The Assizes
| Published date | 01 October 1955 |
| Date | 01 October 1955 |
| DOI | http://doi.org/10.1177/002201835501900403 |
| Subject Matter | Article |
The Assizes
FRAUDULENT CONVERSION BY TRUSTEE: EFFECT OF LARCENY ACT,
1916, s. 43 (2)
R.
e,
Maywhort
UNDER the provisions of
the
Larceny Act, 1916, s. 43 (2),
"No
person shall be liable to be convicted of any offence
against sections 6, 7(I), 20, 21 and 22 of this Act
upon
any
evidence whatever in respect of any act done by him, if at any
time previously to his being charged with such offence he has
first disclosed such act on oath, in consequence of any com-
pulsory process of any court of law or equity in any action,
suit, or proceeding which has been bona fide instituted by any
person aggrieved".
The
provisions of this section led to
the
quashing of an indictment at Chester assizes in
R.
e. Maytohort
(1955, 1 W.L.R. 848) when
the
accused was indicted on three
separate charges of fraudulent conversion of property of which
he was a trustee, contrary to s. 21 of
the
Larceny Act, 1916.
The
procedure for bringing before the court
the
reliance
on s. 43 was discussed by counsel
and
it seemed to Sellers J
appropriate
that
amotion to quash could and should be taken
before plea and at
the
outset of the case, because if this
sub-
mission was correct the court would have no jurisdiction to
try
the
case.
If
it were tried it would be a nullity
if
the
plea
later succeeded.
The
facts of
the
case were as follows, as appeared from
the
depositions.
Under
the
will of their mother
the
accused
and
his brother became executors
and
trustees of her estate.
The
will provided
that
the
residuary estate should be held
upon
trust
by the two sons to convert
the
same and divide
the
proceeds between themselves.
In
1949 (when
the
mother died)
the
brother was resident abroad and so
the
accused obtained
probate and became responsible for administering
the
estate.
By 1953
the
brother was dissatisfied with
the
accused's
administration. After an earlier abortive proceeding he took
out
an originating summons in
the
Chancery Division in
January
1954/
An order was made requiring
the
accused to
3°:1
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