FENDING OFF A PROSECUTION.

Dominion, Volume 3, Issue 879, 27 July 1910, Page 7

FENDING OFF A PROSECUTION.

' TO SHIELD- A RELATIVE. . Fruitless endeavours to shield a relative from prosecution and- his family from disgraee were the subject matter of a judgment delivered yesterday by Mr. Justice Chapman, in the case ot" William E. L. Banks v. tho Cheltenham Co-6per-. ative' Dairy Company, Ltd. Tho plaintiff is the brother-in-law of one Ross, who, while employed as secretary -to tho defendant company, misappropriated .£SOO ol its moneys. In March b, 19U9, plaintiff and his mother had an interview with the late Mr. Sandilands, solicitor. to tho company, at the latter's request. At that interview, matters relating to tho misappropriations by Ross were discussed, and the outcome was that .Banks paid .£250 to the' cohSjiany, and gave a promissory note for an equal amount. Afterwards, a shareholder; acting quite independently •of the compau}', .prosecuted Ross<:to conviction■ and*. Sentence'. Banks' .then" brought action in the Supremo.Court to have the ,£250 and tho promissory note returned to him. His Honour, in the course of his judgment, said that ho could only inter that plaintiff and Tiis mother were brought to book in a' state of terror, but ho acquitted Mr. Sandilands of doing anything that ho did not think was beneficial to the Banks family, as well as to the company. ' Plaintiff and his ' mother entered into tho arrangement with Mr. Sandiiands, solely in ' order to relievo themselves of their state of terror by taking steps to stifle the threatened prosecution. The agreement in such a cast need not be express, for. the parties to such a transaction never put the real agreement into any writing that might pass, like a promissory note or a receipt; they might not, even in discussion,' use crude, plain expressions; they might even expressly disavow their real meaning ;' but when they were all agreed upon something, and what they were agreed upon was not 1 in doubt, that was their agreement. Plaintiff and his mother, under dire pressure, entered into an agreement to. stifle a prosecution; plaintiff, in pursuance of that agreement, gave the note, and ho was entitled to have.it redelivered to him.' The question whether the plaintiff was entitled to recover his money was made more difficult by the existence of the illegal agreement between the parties to stiflo the. threatened prosecution, pursuant to which agreement tho money was paid. It had been contended for- the -defence that the parties were equally culpable in regard to- the agreement. If this were so, the Court could not assist either. His Honour, however, hold that, when all the circumstances were fully considered, the situation of the plaintiff was not that of a freo agent. The plaintiff was, therefore, entitled to. succeed in both branches of his claim. His Honour stated that ho could not allow interest to the plaintiff, nor the cost of' the jury, which was unnecessary. - Judgment was given for plaintiff with costs. - - Incidentally, his , Honour mentioned, that a meeting of the company had passed a resolution deciding to return tho money, but this presumably had been opoosed, and it had not been Carried into effect. It had no bearing on his decision, but it freed tho company from any imputation of dishcnestly retaining the plaintiff's money. At the hearing of the case at Palmerston North, plaintiff was represented by Mr. A. L\ Herdmnn, and defendant by Mr. J. Graham.