RESIDENT MAGISTRATE'S COURT, GREYMOUTH.

Grey River Argus, Volume XIII, Issue 1600, 20 September 1873, Page 2

RESIDENT MAGISTRATE'S COURT. GREYMOUTH.

Friday, September 11. (Before W. H. Revell, Esq., R.M.Ji James Lovell, for having allowed a cow to stray, was fined 10s and costs. The following civil cases were dismissed, there being no appearance of either party : — Kettle v. Morgan, Same v. Hansen, Same v. Curry. LARCENY AS A TRUSTEE. James Hayes was charged on the information of Gilbert King, manager of the Bank of New South Wales in Greymouth, with the larceny of money advanced by the Bank. Mr Perkins ap- [ peared for the prosecution, and Messrs Guinness and Staite for the defence. Mr Perkins stated that there were three charges against the defendant, and he wished the consent of the opposite side that the last should be taken first, as, should a committal be obtained on that, the others would not be proceeded with. Mr Guinness asked that the charges should be taken as kid. The Magistrate thought the third should be taken first, as it would settle the other charges and save the time of the Court. Mr Guinness said he was not prepared to proceed with the third charge first, as it had only lately been laid, and he had no time to investigate the facts of the case. The Magistrate thought the proposition was a fair one, and if Mr Guinness thought his client would be injuied by it, he should apply for an adjournment. Mr Perkins said that in order to meet the other side he would abandon the charge under the 74th section of the Larceny Act — that of larceny a3 an agent— and substitute the last one, under the 79 th clause, that of larceny as a trustee. ' Mr Guinness, would leave it to the Bench to decide, but he would distinctly state that he would be prejudiced if the other charges were not gone into first. The Magistrate decided to go on with the charge of larceny as a trustee, giving Mr Guinness the option of asking for an adjournment. The adjournment was not asked for. James Hayes was then charged, on the complaint of Gilbert King, manager of the Bank of New South Wales, Greymouth, that, being a trustee of the said Bank to the extent of LI 500, he did, between the 29th October, 1872, : and January, 1873, with intent to defraud, convert the same to his own use and benefit. Gilbert King : I am manager of the Bank of New South Wales, Greymouth. I have applied to the Attorney-General for leave to commence this action under the 79 th section of the Larceny Act, 1867, and I have his consent. I produce a telegram Mr Guinness objected to the evidence ; and, on the telegram being produced, he objected to its reception because it was only secondary evidence. It was a telegram from the Bank's solicitor in Wellington, [stating that the assent had been obtained. He argued that the Courtcould not hear the case until the original written consent could be produced. The Magistrate said that the Act did not stipulate that the consent should be in writing, and the case could'go on. Examination continued : J know Jas. Hayes. He was a customer of the Bank of New South Wales in Greymouth. I know his haneU writing. This is his signature to the gold receipt produced. He obtained the money, LISOO, named in this receipt, but I was not present at the time. I never gave the defendant authority to use the money for any other purpose than that mentioned in the receipt. The Bank has not received the LISOO or the produce of it in gold dust from him. I caused a demand to be made on defendant for the retnrn of the money about the 21st of January, 1873. I saw Hayes about the 30th January, when he tendered me about 28ozof gold and about L 36 in Bank of New Zealand notes. The 'actual amount tendered was LI 10 16s Gd worth of gold aud L 34 in Bank of New Zealand notes and §d' in c.oin. Ljefendarit tendered this as the balance of the LISOO, seating that he had robbed of the rest. I refused to receive the amount. Subsequently L144 17s 2d was paid in by Mr Newton to the credit of Hayes's gold account. There were L 34 in coin, and the balance in gold dust. I suppose the notes, L 34 worth, which were offered first and refused, had been changed into gold. Cross-exanriaed by Mr Guinness : I received a letter from Mr Kenrick, asking me to produce all documents relative to I Hayes's matters. That is the letter. The matter referred to in it js th§ bringing qf Hayes back from Melbourne, and asking for a" sum of LSO id pay ' Constable Keating's expenses.'' Mr Kenrick was not my agent. The Bank was- unwilling to incur further expense without being reimbursed. *J 'don't know how Kenrick knew this, but he evidently knew it. There were verbal conversations about Hayes's arrest, With either Kenpigk or Thompson, who were Hayes's 'Provisional I know of rio other 3ocument| except the letter* produced,'relative to Hayes's /arrest. 1 ! ' No one to my knowledge onbeMf of the

Bank has signed any other document. There was a verbal understanding between the Bauk and the Trustees that any action the former might take was not to debar it from ranking as a creditor on Hayes's estate for any claim it might have. It was a verbal agreement. The offence charged was committed between October and 36th August. I always intended taking action, and was collecting evidence. This was the reason of the delay in proceedings not being taken. The Bank never gave up the idea of prosecuting the defendant, as the matter was in the hands of their solicitor. I have no instructions that the Bank would go to no more, expense. With regard to my couduct I was entirely guided by circumstances. These circumstances, had altered after Hayes absconding. When Hayes was here before going away the idea was to incur no more expense, but matters altered when he left. The criminal information of the 16th of August last against defendant were not laid at the request, suggestion, or instigation of the creditors or the Trustee in Bankruptcy. I laid the informations myself, after consulting with Mr Perkins, the Bank's solicitor, and acted upon his advice on the subject. I decline to say whether it was upon the advice of Mr Perkins that I laid the two informations of the 16th August against Hayes. I know the firm of Thompson, Smithy and Barkley, and believe they are large creditors of the defendant. I was aware that Mr Perkins was acting for Thompson, Smith, and Barkley and the Provisional Trustee in the estate. I cannot possibly tell if the advice given me by Mr Perkins was given as solicitor for either the creditors or the Provisional Trustee. He never told me that it was for the interest of the creditors that Hayes should be brought back at all hazards. I have not been paid for bringing him back, but expect to be so. The Bank holds no indemnification from the creditors. I cannot possibly say if the information would have been laid, even if there had been no creditors. It was not owing to the intervention or expressed wish of the creditors that the inrormations were laid. It was not at the request of Mr Thompson, Mr Ken-, rick, the Provisional Trustee, or Mr Perkins, as solicitor for the creditors, that these informations were laid. There was a general conversation as to the difficulty in the way of the creditors bringing Hayes back. There, were present Mr Thompson, Mr Kenrick, Mr Perkins, Inspectors Goodall and Hickson. I think it was pointed out that the only evidence to bring him back was by the Bank informations. This was on the 16th August. It was then that the matter of expense was mentioned, and the verbal agreement already mentioned, that the Bank should not be prejudiced, was come to. Nothing has been arranged as to the Bank ranking as creditors ; it is undecided, not yet gone into. I recollect a conversation I had with defendant at Ahaura soon after the robbery. I don't remember telling the defendant that the Bank would not lose the LSOO advanced for cashing cheques,but I cannot swear that it did not take place. I have no recollection of speaking on the subject. I remember having a conversation with either Mr Perkins or Mr Thompson, mentioning that LSUO of the advance had been intended for cashing cheques at Reefton, but I subsequently discovered that the whole amount had been given as a gold advance during my absence from Greymouth. The LSOO mentioned was part of the LI 500 mentioned in the present information. I never at any of the conversations referred to stated to Haye3 or .Thompson that if the other creditors agreed the Bank would also accept a composition. A reward of LSOO was offered by the Government for the discovery of the culprit and the gold ; it referred to the alleged robbery of the gold, as stated by Haye3 to me. The reward was offered in the name of the Government. It was to be paid in part by the Government, part by the Bank, and part by Hayes j I don't r!emember the proportions. My first dealings with Hayes commenced at the Ahaura. Mr Guinness was proceeding to put questions as to conversations which had taken place previous to defendant's first dealings with the Bank, but they were objected to by Mr Perkins. After argument, the examination proceeded :— I don't remember having had any conversation with Hayes previous to the arrangements being entered into between Mr Walmesley and him at Ahaura. Hayes commenced dealing with, the Bank in Greymouth about November, JB7l, when we closed at Ahaura. Ido not remember defendant speaking to me about altering the price of gold, or his saying that another Bank in Greymouth had offered him 6d more an ounce. T swear I did not say to the defendant that there bejng an agreement between the Banks as to, the price of gold I could not give him 6d an ounce more, bu,t that he could bring the , gold 4°. wn dirty, and it would not bg blov?Uj aijd by that means he would get the estra (id. The Magistrate said he must stop this style of cross-examination, as it was quite irrelevant to the charge. It was only cumbering the depositions and he could not allow it to go further. Mr Guinness asked what was the style referred to. He felt insulted at the remarks of the Bench and hoped they would be withdrawn. The Magistrate would withdraw nothing that he had said, Sufficient latitude had been allowed, but he could not see that all the transactions between Hayes and the Bank previous to the signing of the gold receipt forihe LISOQ should be gone inio, as, tfyey: wer,e 'hot tgstjng the. witnesses credibility,' his 'memory, or his means of knowledge, Mr Staite replied at some length, Tbe Magistrate said that this was a preliminary inquiry, that it was wasting time to encumber the depositions with irrelevant evidence, and he must put a stop to it. ■ Examination continued : I remember having had a conversation with defendant in my office about the time h* commenced business with us. He said he was losing on his gold, and I replied that he was on ' the, g* me footing as'other buyefe, and 'li}s ijold vVould not be cleaned; Mr Waimsley and Mr K,irton received instructions not to blow* Hayes's gold; They had general instructions not to blow 1 any of the gold-buyers' gold ; there were no special instructions in Hayes's case. No other instructions were given to defendant with respect to the LI 600 except those mentioned in thg gold-ceeaipt. produced. • X oannot'teif hofr theiLlsoo was p'aia to defendant J X was away^afr Reeftori' at the ! timej I know it has 1 been advanded by examination of the

books and vouchers. Ido not know of it in any other way. The cash was delivered to defendant on the terms of the receipt ; there was no variation from them ; there was no verbal understanding at all as to the money. 1 swear lam not aware defendant paid this LISOO in to . hia own account, or any part of it ; or that any of this money was paid back by the defendant by, cheque to the Bank. There were several advances of. LIOOO made to defendant for gold -buying purposes, and defendant may have refunded part of these previous advances by drawing on his private account ; not for this advance. I don't remember furnishing a copy of this account to the defendant. I don't know what the item, "Hayes, L1Q00," entered on the 29th October, consists of; It means either a payment in gold or cash. This appears to be on the same date that the LISOO was lent to him. I was away from Grey- , mouth in October. I had a previous conversation with Hayes about LSOO advance. Hayes complained of scarcity . of cash in Reef ton for trade operations, and I agreed to advance him LSOO for the Reefton business, the principal object being to give him facilities .to cash cheques. He came down to Grey month, and got LISOO all in our gold advance. I intended it to have been given as two transactions, and to take two receipts, one for LSOO, and another for LIOOO. He had no authority to do so. I. think! sent a telegram about the order to Mr Kirton, the accountant, but cannot speak confidently. 1 arrived in Greymouth about a fortnight after I saw Hayes. I did not see Hayes's receipt immediately after my arrival. It might be that two or three months had elapsed before I sawit. In my absence the accountant is the ' acting manager. I have no recollection . when I found out in the Bank that .one receipt. was taken instead, of two. ' T cannot say whether it was before or after the robbery that I ascertained that one receipt had been taken from the defendant instead of two. It was understood between myself and defendant that the LISOO he was getting advanced was partly for the purpose of gold-buying an^" partly for cashing cheques. I ri^By agreed to advance defendant LlsoC^or gold-buying purposes. When I found it had been done I did not seek to alter it as it seemed a matter of indifference to me at the time., I did not know that. though the defendant had signed a receipt for LISOO for gold-buying purposes he was, between the : 29th October and 31st December, 1872, cashing cheques with part of this advance. I don't remember defendant ever telling me he was doing pretty well out of the money he had got from the Bank, making LlO a week out of it. Ido remember writing a letter to Mr M'Lean at.Reafton, ;but on looking at the letter-book I see that I did. (Atf argument took place as to whether the press-copy of the letter could be produced and inspected by the opposing counsel. Mr Guinness in reply contended that tha defendant's counsel had a right to see. the document; as the witness had looked at it to refresh his memory, but that he did hot wish to put the letter in. evidence, aud he quoted the following passage from Taylor on Evidence, p. 1199 :— "ln all cases where documents are used for the purpose of refreshing the memory of a witness, it is usual and reasonable— and if the witness has no independent recollection of the fact, it is necessary — that they should be produced at the trial, and that the opposite counsel should have an opportunity of inspecting them, in order that on cross or re-examination, he may have the benefit of the witness's' refreshing his memory by every_ part." The Magistrate ruled that the opposing counsel could see that there was a letter from Mr King to Mr M'Lean, but that he was not entitled to read the contents of it.) The letter this was an answer to is in the Bank, and can be produced. I have no recollection of having told any person that Hayes was - authorised to cash cheques for the Bank, but possibly I did so. I sent a cheque for L 4 3s back to Reefton, stating that I belived James Hayes of Reefton would cash" the cheque for my correspondent. I wrote a letter to this effect, dated the 16th December, to John M'Lean. I may have told Samuel Gilmer, Rody Slattery, and Schuloff, . that Hayes was appointed to cash cheques for the Bank ; I may bargf done so. I had also an arraijlHfc nient with Schuloff at Reefton '1^ cash cheques for myself, he receiving an advance for that purpose, This was made before the arrangement with defendant. Hayes h,ag, brought down gold-dust to $he ■ Batik since the 29th of October, 1872, when the advance was made of between LIOOO and LISOO worth of gold. A clerical mistake on one occasion was made in Hayes's account when he was credited, with LIOO more than he was enstle,d; to. The mistake w^s. d^oov^ered ' an 4 rectified $c, s,a_me day, The erroj? wajj pointed out by the defendant before any information cached him, from the Bank. I produce the letter he sent to Mr Kirton, the gold-buyer, stating that he had been over-credited with LIOO, and asking that the account should be rectified. Up to the time of the robbery. I had a very good opinion of the de.*/ fendant, as shown by the advanoft 6$ LISOO. I debited Hayes w;th that LIOO before I got his letter.' I caused a demand to be made on Hayes for the money or gold to represent it about the 21st January last. (Letter produced.) \% was written by Mr Perkins, and de.m.a.n.d.ed, payment within one w§ek t I produce, the reply received,, wln'ch was, written % Mr N.e w^on. % did received the residue, of the gold referred to in the letter, that is tho value of the gold stated "to have been stolen. The receipt produced,' dated March 26, 1873, is the one I gave to Mr Newton. The amount named in this receipt, previously stated, was paid in to the credit of the defendant's gold advance account, I received the.amount mentioned from Mr Newton, but I cannot say whether it was in my office or over, the counter. I cannot tell w.ho paid, it to. the gold advance accouni without s&einV ;he paid-iq sUp, B,etw,een iianuary /and; Mairch 3[ d^eelineo! to'Teceive this money I unless jft was without prejudice to the Bank's right of action against the de/ fendant, which Mr. Newton declined to do. I subsequently received it from Mr Newton without prejudice, Mr Newton sajing he did not care what we did with it so long as we took it. Ibeliemthai Mr Newton refused \<\ sign aire "d^i\inieul as to tbf! landing oithts* money over to m«j. I pTo'dtioe a pay-slip xxi my hand-' writing 5 re'femng to this money. (Thef receipt shows ; that the money was paid. \i\ to the credit of Hayes's gold account hy Heber Newton, solicitor.) Ididnoisjim

Mr Newton's name. It appears on the slip. It is lisual for those who pay in money to sign slips similar to this, but Mr Newton declined to sign anything. We had some conversation as to the gold account, and he said — " I don't care what you do with the money as long as you take it from me." Except what I have stated, Mr Newton did not authorise me to pay the money to that account. I don't remember asking Mr Newton to pay the money to this account, or his declining to do so. 1 cannot say why Mr Newton did not pay this money into the gold account. Until 1 saw the pay-slip produced I was 'under the impression that Mr Newton had paid the money directly in to the gold account. I admit I made a mistake in my evidence this morning ; I was under a wrong impression. The statement on the slip that the money was placed to the credit of James Hayes's gold ■•ccount by the hands of Mr Heber Newton is incorrect. This money was handed to me. as the residue of the gold advance, and it was my duty on receiving it to place it to the credit of that account. There is no understanding that the creditors should pay the costs of this prosecution. The bank is prosecuting in this case. I have received no specific instructions from the directors or inspector to prosecute, but my position of manager entitles me to do so. I have not received inductions not to take criminal proceedings in this case, or any telling me not to incur expense. The reason why proceedings were not taken against defendant before the 16th August, is thai; we were waiting to accumulate evidence that no robbery had been committed. I considered that defendant's leaving the colony in a surreptitious manner, was sufficient to justify these proceedings. It being now 5.30 p.m. further crossexamination of the witness was adjourned until Monday morning.

"Why do they call the people that live in the South Sea Islands cannibals?" asked an old man of a sailor. " Because they live on other people," answered the sailor. "Then," said the old man, penj sively, "my sons-in-law must becanniv bals, for they live on me." We noticed the other day, in a puff of a country grocer, that he was spoken of as " one of the old war horses of the trade." We suppose that means he is a heavy charger. . .

(For contimiaUon ofJSewssee 4th page.)