RESIDENT MAGISTRATE’S COURT.

Temuka Leader, Issue 1290, 15 January 1885, Page 3

RESIDENT MAGISTRATE’S COURT.

Temuka—Wednesday, Jan. 14, 1885. [Before J. Beswick, Esq., R.M., S. D. Barker, and I), inwood, Esqs. POLICE CASES. Robert Fenton, on remand, was charged with being drunk in a public place on the 9th, and icfusing to leave a licensed house when requested to do so. He was fined 20s and costs. Robert Dober was charged with leaving a dead dog in a stream near a public road. Defendant admitted the charge, but urged in extenuation that the dug had been at Mr Paterson's sheep, and he drowned it in a bag. It was his wife who threw the dog on the road. The Bench inflicted a fine of 7s 61, and ordered the defendant to pay 2s 6d expenses. William Naylor and John F, Smifhers were charged with disorderly behavior in a public place.— Smithm did net appear, and a warrant was ordered to be issued tor his apprehension. Naylor pleaded guilty with extenuating circumstances.— Donald Sutherland said he saw Naylor and another man larking in the street. He saw Naylor fall and he went on to Nicholas's stables. He saw Smithers with his mouth bleeding. In answer to the Court the witness said he couid not stiy whether they were larking when he saw Smithers with his mouth bleeding. —Walter Hobbs corroborated this evidence. He said he was not close enough to see whether they were making a disturbance. He did not go up till it was all over, when he saw Smithers with his mouth bleeding. He did not see Naylor till afterwards, when ho appeared as if he had got a'■ clout” in the face. There were a few people in the street at the time and some lud gathered round.— Naylor said that he and Smithers were having a bit of fun together —*■ timithera ' * .. m , n mm rather hard and he retained the blew. There was no disturbance, no noise of any kind.—The Bench inflicted a fine of 10a and costs with two witnesses’ expenses, each 2s Gd. Both defendants to pay a similar amount. CIVIL CASES. Poter (Joira v. Orton Brown—Claim £9 Os.—Judgment by defmll for the amount claimed and costa.

Same v. D. Qnarrie —Claim £2 Bs. Adjourned for three weeks. - Storey v, F. Fonder—Claim £2 10s. —Judgment by default for the amount claimed and costs. Patrick Cleary v. John Woodhead— Claim £29 la 6d.—On this case being called, Mr J. W. White, who said ho was not acting for the plaintiff, drew attention to the fact that Woodhead had filed a declaration of insolvency, and plaintiff, on the advice of the Bench, withdrew the case. Peter Baunatyue v. Jones and Philp— Claim £l7 17«. Mr Atpinall appeared for plaintiff and Mr White for the defendants. The case had been before the Court before in November last before Mr Robinson and the plaintiff was then nonsuited. Mr Aspinall briefly introduced tho case and called the plaintiff, Peter Bannatyne, who said he was engaged to work at the bridge. The evidence given by this witness was most voluminous. From it it appeared that in July he was engaged by Smith to work for him in pulling down the old bridge at the Opihi at 30s a week and found. At the conclusion of that job, Smith ■■-aid he was going to work for Philp and Jones on the new bridge and he would got him a job there. Work commenced on Hie 4th August. At the end of that month when a settlement was being made, it was found that no time had been kept and plaintiff and Smith then agreed, according to the plaintiff, that ho should be paid the old rale (30s per week) up to that lime, and henceforward 8s per day. He noted down every night the number of hours worked during the day. Philp gave orders to a number of the men on the work. When ho went to get a settlement of the money he could not get one. He was offered £7 10s but declined to take it. He asked Philp if Smith was a sub-con-tractor and he said “ No.” The reason his claim in November last was more than it was now was because Smith promised to pay him more for tha time he was working in the water, and he had then charged extra for that time. He had since then decided to abandon that claim.

The witness was cross-examined by Mr White at great length. John 'Talbot, the Chairman of the County Council was called, and he produced the agreement between the Council and the defendants. One of the clauses prohibited the letting of any sub-contracts without the consent of the Engineer. William Lucas and Caleb Bateman gave evidence for the plain tiff. Lucas said he went into Timaru and saw Philp about the work, and asked him if he could give him a job. He said, “Yes, as soon as it started,” and said Smith would tell him when to go to work, James Philp, T. E. Jones and J. Smith gave evidence for the defence, The principal defence was that a sub-contract was taken by Smith from Phi Ip and Jones, and that he was therefore liable for the amount. The agreement was put in. Mr Philp denied giving orders to the men. The only reason for the defendants paying any of the men was because they did not wish to have any bother. Mr Smith’s cross-examination was very long and severe. Both Mr White and Mr Aspinall addressed the Bench for their clients. Mr White held that the Bench could not take cognisance of the fact that there was a clause in the agreement between the defendants and the County Council for the building of the bridge to the effect that there was to be no sub-letting without the consent of Council’s engineer. That was a matter entirely between the defendants and the Council, and did not affect the present case. As regards the time-book produced by th* plaintiff, the Bench could see that the entries sworn to as having been made every night were all written with the same ink, with the same pen, and apparently at the same time. He asked thorn to discredit such evidence. Mr Aspinall pointed out that the subcontract was dated the 12th August, and work commenced on the bridge on the 4th August, his client beginning at that time. With regard to lbs entries in the book on winch Mr White had thrown so much discredit, the Bench would see that the book entries were but a copy of others made in pencil, and it was to them that his client alluded when he swore that he made the entries every night. Mr White interjected that it was the ink entries he swore to. The Bench said that they had decided to give judgment in the case in justice and equity. It was clear that the defendants had had the benefit ot the man’s labor. During the work they had never given the men any idea that there was a sub-contract. It had been proved to the Bench that the man had done his work, and the actual question was the difference between the two times —that kept by Smith and that kept by Bannatyua. On comparing the two times, Smith, according to his own evidence, had made his up only once a week ; the other man had sworn that he made his no every night after he had finished his day’s work. The Bench had therefore determined to take the time sworn to by Bannutyne as the most reliable, and would give judgment for plaintiff. There was a claim put in by Smith for board, and Bannatyne admitting this from the Ist Sept, the amount (12 weeks at 14s per week) was deducted from the claim. Judgment was therefore given for £l2 7s and costs. During the hearing of this case Mr Beswick left the Bench. G-ER tLDINE. Wednesday, Jan. 14, 1885, (Before L. Walker, Esq., and Captain Temple, J.P.’s.) EMBEZZLEMENT. Alfred Fisher was brought up on remand charged with having on various dates embtzz'ed certain sums of money received by him on account of J. M. Twomey he being then his servant. The accused pleaded not guilty. The prosecution was conducted hv inspector Broham. apcearoH .... oir Hamersley . . ..or the defence. " j. M. Twomey ; 1 am proprietor of the Temdka Leader and Geraldine Guardian newspapers, and reside at InmuUa. 1 know accused. He entered ray employment about the beginning of July, 1883. He was paid £1 10s and allowed Is Cor stamps, in all £1 Us per week. He was paid monthly. Ho was to reside at Geraldine. His duties were to report all news in the Geraldine district, canvass for business, such as subscribers and adver-

) tisemenls, and collect all moneys cine to j \no cm account of the paper. Ho w.\a : to bank with the Bank of Now Zealand at Geraldine all money when it had accumulated to one pound and upwards mid send me a letter immediately it bad been banked, stating from whom he had received it. He was also to send me a duplicate credit slip marked by the banker. At the end of each month he was to send mo a monthly statement of the cash he had received and the date he received it. I kept the accounts in Tomnka. 1 generally sent tho accounts through the Post Office to the customers, amt then sent him a list of the accounts due. Geo. Wood, Mark Coombs, and Lemuel Newport (of the firm of Newport and Sutherland) were customers of mine. On Sept. 30th £1 3s 6d was due of Geo. Wood. On the Ist of Apri’, 1884. an account was rendered for £1 Is to Mr Newport. On the 27th of Sept, that amount was owing. .Mark Coombs was indebted to me for £L 18s up to the 27th of October. I have never received any of these amounts from accused. The receipts marked A (Wood’s) is in accused’s handwriting. Combs’s receipt and Newport’s receipt are also in the handwriting of accused. I produce the balance-sheets sent to me by accused for the months of Sept, and Oct. They are in his handwriting, and do not show the receipt of an/ sura from G. Wood, M. Coombs, or L. Newport. Accused never accounted to me for any sums mentioned on these receipts. He has admitted it. When some people from this district wrote to me that they had paid money for which 1 had rendered them accounts I came up to Geraldine, and could not And accused. I then came up again, and showed him these letters, when he admitted having received the several sums of money mentioned in those letters. Subsequently he furnished ta the office a list in which tho names of Wood, Coombs and Newport appeared with other parties who had paid him, for which he had not accounted. This is the list (produced). He did not say why he had not banked the money, but asked me to have mercy on him. I never received these three sums, lie was not authorised to pay himself wages out of receipts, or expend money without authority. He expended 5s when attending a meeting, which I allowed. I gave him authority to purchase some furniture for the office. This letter (produced), dated Dec. 9th, is a reply (o one sent by my solicitor demanding of him a list of the moneys kept by him and a marked cheque for the amount (£4O) “Geraldine, Dec. 9.,1884» Mr Twomey. —Sir, —lt is with deep sorrow of heart that I address you re my position with yourself, I have to-day received a letter from Mr Aspinall on the matter, and regret to say it is impossible to send him a marked cheque, but instead I would ask yon to accept promissory notes at three, four, five and seven months covering the amount of my deficiencies, which I would earnestly pray you to accept. I would have written you ere this, but have felt rny position so much that I could not write. I would beg of you to accept, this instead of doing that which I so richly deserve. I would ask it of you for the sake of my family, but 1 feel you would reply I should have thought of them betore I gave way to temptation. Oh ! Mr Twomey, show mercy to me ! Mr Bambridge wrote to me re S.O. Times. Now, 1 undertake not to write a line for it so long as I remain here. I am doing a little here, and if I were to leave I should have nothing whereby to support my family and assist me in refunding what I have defrauded you of. Moping you will accede to my request,—Yours, etc., A. Fisher,” To Mr Hamersley : The date of (lie interview I had with accused when he admitted having received the sums mentioned in tho letter sent me was about tho end of Oct. I laid this information about 10 days ago. I delayed in laying the information till I had learned the full amount owing, I did not know the full amounts paid to accused on tho date on which they were paid till my representative found out hy making enquiries. Accused sent me the list about December, but I waited till I made further enquiries. Accused left my ernyloyment about the end of October. I have heard he Lad employment from other people. He was permitted to carry on business for other people, provided he did not neglect my business. 1 have known him to be a reporter for some time. I delayed from the Bth of Dec. till now to take proceedings as rny agent was making further enquiries. I held £9 19s of his rnonev in hand on tho Bth Dec. I suspected that £4O was deficient but did not know the exact amount when I instructed my solicitor to write. A new paper has started here. I know Mr Fisher was connected with it. Geo. Wood ; I am a blacksmith residing at Woodbury. I know accused. I was a subscriber to the Geraldine Guardian. I paid accused the amount on the receipt (produced). I paid it in cash. The receipt was taken from me about 5 weeks ago. Mirk Coombs : I am a gardener, etc. Know accused. I am a subscriber of the Geraldine Guardian. I paid the amount mentioned on the receipt, but got tho receipt a few days afterwards. I paid by cash. I gave the receipt up in November. L. Newport; I ara a 1 reside in Geraldine, and know the accused. I am a subscriber to the Geraldine Guardian. I paid the amount of the receipt (produced). I paid by cheque on the Bank of New South Wales. This is my cheque (produced). I believe it was the 19th November when I parted with the receipt. W. F. Hargreaves : lama clerk in the Bank of New South Wales, Geraldine. I recollect the cheque being cashed. J. M. Twomey recalled : The endorse' raent on the cheque ia in the hand--writing of the accused. To Mr Hamersley; lam not an expert, but am accustomed to accused’s band writing. 1 would not swear that he wrote it, Mw.rd H,tdoa S «- ■ ' M T „ ome ,. a in Geraldine, i go. A. receipts produced from G. Wood, L. Newport, and Mark Combs. No alterations have been made in them. < To Mr Hamersley ; I was appointed on the 27th October, and obtained the receipts some time after. It might have been on the 24tl> of December before I bunded the receipts over to Mr Twomey. I handed some other receipts over before that time. The new paper staged on the 3rd January. The accused was employed on it. , ~ This having completed the evidence, Mr Hamersley proceeded to address the

Court, He said the chiuso in the Act van dev which the infounauou was laid required that a person who emhczzelled money should be either a cleric or a servant; and he held the accused was neither. He was an agent, and his appointment as such was advertised in the paper. He quoted from Roacoe, page 446, a case which he said was on all fours with the present one. It was the case of a firm of mannfactuiers who employed an ' agent at some distance to sell for them. The agent was paid £1 per year and commission, and it was held he was only an agent and not liable to be brought up for embezzlement. He farther contended that it was recognised as a matter of accounts by Mr Twomey, who kept some of accused’s money, and who made a demand by bis solicitor on him for the amount alleged to be due, Mr Inspector Broham pointed out that the accused was a servant in receipt of weekly wages, whereas the person mentioned in the case cited by Mr Hamcrsley was a commission agent.

Their Worships retired to consider the point, and after an absence of about five minutes returned into Court. The Chairman (Mr Walker) said Mr Hamersley had not proved his case. The law was clear on the point. The accused’s letter to Mr Twomey acknowledged that he was a servant. The Bench had therefore come to the conclusion of sending the case for trial. The prisoner was then committed for trial at the next sitting of Hie Supreme Court, Tirnaru. The same prisoner was charged with having on divers dates embezzled certain sums of money received by him on account of his employer, the total amount being £3 11s.—-He pleaded not guilty. J. M. Twomey; R. Skinner, (3. Wilier, and Amos Sherratt were subscribers to the Geraldine Guardian in July and August last, I have not received any mouey from the accused paid by any of these to him, The balance-sheets for Ju’y and August did not show moneys paid by Messrs Waller, Skinner and A. Sherratt to accused. The balance-sheets are in the handwriting of accused. Ha has never accounted to me for these moneys. B. Skinner ; I am a farmer residing at Hilton. I knovr accused. I have been a subscriber to the Geraldine Guardian. I recollect paying the amount of the receipt (produced) to accused. 1 paid by cheque on the Bank of New Zealaud (produced). 0. Waller ; lama carpenter, living at Geraldine. I have been a subscriber to the Geraldine Guardian. I remember paying the accused the amount of the receipt (produced) in cash. A. Sherratt: lam a sawmiller, living at Geraldine. 1 know accused. I subscribe to the Geraldine Guardian, I remember paying the accused the amount of the receipt (produced) by cheque on the Bank of N.Z. (produced). D. Andrews: I am barman at the Geraldine Hotel. I received the cheque (Skinner’s) from accused to get cashed. I cashed it, and afterwards changed it at the Bank. Charles Phillipson : I am a Clerk in the Bank of N.Z. at Geraldine. Skinner’s and Sherratt’s cheques were cashed at the Bank. I cashed Sherratt’s for the accused, but cannot say who cashed the other. This closed the case, and accused, reserving his defence, was committed to take his trial at the next sitting of the Supreme Court. The same prisoner was further charged with having embezzled certain other sums in a similar manner, the total amount being £3 2s. J. M, Twomey : I produce the balancesheets for April, May and June. They do not show receipts from Hans Gripp, J-is. Stringer, or Thos. Bowkett. Accused has never accounted for moneys from any of these parties. H. Gripp : 1 am a carter residing at Geraldine. I know accused. I hav>- been a subscriber to the Geraldine Guardian. I paid the amount of receipt (produce >) iO accused in cash. Jas. Stringer : I am a blacksmith. I know accused. I have been a subscriber to the Geraldine Guardian. I paid accused, the amount of receipt in cash. Thos. Bowkett ; I am a wheelwright residing at Geraldine. I know the accused 1 am a subscriber to to the Geraldine Guardian. I paid the accused the amount of receipt (produced) in cash. The defence was reserved and accused was committed for trial at the next sitting of the Supreme Court. The accused was admitted to bail himself in £IOO and two sureties of £SO each. All the witnesses were bound over in the sum of £SO to appear to give evidence in : tho case at the next sitting of the Supreme Court, Timarn,