LAW REPORTS.

New Zealand Police Gazette, Volume XXXVII, Issue 6, 14 February 1912, Page 90

LAW REPORTS.

(“Times Law Reports,” Vol. xxviii, page 67.) [Court on Appeal—(Vaughan Williams, Buckley, .and Kennedy, L.JJ.) — 17th November, 1911.] Eccles and Company v. Louisville and Nashville Railroad Company. Practice — Witness - Obligation to produce Documents Documents not the Property but in the Physical Possession of Witness—Foreign Tribunals Evidence Act, 1856 (19 and 20 Viet., c. 113), s. 5. A servant who is called upon to produce documents at a trial or at an examination under the Foreign Tribunals Evidence Act, 1856, and who has the physical possession of the documents is not bound to produce them unless it can be shown that he has such possession, custody, or control of the documents as would empower him to show or produce them in evidence without violating his duty towards his employer. So held by the Court of Appeal (Kennedy, L.J., dissenting). Decision of the Divisional Court (ante., p. 36) reversed upon this point. This was an appeal of C. Nickels from the judgment of the Divisional Court (Mr. Justice Bray and Mr. Justice Bankes), reported 28 The Times L.R., 36, in respect of two appeals from the decision of Mr. Justice Lush in Chambers in the following circumstances : In the course of certain proceedings in the United States between the plaintiffs, who are cotton brokers in Liverpool, and the defendants in regard to the liability of the latter in respect of certain bills of lading for cotton alleged to have been forged, an order was obtained from the Master, under the Foreign Tribunals Evidence Act, 1856, that one C. Nickels should attend before a Commissioner in this country and give evidence and produce certain bills of lading and correspondence relating to the business of the firm by which he was employed, which documents and evidence were material in the action in America between the plaintiffs and the defendants. An application was made to Mr. Justice Lush to discharge that order, which was refused. The examination of the witness took place, and he refused to produce the bills of lading and correspondence, and also declined co answer certain questions as to who in fact had charge of the correspondence. Thereupon the plaintiffs applied to Mr. Justice Lush for leave to issue a writ of attachment against the witness for refusing to obey his subpoena. Mr. Justice Lush refused to make the order, upon the ground that the witness was a servant only, and that the legal possession of the documents in question was in the firm by which he was employed. From this decision the plaintiffs appealed, and Mr. C. Nickels also appealed from the decision of Mr. Justice Lush, refusing to discharge the order made for his examination on commission. The Divisional Court held that if a servant, who was called upon to produce documents at a trial, or at an examination under the Foreign Tribunals Evidence Act, 1856, had the physical possession of the documents, he was bound to produce them, even although the legal possession was in his master, unless he could show good cause why he should not

do so, but that it probably would be a good cause for not producing the documents if the servant had been forbidden to do so by his master. They also held that Mr. Justice Lush’s decision, refusing to give leave to issue a writ of attachment against the witness was not made in a criminal matter, inasmuch as what was sought to be done by tbe writ of attachment was to compel the witness to produce toe documents, and not merely to punish him, and, therefore, that an appeal lay from the Judge’s docision. The Divisional Court thereupon made an order for a writ of attachment against Mr. Nickels, directing that the writ should not issue for fourteen days, in order that the respondent might have an opportunity of producing the documents and answering the questions put to him. The Foreign Tribunals Evidence Act, 1856, section 5, provides as follows : “ Provided also that every person examined under any order made under this Act shall have the like right to refuse to answer questions tending to criminate himself, and other questions which a witness in any cause pending in the Court by which or by a Judge whereof or before the Judge by whom the order for examination was made would be entitled to ; and that no person shall be compelled to produce under any such order as aforesaid any writing or other document that he would not be compellable to produce at a trial of such a cause.” Mr. Nickels appealed. Mr. Holman Gregory, K.C., and Mr. Dunlop appeared for Mr. Nickels; Mr. Greer, K.C., and Mr. Henn Collins for the plaintiffs. Tne following cases were cited in argument: Amey v. Long (9 East, 473) ; Crowther v. Appleby (L.R., 9 C.P., 23); Reg. v. Stuart (2 The 'limes L.R., 144) ; Desilla v. Fells (40 L.T., 423); Keatsley v. Philips (10 Q.8.D., 465) ; Murray v. Walter (Gr. and Ph., 114); Reg. v. Daye ([l9oß] 2 K. 8., 333) ; Earl of Falmouth v. Moss (11 Price, 455). The Coubt allowed the appeal, Lord Justice Kennedy dissenting. Lord Justice Vaughan Williams said this was an appeal against an order for attachment, which had been made in connection with proceedings taken under the Foreign Tribunals Evidence Act, 1856. The witness who was to be examined in this case under the provisions of that Act, in order that his evidence to be taken before a commissioner in this country might be made use of in an action pending in one of the Courts of Alabama, was not a party to that action, but was a mere witness. The object of the order for his examination was that he should produce and give evidence about certain documents which belonged to the firm of W. L. Nickels and Gordon Ross, in whose employment he was. It appeared that he was originally examined under an agreement between the parties, and that on that occasion he produced some documents of more or less the same character as those now in question. But at the statutory examination he refused to produce the documents in question, on the ground that he had no authority from his masters or employers to produce them.

The Court were now asked to draw the inference that there was no such relation of master and servant between the firm and the witness as would negative the right of the witness to produce the documents, and that at the time of the statutory examination he could have produced the documents without violating his duty towards his masters or employers. He was unable to draw any such inference. In his opinion, the witness was not debarred from saying that in the meantime he had thought the matter over, and that he did not nowfeel himself in a position to produce any further documents. The question they had to decide was whether under the oireumstances the witness was, by reason of his refusal to produce these documents, guilty of a contempt of Court so as to be liable to be attached for contempt. He would assume that these documents were documents which wopld throw light on the issues in the action. But in his view of the evidence, although the witness might be said in a sense to have the possession, custody, or control of these documents, he had not such possession, custody, or control of them as would empower him to show them or to produce them in evidence without the authority of his masters. He himself said that he had no such authority, though he added that he had never asked for it. When once the conclusion was arrived at that he was a servant, and that his possession, custody, or control of the documents was such that he could not produce them without the authority of his masters, it was, in his opinion, impossible for the Court to make an order of committal against him for non-production. Being of opinion that there was no evidence at present which would justify the conclusion that the witness could have produced these documents without violating his duty to his masters, he thought that the order for attachment ougut not to go, and that the appeal should be allowed. Lord Justice Buckley delivered judgment to the same effect. Lord Justice Kennedy said he regretted that he could not agree with the other members of the Court, though he

was anxious that the summary power of tbe Court to enforce its orders by attachment should be scrupulously and rigidly watched. Counsel for the appellant said that the appellant had no possession, or custody, or control of those documents. That seemed to him to be an impossible contention. The witness had stated of his own motion how the documents, as he himself expressed it, oame into his custody. And it was undisputed that at the voluntary examination he did produce a number of tbe same class of documents, and said that when he was next examined he would bring the rest. His answers showed that he had the power to produce these documents. It was true that he was a servant, but the degree of control exercised by a servant in a mercantile office might be either very large or very small. In this case it appeared to be high, and there was no evidence that the servant was forbidden by his masters to produce these documents. He agreed with the view expressed by Mr. Justice Bray in the Court below that the witness had the custody of the documents, and that he would not be failing in his duty to his masters if he produced them. [Solicitors—Pritchard, Englefield, and Co., for Simpson, North, Harley, and Co., Liverpool; Stanton and Hudson, for H. Forshaw and Hawkins, Liverpool.]

(“Times Law Reports,” Vol. xxviii, page 69.) [Court of Criminal Appeal —(Darling, Hamilton, and Bankes, JJ.) Rex v. Robert Messer. Criminal Law — Larceny — Taxi-cab Driver not, paying over Percentage of Takings—Larceny Act, 1901 (1 Edw. VII, c. 10), s. 1. Conviction of the appellant, a taxi-cab driver, for misappropriating £6 3s. 6d. “ had and received for and on account of ” the taxi-cab owner, by failing to pay over 75 per cent, of his takings, according to the arrangement under which he took out the cab, affirmed. This was au appeal against a conviction. Mr. C. W. Kent appeared for the appellant, and Mr. Bassett Hopkins appeared for the Crown. The appellant was convicted at the October Sessions of the Central Criminal Court on a charge of fraudulent conversion, and was sentenced to six months’ hard labour. Mr. Kent said that the appellant was a taxi-cab driver. He had been accused of misappropriating £6 3s. 6d., money “ had and received for and on account of ” his employer ; but there was no evidence to support the indictment. The first witness called by the prosecution was the manager for the cab-owner, and he admitted that the appellant was not their servant. The arrangement was that the driver had to pay in the sum registered by the meter less a fixed percentage, and no wages were paid him. Counsel submitted there could not be the relationship of employer and servant unless there was some sort of a contract of employment. He referred to Rex v. Solomons (25 The Times L.R., 747; [1909] 2 K.B. 980; 73 J.P. 467). The latest ca-e on the subject, Smith v. General Motor-cab Company (27 The Times L.R. 370; [l9ll] A.C. 188), showed that the driver of a taxi-cab was a bailee and not a servant at all. All the appellant said he signed was a document admitting that the cab when taken over by him was in good order, and agreeing that he would be responsible for any violation of the police regulations. The appellant kept the cab out for a week, and at the end of it the owner sent him a bill for cab-hire for £6 3s. 6d., and as he did not pay these proceedings were taken. Mr. Justice Bankes pointed out that the words “ cabhire ” were not used. Mr. Justice Hamilton observed that on this indictment it was not necessary to show that the money was received by the appellant as a servant or agent. Further, was not the appellant’s own evidence that he was to account for 75 per cent, of his takings sufficient evidence to go to the jury? Mr. Kent said the driver went in the morning for a qab and took it out without making any arrangement, and when he brought it back in the evening he paid what the owner chose to ask him for its use ; and from that arrangement it was impossible to infer an agreement to hand over a fixed percentage. Mr. Justice Darling said it was necessary to bear in mind that the appellant was not charged with any offence as a servant, so Solomons’s case {sup.) did not apply. The charge was framed under section 1 (6) of the Larceny Act, 1901. It was true there was no written agreement under which the cab was taken out, but there was the evidence of usage, there were the appellant’s own admissions at the trial, and there was an account-sheet on which the terms of the agreement were really developed. So there was evidence to go to the jury that the money was received on account of the owner ; and there was also evidence that it

was fraudulently converted ; and the case was properly left to the jury. The appeal must therefore be dismissed. His Lordship said that the Court wished to express an opinion that it would be better if the agreements under which taxi-cabs were taken out by drivers were put into writing, so that their terms should be perfectly plain and the time of the Courts should not be taken up with such cases as this. The appellant wished to appeal against his sentence, but it was a sentence which was fully deserved for a dishonest act for which there was no palliation, and there cauld be no reduction. [Solicitors—Registrar of the Court; Director of Public Prosecutions.]

(“ Times Law Reports,” Vol. xxviii, page 81.) [Court op Criminal Appeal (Lord Alverstone, C.J., Darling, and Bankes, JJ.) — 20th November, 1911. J Rex v. Chapman. Criminal Law—Evidence — ldentification. Observations by Lord Alverstone, C.J., as to methods of identification of accused persons. This was an appeal against a conviction of the appellant, Thomas Chapman, at Hereford Assizes, before Mr. Justice Lawrance, for an offence against a little girl eight years of age under the Criminal Law Amendment Act, 1885, for

which he was sentenced to five years penal servitude. The only question was as to the identity of the appellant. Mr. P. 0. Langley appeared for the appellant, and Mr. T. P. P. Powell for the Crown. The Lord Chiep Justice, in the course of his judgment, said they bad had occasion more than once in this Court to refer to methods of the identification of accused persons. In this case the prosecution relied on the evidence of two boys, who were taken to a tent in which the appellant and two other soldiers were present, and bosh boys admitted that the appellant was pointed out to them by the policeconstable, and that they were asked, “Is that the man?” The Court had said before that that was not a satisfactory way of identifying a man, whether the parsons identifying were young or old. Some steps ought to be taken to make the identification fair in the sense that the accused was identified by the witnesses’ recognition, either from previous knowledge of him or from recollection of the events forming the evidence of the charge. The boys did not recognize the appellant spontaneously, but adopted, as it were, the suggestion made to them. Under these circumstances the evidence of the boys was not corroboration of that of the girl. The only evidence against the appellant was the fact that he had shaved off his moustache immediately after the date on which the offence was committed. The conviction must be quashed. [Solicitors —Registrar of the Court of Criminal Appeal ; Director of Public Prosecutions.]