RESIDENT MAGISTRATE'S COURT.

Tuapeka Times, Volume II, Issue 77, 31 July 1869, Page 3

RESIDENT MAGISTRATE'S COURT.

(Before W. L. Simpson, Esq., R.M., and I Horace Eastings, Esq., J.P.) 1

Monday, 12th July. SINGULAB CHABGE OP CATTLE STEALING. The Queen, on the information of J. E. Herbert, Esq., J.P., v. Thomas Arthur. — Thomas Arthur was indicted ' for that he, in the month of June, 1869 — being then the bailee of twentytwo head of cattle, the property of J. F. Herbert, E. Herbert, and Archibald M'Kinlay — did convert ten head of the same to his own use, and did thereby feloniously steal the same. Mr. Inspector Percy prosecuted; and Mr. Keen (from Mr. Ward's office) appeared for the prisoner. The following evidence was taken —

John F. Herbert, sworn, deposed : I know the defendant. In September 1868 he sold me twenty-two head of cattle ; five of them bore Pinkerton's brand. They were also branded with Arthur's brand, TA ; the others bore his own brand. There was also a cow and a calf which, he told me he had bought at Teviot. The others were a mixed lot. £200 was the amount paid for the cattle [receipt produced]. I received delivery of a few only. This toot place about a, week after the sale. He pointed them out to me at the Beaumont; there were five. I can positively swear to the identity of three of them. After the sale, I entered into an agreement with him to look after the cattle and brand them. He expressed a desire, if he was able, to repurchase the cattle. I told him I would not dispose of them for twelve months ; that he should have the first chance, and that I would only charge him 10 per cent, on the money. He was to brand the cattle with my brand. He and his servant were milking some of the cattle. I repeatedly asked him to muster the cattle, but he always made some excuse. I wanted delivery of the whole. I have repeatedly seen a portion of the cattle sold to me. About the 23rd June, I received information that some of the cattle were driven away. I followed them to the Dunstan.

At this stage of the proceedings the police stated that they would ask no more questions, as they wanted a remand. They were not in a position to produce the cattle, and they had not summoned any witnesses until they were prepared to do so. This course they adopted to savo expense to the country. Mr. Keen would not oppose; but thought that the police might have been more considerate, and have fixed a more distant date, po as to have "avoided the necessity for a remand, as accused lived at a distance. An adjournment for one week was granted, the accused to find bail, himself in £100, and two sureties in £100 each. Mr. John M'Coll and Mr. Wm. Hayes were proposed and agreed to. Monday, 19th July. The accused was again remanded for eight days. Monday, 28th Jtoy. (Before the same Magistrates). ' Thomaß Arthur again surrendered to his bail. Constable T. M. Smyth prosecuted ; and Mr. Barton (instructed, by Mr. E. ff. Ward) defended the prisoner. John Erancis Herbert, re-called, sworn — On the 18th September, when I bought the cattle, I understood I had bought all he had — that twenty-two were all he possessed. I have seen, but have not examined, cattle outside the Court. Having looked at them, again I swear that the two old cows outside are two that accused pointed out to me at Beaumont as portion of the twenty-two he sold me. I never authorized accused to sell those cattle, and I never sold them myself. Accused has never paid me the £200 and 10 per cent., as agreed. Examined by Mr. Barton — Arthur was formerly clerk to J. C. Brown, for some years, in Lawrence. I have been here all that time, save a portion that | I was absent from the colony. When | Brown gave up business, my firm engaged Arthur as our servant. He was in our employ as clerk, traveller, and so on. During all that time he conducted himself honestly and uprightly. We knew him to be of good character. When he 'left our employ, he set up a store on the road, and dealt with our firm. I know Charles Higgs. Remember having an hotel, formerly owned by C. Higgs, and we had it for sale. The purchase-money which Arthur was to give us was £200. We sold it to Arthur. That purchase took place on 18th September, 1868. Arthur did not give us a bill of exchange for that sum. He gave me £200 worth of cattle. He gave me a bill afterwards as a memorandum. He gave me that bill on that day after the purchase of the cattle was completed. Mr. Armstrong was present. I don't think any one else was present. The bill was given at Beaumont. lam nearly certain. The memorandum of sale of cattle was drawn by Mr. Hayes. He (Hayes) did not write out the bill. I don't think he was present when the bill was written out. I have the bill. I produce it. It is not stamped. (Bill produced, and not stamped). When I got that bill, Arthur did not, that I am aware of, pay cash for the amount of stamps. I have recently, examined Arthur's account with us, and am not aware that there is such an entry. I swear positively that (in my opinion)

twenty-two head of cattle were sold to me, absolutely in payment for the hotel. It- was not (in my opinion) a mortgage. They were sold to m&. unconditionally. The transaction was, I took the cattle for the hotel, and he tools the Jhotel. for the cattle. >The cattle 'were to be mine absolutely, and the hotel was to be his absolutely. There was £107 some odd for stock in the hotel ; and he afterwards requested me to give him the first opportunity of repurchasing the cattle. He agreed to take the stock in the hotel at valuation. I agreed to keep the cattle for twelve month, on condition that he should give 10 per cent, for the money, and herd, brand, and look after the cattle. When this conversation took place, Mr. Armstrong was present. I believe ¥m. Hayes was not at Beaumont at the time. The cattle were mine absolutely j but I never paid the J assessment on the cattle. I paid assessment on other cattle of mine since thiß transaction, i.e., on cattle running here. I don't know how many. They were in Mrs. Eobertson's care — she paid the assessment for me. The depasturing license was taken out by Mr. Robertson. That £200 bill was a mere memorandum, and not an ordinary business transaction. It was never presented ; and I told him that he had. better sign the bill, so that there should be no dispute when the interest came due. At end of year he would not have to pay any interest if he did not re-buy. If ho re-bought, he was to pay £200 and 10 per cent, added ; but not otherwise. The document now handed to me (marked E) is in the handwriting of Mr. Hayes. I never had one similar to that. I was not aware of its existence. I swear that I never saw that document, and I | never signed a copy of it ; and no such document, to my knowledge, formed any part of the transaction of 18th September. (Document read). The bargain was not according to what is contained in that document. It was at Arthur's particular request that I undertook to re-sell; and his agent (Wm. Hayes, an old servant of out's), used his influence with us. The document now shown to me, is .signed by me. It is dated 18th September. It was not part of the original transaction — it occurred afterwards. (Document read, marked F) . This document (A)was,tothebestofmyopinion,thesale and purchase of the cattle, was completed before I gave the document marked E, in order to satisfy him. I refer to my ledger, and find that on the 18th September, 18G8, Arthur owed our firm £68 13s. 4d, or thereabout — this, of course, was prior to the purchase of the hotel. There was on that date added to that, the £107 odd for the stock in the hotel ; so that all he owed us on that date was £167 13s. 4d. I can only explain the anomaly of taking a £200 bill, that the bill was a mere memorandum. The documents you now show me do not contain the truth. If lam asked to produce one that does, I refer to the sale note of cattle to me — that contains the truth. I think there was another document signed by the firm. This one shown to me is signed by the firm (Herbert and Co.) This document (marked Gr) and dated Lawrence, 18th September, 1868, was, I believe, signed after the sale of cattle, by the firm of Herbert and Co., on the 19th. [Mr. Herbert, unable to reply to this question : "Was the document marked " Gr " signed by Herbert and Co. as part of the original transaction of the salo and purchase of the hotel and sale and purchase of the cattle; or was it a subsequent and independent transaction? The reply given by witness is : It was an independent transaction, on condition that he should herd, and brand the cattle on our account]. To the best of my recollection, it was signed on the 19th. The document now produced (marked H) I compare with my books. It is copect up to 18th March, 1869, and that is its date. It is a copy of the ledger to that date. This account (marked H) was furnished by our book-keeper, and I find it is correct, save as to a few shillings. The difference is merely 25., and- that is a clerical error. Tho £200 is charged to Arthur in that account. That £200 is the £200 for which I said I took the cattle, i.e., the purchase-money for the hotel. Though charged to him, it is in error. I say it, this charge was made in error by my clerk. The account now handed to me (marked I), dated the 18th March, the day on which I said I discovered the error, was sent by our clerk. It is in his (Armstrong's) handwriting. The only incorrectness in this account is that it is not enough. This account had nothing to do with the hotel transaction at all, and did not represent the whole of his indebtedness to us. I detected the error, i.e., the £200 which Arthur had t not received credit for. Last March I drew the book-teener's attention to it. It was corrected in the ledger last March. I don't think a corrected account was sent. I did not send him a copy of the corrected account after I discovered the error. I can't say when or who cancelled the signature, "Herbert and C 0.," to that bill of exchange. I believe I did it myself. I did not do it within a few weeks. When that sale-note was made, on 18th September, 1868, the accused represented to me that the cattle were running on the Beaumont Plat. I had before that frequently seen the cattle, i.e., some of them. I was told by parties that they were his by persons who milked, ihemj but, prior to the

sale, I can't say that Arthur ever personally pointed out any of them to me. -When a week after the sale he pointed out some of the cattle to me. I was in a yard outside the house, and some, of the cattle were on the brow of the hill. I can't Bay whether there j was any one else present besides i Arthur and myself at the time. He ' pointed them out. I have seen the cattle frequently — at least once a month between that and this. I have told some one out there that the cattle were mine, and not Tom Arthur's. I swear distinctly that I never before now saw the document marked E, and that I never saw or signed a copy or duplicate of it. No such document bearing my signature is in existence. Re-examined — The agreement which I was asked to sign I repudiated and refused to sign, and I thought Hayes had -destroyed it. I believe it was written by Hayes.' I can't say whether accused was present. The document contained conditions. I can't say what those conditions were. I dictated another, which has been produced, and which I signed. That one accused carefully read prior to' my signing it. The arrangement I had with Peter Eobertson was prior to the sale of Arthur's cattle to mo. He paid the assessment on. the instructions I gave him two years ago. Tho document marked B is in Armstrong's handwriting, and was, I believe, written at Beaumont. The one marked Eis in my handwriting, and is simply a draft as instructions for Hayes, as Arthur's agent, to follow. tßy the Bench— On 18th March I discovered the error referred to. I never made Arthur aware of it, and I am not aware that he was ever advised of it in -any way. lam sure ihah he never was to my knowledge. I have never seen Arthur since 18th March, till I saw him in Coui't hero a fortnight ago. I did not think it worth while to make him aware of the error — Ist, because I was sure he would understand the omission ; and 2nd, because I intended to visit him. The account dated 18th March was transmitted some time after ; but I can't say when exactly.. The £200 bill fell due Dec. 21, 1865. At the time I took the bill I told Mr. Armstrong the character of the bill, i.e., as a memorandum. I don't think Arthur was present when I told Armstrhng. Re-examined by Mr. Barton through Bench — That same hotel was since sold by us for Arthur, and we received qhe purchase-money (£175), which we placed to Arthur's credit. Arthur has brought an action of deceit and misrepresentation against me for the purchase of that hotel. I have been served on the 9th July. Tlie date of the writ was^ I believe, the 6th. lam not sure. ' The date of this information is the 7th July. Re-examined by Mr. Barton through Bench — I now produce my note-book, and I, find the £200 bill entered in the usual way. The entry is in my own handwriting. By the Bench — At the time the hotel transaction took place,, Arthur Lad an open running account with Herbert and Co. Thero wore no bills of his then in our possession. It is our practise to charge interest on open accounts if they have been too long due. The balance due on the open account on September 15th was £70 17s. lOd. "We charge interest as a rule on accounts over three months ; on retail amounts sometimes, but not often — more usually on large wholesale accounts. Up to the hotel transaction, I was charging Arthur no interest on his open account, i.e., when he owed us £77 17s. 10d. On the occasion of taking "the £200 bill, I took another bill for £107, for the value of the stock and furniture. I produce that i bill (marked J). Neither of the bills were intended for use ; they were intended as memoranda only. In taking the £200 bill for the hotel as well as the payment in cattle, it never struck me that I was placing myself in the position of being able to get payment twice for the same thing. Richard Lancaster, settler, Beaumont — Know prisoner. I saw him on 16th June last, at my place, at the Beaumont. On that date he sold me some cattle — ten head of great cattle, i.e., cattle over six months old. I gave him for the cattle nine head in barter, and a cheque, value £40. I valued the nine head I gave him at £61 155. I have seen the cattlo outside the Court. They are some of those I bought of Arthur. They are two in number, and are branded T A off rump, as were all the cattle I bought of Arthur. At the request of the prisoner, I branded all mine that I gave him in barter with his T A brand. The two. cows outside I have known to be Arthur's for a long time. I havo known him a long time, and I never knew the two cows now outside the Court to belong to any but Arthur. When he sold the ten head to me, he asked me if I would brand them, and said he wanted to have twenty-three or twenty-four head. He never gave me any reason for it. I know George "Williams. The receipt now produced (marked X) is the receipt given me by Arthur. About a week or so after, I bought the ten head of Arthur's. I drove them towards the Dunstan, and lost them one evening, and found them the next day. Cross-examined by Mr. Barton — Have known Arthur for years ; have had some little dealings with him; have sold him cattle on one or two occasions. He has always been up-

right in his dealings with me in every respect. The cattle he sold to me were not fat cattle ; they were ordinary store cattle. I had known the raob they belonged to for some time. I can't cay exactly how many there were all told. I got a letter from Arthur asking me to pay the assessment for his cattle, and I did so. I paid £2 3s. 9d., which is Is. 9d. per head, for six months' assessment on 25 head. After I had got ten head and sold him nine head he would still have twentyfour head. The nine head, with the other portion of his original mob, would be, in September, 1869, fair security for £200, if the original mob was worth that — i.e., if cattle continued at the same market value as they were in September 1868, i.e., twenty-two of this mob which now contains the nine I sold him would be as valuable as the twenty-two in his old mob. There is a difference in the ages of those I gave him and those he gave me ; the only j difference in the value is that his were quiet and mine wild. There was no concealment on Arthur's part; he simply said that he had to keep twentytwo or twenty-three head, and told me nothing more. Some of the cattle he chopped with me were very old ; those I gave Arthur were young, which is a great benefit ; but I got my old cattle i'rom him, John Main, settler, residing at Beaumont — Knew him twelve months. I knew the cattle he then had in his possession. The two cows now outside the Court I knew to be Arthur's, and I think the calves that are with them are about six months old. In December last I was asked by Arthur to look after them. I know John Herbert. He asked me to muster those cattle about two months ago ; when he did so he asked me if I understood that i the cattle were his (Hsrbert's). I i know the receipt marked A now produced. Mr. Herbert showed it to me J and I read it. It is a sale of the cattle by Arthur to Herbert. Greorge Williams, butcher, Tapanui — Know prisoner ; knew him twelve months ago, and knew what cattle he had. Have seen the cattle outside the ! Court. I was there looking after them | for Arthur. Know Mr. John Herbert. He (Herbert) in May or June last asked me to collect those cattle. I know this receipt (marked A), it was shown to me by Mr. Herbert. Alexander Armstrong, book-keeper to Herbert and Co. — I remember on j September 18th, 1868, 1 witnessed the signature to the receipt marked A produeQd. It is signed by the priso- i ncr, and is a receipt for sale of cattle from Arthur to Herbert and Co. At the time Arthur gave this receipt I heard nothing between Herbert and him relative to the cattle being as collateral security for payment of the £200. I understood that it was an absolute sale of the cattle according to the document I witnessed. The body of the document is in the handwriting of Mr. Hayes. I don't know who first produced the document. I was at Beaumont for the purpose of making inventory of stock, &c, value of which was £100 odd or thereabouts, and of the hotel £200. I merely witnessed the document. I know nothing positively, but from the transaction which took place I judge that the cattle were given by Arthur as consideration for the hotel — Arthur taking the hotel and Herbert the cattle. The document produced marked B is written by me and witnessed by me. It was given Mr. Herbert asking Arthur to look after the cattle for twelve months. The document A was signed first and B second. I remember no conversation relative to the resale of the cattle by Herbert to Arthur. I saw a bill signed (accepted) by Arthur. There was no conversation about it that I recollect. There were two bills in my handwriting, one is for £200 and the other for £107 odd. The bills produced marked Gr and T are the bills. The bill for £200 was given for the purchaso of the hotel ; that is what I understood. 1 don't know whether the £200 bill or the receipt for the cattle was signed the first. The document signed C was witnessed by me, but I know nothing further about it. [This witness was cross-examined by Mr. Barton, and the important fact elucidated that the bill and not the cattle was given for the hotel, and that the books bore nothing to show that Arthur had received £200 for the cattle.] Constable Smyth deposed to arresting Arthur. After a brief consultation, Arthur was discharged, the Bench considering any defence unnecessary.

(Document marked A.) [Copy.] I, Thomas Arthur, have this day sold to Messrs Herbert and Co., of Lawrence, twenty-two head of cattle, comprising cows and calves, all branded TA. near rump, now running on Beaumont Flat ; in consideration of the aura of £200 sterling, ■which amount I hereby acknowledge to have received. Dated at Lawrence this 18th day of Sept. 1868. Thomas Annum. | Witness — Alex. Armstrong. (Document marked B.) [Copy.] I, Thomas Arthur, do hereby agree to muster, herd, brand, and do all other necessary work for the safe care of the mob o£ cattle, viz. , 22 (twenty-two) head, which I have this day sold to Messrs Herbert and Co., for a period of twelve months from this date. [Is. stamp.] Thomas Arthur. Dated at Lawrence this 18th day of Sept. 1868. Witneta -Aijbc. Armstrong.

(Document marked G ) [Copy.] We, John F. Herbert, Edward H rbert, and Archibald M'Kinlay, of La rrence, in the Province of Oba^o and. Colony of New Zealand, do hereby bind ourselves, under a penalty of £200 sterling, not to sell or otherwise dispose of any of the cattle that Thos. Arthur has this day sold to 113, provided the said T. Arthur liquidates all monies aud interest due thereon to us within 12 months of the date hereof. Herbhrt &Go Dated at Lawrence thi3 18th d*y of Sept. 1868. Witness — Alexander Armstrong. ( Document marked H.) Mr. Thomas Arthur, in account with Herbert and Co. in liquidation dated 18th March, showing a balance due them at this date of £139 9 7. C Document marked I.) Mr. Thomaa Arthur in account with Herbert and Co., dated 18th March and showing a balance due of L 123 9 1. (Document marked L.) We John Francis Herbert., Edward Herbert, and Archibald M 'Kinlay, of Lawrence in the Province of Otago and Colony of New Zealand, merchants trading under the name of Herbert and Co., have this day sold to T. Arthur the property known as the Beaumont Ferry Hotel — (here follows a description of the property)— in consideration of the sum of L2OO sterling, an acceptance for which amount, payable ihres montih.3 after date, we hereby acknowledge to have received. Should the said Thomas Arthur not bo in a position to satisfy said bill at maturity, Aye hereby agree to renew the same on payment of interest at the rate of ten per cent, per annum. Herbert and Co. Dated Lawrence this 18th Sspt. 1868. Witness. Alexander Armstrong. ( Dooum ant marked P.) Similar document to that marked G, only given \>j John F. Herbert.