COURT OF APPEAL.

New Zealand Mail, Issue 26, 22 July 1871, Page 7

COURT OF APPEAL.

—4> Wednesday, July 20. (Before his Honor Chief Justice Arney, Mr Justice Johnston, Mr Justice Richmond, Mr Justice Gresson, and Mr. Justice Chapman.) Their Honors took their seats on the Bench at eleven o'clock. TAYLOR AND ANOTHER V JORDAN. The argument on both sides of this case was brought to a close this day, after occupying the Court four days. Mr Travers, for the appellant, concluded his reply at about one o'clock. Judgment reserved. REGINA V HURLEY. The Attorney-General, in laying his case before the Court, said it was brought under the Court of Appeal Act, 1852, and the facts of the <™se, as adduced at the trial at the sittings of the Circuit Court at Auckland, were that the prisoner was charged with a breach of the Arms Act in having sold and disposed of two pounds of gunpowder, some shot, and other ammunition, contrary to the provisions of the Arms Act. The question arose upon the construction of the four acts —the Arms Act 1860, the Amended Act of 1861, the Continuing Act of 1866, and the Anns Act Amendment Act 1869. By the Arms Act 1860 it was decided that the selling of arras or ammunition constituted a felony. This act had been continued in operation from year to year, but was slightly amended by the act of 1860, which was called the Arras Act Continuance Act, 1861. The.first clause of this act provided that it should continue in force until the end of the General Assembly, and the course of legislation down to 1866 was to continue the Arms Act of 1860, as amended by the Arms Act 1861. The act of 1866 altered the denomination of the offence from felony to misdemeanor, but the repealing act of 1869 revived the act of 1860, and he held that the offence with which the prisoner had been charged was still a felony. This was the case which his Honor Chief Justice Arney had reserved for the consideration of the higher Court. A very great amount of discussion ensued between the Bench and the Attorney-General as to the interpretation to be placed upon the word " continuing" employed by the legislature in framing the Act. Ultimately judgment was reserved. REGINA V WILLIAMS.

In this case the prisoner Williams had been sentenced to ten years' imprisonment at Napier, and while at work with the hard labor gang he and three others made their escape, for which they were charged with prison breaking. His Honor Mr Justice Johnston, before whom the case was tried, sentenced the prisoner to two years' imprisonment, in addition to his former sentence; but at the request of the prisoner's counsel his Honor reserved the objection that the prisoner could not be convicted of prison breaking because the gaoler had no power to retain him in custody. The power to frame the prison rules had delegated by the Governor to the Superintendent of Hawke's Bay, but no rules had been framed in accordance with that power.

Judgment in this case was also reserved EEGUNA V QUIN.

His Honor Mr Justice Johnston said he was not verv clear upon the point reserved. From what was before the Court he and his brother Judges were of opinion that Mr Allan need not be called upon for argument, but he would leave it to Mr Izard to show how he intended to support the conviction. Mr Izard, in stating the grounds on which he sought to sustain the conviction, stated that the prisoner was indicted on the 27th March last on two counts, the first of which alleged that the prisoner, being a servant of Archibald Whiteford, he feloniously stole and took away certain moneys belonging to the said Archibald Whiteford; the second count charged prisoner with stealing 14s the moneys of Archibald Whiteford. Mr Izard went on to show that the prisoner received certain money from the bank to be applied to a specific purpose and he was bound to apply every shilling of the money to the purpose for which he had been instructed to apply it. He had no authority to apply it in liquidation of any other accounts than those particular accounts.

Mr Justice Johnston wished to understand whether every shilling the prisoner received from the bank was to be paid by the identical coins received by him. Mr Izard said the prisoner received a cheque. He was instructed to do a particular thing with it, namely, to take it to the bank and get it cashed, and that when the clerk handed him the money it was his duty to apply it to the purpose for which he had received it. The clerk at the bank must be considered as being in the position of an agent of Whiteford. and that when he handed over Whiteford's money the prisoner was bound to apply it in the same way as if he had received it from Whiteford, his master, and according to his instructions. The money was handed to him by the bank clerk, and must be considered as a special appropriation.

Mr Justice Richmond said that was a very fine point. It must be proved that it was a Bpecial appropriation. Mr Izard said the question was, whether or not the prisoner was bound to use those moneys in the manner in which he was specifically instructed to do. The case was a similar one to Eegina v. Wells, in which the defendant, a carter, had received money from his master to purchase certain articles. He procured the articles, but did not pay for them, having appropriated the money to his own use. In that case the prisoner was found guilty of larceny. In this case the prisoner, Quin, had received a particular sum of money, which he had misapplied, though there was nothing to show that he had not applied some equivalent of

money to other purposes of the brigade. Mr Izard quoted the case of the Queen against Cook, Law Beports, 1, Crown Cases Reserved, in which a servant, whose duty it was to pay his master's workmen, represented that the wages earned were larger than they really were, and out of the sum received from his master's cashier on his representation he paid the sum really due, and kept the remainder. In that case the Court held that the money obtained by the prisoner was misappropriated while it was in his possession, and that, therefore, he was guilty of larceny. Mr Justice Chapman said the question in this case seemed to be whether the master ever had any property in these fourteen shillings .alleged to have been misappropriated. They had never been handed over to him, and he consequently had no right in them. His Honor the Chief Justice said he felt the same difficulty, viz., that the money never was handed over to the master. If the duty of the prisoner had been to carry the money to his master then there would have been no doubt in the case; indeed, it seemed that the money never was to come into the possession of the master.

Mr Izard said he could not put the case in any different light to that he had already argued—that the banker's clerk had handed the prisoner the money as agent of Whiteford, and that by his not applying it to a specified purpose, in accordance with his instructions, that he bad been guilty of larceny in misappropriating it.

In delivering judgment, Chief Justice Arney said that he thought it clear that though the money might have been the property of the brigade it never was in the possession of the brigade, and the Court had no power to alter the verdict, nor to turn that into a verdict for embezzlement which had already been recorded as one of larceny. The conviction in the lower Court was accordingly quashed. The Court then adjourned till Tuesday next at 11 o'clock, when the decisions in the cases heard will be delivered.