RESIDENT MAGISTRATES COURT.

Temuka Leader, Issue 1129, 22 January 1884, Page 2

RESIDENT MAGISTRATES COURT.

Temuka—Monday, Jak. 21, 1884. [Before J. Beswick, Esq., R.M., and D. in wood, Esq., J.P.] VIOLATING THE LICENSING ACT. Andrew Ross Kirk was charged with having unlawfully refused to allow a constable into his licensed premises on the 4th day of January last; also, that he sold drink during prohibited heura on the B ame occasion. Mr Eamersley appeared for the defence. Thos. Burke deposed: About 5 minutes past 11 o’clock on the night in question 1 was passing up the road close to the y. house and my attention was attracted to a nuisance thrown out of the back yard. Constable Morton went and knocked at . both doors, back and front, and called out at the top of his voice that it was the police. I went and told Constable Morton that he would get a crowd around him. I went to the door myself and knocked, and got no answer. I heard Mr Kirk speaking inside in the bar parlor, I went to the front door but got no answer. We continued knocking for very nearly half-an-hour. f I remained there until 5 minutes to 12, when Mr Kirk came out and said, ‘ You keep back, for fear any one would be about.’ diaries Reid, a barber and tobacconist, was there and two other men, who said they were boarders in the house. There were four empty glasses, j To Mr Hamersley: There were few | people in the street. There was a drunken man in Kirk’s back yard. I was not an hour there. The people had left the house. Morton kicked up a good deal of noise. Ido not often visit houses after hours. I saw the drunken man over the fence. To the Bench ; I heard Kirk saying ‘ Keep quiet, for fear there is any one about’ I heard Kirk’s voice before that. John Morton, constable, gave evidence to the same effect. He went to tell Mr Kirk to send a man to clean up the nuisance. Mr Kirk had on’y just shut the house. He saw a man going into and leaving the bar and heard them talking inside the bar parlor. He remained there until Constable Burke got Mr Kirk to the back door and opened it. He saw two strangers he took for boarders and Reid in the house. There wore four glasses on the table. The door of the bar was open. To Mr Hamerslay : I could see the shadow of the door opened and shut. It might have been a cigar he came in for, ■ bar was not open all the time. I was there nearly an hour. Not a soul passed the footpath while I was there. Charles Reid: lam a shopkeeper, residing in Temuka, I was in the Crown Hotel on the night of the 4th of this month. I went in about 10.30 and was in the bar parlor. 1 saw two boarders. Mr Kirk w,is in the bar parlor all the time, talking. I had no drink in the house after 11 o’clock. I was not a lodger or boarder, and went home afterwards. To Me Hamersley : The house was closed after that. I heard the row at the door but did not know it was the police. We thought it was a drunken mao that was at the backdoor.

To the Bench : 1 .vas invited down by one of the men. He is a piper, and we had a few tunes. Constable Burke, re-called : About ten minutes before the door was opened I heard Mr Kirk saying * You want some whiskey.’ When Mr Kirk came to the back door he said at first he had hoard no noise, but afterwards admitted he had, but said he did not think it was the police. Mr Hamersley urged that the constable could only enter to prevent violation of the Act. According to the constable’s own showing he went there to order a nuisance to be abated, and there was nothing in the Clause of the Act enabling him to enter for this purpose. On this ground, he asked that the case should be dismissed. Andrew Boss Kirk : I am licensee of the Crown Hotel. I did not know they were constable!. I would have lot them in if 1 had known. I sold no drink after 11 o’clock. 1 did hear a noise about the house for about half an hour before I opened the door. There was a noise While I was taking change out of the bar. I may have said I was not supposed to open for everybody. To Mr Hamersley : One of those in the house was a piper, and I was afraid if I opened the door there would be a rush in. His Worship said the Court was quite satisfied that it was the duty of the police to go in. It was the duty of the licensee to open the door. They must convict and fine accused 40s and costs, with an endorse* ment on the license. The charge of selling drink would be dismissed, After some argument with Mr Hamersley, the Court decided not to record the conviction on the license. EMBEZZLEMENT, David Taylor was charged on three informations by Siegert and Fauvel with having on the 29th November last embezzled the sum of 4s, on the 3rd November £llss, and on the 29th November 7s 6d, he being then in their employment. Mr White appeared for the prosecution, and Mr Hamersley for the defence. Mr White opened the case. In August, 1883, the defendant was employed at a salary of £2 17s 6d per week. Subsequently he was informed that the business had fallen off and he would only be paid £2 10s per week. Subsequently he was given a book in which he was to have entered everything he sold. Mr White then entered more fully into the various charges. All witnesses were ordered out of Court. j ulius Siegert: I am in partnership with Hellier Fauvel. The accused was in my employment at £2l7s 6d per week. On the 20th of October I told him his wages would be only £2 10s in future. TTia duties were to have full management of the drapery department, to enter everything he sold in a book, mentioning the name of the purchaser, and when he received cash to enter in the margin 1 paid,’ and to take the money to the bookkeeeper. The bookkeeper kept the cash book produced. On the 29th November Edward Whitehead was acting as bookkeeper, Eowe being absent that day. On the 29th Mrs Fenton made purchases in our grocery department. She then went into the drapery shop, which was under the charge of David Taylor. About 15 minutes afterwards she returned with a parcel which was to be sent up with the other goods. I went into the drapery shop and found Taylor absent. I looked at the book and the last entry in it then was ‘3 yards dress stuff, 2s 6d.’ I asked Taylor when he returned whether Mrs Fenton had been id the shop, and he said, ‘ Ob, no.’ 1 said she must have been in, for she brought a parcel into the grocery store. ‘ Oh, yes, 1 he said, ‘ I forgot all about it. She bought three yards of dress stuff.’ He showed me the entry. I said there must have been more for it was a big parcel. He said ‘ She took some on approval and she will return it this afternoon, I asked, Why did you not put down *on approval.’ He took the book to enter ‘Mrs Fenton balance ss,’ and I left the shop. I asked why he had not put the name down. After making enquiries of Mrs Fenton I saw him again. He gave me 2s on account of Mrs Fenton, saying ‘ This is the balance of Mrs Fenton.’ 1 told him I had made enquiries and found that Mrs Fenton had paid him 7s 6d in the morning. He said she only paid him 2s 6d in the morning, and 2s just now. I asked him to put on his hat and go with me to Mrs Fenton. He said, ‘ Keep it quiet; I Would not like it to be known ; I took the 5s to lend to another man.’ He said he did not know the name of the man, but that he was a Timaru man. Next morning myself and Mr Fauvel charged him with having taken money, and said we never expected him to do so. We said, If on the day you only took 30s in the shop you kept 7s 6d of it, what must you have kept on days like Saturday, that you took £5 or £6. I said, You may have taken from £6O to £IOO from us. He said ‘No, 1 did not take so much.’ I said ‘ Did you take £BO, or £6O, or how nmchT He made no reply. He said ‘ I hsug you will 8( I uasl1 and not ru ’ n m y cbActer,’ I said ‘You brought it on youKelf ; you should make some restitution. He said he would see. He has not accounted to me for 4s received from Mr Uprichard on the same day. He has not accounted for £2 15s received from Mr Uprichard on the 3rd of November. On the moping of the 30th we dismissed

him. The takings in the shop have since then averaged 20 per cent more than in Taylor’s time. There was no change in the stock. We made an offer to take £SO, and he said he would do anything to keep it quiet, but he was not sure he could get £SO.

Cross examined by Mr Hamersley : I was with Taylor in Mendelson’s employment. We had a quarrel and he knocked me down. We never had a quarrel since. When I took Mendelson’s business I engaged him at £2 17s 6d per week, and told him if he would work up the business I would give him £3. There was no one with him and when he went to dinner his place was supplied bv a man from the grocery store. I went in now and then to look over his books, sometimes three times a day, except when in the country. I have sent out the accounts since. It was about the time he was going to dinner that Mrs Fenton bought the goods. The entry ‘ on approval’ was not in the book. He said he had forgotten it. He put the entry, ‘ balance ss.’ If a balance was left unpaid we were in the habit of entering ac the back of the book if it was expected to be paid that day. Since the 29th we enter everything in the book, and nothing at the back of the book, Mr Hamersley would decline to go on with the case if the Court would interfere with bis examination.

The Resident Magistrate said ho would not allow Mr Hammersley to entrap the witness who could not speak proper English. After some hot argument on this point Mr Hamersley resumed the examination. Witness : He told me the goods were had on approval and entered 1 balance, Mrs Fenton, ss.’ I did not see him make the entry. I asked him why he had not put it down, He said ‘ I forgot.* I told him to put it down at once, and as I left he store I saw he was writing in the book. To Mr White : I was on such good terras with Taylor that I took him into my employment. Hellier Fauvel : I am partner in the firm of Siegert and Fauvel. I know nothing of the transaction ot the 29th of November. On the morning of the 30th my partner, accused and I had an interview in the office. Mr Siegert accused Taylor of having taken some money, and told him he had made himself very low. I asked Taylor who he had lent the 5s to. He said to a Timam man and that he could not recollect his name. I said, It is not very likely you would lend money to a man whose name you did not know. You might as well confess and be done with it. Ha then went to the drapery shop and I went afterwards. He asked me ‘Would he lose his billet.’ I said, ‘ Most undoubtedly.’ He told me then that he intended to make the money up by night,only that Siegert had been too sharp. I told him ho had not been acting right towards us for some time. He said he did not know how he should get home. I told him to get home the best way he could. My partner asked him had he taken L6O, LBO, or LIDO, replied ‘ Not quite so much as that.’ My partner told him it was only fair that he should giveLso back. He made no answer. Mr Hamersley did not cross-examine this witness. Edward Whitehead : On the 29bh of November I was acting bookkeeper (in the absence of Rowe) for Siegert and Fauvel. 1 entered all moneys taken on that day in the cash book. Two pounds were received from Mrs Fenton for groceries. If I had received 7s 6d from Mrs Fenton it would have been entered in the book. I received 2s 6d for drapery. I saw Mrs Fenton in the grocery side. I find no entry of 4s received from Mr Uprichard. Mr Hamersley did not cross-examine.

Harriet Fenton : I am the wife of Robert Fenton. On the 29th November last I was in Siegert and Fauvel’s grocery store. After making purchases there I went to the drapery side, and mad© purchases to the amount of Bs. I had a LI note and three halfcrowns. I did not change the LI note, but paid 7s fid and let the fid stand. I bought some Galatea toilet soap, and fancy twill. I took the parcel to the grocery side, to be sent up with the groceries. Mr Hamersley did not cross-examine.

W. R. Uprichard : I am a commission agent, living in Terauka. About the 3rd November, I am not sure about the date, 1 purchased goods to the value of 35s from David Taylor. There may have been five or six lots in them. I paid David Taylor two or three days afterwards for them. I gave him two notes, and he gave me 5s back. I bought the goods on the drapery side of Siegert and Fauvel’s shop from David Taylor. I bought two pair of stockings about the end of November, for 4s, at the same shop, from D. Taylor. I paid Taylor for them. Next day Taylor came to me about the loan of ss, I have borrowed several sums from him at different times. He said he had left Siegert and Fauvel’s ; that there was a party come in from Rangitata he had lent 5s to, and he said something similar to that he would like me to 'say I had got the loan of it from him. I told him I would not do it. Ho told me to collect his wages from Siegert and Fauvel, I saw Mr Fauvel and he offered me L2 10s a week, and I told him I could not take it until I saw Mr Taylor. Mr Taylor would not accept less than L2 17s fid. Frank Rowe ; I am a clerk, in the employment of Siegert and Fauvel. I was

there the whole of November, excepting the 29th. The accused might have paid 35s in as cash sales, but be has not paid anything in Uprichard’s name. There is a debit entry of Uprichard, 355. There is no entry of it having been paid. He

might have paid it as cash sales, but there is no entry of it being received for a week or ten days afterwards. •To Mr Hamersley ; 1 da not remember getting L2, and giving change.

To Mr White : Had such a payment been made I should have entered it in the book, and given credit to Uprichard. It would be impossible for 35s to be paid in as representing cash sales, for there is no entry to correspond. The accused, after having been cautioned, was committed for trial, bail being allotred, himself in L 75 and two sureties of L 75 each. burglary. Samuel Kirkpatrick was brought up on remand charged with the above offence and farther remanded until 10 o’clock this morning. CIVIL CASES. D. Taylor v, Siegert and Fauvel—Claim Ll 7 ss. Mr Hamersley appeared for the plaintiff and Mr White for the defendant. A long argument as to whether the case should be adjourned until the criminal case had been dealt with resulted in the Court deciding to hear the case. David Taylor : The plaintiffs are indebted to me in the sum of Ll 7 ss. I instructed Mr Uprichard to collect the money. To Mr White ; I had a conversation with Messrs Siegert and hauvel after I got the cheque on the 19th October. One of them told me he believed I was expecting more wages. I said, No : lam not asking any more than what I was promised, that is, L 3. He said be was thinking of bringing it down to L2 10s, and I told him to take time to consider it as it was too much to come down 10s all at once. I never said my wages h&d been reduced to L2 10s. I do not remember having told Frank Kowe so. I never remember saying it. To the Court: I was to get L2 17s 6d per week for the first two months, and for the third month L 5.

To Mr Hamersley ; I never agreed to accept L2 10s. I never agreed to let it stand as a set off. I never had any money of theirs, Hellier Fauvel; After the plaintiff received his last cheque I had a conversation with him, and I said, You want a rise of wages. I told him it would be L2 10s a week in future.

To Mr Hamersley : This was shortly after the settlement on the 19th of October. Taylor told me it was L 3 he ought to have.

Julius Siegert ; I was not present when Taylor got his cheque. After Fauvel spoke to him Taylor spoke to me and said, ‘ Surely you won’t take 7s 6d off my wages.’ I told him to look at the drapery book and see whether he was doing enough business to pay. To Mr Hamersley : I spoke to him in the drapery shop. There was no one present.

Frank Rowe : I paid the cheque to Taylor. About a fortnight after Taylor came and said, ‘ And so I am only to get L2 10s a week now.’ I had been told so before, and had entered it up in the book. It was less than a week after paying the cheque. To Mr Hamersley ; That was all Taylor said. This was about a fortnight after he got the cheque. Mr White then addressed the Court, and quoted authorities to show that a servant was not entitled to any money duo for wages if dismissed for raent.

After a long argument His Worship said that if he gave judgment for the defendants he would be doing a great injustice to the plaintiff in the event of an acquittal, and if he gave judgment for plaintiff he would do an injustice to the defendants in the case of a conviction.

Mr Hamersley said if conviction in this case would be a bar to the recovery, of the wages he quite agreed with the Court. The cases quoted only showed that it was a yearly contract and the wages would not be due until the end of the year. It was different in this case’ The hiring was weekly and the contract had expired. After considerable argument His Wor* ship decided to reserve his decisien.

James Marshall v James Andrews — Claim L 3 3s 2d.

The wife of the defendant admitted the claim, and judgment was given for the amount claimed and costs, Ordered to pay at rate of 10s a week, or in default go to gaol for a week. The Court then adjourned.