MAGISTRATES’ COURTS.

Globe, Volume VIII, Issue 1066, 27 November 1877, Page 2

MAGISTRATES’ COURTS.

CHRISTCHURCH. Tuesday, November 27. [Before G. L. Mellish, Esq., R.M.] Drunkenness. —John Morris was fined f)0s; J. W. Andrews, 10s ; and Archibald Hammill, 10s. Lucy Davey, for being drunk and creating a disturbance in the Garrick Hotel, was fined 20s. Larceny by a Servant.—The remanded case against Arthur Von Poellnitz for the larceny by him of £4 as a servant while in the employ of the Acclimatisation Society, was called on. Mr Harper, who appeared for the prosecution, asked and obtained permission from the Bench to withdraw all the charges of larceny against the accused. Embezzlement. —The case against Poellnitz for embezzling £4, in two amounts, belonging to the Acclimatisation Society, was resumed.— Mr G. Harper, who appeared for the Society, said he had no more evidence to offer on these charges. He had sent to the Government oilices for the original certificate of the Society’s, Registry under the Superintendent’s signature, and would hand it iu when the messenger returned. —In reply to Mr Joynt, his Worship said he would deal with the case himself and not send it for trial. —Mr Joynt would now submit that the gentlemen calling themselves the Canterbury Acclimatisation Society were not a society at law, and could not hold property. They had not been incorporated, and were only registered under the Act of 1873 for the protection and preservation of game. [Clause read.] The information set forth that the accused, being a servant of the Acclimatisation Society, did appropriate to his own use moneys belonging to the Acclimatisation Society. It should have shown that this money was the property of and belonged to the Society, and he submitted that, in order to give the Acclimatisation Society a status in that Court either iu a civil case or criminal prosecution, it should have been alleged or proved that all the property was vested in the chairman or members of the Acclimatisation Society as a corporate body. [Cited sections of English Acts showing the law with regard to embezzlement.] His learned friend should have shown that the chairman of the Society held a legal status, and not only this status for the purposes of the Protection of Game Act, which he alone occupied. In this Act no provision had been made for enabling the chairman to prosecute in cases of embezzlement, the only power he possessed being to deal with matters relating to the preservation of game either in the possession of the Society or for its protection after being turned out. [Clauses of Protection Act, 1873, read as to penalties to be imposed.] For the purpose of the present prosecution and similar cases, it should be shown that the property was vested in the chairman, but no provision of this kind had been made iu the Act. [Roscoe on Embezzlement, cited to show that the goods must be described in the corporate name iu the indictment.] He (Mr Joynt) drew the Court’s attention to show the form iu which the Society should have prosecuted, and which course had not been taken. His Worship would thus see by all the cases cited that the Act must provide the manner of the "vestment" of the property before a criminal prosecution could be sustained. The Society|were not an incorporated body, and had no corporate name other than for the purposes of Acclimatisation solely. There was no general provision in the Act which allowed the Society to hold the property in question or any other property outside the purview of the Act of 1873. He would thus submit that the society had no legal status to come into Court to prosecute accused for embezzlement in a criminal prosesution. If the accused had offended against the game-laws the society could then have prosecuted in the name of the chairman and not in the name of the Acclimatisation Society, as had been the case in the present information. Neither the chairman or the society could prosecute in the present case, as did 5Qt tbeia 'to indict iu a

criminal prosecution. Any subscriber to the Society held a joint interest in the property at •he Acclimatisation Grounds, and no individuals could come forward and say that because they happened to be appointed managers the property should vest in them. Perhaps there were 200 or 300 subscribers to this society, whose sebsoriptions were supplenented by a Government vote or, used to be at least in the good old days of Provincialism —and all these persons held an >qual interest with those named in the information. The Act was defective in this respect,'and he thought it a pity]that it should be so, and that the property was not vested in the chairman or Society for'general purposes, as they must all regret the failure of justice on technical grounds, but now they must take the law as it stood ; and he would submit that under the whole of the circumstances the Society had not made out a case, and the charge must be dismissed. Mr Harper submitted that there was a distinction in the present case, though he agreed with his learned friend that it should be shown that the property was vested in the Society by statute as a corporate body. By the 4th section of the Act it was lawful for the Acclimatisation Society to register its rules, and this, having been done, gave the Society a title; but the distinction in this case was that accused was charged with having embezzled moneys as a servant while in the employ of his masters, who turned out to be a body of gentlemen forming the Canterbury Acclimatisation Society. [Read extracts from English Acts relating to embezzlement by servants.] The indictment, though it could have been improved in some respects, could not have gone further than stating that the accused was charged, while in his capacity as servant, with having received moneys on account of his master which he had failed to account for. He (Mr Harper) submitted that it did not matter what the Society called themselves. So long as it was proved that they were masters and the accused their servant, they had nothing more to prove to establish their status in the present prosecution. If this had not been proved then they would have had to show they were a corporate body as stated by his learned friend. Several cases had been brought by Road Boards in that Court who had no right to hold property by statute. He would respectfully submit that the only thing he had to prove was that the accused was a servant to certain gentlemen who were shown to be the Canterbury Acclimatisation Society; that this servant had misappropriated moneys received on account of his masters, and this had been proved in the evidence led at the previous hearing of the case. [Sections from English Acts read citing prosecutions taken by persons not being corporate bodies, and showing that it was immaterial how or in what manner the person had been remunerated.] After reviewing the evidence taken, the learned counsel referred to the admission by accused that he was bound to furnish certain returns and accounts to the gentlemen acting as managers for the Acclimatisation Society, thus showing him to be a servant, and said that it was by virture of his employment as a servant that he was now brought before his Worship.—Mr Joynt said it might save some further trouble if he were allowed to observe that the law was not as his learned friend had put it. It must be proved not only that the man was a servant but also that the property alleged to have been misappropriated was the property of the persons prosecuting. —His Worship .- But if the moneys were under the control of the Acclimatisation Society ?—Mr Joynt said the Society were only an Acclimatisation Society for the purposes of the Act, and there was no such institution known to the law except for the purposes of the Act, 1873, for the protection of game. After considering the sections quoted, his Worship said he would allow the matter to stand over until the following day to see whether there was anything in Mr Harper’s remarks as to the distinction of accused being a servant. —Mr Joynt said he quite agreed with that branch of the case as contended by his learned friend, but there was another and most important one, and that was as to whether the Society had any property except as shown in the Act. —His Worship said he would remand the accused until 10 a.m. on the following day.