A PECULIAR CASE.

Taranaki Daily News, Volume LI, Issue 199, 12 August 1908, Page 2

A PECULIAR CASE.

AETEIiMATH Of THIS ELUUIT I'llAL'Dfcj. Bj; Telegraph.—Press Association. Wellington, Last Night. A fraud committed by A. C. fcliiutl was ■referral to in the case James John Amu-;, Wellington, accountant, v. Klraiibetli Jlilsoin, tace specialist, which was decided to-day liy .Ur. Justice Chapman. There was, said his Honor, mi important disputed fact ur conflict in the evidence, ajid tlie question was wiiieli °f tlie two innocent parties was to suffer by the l'raud of one Klliott who is now undergoing imprisonment fur fraudulently obtaining this and otner sums. He had undoubtedly swindled the defendant out of large sums representing years of hard-earned savings. Irrespective of this dispute the plain■till's claim of £370 arose in bliis way. lie came into contact with Elliott, whom he knew personally, and who was | in business as a land agent. Elliott!" showed him a house in Hawker striwt belonging to defendant, which he represented to be in liis hands for sale. Plaintiff was willing 10 buy the house lor ,C!) 00, tlie price stated* by Elliott. There was some foundation for Elliott's representation as to his authority to oiler tlie house for sale, but the nature of the authority was in dispute. Plaintiff, his Honor went on-to say, drew a cheque in favor of the defendant or her order, and handed that to Elliott, in order, as he explained in his evidence, that lie might "get her re-> ceipt for his money." Elliott, with some demur, took this cheque and went

with it to the defendant. Eventually she endorsed it. Then Elliott at once misappropriated the cheque to stave off t pressure. lie said he went to defend- t ant in order to honestly carry out his duty, but was tempted to misrepresent , : the matter when she demurred to sign, j ills fraudulent intention was certainly , formed when he commenced telling her ( falsehoods. He may liave tried to tell \ the truth in Court recently, but when s ho spoke of liis intentions his evidence < was not of much l ' value. The defend- , ant's signature, his Honor said, was obtained not by a misrepresentation resulting in total misconception as. to the nature of the document signed, but by misrepresentation as to tlie arrangement made with tile plaintiff as to the course to be pursued and as to several collaterial matters. Now it was a rule that when one of two innocent persons must sullft by such a fraud the one w-lio had done an act facilitating the committal of tllio fraud should be tlie one to suffer, unless there was some legal reason for casting the burden on tlie other. His Honor found that Ames had acted with caution. Miss Milsom, he said, had taken the ■ money into her possession, and, with- ' out the authority of the plaintiff, made • Elliott a trustee of it upon terms pre--1 scribed by him and assented to by her- • self. Though liis Honor could not help 5 feeling a regret in having to give a I judgment Which added to this lady s ' losses, lie must do justice to the plain--3 tiff. He did not think it was incum- '■ bent on him "to allow interest. He did not think a jury would allow any, as e tiie plaintiff had'entered upon a speculative purchase which might ot might not have led to a profit by tihis tim*. 'Judgment for the plaintiff for. £370 was"given, plug costs.