MAYHEW v. SUTTON. 1901. No evidence was tendered by the appellant, but it was argued on his behalf: (1) That, in the absence of affirmative evidence that at the time in question there were passengers on the highway who were endangered by reason of the speed at which the motor car was being driven, the offence charged was not made out, and the appellant could not be convicted; (2) that, in order Highway-to convict the appellant of the offence charged, the prosecution tive-Fast must prove that at the time in question there were passengers upon the highway, and, further, that such passengers were endangered: (Stinson v. Browning, 13 L. T. Rep. 799; Hill v. passengers"Somerset, 51 J. P. 742; Smith v. Boon, 84 L. T. Rep. 593). The justices found as a fact that the appellant was driving his motor car on the highway to the common danger of passengers, and that the appellant's contention that direct evidence of a passenger being endangered was necessary to support a conviction was ill founded in law, and they convicted and fined the appellant. Under Roger Wallace, K.C. (Samuel Fleming with him) for the appellant. The charge here is driving the motor car" to the common danger of passengers." In order that it may be sustained there must be evidence that there were passengers on the highway to be endangered. No such evidence was offered. It is submitted, then, that no case was made and the conviction is wrong. sect. 72 of the Highway Act, 1835, it is an offence to make a fire within 50ft. of a public carriage-way "to the injury of such highway, or to the injury, interruption, or personal danger of any persons travelling thereon." But in Hill v. Somerset (sup.) it was held that a conviction under this section was wrong where no evidence of any such injury was given. In Smith v. Boon (sup.) it was held that the driving of a motor tricycle through such a place as the High-street of Esher at the rate of eighteen or twenty miles an hour was driving at a speed "greater than is reasonable and proper, having regard to the traffic," without direct evidence as to the traffic. That decision is, however, on the earlier words of this section, and besides the evidence showed that the highway on which the tricycle was running at this speed was the high street of a village, and this might be considered indirect evidence as to the traffic. Here there was no evidence that there was any but one passenger on the highway, and there cannot, I submit, be a conviction unless there were 66 passengers," though I admit that if there were several passengers it would be enough to show that one was actually endangered. The respondent did not appear. Lord ALVERSTONE, C.J.-It is no part of our duty to consider whether and, if so, which of the regulations laid down by the lawful authority should be altered or modified. All we have to do is to apply the law. The regulation laid down by art. 4, sect. 1, of the order of 1896 is that the driver of a light locomotive when used on a highway shall not drive "at any speed Light locomo driving-"Common danger of 59 60 Vict. c. 36, s. 6. MAYHEW บ. SUTTON. 1901. Highway tive-Fast driving "Common danger of passengers" 59 60 Vict. c. 36, s. 6. greater than is reasonable and proper, having regard to the traffic on the highway, or so as to endanger the life or limb of any person or to the common danger of passengers." In Smith v. Boon my Brother Lawrance and I held that justices were justified in holding that the speed of a motor tricycle driven Light locomo. through the High-street of Esher at eighteen or twenty miles an hour was not "reasonable or proper having regard to the traffic on the highway," and that a conviction by them was good though there was no direct evidence before them that any particular person or vehicle using the highway was interrupted, interfered with, incommoded, or affected by reason of the speed at which the motor tricycle was driven. That was, it is true, a decision on the earlier words of the section, but counsel for the appellant has hardly attempted to argue that the principle of it does not apply to the words now in question. In my opinion, to drive a motor car at a "terrific speed, as it was alleged that this one was here driven, may be "to the common danger of passengers" although no passengers were actually endangered. The collocation of words is sufficient to allow us to place such a construction on the regulation. Counsel cited Stinson v. Browning (sup.) and Hill v. Somerset (sup.). They do not affect the present case. On the evidence here, first, that the motor car was driven at such a speed that it could not be stopped for 60 yards after it passed the policeman, and, secondly, that from the corner it came round the driver had a clear view on the road of 340 yards, the justices might have reasonably found as a fact that the car was not driven to the common danger of passengers; but they have found as a fact that it was, and it is altogether impossible for us to say that as a matter of law they were wrong. There was evidence to support their finding, and when that is so, there is no appeal from their finding on a question of fact. DARLING, J.-Evidence was here given that the motor car was coming along the road at a terrific pace; but the appellant says that as a matter of law there can be no offence under the regulation unless there are two or more passengers on the road. I think the regulation means just what my Lord says it means. CHANNELL, J.-I agree. Solicitors for the appellant, Firth and Co. Appeal dismissed. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Wednesday, July 24, 1901. (Present: The Right Hons. the Lord CHANCELLOR (Halsbury), Lords HOBHOUSE, MACNAGHTEN, DAVEY, ROBERTSON, and LINDLEY.) Ex parte ALDRED. (a) PETITION FOR LEAVE TO APPEAL FROM THE COURT OF GENERAL GAOL DELIVERY IN THE ISLE OF MAN. Practice-Criminal case-Evidence for jury—Leave to appeal. In a criminal case where there is evidence for the jury in support of a conviction the Judicial Committee will not give leave to appeal. THIS HIS was a petition for leave to appeal from a conviction and sentence of the Court of General Gaol Delivery in the Isle of Man dated the 14th day of November, 1900. The petitioner was an auditor of Dumbell's Banking Company, and was convicted of having been a party to the issue of false balance-sheets by that company, which had stopped payment in February, 1900. The petition alleged that there had been misdirection by the judge at the trial, and that there was no evidence to support the charge, or that the petitioner had acted with any fraudulent intention. He was found "guilty in a minor degree" and recommended to mercy. Muir Mackenzie appeared for the petitioner. C. Mathews and Carrington, for the Government of the Isle of Man, were not called upon to address their Lordships. At the conclusion of the argument for the petitioner their Lordships' judgment was delivered by The LORD CHANCELLOR (Halsbury) as follows:-Their Lordships are of opinion that whatever may be said about this matter, and there are some observations, undoubtedly, which commend themselves to their minds, there is nothing here which can justify any Court in setting aside the conviction. There is no fact established sufficient to countervail the solemn determination of the judge and the jury here. It would be impossible to set aside this conviction upon such grounds as have been brought forward. There appears to have been evidence for the jury. Whether or not their Lordships would have formed the same opinion and found the same verdict is not the question. (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law. If ALDRED. Ex parte they would not, that is not enough to set aside the verdict of the jury which has been arrived at; and their Lordships must, therefore, decline to advise His Majesty to grant leave to appeal. 1901. Practice-Isle of Man Gaol Delivery Solicitors for the petitioner, Jaques and Co. Solicitors for the Government of the Isle of Man, Light and Appeal-None Galbraith. as to sufficiency of evidence. JUDICIAL COMMITTEE OF THE PRIVY COUNCIL. Wednesday, Feb. 12, 1902. (Present The Right Hons. the LORD CHANCELLOR (Halsbury), Lords ASHBOURNE, MACNAGHTEN, SHAND, DAVEY, and LINDLEY.) NELSON V. THE KING. (a) ON APPEAL FROM THE COURT OF GENERAL GAOL DELIVERY OF THE Fraudulent appropriation of funds—Evidence. The appellant, a director of a banking company, opened a "trust account" irregularly, and without the consent of the board, and had from time to time considerable overdrafts on the account. The bank stopped payment, and at that time a large sum was due from the appellant on such overdrafts, but he was solvent at the time such overdrafts were made. Held, that under the circumstances there was no evidence of fraudulent appropriation of the funds of the bank. Judgment of the court below reversed. THIS HIS was an appeal from a conviction by the Court of General Gaol Delivery, holden at Douglas, in the Isle of Man, on the 19th day of November, 1900, when the appellant was convicted by a jury for that he, being a director of a certain public company, namely, Dumbell's Banking Company Limited, unlawfully and fraudulently did take and apply to his own use and benefit certain property, to wit, money of and belonging to the said Dumbell's Banking Company Limited. The trial was commenced on the 15th day of November, 1900, when, together with one Shimmon, he was arraigned upon and pleaded "not guilty" to an indictment containing twenty-six counts, and on the 19th day of November, 1900, both the appellant and John Shimmon were convicted upon ten counts of the (a) Reported by C. E. MALDEN, Esq., Barrister-at-Law. indictment, and were acquitted upon the remaining counts, and both the appellant and John Shimmon were severally sentenced to terms of five years penal servitude. NELSON v. THE KING. 1902. Practice The material facts proved during the trial were as follows:The appellant was a director of Dumbell's Banking Company Limited, and so acted from 1884 to the 2nd day of February, Evidence1900, when the bank ceased to carry on business, and from Fraudulent time to time during the whole of this period he attended the appropriation board meetings, and from year to year received his director's of funds. fees. During the whole of the period between these dates one Alexander Bruce, who died on the 12th day of July, 1900, some four months before the commencement of the trial, was general manager, and John Shimmon was manager of Dumbell's Banking Company Limited. The various sums of money which the appellant was convicted of having fraudulently taken and applied to his own use and benefit were respectively the amounts of ten cheques drawn by the appellant upon an account opened at the Ramsey branch, and styled in the books of the bank "Charles Banks Nelson Trust Account." The aggregate amount of these ten cheques was 15,0347. 78. 8d. In addition to the ten cheques referred to as above, there were put in evidence by the prosecution during the course of the trial twenty-nine other cheques, drawn by the appellant upon the same account, amounting in their aggregate to 72871. 10s. 11d. There were payments made from time to time between the 18th day of April, 1887, and the 23rd day of March, 1888, to the credit of the account, such payments amounting in their aggregate to 95551. 28. 11d. The interest charged on the account calculated down to the 2nd day of February, 1900, when the bank ceased to carry on business, amounted to 85811. 2s. 10d., which, being added to the sum of 22,3211. 188. 7d., the amount of the cheques drawn out, made a total of 30,9031. 1s. 5d., and, after giving credit for the sum of 95551. 28. 11d. paid into the account, left a debit balance of 21,3471. 18s. 6d. on the account. For the first half-year after such account was opened interest and commission was charged upon the debit balance of the account at the rate of 6 per cent. and from that to December, 1893, at 5 per cent. calculated with half-yearly rests. From January, 1894, to June, 1899, simple interest only at 5 per cent. was charged upon the account. There was no payment to the credit of the account after the 23rd day of March, 1888, nor was there any drawing operation upon it after the 16th day of December, 1892, after which date it lay for all operative purposes a dormant account, the interest being added to it as has been said at half-yearly intervals until and including the 30th day of June, 1899. It was proved at the trial and admitted by the appellant in the |