10

Michaelmas Term Examination.-Remarkable Trials.

from the bench at once had it not been for the peculiar position in which the Leeds Justices are at this moment placed by having an insufficient number of gentlemen in the commission of the peace for the borough. All who have witnessed the administration of justice in this borough for several years past will, we are sure, agree with us that any circumstance which could lead to the retirement of Mr. Shaw from the Magistracy is most unfortunate. His extensive legal knowledge, his cool judgment, his knowledge of the world, and his mental capacity for analysing and weighing evidence, have made Mr. Shaw one of the best of Magistrates."

We shall lay before our readers Mr. Shaw's letter as soon as it can be made public.

REMARKABLE TRIALS.

FROM time to time we have brought before our readers various trials, ancient and modern. The recent trial of the eminent bankers, Messrs. Strahan, Sir J. D. Paul, and Bates, has called to our recollection the case of Walsh, a stockbroker, who was indicted for stealing or misappropriating 22,2007., the property of Sir Thomas Plumer (afterwards Master of the Rolls). The failure of that indictment, we believe, gave occasion subsequently to the Act of 7 & 8 Geo. 4, c. 29, under which Messrs. Strahan & Co. have been convicted. We abridge the case of Walsh from Mr. Greaves' Edition of Sir W. O. Russell's Treatise on

MICHAELMAS TERM EXAMINATION. Crimes and Misdemeanors, pp. 30-34.

THERE appears to be an extraordinary number of Candidates for the Examination in the present Term. According to the printed list of notices of admission, the number is 152

To which there are to be added the persons who have given notice of examination and not of admission; viz.

201

188

Has this unusual number been occasioned by the apprehension that at no distant period there will be an Examination in Classics and Mathematics?

WALSH'S CASE, 1811.

contracted in July, 1811, for the purchase of a The prosecutor, Sir Thomas Plumer, having large estate, consulted the prisoner, as to the most advantageous time to sell out stock, so as to be prepared with the purchase-money about the ensuing Michaelmas. The price of the stock was then very low, and the prisoner advised that the sale should be delayed as long as possible, which recommendation was adopted, 49 and the prosecutor requested the prisoner to apprise him from time to time of the variations that might occur in the state of the market. The prosecutor was not called upon to pay the purchase-money at the time first mentioned, as the title to the estate was not then completed; 13 but in the month of October, having reason to believe that the deeds would be ready on or before the ensuing Christmas-day, he communicated that circumstance to the prisoner, and consulted him as to the expediency of disposing of the stock immediately, when the prisoner again advised him to delay the sale. On the 25th of November, the prisoner stated to the prosecutor, that he then apprehended a fall in the price of stock, and apprised him that the 3rd December, and soon after he became extransfer-books at the bank would shut on the tremely urgent with the prosecutor to dispose of his stock immediately, writing to him, and frequently calling upon him for the purpose of giving such advice, and stating as the reason for his importunity a probable fall in the price of stock. The prosecutor, on the 28th Nov., of stock, which, on the ensuing morning he gave the prisoner a power to sell out a quantity contracted to sell for 21,7001. The prosecutor went on the next morning into the City with the intention of finishing the business; but the prisoner stated that some previous notice must be given to the purchaser to be ready with the money, in consequence of which the prosecutor appointed the 4th Dec. for making the transfer. On that day the prosecutor attended and transferred the stock, and expressly ordered the prisoner immediately to invest the proceeds in

It should, however, be recollected that in all probability the additional examination, whenever it may take place, will not apply to those who are serving under articles of clerkship at the time the new rules come into operation. At present, the change has not been submitted to the Judges, nor are we aware that the Examiners have finally settled the extent to which they propose the further Examination should be carried. The scope of such proposed Examination is stated in the Report of a Special Committee appointed by the Council of the Incorporated Law Society, which will be found at page 425 of our last Volume.

nity of getting to America. On being told the charge made against him, he delivered up the 11,000l. American bank shares, and the bag of doubloons.

exchequer bills and lodge them on his account under great pecuniary embarrassments, and at his bankers, Messrs. Gosling & Co., in Fleet had meditated an emigration to America, and Street, but the prisoner told him it was then that about the 29th Nov. he had applied to an too late to procure exchequer bills to such an American broker to procure for him American amount; which the prosecutor supposed to be stock to the amount of 11,000l., and stock true (though in fact it was not), and therefore nearly to that amount was accordingly bought left him to receive the 21,7001. of the purchaser, for him and paid for by him on the Thursday, desiring that he would pay it into his bankers the 5th Dec., with 11 of the same bank notes of on the same day. The prisoner accordingly 1,000l. each, which he had received for the received the 21,700., paid it into his own prosecutor's check, and it further appeared bankers, Robarts & Co.'s, and on the same that several others of the 1,000l. notes so reday paid into Gosling & Co.'s his own check ceived for the prosecutor's check had been paid on Robarts & Co., for 21,500/., on the prose- away by him to different persons on his own cutor's account. On the 5th Dec. he called account. It was proved also that on the same on the prosecutor and received from him a day, Thursday the 5th Dec., he paid to a dealer check (the instrument mentioned in the indict-in foreign coin 300l. for doubloons, which he ment) on Gosling & Co. for 22,2001. The had contracted for three days before, and which prosecutor directed him to go to Goslings and were delivered to him on that day. And furget the money for it, telling him that it was for ther, that he left his country house at Hackney the precise and express purpose and for no early in the same morning, and having procured other purpose whatever, of laying it out in ex- the foreign coin and American securities, he chequer bills; which the prisoner positively absconded by means of the Falmouth mail. promised to do, and either pay the bills into When the route which he had taken was disGosling & Co's. or bring them to the prosecutor covered he was speedily pursued and appreby four o'clock on the same day. The prisoner hended at Falmouth as he was about to get on then went to Gosling & Co's. with the check board a packet for Lisbon, to which place he and there received for it 22,2001. in 22 bank acknowledged that he intended to go in the notes of 1,000l. each and one bank note of first instance, and afterwards take the opportu2001., and on the same day he purchased with part of that money 6,500l. exchequer bills, which he lodged at Gosling & Co's. on the prosecutor's account, and took a receipt for them. About half-past four o'clock on the same day the prisoner called on the prosecutor and produced the receipt for the exchequer bills, and stated that he had paid the remainder of the money into Gosling & Co.'s, as he had contracted with Coutts & Co. for exchequer bills to the amount of 15,000l., but that one of the partners of the house of Coutts & Co. was at that time absent from London, had the bills locked up in a drawer, and would not return to deliver them until the following Saturday, Dec. 7, on which day the prisoner said he would call again for the prosecutor's check for that amount, and lodge the exchequer bills for which he had so contracted, at Gosling & Co's. on the prosecutor's account. The prosecutor did not examine the papers delivered to him by the prisoner, during the time the prisoner was with him; but on looking at them after he was gone away, he was surprised to find that there was only a receipt for the exchequer bills and no receipt for the residue of the money. This circumstance caused suspicion, and an inquiry was almost immediately made, when it was ascertained that the prisoner had on the afternoon of that same day set out for Falmouth in the mail coach, in which he had previously secured a place in a fictitious name, and that he had left a note addressed to the prosecutor with his clerk, dated on Saturday the 7th Dec., and stating that the business respecting Coutts' exchequer bills could not be finished until the following Monday. This note he had desired might not be delivered till the Saturday. It appeared also, that for some time before he absconded, the prisoner had been labouring decided.

The question left to the jury was, whether the prisoner before he received the check had formed the design of converting the money which should be received by means of it to his own use, or whether that design arose in his mind after he was in possession of it. They were directed to find the prisoner guilty if they were of opinion that the former was the fact. The jury were of that opinion and returned a verdict of guilty. Judgment was then respited and the case reserved, in order that the opinion of the Judges might be taken upon several objections made by the prisoner's counsel.

In Hilary Term, Feb. 1, 1812, the case was argued in the Exchequer Chamber before all the Judges (except Lawrence, J.) by Scarlett for the prisoner and Gurney for the Crown. And again on the 14th of Feb. 1812, before all the Judges (except Lawrence, J., and Chambre, J.), when all the Judges present were of opinion that it was not a felony, and that the conviction was wrong upon several grounds. First, because there was no fraud or contrivance to induce Sir Thomas Plumer to give the check; secondly, because the check could not be called his goods and chattels and was of no value in his hands; thirdly, because he never had session of the notes received at the bankers, so posthat they could not be called his notes, and fourthly, because the bankers were charged of the money by paying it on the check, so that they were not defrauded, and

dis

1 See Rex v. Mucklow, R. & M. C. C. R. 160, where a similar point was raised but not

it could not be said the money was stolen from him, sell, negotiate, transfer, pledge, or in any them."

STRAHAN, PAUL, AND BATES'S CASE, 1855. THE embezzlement by these bankers of large sums, amounting, it appears, to 120,000l., the produce of various securities entrusted to their care, has been the subject of public and professional attention for several months. A very large number of the sufferers by the bankruptcy of the firm are barristers, solicitors, and officers

of the Superior Courts, besides numerous societies, and a large proportion of the general public.

The Statute under which they were indicted comprehends several classes of persons,-not only bankers, merchants and brokers-but attorneys and other agents. Considering that the attorneys and solicitors of England and Wales alone are 10,000 in number, and that many of them are liable to great temptation, being entrusted, like bankers, with valuable securities of various kinds, it may be expedient to record the summing up of the evidence by Mr. Baron Alderson, who with Mr. Baron Martin, and Mr. Justice Willes presided at the trial, and to state the sentence which immediately followed the conviction.

It may, first, be useful to quote the sections of the Act which are applicable to the case. They are as follow:

The 7 & 8 Geo. 4, c. 29, s. 59, enacts, that if any money, or security for the payment of money, shall be entrusted to any banker, merchant, broker, attorney, or other agent, with any direction in writing to apply such money, or any part thereof, or the proceeds, or any part of the proceeds of such security for any purpose specified in such direction, and he shall in violation of good faith, and contrary to the purpose so specified in anywise convert to his own use or benefit such money, security or proceeds, or any part thereof respectively, every such offender shall be guilty of a mis

manner convert to his own use or benefit such chattel or security, or proceeds of the same, or any part thereof, or the share or interest in the stock or fund to which such power of attorney shall relate, or any part thereof, every such offender shall be guilty of a misdemeanor.

The 50th section provides that the above enactment shall not affect trustees or mortmoney due on securities, or disposing of secugagees, nor prevent bankers from receiving rities, &c., on which they have a lien.

Then the 52nd section provides that the above enactment shall not affect the remedy in Equity; and that bankers and others abovewhich the party aggrieved may have at Law or mentioned shall be protected from indictment, for any act contrary to this Statute, if they have disclosed such act on oath in consequence Law or Equity at the suit of the party agof any compulsory process of any Court of grieved, or if they shall have disclosed the same in an examination before the Commissioners of Bankruptcy.

The punishment to which offenders are term not more than 14 nor less than seven liable under this Act is-transportation for any years; or fine, or imprisonment, or both ;such imprisonment to be with or without hard labour, and with or without solitary confine

ment.

Mr. Baron Alderson, in his summary of the evidence, said, that before the conclusion of the present proceedings he should ask the jury an incidental question, arising out sel; but the question he should leave for them of part of the evidence and argument of counto decide-namely, whether the defendants were guilty or not-was of a totally different description. He thought the jury had better confine their attention to the charges in the first four counts of the indictment, though there were other counts, respecting conspiracy, &c. The first four counts set forth, that the defendants were the bankers and agents of Dr. Griffith, by whom they were intrusted with certain valuable securities therein-mentioned for safe custody, and that, they, without any authority, sold and converted the same to their own use, contrary to their duty and trust. Respecting a good deal of that statement there was no doubt; but the question for And if any chattel, or valuable security, or the jury to decide was, whether the defendants any power of attorney for the sale or transfer sold those securities contrary to their trust. of any share or interest in any public stock or If they did, they were guilty of the misdefund, whether of this kingdom or of Great meanor which was charged against them in the Britain, or of Ireland, or of any foreign state; indictment, and the punishment for which was or in any fund of any body corporate, com- provided by the 7 & 8 Geo. 4, c. 29. That was pany, or society, shall be entrusted to any the question now to be determined. No doubt, banker, &c., for safe custody or for any special there was a great difference in the cases of the purpose, without any authority to sell, nego- three defendants. Against Sir J. Paul the case tiate, transfer, or pledge, and he shall in viola-pressed more hardly than against the other tion of good faith, and contrary to the object or purpose for which such chattel, security, or power of attorney shall have been entrusted to

demeanor.

Walsh's case, Hil. T. 1812; Russ. & Ry. 215; 2 Leach, 1054, 1082; 4 Taunt. 258, 284.

two, and against Mr. Strahan more hardly, perhaps, than against Mr. Bates. That was the order, probably, in which the jury would have to consider their respective guilt or innocence. The learned Judge here recapitulated the evidence of Dr. Griffith with reference to the

Remarkable Trials.

13

5,000l. Danish bonds on which the question were thus sold by Sir J. D. Paul, and this before the Court arose, and said the jury would transaction was the subject of the present have to consider whether or not they could charge. There could be no doubt as against reasonably infer that the transactions which Sir J. D. Paul-waiving for a moment the took place in reference to those bonds were question whether the disclosure before the such as from their nature partners in the same Court of Bankruptcy were an answer to the bank must be cognizant of. It had been present charge-that a clear offence against proved that those bonds had been purchased the Statute had been committed in disposing for Dr. Griffith and left with the defendants for of these Danish Bonds intrusted to him for safe custody, and they were particularly marked safe custody. This was a clear breach of trust by their amounts, dates, and numbers. It did on his part, which breach of trust in a banker not appear whether Dr. Griffith had ever seen was punishable as a misdemeanor by the 7 & 8 them, but that was not material, for it was not Geo. 4, c. 29. He should not have considered necessary that he should see them in order to it necessary to carry the case any further, but be their owner in point of law. Dr. Griffith evidence had been called to show that the stated that he transacted his business almost bonds were sold to Messrs. Rothschild, Cohen, solely with Mr. Bates, and that he never re- and other parties, that these parties received ceived the slightest intimation of any change the dividends upon them, and that the defendhaving taken place in the custody of these ants had ceased to have any property whatever bonds, the interest for which he had carried in the bonds thus sold by Foster and Braithto his account every half-year, and that he waite, although the dividends were regularly never gave the defendants any authority to carried to Dr. Griffith's credit. Then the gensell or convert them to their own use. After tleman had been called who negotiated this the application at Bow Street, Mr. Strahan loan, and who proved that every bond had a called on Dr. Griffith, and admitting that some distinct number, the conclusion being that securities had been disposed of, added that it these Danish Bonds were individual things, was the first dishonest act of his life. That which were not to be replaced by other bonds observation, however, referred to the 5,000l. of equal value. There being, then, a clear case Danish Bonds subsequently purchased and against Sir J. D. Paul, unless he had absolved substituted for the original bonds, and not to himself by the disclosure, the next question the bonds mentioned in the present indictment. | was whether the other two partners were parMr. Strahan's counsel had told the jury that ties to the transaction. A partner was civilly they must take this statement into considera- responsible for the acts of his copartners. And tion, and conclude from it that Mr. Strahan was not cognizant of any previous improper proceeding done by another in reference to the securities. However, he (Mr. Baron Alderson) must tell the jury that they were not bound to believe either the whole or any part of the statement made by Mr. Strahan on that occasion. They must take it into their fair consideration as one of the circumstances in the case, and no more. Mr. Strahan was certainly incorrect in saying that that was the first fraudulent transaction on his part, if he were a party to the transaction of 1854, unless he salved his conscience over by the notion that reparation was made for that which before was a wrong act, and that the wrong had been removed by the subsequent substitution of fresh bonds. It was just possible for persons to take that view of their conduct, but the law did not. The jury were entirely to judge on that matter; and here he would observe that the statements put in for the purpose of making a “ disclosure" showed that Dr. Griffith had been a loser to a considerably larger amount than the 5,000l. Danish Bonds in question. The cheque for 12,2281., which was paid in bank-notes, was dated March 16, 1854, which agreed with the itens in Sir J. D. Paul's private account. A clerk of Foster and Braithwaite received the bonds from Mr. Beattie, and there could be no doubt, from the numbers and amounts of the honds sold, that among them were those bought by the firm in 1851 for Dr. Griffith, deposited by him in their hands for safe custody, and safely kept by them up to that time. These bonds

why? Because by an agreement between him and his copartner he was constituted an agent for all acts done in pursuance of the partnership for his copartner. He was therefore civilly responsible for all acts done, either in the presence or absence of his copartner; but he was not responsible, and could not be held responsible for any act done by his copartner criminally; because no man could constitute another his agent to do a criminal act without his personally desiring him to do it, or acting with him in carrying it into effect. He was only criminally responsible for the acts of his partner, if he personally took part in the transactions, and therefore the jury would have to look, not merely to the question of whether Strahan and Bates were partners in the concern, but also to whether they could be considered as being parties to the criminal act of Sir John Dean Paul in selling the bonds in question. If they were not proved to their satisfaction to have been in a state of what was called "

act with which he was charged, God forbid that complicity" with Sir John Dean Paul in the they should be held punishable for his criminal conduct. When the jury came to take the case into consideration they could not, however, altogether leave out the circumstance of their being partners, because, as partners, they might have a knowledge of the nature of the business which was going on, and it was for the jury to say whether, being partners, and having the means of knowing, the circumstances were such as induced them to believe that the defendants did know and were privy to

14

Remarkable Trials.

bably never dreamt that anything would occur under it like what had arisen in the present case. The words of the section in the Act were

the fraudulent transaction which formed the the firm, they were equally guilty of the charge. subject of the present charge. What were the The jury would consider, also, the numerous circumstances which were calculated to lead to opportunities which Strahan and his partners the inference of the guilty complicity of all the had of knowing all these circumstances, and partners? In the first place, there was the yet that no complaint or outery had been money which was brought to the bank from raised to Dr. Griffith on the subject. With the sale of the bonds by Messrs. Foster and respect to the defendant Bates, the case was, in Braithwaite, and the aggregate amount of some respects, stronger than that of Strahan, which was placed to the credit of the private inasmuch as he was the most active partner in account of Sir John Dean Paul. He would connexion with the firm, and was the person who not contend that it would necessarily follow, most frequently held communication with Dr. but, generally speaking, he thought a partner Griffith. The defendant Strahan might have would inquire how, and under what circum- thought that the restoration of the Danish Bonds stances, a sum of 12,000l. or more came to be by others of a similar amount might have satisplaced to the private account of one of his co-fied Dr. Griffith; and so perhaps it would, if the partners. Then, again, they were told that the substituted bonds had been forthcoming. That, securities of Dr. Griffith were kept in the strong however, would have been no answer in point room, and there appeared no reason to doubt of law to the crime of converting them, althat they were there up to a certain period, though it might perhaps have prevented Dr. after which they could not have been found, Griffith from putting the law in force. The nor were any others substituted for them until last point to which he would refer was one the month of June. Did people never walk which was rather a question for the Court than into their strong rooms, or know what was in for the jury-one with respect to the constructhem, or did they not look after the securities tion of the Act. It was certainly a very singudeposited with them, or were they not presum-larly worded Act, and the framers of it proed to look after the removal of any portion of these securities? The defendants had the means of knowing; the question was, did they make use of those means, and did they know “And no banker, merchant, broker, factor, the circumstances? Then there was the circumstance that afterwards the whole of the de- attorney, or other agent, as aforesaid, will be fendants made a statement, or "disclosure," as liable to be convicted by any evidence whatit was called, in which they spoke of the 5,000l. ever as an offender against this Act in respect Danish Five per Cents. deposited with Messrs. of any act done by him, if he shall at any time Overend, Gurney, and Co., on the 30th of previous to his being convicted for such offence, April, 1855, and followed by 10,000l. Three have disclosed such act on oath, in consequence per Cent. belonging to Dr. Griffith, sold by of any compulsory process of any Court of Messrs. Foster and Braithwaite on the 14th of Law or Equity, in any action, suit, or proceedMarch, 1854. But nothing was said of the ing which shall have been bona fide instituted 5,000l. being sold in the first instance. They by any party aggrieved, or if he shall have disstated the fact of a partial sale, but they did closed the same in any examination or deposinot state the whole of it. Did they know the tion before any Commissioners of Bankruptcy." whole transaction, or part only? If they knew Under the Bankruptcy Act the Commissioners the whole, why was it that nothing was said had authority to examine bankrupts after they about the first sale? Or did they think that had made and signed a declaration; or there the substitution of one set of bonds for the might be a deposition in order to establish other took away the fraudulent character of some matter in dispute which the Court wished the first transaction? One part of the case to have cleared up. But, was the "disclosure" was perhaps not so strong against the defend- made by the defendants in the Court of Bankant Bates. He did not state in his examination ruptcy made under circumstances of that kind? that he knew of his own knowledge of the In the first place the "disclosure" was not a sales or deposit of securities, or had anything disclosure at all of the particular act charged to do with them. While the other defendants against them. There was no disclosure in any in their separate examinations spoke of se- one of the documents put in that the parties curities "pledged or converted by me," Bates had in 1854 appropriated to their own use and only spoke of securities "pledged or converted transferred to Messrs. Foster and Braithwaite by any or either of my partners." With re- the 5,000l. Danish bonds which Dr. Griffith gard to Strahan, there was the circumstance now complained of being deprived of. The to be taken into consideration of his statement Danish bonds assigned to Messrs. Overend, to Dr. Griffith, which had been urged as ne- Gurney, and Co., and mentioned in the “disgativing, to some extent, the fact of his know-closure," were different from those mentioned ledge of the first transaction. This was a cir- in the indictment, and agreed only with them cumstance in the case proper for the considera- in the amount of value. But, could any one tion of the jury. The evidence showed that the suppose that a person, by voluntarily disclosact of selling the securities was the act of Sir J. ing, of his own accord, a misdemeanor comD. Paul, but if the jury were satisfied the act mitted by him, could escape the penalty atwas done with the knowledge and consent of tached to that misdemeanor? Was it to be the other defendants, and for the purposes of imagined that the Parliament would play fast