COURT OF APPEAL.

New Zealand Times, Volume XXXIII, Issue 5360, 1 June 1878, Page 2

COURT OF APPEAL.

I'IUUAV, r MiY 31. (Before their Honors the Cliief Justice, Mr. Justice Johnston, Mr. Justice ■ Richmond, Mr. Justice Gillies, and Mr. Justice Williams). ■ • Judgment was delivered in the following cases:— JUMNA V. KIMOANS. The Chief Justice ; I am of opiuion that the conviction cannot he supported. The alteration in the cheque does not affects its value, and is not material. Mr. Justice Johnston : I am of opinion that this conviction cannot he supported! The alteration made is in a part of tl}e instrument, which is not material as respects its legal operation. The alteration did not change the civil .rights and i liabilities of the parties. l am not prepared to. say that the alteration of a>part of a document not material in that respect, if made with the intent to defraud, and being likely or apt to deceive, might not be forgery. Hero the jury have found that the alteration was not likely to. deceive an ordinary person, and we must accept that conclusion of fact, even if wo think it erroneous. I am therefore of opinion that, although

there was no intent to defraud, yet, as the alteration is found, by the jury to havei been one which was not likely to accomplish the intent, it was not an alteration within the Forgery Act. • . t . e .. Mr. Justice Williams : ihe effect of the alteration, or rather of the addition made to the cheque by the prisoner, in no way varies the etfect of the instrument. Had the cheque bean originally drawn in its altered form it would have been a cheque for .€3 only. If the drawer bad been sued upon it the plaintiff could not have recovered more than j 63, and evidence would have been inadmissible to show that the cheque was intended to for the amount expressed iu figures; This is clear from the case of Sanderson v. Piper, 5, Bing ; N.C., 425. The alteration also is not of such a nature as to render the cheque void. The drawer is discharged from his liability only if the altered instrument, supposing it to be genuine, would speak differently from the original instrument, whether to alteration he or be not to Iris-prejudice (see Gardiner and others v. Welsh, 24, L.J.Q.8., at page 225). An instrument is a forgery when it fraudulently purports to be that which it is not (see B. v. Rit3OD,L.R., 1 C.C.R,200.) Herethe legal effect of the document after the alteration remains the same as before. It maybe true, as laid down in E-. v.-Eliiof;, 2 East., P.C., 902, that in forgery it is sufficient that the instrument is pr'uaa facie fitted to pass for a true one, hut the jury have found expressly that an ordinary person would not have been deceived by the altered instrument. Had the jury found differently the question would have been one of treater difficulty, but on the case as it stands I am clearly of opinion that the conviction should he quashed unless it cau be maintained that the word “ alter ” in the statute extends to some kind of alteration that would not have been included under the word “ forge.” I do not think that the word “ alter” has any such effect. The word “ alter "in connection with the word “ forge,” as rebating to orders for the payment of money, first appeared in the Statute Book in the 7. Geo. 11., o. 22, and has remained ever since. If the effect of the word had been to render felonious an alteration which would not have amounted to forgery, it is certain that in the course of nearly a century and a half some notice of such an extended, effect would have been found, either in reports or in the works of text writers. During all this period no case can be found where a person has been convicted of altering an instrument where he would not have been as properly convicted if he had been indicted for forging it, REGINA V. BARNSLEY. The Court, held that the conviction in this ease could not be" supported, the Chief Justice dissenting. ORMOND V. PATERIKI TE REBIKIHE. Mr. Justice Johnston : I am of opinion that the declaration is good. I think it unneoescessary to consider whether the alleged agreement entered into before the Crown grant was valid or not. After the issue of the grant Apera Pahoro had a good legal title, which from that time was to be dealt with according to English law. He then made a declaration of trust, .which would have been deemed sufficiently certain if the : parties, had been Europeans. I think it is not necessary for us to decide, at this stage of the case/ whether the interests ot the plaintiff and the other members of his hapu mentioned are to be taken as being of equal amount; or whether before decree it may not be necessary to have recourse to the Native Lands Court to ascertain their respective intents.. I think there is enough on the declaration to show that the plaintiff is entitled to specific relief, aud therefore that the Chief Justice was right in overruling the demurrer. Mr. Justice Richmond : I am. of the same opinion for the same reasons. Mr. Justice Gillies ; I am of the same opinion, and I have nothing to add to what has been said. Mr. Justice .Williams : In order to support the decision it is only necessary to show that the declaration of trust set out is not void, either by, reason of its infringing the policy of the law, or from its uncertainty. If it is made iu pursuance of a prior invalid agreement the declaration would be voluntary, but not' therefore void. As to its uncertainty, no case was cited where a trust declared in terms anything at all approaching the terms in which the present trust has been declared, has been held void on this ground. There is no need, at this stage, to determine the exact quantam of the plaintiff’s interest. It is difficult indeed tosse how that could he ascertained without bringing before the Court the other cestui jae trusts. The Chief Justice : 1 adhere to the opinion I expressed before. The appeal, therefore, is disallowed, with coats. The Chief Justice : Is anyone here to represent the parties! Mr. Izard ; I appear for Pateriki; ■ Mr. Chapman : T have a > general > retainer from Mr; Ormond, but I am, not instructed- in this case. I request, on behalf of Mr. - Connolly, who argued the case, that he may have leave to plead. - i--Mr. Izard : I ask that it be granted on the usual terms, that the other side pay all costs below and in this Court before they plead. . The Chief Justice: The appeal is disallowed, with costs of this Court and costs below. The ’defendant will have one month’s time to plead. BARTON V. ALLAN. The appeal in this case was disallowed, the Court holding that the appellant, the plaintiff iu the Resident Magistrate’s Court, by sending iu a signed bill of ; coats on which he recovered, a verdict, being non-suited as to a further amount of which no signed bill- of costs had been scut in, had split the cause of action and could not recover the second amount for winch he had at a later date sued the defendant. The fact of his having presented a signed bill for one part of his claim, and an unsigned hill for the other part, did not enable • him ■to bring two actions. The cause of action-was the work done under the contract. It was clear that the plaintiff, having taken judgment for part, could not sustain an action for another part of his claim. Appeal dismissed, and judgment of the Supreme Court, Dunedin, upheld. . SPENCE V. PEARSON AND OALDER V. DUFF. The Chief Justice : Wo think that iu these matters this is not the proper' Court lo apply to. The Supreme Court can act in both cases. As to whether the cases are such that the Supreme Court would act; or on what terms it would act, this Court cannnot express an opiuion. The motions are refused--After consultation, The Chief Justice : It has been considered by some members of the Court that I have not fully expressed its opinion upon this matter. In order that there should be no misunderstanding, I have to state that in the opinion of the majority of the Court, brother Richmond, brother Gillies, and myself, the : Supreme Coart would have jurisdiction. We intimate no opinion as to whether the Supreme Court . would be justified in making an order, pc what the terms would he supposing it did make an order ? Mr. Justice Williams : I agree that where a case has been removed from the Supreme Court to this Court, and this Court has adjudicated on it, the Court below is the proper tribunal to apply to for a stay of proceedings, and that it has jurisdiction in general to grant a stay. In coming to this conclusion, however, I by no means wish to be considered to iutimate that the decision arrived at by ray brother -Johnston and myself iu the : Court below, in the case of Calder v. Duff, Was errqueoqs. That was a case where a purchaser prayed specific per-" formance of a contract of sale, and had obtained in the progress of the suit provisional injunctions to restrain the defendant from prosecuting actions of ejectment against him. Tire case was removed Into this Court, and it was decided here that the plaintiff was entitled to no relief, aud that the injunction, should be dissolved. What in effect was afterwards asked in the Court below was, that these injunctions should be kept' on foot pending the prosecution of appeal to tl|q Privy Council, = That was an application which I do not think Abe Court below had jurisdiction to grant. This Court had - adjudicated upon matter, and its' adjudication was final as regards the - tribunals .of the colony. Any decree to be drawn up iu the Court below could not vary or alter the terms of the adjudication made by this Court, - which were that these injunctions should be dissolved ; and, cvcu if nothing had been said respecting the injunctions, the dismissal of the plaintiffs bill would dissolve them, unless they had been expressly continued in the decree (Kerr on in- ' junctions, 636). If the plaintiff-had obtained, what he ’sought, the - Court' below; under’ tha guise of staying prooeedinga, would have given the plaintiff relief when this Court had decided that he was not entitled to. any relief at all. The proper course the plaintiff should have taken, if he had intended to appeal to the ’ -Privy Council, would -have 'been,; before this _ Court had exhausted its jurisdiction by the' issue of its certificate, to have obtained from this Court, as, a term of its adjudication, a proviso keeping on. foot the injunctionsspending the appeal. This would then have been embodied in the decree dismissing the suit, and there would have been no further difficulty,

Mr. Izard As fco coute i - The Attorney-General:' I think uo costs ought to ho given to the other side. J his is a now point of practice as to which great difhculty has been experienced. _ The Chief Justice : The motion will he refused with costs. The Court then rose.