RESIDENT MAGISTRATE'S COURT.

Grey River Argus, Volume VI, Issue 393, 21 July 1868, Page 2

RESIDENT MAGISTRATE'S COURT.

Monday, July 20. (More W. H. JEtevell, Esq., 8.M.) Dbuxkeistsbss. — Jame3 Ronnie, for having boon drunk and disorderly, was fined LI or 48 houra' imprisonment. The same prisoner was fined a further sum of Ll or four days' imprisonment, for an indecent exposure. Breach of the Licensing Ordinance. — A. charge against H. Hunt, of the Club Hotel, for permitting gambling in his house ' on Sunday night, was adjourned until Thursday morning, fur the production of witnesses. EMBEZZLEMENT. John Uaher was charged, on remand, with embezzling certain monies the property of the Nelson CoiU Company. Mr Guinness appeared for the prosecution, and Mr Perkins for the prisoner. John Thomas Morgan : I am permanent secretary to the Nelson Coal Company (Limited), which is registere/l under the Companies' Statute, Victoria, 1864. I produce the power of attorney tinder which I was appointed to act as attorney for the Company in Greymouth. I also produce tho latter from the Company under which Mr Usher was appointed traffic manager in New Zealand, when he relieved Mr H. Lucas. It specified the duties which he was expected to oarry out, one of which was to pay all sums received on belialf of the Company into the Bank of New South Wales daily. He was to forward these monies monthly to the Company at Ballarat, and he had no authority to draw • out all the money standing to the credit of tho Company. On the 21st Ma 3', I received a letter from Mr Usher, giving a schedule of the outstanding accounts of the Company. One of these items ir, "GreyßAver Steam Tug Company, L2J 8s 6d." No portion of that sum has, to my knowledge, been paid into the Bank to the accotint of the Nelson Coal Company. Another item,. "Waipara, L 3 155," also appears, but that or any portion of it has not been paid to the Company's account. Mr Usher was to receive a salary of L 350 a-year, with residence, fuel, travelling expenses on the Company's business. I produce a letter dated June 20, containing a schedule showing tho money drawn from the Bank by Mr Usher, from 7th March to 20th June, 18G8, amounting to L 336, on account of salary, and expenses incurred by him. I also produce a letter from Mr Usher to the Company, dated 21st May, forwarding L2OOO, and promising to forward the

remainder, L 586, or thereabouts, by next steamer. That sum had not been received by the Company up to the time I left Ballarat on tho Ist instant, and many steamers had arrived in the meantime. It w;is in c onsequence of that I was sent down. I produce the Bank's statement of the Company's account up to the 23rd May. Mr Usher was only authorised to draw out sums as required for wages, .&c. , and he was never authorised to pay money into any other than the Company's account. I arrived here on the 13th inst., and immediately called on Mr Usher at the office. He seemed very much, confused, and said ho would not" hand over any money— he would stick to it until he was paid in full. I asked what he meant ; he replied his twelve-months' salary. 1 asked what money he had belonging to the Company, and he said he did not know. 1 demanded a statement of his position with the Company, which he refused to give. By Mr Perkins : I had not shown him my authority when I made this demand. I was on good terms with Mr Usher when I arrived here. I had no difference with him in Victoria. He told me the books were in the auditors' hands. On Tuesday last I sent him a letter demanding the company's money- he had possession of, and ho asked time until the following morning to answer. I produce his reply, which stated that he was prepared to give up the monies and goods on certain conditions, one of which was that his salary for the twelve months was either paid or guaranteed. This was replied to, offering the guarantee on condition that the statement of accounts was given him (witness) at once; and evidence of conversations was given, when it was understood that the matter would be amicably arranged. The cause of these proceedings being taken was the removal of the Company's money from the Bank. In conversation with Mr King, of the Bank of New South Wales, he did not say that the money was transferred, he only said "it looked like a clear out." On the same afternoon I received a letter from Mr Usher's solicitor informing me that he required a reasonable time to make up the statement of accounts, and would give it on Saturday, and that he had withdrawn the money from tho Bank, because, that' being the Company's Bank, his (Usher's) position might be prejudiced thereby, and ho. would guarantee its safety until Saturday morning. He asked for no guarantee from Usher. He took these criminal proceedings, with the full knowledge that the money had been removed. The persona- : authorised to draw money from the Company's account were Mr Usher and J. R. Gibbon, both of whom signed cheques Gibbon left for Victoria in May, hut left a blank cheque signed by him behind. This Mr Usher filled in with his signature drew out all the money belonging to the Company, and placed it to the credit of "John Uaher." The directors of the Company knew of this transfer of -the monoy before I loffc Victoria. Mr Usher informed them that he had done so by letter, vi May last, and he then asked for a power of attorney to strengthen his hands, but instead of sending it they sent me. V.I know that the sum of L2O 8s 6d, due by the Gray Steam Tug Company, has not been paid in to the Company's account, because Mr Usher has transferred tho account to his own name. I know that since Mr Gibbon left the Company's money has been standing in the Bank in Mr Usher's name. 1 produce .his private Bank book containing a statement of monies paid in. On Ist June a payment on account of coals appears amounting to LIS 2s Gd, and on the 9th a sum of L3iss I have never specifically demanded from him these sums. He refused to give nic a f all statement until Saturday, on account of the books being in the auditor's hands, and he wrote a letter, ■ at my dictation, asking the auditor to hurry on the audit, and give up the books to the Company. Ihe hist account rendered to the Company was headed "J. Usher in account with the Nelson Coal Company," and that is the only finaucial account we received from him since Mr Gibbon left. He did not ; inform me that he had rendered a balance j sheet to the directors up to the 30th June. i I have not seen such a document. ' By the Bench : If Mr Usher had paid ; all the money into the JBank to the account of the Nelson Coal Company, he could not have drawn cheques to pay current account;} after Mr Gibbon left. After the directors were aware that the account had been transferred to his name, they did not give him any instructions on the subject before I came down. The sum of L2OOO was received by the directors as a remittance from Usher's own account, and was sent after the account had been ; transferred. Gilbert King produced his instructions from the Secretary of the Nelson Coal Company to honor the cheques of Messrs Usher and Gibbon, on the Company's account. I did so until the 2nd May, on which day the account was closed. This was done by a cheque for L 471 14s 4d, payable to J. Usher, and that amount was placed to the credit of John Usher. An order for L 1620 was paid in for collection at Nelson by Mr Usher from the Government, and on the proceeds being returned they were placed to the credit of the Nelson Coal Company; but Mr Usher afterwards said this last, had been done in error, and on his representation it was transferred to his own account. Since that time all sums have been paid in by Mr Usher to his. private account— none to that of the Coal Company. The full amount standing to Mr Usher's account was drawn out on Thursday or Friday la3t. By Mr Perkins : I know that after payment of the Nelson order Mr Usher remitted L2OOO to tfie Directors of the Coal Company at Ballarat from his own account. He had then about LSOO to his credit. I would not have paid a cheque drawn by Mr Usher alone on the Nelson Coal Company's account. I see in his pass-book items paid on the Company's accouut. By the Bench : I believe this account was kept by Mr Usher in his own name on behalf of the Company for the convenience of drawing cheques. Frederick Wm. Lahman : I was clerk to Mr Moss, and remember paying on June Ist, a cheque to Chas. Watkins, on behalf of the Nelson Coal Company, for LlB 2s 6d. It was not made out to J. Usher. It was signed by Mr Moss and one of the directors of the Steam Tug Company. Charles Watkins: I am clerk to the Nelson Coal Company. On the Ist of June, I got a cheque for LlB 2s 6d from Mr Lalnnati, and gave it to Mr Usher. It

was one of the usual Coal Company's accounts.. D. Gird wood : On the 9th of June last, I gave a cheque to Mr Hudson, on behalf of the Nelson Coal Company, for L 3 15s, for coal supplied to the steamer Waipara. John Hudson proved the receipt of this cheque, and giving it over to Mr Usher. On the first of June, I also paid, the cheque produced for LlB 2s Gd into the Bank to the credit of J. Usher. This was tho case for ,the prosecution, and Mr Perkins asked the Magistrate whether there .was a case to answer, before he proceeded with the defence. The Magistrate said there did not appear to him to be sufficient grounds for the charge. He could not see any grounds whatever upon which the charge of embezzlement could be substantiated. Ths defendant in the case was sent down here with written instructions to act as manager for the Company, with certain powers accorded to him, and also discretionary powers. All monies he received were to be paid into the Bank daily to the Company's account, and he and a Mr Gibbon were authorised to sign all cheques. On the cancelling of the.. Company's lease Gibbon returned to Melbourne, leaving with Usher a blank* cheque bearing his signature, which Usher also signed, and drew out the balance of the Company's money, which he transferred to his own name at the Bank, and to which he paid all monies received by. Mm on behalf of the Company, and also drew cheques thereon for payment of their accounts. When he made this transfer he sent forward a balance sheet to the directors, with an endorsement stating the proceedings he had taken in this matter. ' From the 20th of May the directors were aw&re of this state of matters, and that the account had since then been in Usher's name. They ought then to have written and instructed him as to the course they wished him to pursue in the matter ; but they did nothing until Morgan came here on tho 13th July. Then matters were gone into, and letters passed between tho parties, when it was agreed that the books and accounts should be settled on Saturday. On the whole he believed these proceedings had been too .hastily taken. The letter from Usher showed that he was prepared, and ready and willing, to make a settlement of all accounts. The charge must be dismissed. CIVIL CASE. D. Girdwood v. Nelson Coal Company. , — Judgment.— The Magistrate said this ! Avas an action to recover L 96 ss, far loss I and damage sustained for non-delivery of a portion of 100 tons of coal contracted to be sold. The evidence of the plaintiff was that the terms of the contract were cash, and the witness Hudson said the cash was to be paid on the following day ; but there was no evidence to show that the cash waa paid on that day, and therefore Mr Honey refused to complete the bargain. Two days thereafter Girdwood called on Mr Honey to give him this money, but he refused to take it, because a considerable rise had in the meantime taken place-ia the coal market. On the whole, he found that the contract had not been completed I on tlie part of Girdwood, who did not come forward with his payment at the specified time. The case would therefore be dismissed with costs.