a land agent. Elliott showed him a house in Hawker street belonging to defendant which he represented to be in his hands for sale. Plaintiff was walling to buy the houee for £900, the price stated by Elliott. There was some foundation for Elliott's representation as to his authority to offer the house for sale, but the nature of the authority was in dispute. Plaintiff, his Honor went on to say, drew a cheque in favour of defendant on her order and handed that to Elliott in order, as he explained in his evidence, that he might "get her receipt for the money." Elliott, with come demur, took this cheque, and went with it to the defendant- _ Eventually she endorsed it. Then Elliott at once misappropriated the cheque to 6tave off pressure. He said he went to defendant in order honestly to carry out hie duty, but was tempt-ed to misrepresent the matter when she demurred to sign. His fraudulent intention was certainly formed when he commenced telling her falsehoods. He may have tried to tell the truth in court recently, but when he spoke his intentions, his evidence was not of much value. The defendants signature, hi» Honor &aid, was obtained not by a misrepresentation resulting in a total misconception as to the nature of the document signed, -as in Foster v. M'Kinnon, but by a misrepresentation as to the arrangement made with the plaintiff as to the course to be pursued and as to several collateral matters. Now it was a rule that when one of two innocent persons must suffer by -such a fraud, the one who had done an act facilitating the commital of the fraud should be the one to suffer, unless there was some legal reason for casting the burden on the other. His Honor found that Ames had acted with caution. iMiss Milsom, he eaid, had taken the money into her possession and without the authority of the plaintiff made Elliott a trustee of it upon terms prescribed by him and assented to by herself. Though hiis Honor could not help feeling a regret In having to give a judgment which, addled to this lady's losses, he must do justice to the plaintiff. He did not thi^k it wn>s incumbent on him to allow interesr. He did not think a jury would allow any, as the plaintiff made a speculative purchase which might or might not have led to a profit by this time. Jud^m^nt for the plaintiff for £370, costs aii per scale, allowances for second day £5 ss, and for second counsel £5 ss, "witnesses expenses and disbureements to be fixed by the registrar.

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