COURT OF APPEAL.

Dominion, Volume 2, Issue 471, 1 April 1909, Page 11

COURT OF APPEAL.

'' ) ' ~ ' .. • '• d YESTERDAY'S PROCEEDINGS. t •• \ u SOLICITOR STRUCK OFF THE ROLL. \ Upon tlio sittings of tho Court of Appeal \ being resumed yesterday,', their Honours ' Justices Dciiniston (presiding), .'Edwards, £ Coopor, and Cliapmau being present, the ( first matter dealt with was "a motion on be- i half of tho Wellington Law Society to make absoluto a riilo nisi calling upon Charles' Edward Harden, barrister and solicitor, Palmerston North, to' show causo why he should not be struck off tlio'roll. 1 Mr. Gray appeared in support of tho motiou, and Mr.. Skerrott, K.C; (with, him Mr. Luckie), to oppose. . . ' Tho ground of tlio .proceedings was that, 1 on Juiio. 19,. 1908, Harden converted to his \ own , use . tho" sum .of £250 received by him on terms . requiring ■ him to account for the sum to a client, Mrs. Hancock,, of Christchurch. The monev in questiou had been paid over to tlio client on August 31. Harden was, on September 12, tried-.at- the.criminal sittings at Pal merston North heforo Mt. . Justice ' Chapman and a-jury of twelve, upon an indictment charging.hiin with tho theft of,the money. Hie dcfchco wasithat, at tho'timo the money was paid to him, Harden was so muddled by indulgence in, drink that-'lie could not know, the nature* and quality of his acts. Ho wa.s acquitted oii the chargo. Mr. Gray said that Harden at first made a number of misstatements in regard .to the money. When an information laid the money was paid. Subsequently," however, tho polico took proceedings. . Although the defonco' had been as stated, it did not appear that any of tlio allegations were denied. Tho facts seemed to show Micro, was knowledge and deliberate ;intention ou Harden's part, and ho seemed to have used tho money for his own purposes. It n'ifs in his favour that tho money had been refunded, and that, upon trial, ho' was "acquitted. Nevertheless he (Mr. Gray) was bound to submit that,-cases show that, oven where a solicitor has" been found not guilty of a criminal . charge, the Court would interfere to punish

him if tho charges did,amount to fraud and misconduct. If tho Court found that _ conduct was not criminal, it yet remained •to be considered whether Harden had been guilty of an act which showed that lie was not a ftt and proper person to remain r> solicitor of tho Court. Tho fact that rcp.v ratiou had been mado was not a sufficient answer to tho allegation. Mr. Skerrett, in reply, said that Harden .was admitted in'.the year 18S8. Whether, the Court regarded the.act.as a negligent 01 a'fraudulent oriej ; it was nevertheless an isolated act. Id the face of the verdict of the jury tho Court could not regard tho dealing as one of criminal or .wilful fraud. It was submitted that at least tho vcrdict of the jury ought to bo sufficient to acquit Harden of wilful intention to-.defraud. Ho did-.-not for onp moment urge that tho Court was not entitled to consider tho act as a negligent act, or as ono of misconduct, but the Court ought not in tho exorcise of its punitive jurisdiction to go behind thA verdict of the jury, and regard it as an act of wilful • and designed" fraud. Tho. money was paid into a trust acoount, and was drawn from ."that. ■ account by cheque. Unfortunately Harden at the time gave way to a bout of'drinking of so_ severe a'character that medical evidence informed the Court that, ho bad to be taken to' a priv.ato hospital. .. Harden had now been under suspension for eight mouths, and thero were affidavits to show that ho had mado an honest effort to abandon the use of drink. He urged that tho principle, of the' first Offenders Act ought to bo applied. ' Mr. Justice Edwards: But this is not a single offence —it is a series of offences. Mr. Gray: In all Harden drew 34 cheques in connection, .with .'tho; .money,, and, 'in n<j instance, was the money-for Mrs. Hancock's use. ' ■ , ' iy: During tho course of further argument.' as/ to tlio form of punishment which should be imposed,' Mr.f Justico" Chapman remarked i that'.the power of tho Court to punish in the proper sense of tho term was rapidly coming to be considered non-oxistent. . Mr. Justice Edwards Sentences aro in--1 dieted not for,the purpose of punishing the • offenders, but for 'tlio purpose of protecting tho pußlic.. ' " ... It was oontonded by Mr. Skerrett that it was not.nccessary for tho Court to-go to . the length of ;" striking -.Harden off tlio roll. Suspension for a, period would bo sufficient punislynent. '/' Mr. Justico Denniston-held.'that it was elbar that Harden ; nqt-only .knew, the nature of the series of the'acts . which he'was committing', but ho must; also have known that he was committing a crime., Ho regretted to have to come' to the conclusion , that Harden had been guilty of an act which showed that ho ought not to be on tho roll. It would bo .open to him, in a reasonable time,'to 'showthat ho ought to bo rein-, stated. . ■ Justices .Edwards," Cooper,' and Chapman concurred''with the views of-'tho president. - An order was made striking Harden off the r011,., and costs 15 guineas wcro allowed tho society.• . . '

RE-ADMISSION OF "A' SOLICITOR. Consideration was then given to a motion ( on behalf of : Charles Kdward Matthews for ) re-admission as a solicitor. , ; ,] • , Mr.', Campbell appeared ,in support of the 1 motion. ' ... . " ■ ' ! The' faets were that applicant was struck • off the roll 'for having failed. to pay to a 1 client the sum of £'10. ' ' On behalf of the Court, Mr. Justico Den- ; niston said that it was not considered necessary to hear counsel in support of tho application. The Court which struck Matthews off the roll made an order giving him liberty to apply within two years for re-admis-sion. It was now fifteen years since the matter was "before the Court. Thero was beforo tho Court evidence that tho money which" was misappropriated had been paid, as well as the costs of the Law Society, also testimony as to the good character of the applicant. The Court. thought it was a case in which rc-admission should be granted. An order would be made accordingly.

SEQUEL' TO TRAMWAY ACCIDENT. QUESTION 7 OP COMPENSATION. Argument was then heard on a motion for judgment in councction' with the case of Andrew E. Harris,, of Mount Somers', y. John Tucker Ford, Ida Francos Peacbe, and Bcauchamp Lassotter Lano, trustees of the will of E. A. J'eaclie, deceased. Mr'. Wilding, of Christchurch, appeared on behalf-of plaintiff, and Mr. G. Harper, of Christchurch (with him Mr. K. Neave, of Christchurch) for the defendants. This was an action removed, by consent, from Christchurch, -by- order of Mr.. Justice Denniston, into the Court of Appeal. Plaintiff brought a claim against defendants' for £1000 damages. It was alleged in the state-, incut of claim that defendants were the lessees in possession oF a tramway constructed under the Tramways Act', and used for the purpose of convoying coal from certain mines to the railway station at Mount' Somers. As such lessees, defendants were under an obligation to keep tiie tramway in proper repair. In December, 1907, plaintiff, whilst lawfully using the tramway, sustained bodily injuries whicii resulted in'the ..loss of one of his legs. Those injuries, it was alleged, were caused by -the defective condition of the tramway. A sum of £250, which had been paid to plaintiff by his employers, was not in full satisfaction nf his claim, but merely as compassionate allowance. On behalf of defendants, it was contended that the tramway was not in a defective condition. Tlieiii- again, it was set up that plaintiff bad been guilty (if contributory! negligence. It) was "further submitted that, under a special order of tho Ashburton County Comifcil, made in 1394, it was provided that th.p-tramway should bo open.to the use of the public upon payment of a reasonablo charge, but that tho necessary machinery and labour should be found •by defendants. ' According'to defendants, when tho plaintiff met .with the accident, bo was not lawfully usirn; tho tramway. By. Ac-

eopting tho sum of £250 from tlio Coal Compahv, plaintiff lost his right under Section 16 of tho Workers' Compensation Act to mako further claim. , In connection wit 1 tho action which was hoard at Chnstcluircli 011 September 17 and 18, tho jury found as c ollow—(1) that tho injury" was duo to the lefecfcivo condition ■of tho tramway, () that plaintiff was riot guilty of contrunitoiv negligence, and (3) that ho was entitled to recover £GOO damages.- Upon the findings plaintiff moved for judgment, and the matter was then removed into tho Court ot Appeal for argument. Mr. Harper, traversed tho caso for respondents, and Mr. .Wilding lwd no' l co "j eluded "his reply when tho Court adjourned until tliis morning.