SUPREME COURT. RINDER AND WHITFIELD v. MIDDLETON. } EQUITY. of Inglewood, Victoria, on account of a debt of £38, on simple contract. The bill contained an averment that the deceased had no personal estate, and no administrator had been appointed. Ingleby, for defendant, contended that the suit was defective for non-joinder of an administrator. Barlow, for plaintiff, argued that inasmuch as the averment was taken to be true, there being nothing to represent, the plaintiffs would not be compelled to raise an administrator, the only effect of which would be to involve themselves in extra costs without benefiting anybody. If there were personal assets it would be to the interest of the heir-at-law to have them administered Ingleby, in reply.-All the cases quoted except one were administration suits, and the distinction appears to have been lost sight of between a case where a plaintiff was suing on behalf of himself and all other creditors, and where he was suing merely on his own behalf Penny v. Watts, 2 Ph., 149 Creasor v. Robinson, 14 Beav., 589 Lowry v. Fulton, 9 Sim., 104. HANSON, C.J.-We think that an averment of this sort is not evidence upon which a Court can act in deciding that there is no personal estate. There is an allegation; but how can it be known when there has been no personal representative? GWYNNE, J.-Most likely this will lead to a general administration SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. of the estate, and then we must ask for accounts of the personal as well as the real estate. There is no one before the Court who can give it. I won't speculate; but if you took out letters of administration, as I presume you will, it is highly probable you would find that the deceased had household furniture and other personal estate. I don't say it is so. Then, if it is, it would be erroneous and wrong to decree the heir-at-law to pay. When the bill says the man died without assets, that probably means without considerable assets. Demurrer allowed, with liberty to plaintiff to amend his bill. HANSON, C.J., GWYNNE, J., WEARING, J.] [CRIMINAL. 9 JUNE, 1871. REGINA V. TIDEMANN. FORGERY.-Undertaking for payment of money— Act 7 of 1859- A memorandum of mortgage under the Real Property Act, 1861, is The questions to be reserved by the Judge under Act 6 of 1859 must be reserved before the Criminal Session has closed, and he has no power to reserve a case after. THE defendant had been tried and convicted at the June Criminal Sittings, and the following case was stated for the opinion of the Court by HANSON, C.J.: "This was an information charging Charles Edward Tidemann that he did on the 9th day of May, 1868, at Adelaide, feloniously forge a certain undertaking for the payment of money purporting to be a memorandum of mortgage under the Real Property Act, 1861, from Johann Weidenhofer to the said Charles Edward Tidemann, of certain real estate situate in the Hundred of Onkaparinga, and to have been signed by the said Johann Weidenhofer, and whereby SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. the said Johann Weidenhofer purported to agree that he would pay the said Charles Edward Tidemann the sum of £100 and interest, thereby to defraud the said Johann Weidenhofer contrary to the Statute, and was tried before me on the 19th day of May, 1871, and a verdict of guilty found against the prisoner, subject, however, to the questions of law hereinafter set forth. The evidence opened and relied on for the prosecution was that the prosecutor on the 28th of April, 1868, then being indebted to the prisoner in a sum considerably exceeding £100 upon bills then current, applied to the prisoner to endorse his acceptance for the sum of £48 to enable the prosecutor to pay certain rent owed by him to one Paech that the prisoner before doing so required security, and that the deeds of certain land of the prosecutor being in the hands of one Rieschbeth, the prisoner stated he would see the said Rieschbeth; that subsequently the prisoner consented to guarantee the bill, and delivered to the wife of the prosecutor two printed forms of memoranda of mortgage in form of Schedule F to the Real Property Act, 1861, and instructed her to obtain the signature of the prosecutor thereto, and to return the said memoranda so signed to the prisoner; that the prosecutor accordingly signed the said memoranda in blank, and returned them to the prisoner; that the blanks in the said memoranda were afterwards filled in by orders of the prisoner, and the amount stated to be secured was the sum of £100 and interest; and the said memoranda were duly registered, as provided by the said Real Property Act, in the month of June, 1868. The offence charged was that the prisoner fraudulently caused the sum of £100 to be inserted in the said memoranda, whereas his authority was to insert the amount of the said bill only. I directed the jury that there was no evidence of any express agreement between the prosecutor and prisoner for the insertion of any specific amount in the said mortgage, although it would be competent for them to find an implied agreement from the circumstances under which the mortgage was given that the amount of the bill endorsed by the prisoner was to be inserted in the said mortgage as the amount secured thereby, and that in that event they would be justified in convicting the prisoner. The questions which, on the application of counsel for the prisoner, I reserve for the opinion of the Court are-1. Whether the said E SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. memoranda of mortgage were undertakings for the payment of money within the meaning of the Statute in that behalf? 2. Whether the prosecution, having opened and proved that the said memoranda were registered, it was competent for them to rely on the said memoranda after registration as undertakings for the payment of money, even if when unregistered the same originally were such undertakings? 3. I have also doubts whether the evidence showed the existence of any agreement, express or implied, between the prosecutor and the prisoner for the insertion of the amount of the bill of exchange endorsed by the prisoner in the said mortgage as the sum intended to be secured thereby. This point was not reserved by me during the trial, which concluded the sessions; but I now reserve that question also for the opinion of the Court. Judge's notes of the evidence taken at the trial are to be read on the argument as forming part of the case. "R. D. HANSON, C.J." Stow, Q.C., for the Crown, took a preliminary objection that the Court had no power to consider the third point, that not having been raised at the trial. (HANSON, C.J.-I stated to the jury that the question was whether there was sufficient evidence; but I may say that if it had been a civil case, I should have nonsuited.) If your Honor says that was your direction, I can say no more. (HANSON, C.J.-It was a question whether the prisoner was guilty or not guilty, and if there was any evidence to show he was not guilty that point must arise, but that point was not taken certainly.) I apprehend if it was not taken it did not arise. The point might have been raised, but it was not; and I submit this Court has no jurisdiction to consider questions which were not taken upon the trial or then raised by the learned Judge, and I would point out how important it is in the administration of criminal justice that such a principle should prevail. (HANSON, C.J.-Surely nothing can be more important in the administration of criminal justice than that a person should not suffer sentence for a conviction that was not warranted by the evidence. I am not referring to the lauguage of the Act—if we are to decide upon that let us do so— but if we are to be guided by general principles affecting the administration of justice, then that an innocent man should not suffer SUPREME COURT. REGINA V. TIDEMANN. CRIMINAL. as guilty is the highest principle in the administration of justice.) If the Court is against me on that, I will not press it further. There is another ground. The learned Judge, directly the session was closed, was functus officio. There is no case directly on the point, but every one of the cases that I can find shows that the point was reserved before the matter was out of the hands of the Court. In this case the point was not raised till after the Judge had ceased to be the Court of Oyer and Terminer and General Gaol Delivery, and I submit the learned Chief Justice had no more power then than any other one of your Honors to reserve a point of this sort. The point must be reserved during the session at which the prisoner was tried, and the words of the Act show that although the power is given to the Judge after a person has been convicted, that must mean before final judgment is pronounced; and on general principle the power of a Judge sitting as a Court of Oyer and Terminer and General Gaol Delivery only exists so long as he is sitting as that Court. The words are :-"When any person shall have been convicted of any treason, felony, or misdemeanour before any Judge of the Supreme Court of Oyer and Terminer or Gaol Delivery, or before any Local Court, the Judge or Court, Justice or Justices of the Peace, before whom the case shall have been tried may in his or their discretion reserve any question of law which shall have arisen on the trial for the consideration of the Supreme Court, and thereupon"-that is, after the point has been reserved-"shall have authority to respite execution until such question shall have been considered and decided." It is quite clear that no Judge could respite execution, except where the express power is given, as in England, after the session has closed. (GWYNNE, J.-In England he presides as a Commissioner; here he presides as a Judge representing the Full Court. There is that distinction.) There is, but still it is being the Judge during the session of Oyer and Terminer, and that only that gives him authority. If the Court has no jurisdiction to alter a sentence, surely the Judge, although he happened to have been the presiding Judge, would have no power afterwards to call the prisoner up and reserve a new point. That would be a judicial act and could only be done during the session and in open Court. E2 |