(Before Vincent Pyke, Esq., R.M., and His Worship the Mayor.)

Tuapeka Times, Volume V, Issue 256, 26 December 1872, Page 8

(Before Vincent Pyke, Esq., R.M., and His Worship the Mayor.)

MONDAY, DECEMB3R. 16.

Charles Hpward r for. being drunk and disorderly," was 'fined 10s. ; in d^§i(ilt, 4i hours , imprisonment, wicboufc hard labor. Alexandar Cross was charged wi*h bein^ drunk, and disorderly, and with being illegal! v ou the Hfpmises of John Lynch,, at \V.iita!mna. Mr. Copland appeared for accused. The latter charge .jg.ro ved of a trumpery nature, and was fli-iinissed. Accused had a number of limes previously bsen convicted of

drunkenness and disorderly conduct, and

on this occision was mulcted in a penalty of £5, with the alternative of 14 days imprisonment iv Lawrence gaol. Heury Drury was charged, on informa*n, with cutting timber without

being licensed so to do. Constable B-ujafor.l saiJ, on the 27th November, he saw Drary felling timber at Watson's bush. Charles Rioh-irds gave similar testimony. Mr. M'Coy, who defended I aeeusOT, sxid his client was a new arrival, and w. s u.er ;ly working for his brother, He dirt not think it worth j while to take out a license for ti^s few \y.e,e.ks that remained befqre the termi nation of- the. yettr j Hut intended to do so at the commencement of next year. The mitigated penal t«r of 20.-5. was iunicteil, on defendant undertaking to t:ke out a license at the u3ium i e.nce,inent o.f the year. Defendant expressed his - inability to find the money, but was liberated fin his brother undertaking to pay the fine wiShin a fortnight. T . Sproule v. LirTcin.—? This was an action brought by the late schoolmaster M of the Roman. Catholic School to recover siitn of ,£55, reduced %o £50 to bring it'withia the jurisdiction of the j " .Court; balance of account. „ The bill j fura^ed* therely stated, : to amount due for board and schooling, £263 ; paid on account, £208 ; balance, £55. Mr, Copland appeared fqiTpiaintiff j Mr. Mouat foj|defendan^. Mr, Mouat said the^laintiff ha.d m>t pom plied with an crd j r cf t!ie Conrt to furnish defendant with a proper statement of the particulars of the demand. Mr. Copland said he was unaware of any such order having been made. . The Resident Magistrate said if pkintiff was an hones.fc man he would Jnive no objection to furnish, the required particulars. The only question $as whether the statement was sufficiently" full and explicit. He/^mist siy fhijt he had never seen such a bil j „ particulars of put into a 'const of iustice, and hoped he never wouldHagaih. He ."would not|djonrn the Court, and^ifthe acooimt was not properly atabed, it :sWn';ißt: sWn';ißt -be at plaintiff's own risk.. # '

. ,Mr. CopUftd ..expressed his willing jfiess .tQ furnisb »U -information, and - 4v>ote oat thjS; account from plaintiff's „. books. _ ?fc, Sheii appeared, that . there yf<tg.q mistake of £10,.in the addition,

and the proper balance shown to be £45. Mr. Copland then stated his case, and called £f& Henry \foseph Sproule;, schoolmaster, residing at Lawrence, who deposed that OD'.or about the* end of August, 1871, the Rev. Fatfier Larkin intimated his intention of going on mission duty to Qcieenstown, and offered to 'procure hoys as bqarding pupils. Gn •or about the 17th December, 5 boys arrived, at his school in a waggon from up-country. There were 2 brothers named M'Pherson, one Uijuaed Dijudry, one named Blackwood, and one named "fooche. The waggoner said the boys l)ad been sent down by Father Larkin, who had paid their fare. Father Laykin. arrived on the 20th, and told him (witness) that he had got the boys M'Pherson for 10 years to educate in the Catholic faith ; that Dundiy was the son of a poor miner, whqni he had taken on the same terms; that Blackwood he had token from^the employ of a Mr. Borde.au, with his mother's,, s*nsent, to e<J"f at S J and that J^oche's father was, in good circumstances. Witness previqusly nientioned to Father Larkin that if he could get a saffi.Ji-nt number pf boarders he would take them at £10 10s. perquarter eacli ; but afterwards telegraphed to him that he wpnld be unable to take boarders at less than £1 per week. He looked to Father Larkin for payment, as he did not know the parents of the boys. He charged £10 10s. each for the first quarter and £12 12s. for subsequent quarters. He gave notice of tb,£ increase in price to Father Larkin, as he considered he stood in locoparentis to the boys. His terms were that fees should be \ >aid in ad vance. Father Larkin paid cm 20th September £13 ; on 28th, £20 ; on February 27th. £9 ; on March 10th, £5 lQs. ; April 25, £24 10s.; July 19th, £25;' July 20th. £100 ; July 20th. £6 10s. This latter payment was a post-office order. He also received £5 by a pnst-office order from the boy Eoche on 22nd July, and afterwards two sunas of £5, making in all £218. Asked defendant when he was going to the West Coast for payment of the balance, and when he came back also requested payment. He ch-rged the same rate for other boys. Witness opened ao account for defendant.

Cross-pxamined by Mr. Mouat. — Father L-trkin's object in bringing the boys to witness' school wa« to get them educated. The boys received as much benefit; as witness did. Father Larkin, he considered, was acting ch,aritab ( ly by providing the boys with education. A lad named Gantley arrived in the same waggon as the 5 others he had named. Father Larkin said Grantley's father had paid £10 on account, and that Goodger had also paid £10 on account of his boys. Witness remarked to defendant tffflt the M'Phttrsons were very small. lie (defendant) said that it did not tuattfr as. loner as they were pui'l for ; and also observed that if h ri (witness) considered them too small ths Bishop would take them. He hai received money on account of the M'Phersons from FatherLarkin. The post-otßce order for £Q 10s. was paid to him. Roche came down in the coach, with two other boys who had been recommended to come to his school by Father Larkin. He always applied to Father Larkin for payment of the fees for the 5 boys he had previously named.

By the Bench. — The amounts received by witnpsi were charged against Father Larkin's lump account.

Cro/ss ex uni nation continued. — The £9 on 27th February was an account he owed in Dnnedin paid by Father Lnrkin. Father Larkin got the boy Blackwood a situation in Wetherstones. If he had been directed, he would have charged defendant with the other boys' accounts. He wonld s«?ear thai Father Larkin directed the accounts of the 5 boys mentioned to be so charged. The £24 10s. wa3 not given as a loan, or ou account of any particular boy. Remember the father of the boys M'Pherson being in Lawrence. He nßyer. paid witness a penny. The £100 was not a loan. Re-examined by Mr. Copland. — Witness would not have refused money from any of the parents of the boys. If be nqt been pn friendly terras with Father Larkin he would not have permitted the account to run on so long. . . Bj the Bench. — Witness was teacher of the Roman Catholic School, but received no salary but the fees. Ann Cecilia Sproule, wife of last witness, corroborated-bia testimoßy^relative to the boys, .and heard Father Larkin tell her husband the arrangement regarding the l^'BhersQns mentioned in his evidence. Father, Larkin told her to come to him for Anything the boys wanted. Abo.ut January iaßthe~told her that M'Pherson was comins; dovyn, country, and he did not want the boys* to look shabby. On that occasion he gave betr £7 to purc'mse cloth>e§, directing her to go to M'Beath's. "When the boys wanted J)oots or any articles o,f <'lothins* she procured them for them. Her husband used to set the board accounts from Father Larkin. (Witne|£ A here repeated the conversation bjetiween her husbaqd and defendant relative tq the smallneas of tbe boys.) M'BheVson earn© to Lawrence, and ?peni; porae time in company with b^s boysr This was .plaintttFe 4>nj£, *M>r the defene^erMr. Mouat called William Joseph Larkin, Eoman Carbolic clergyman, residing at Law?

rence,*who said about-September, 1571, plaintiff asked JU^@, could have the school if his brolHSr, Thomas Sproule, went away. He (witness) said " yes ;" butjjbere were not enough boys attendin <«J|d nflke it pay much. Sproule then said he would adopt the' same principbfts he had followedin Duiedin, viz,, keep boarders. Thomas Sproule ivent away, and the school was given *to plaintiff. At his suggestion, plaintiff got him 13 boarders from up-country and ©unedin. He told Sproule the circumstances of several of them. The two boys MTherson were from Skippers Point. Their father said he wished to carry out the wishes of their mother, expressed on her dying bed, that the bnys should be educated in the Eoman Catholic faith, and that he was willing to pay whatever expenses were incurred in so doing.. M'Eberson is still at Skippers, and is well to do. Duudry is not so well off, but said he wpuld pay for the education of his boy. Eoche and Gantley are both well able to pay for the board and education of their sons. Gantley, MTher^qn, and G-oodger gave witness £10 each as fees in advance, which he gave to Sproule. G-oodger at first sent only one boy, but afterwards sent another. Mrs. Blackwood, who was in the employ of Mr. Bordeau, at Skippers, asked witness to take her boy to school. He told her that the school did not belong to him, but be would see what could be done. Mrs. Blackwood expressed her readiness to pay the amount required by Sproule for educating and boarding her boy. He (witness) was simply the vehicle whereby the moneys were transmitted from the parents to Sproule. The £9 represents an amount he paid to satisfy a vyarrant issued against Sproule, and was not paid on account of any of the boys. The last time witness went up- a country, Sproule asked him to urge, the parents of the boys to pay the fees due. Up-country he saw Eyan an<L Goodger, who promised to remit. Oir witness' return to Lawrence, Sproule said he was much pressed for money. He (witness) thereupon inquired how much money was required. Sproule said £10Q. Witness lent him the money, on condition that it' would be paid back immediately the money from Goodger and Eyan was received. The money was counted on the table, and on finding there was no receipt stamp in the house, Sproule said he would a:o onf; and get one. He went out, but did not return. On the following day he (witness) asked him for an acknowledgement of the £100, and also to account for the lottery tickets. Asked him several times without result, and finally pressed him ; but could not get any satisfaction. Bewived a letter from him (produced). Witness lent Sproule £2 at Tokomairiro to pay a bill he 'said he owed to Lankier, but, finding the account was not settled, p-iifl it himself. He (witness) hacl never paid money out of hi& own pocket for the board or tuition of tie five boys mentioned, neither had he promised to do so. Cross-examinpd by Mr. Copland. — T.ie £24 10s. was borrowed by Sproule to pay MKimmie, wbo was pressing him. He gave Mrs. Sproule £7 to pay for clothes for the children, and gave her money on two other occasions. He gave a general order to Mr. M'Beath to supply whatever the boys wanted, and was instructed to do so by the parents of the boys, who forwarded him moneys for that purpose. He (witness) would lend any man £100 to save him from disgrace. He had lent Sproule £20 when he came to Lawrence first to set him on his legs; which he did not charge for. ! By the Bench. — Sproule had neve' rendered an account nor asked witneqj for any money on account of fees fron witness. • Sproule said be was n»t getting~paid for the boys, and, to keep him out of difficulties, he (witnesi) lent him the moneys mentioned. On several occasions Sproule promised to re-pay immediately. On one occasion witness pressed him to give orders <jn tbe parents of the pupils, offering \o take orders on the least solvent, for \e knew they were all able to pay. Be (witness) received the money order fur £6 10s. It was drawn out payable io Sproule. Plaintiff re-called. — Eeceived tws £5 notes after s the £100. The second £5 note he procured to go up io CromWell to see the parents of the children. Judgment; was reserved tilt Wednesday. TJren tnd Go. v Capstich. — Claim <if L 2 16s. 9d. Judgment by default for amount claimed, withtosts. Hinde v. Tretoeek. — Claim of^Jff 16s. Judgment by default for amount claimed, with cpsts. .fHayes and Others v. The Beaumont and Tuapeka Water*Eace Co* adjourned, by consent, to Janitfrv 17fch,'1873. t y*l (Before Vincent Pyke, Esq., R.M.»and JLir. Stewart, J.P.), Wednesday, Dec. Is. ,

Sprdule v. Larkin. In tjfis case judgment which had been deferred from the previous Monday, was gi veil 'for defendant, with costs. \ „ Henry Joseph Sproule, was charged on the information of .the Ee^' ' Father Skin, with embezzlement, "i it. Mouafc appeared to [prosecute., Mr. Copland on behalf f£ accused, Mr. Mouat in opening thej; case said the charge was nob broughf with the view of punishing accuse^, |b,u£ as his

actioi had'plaged thej .prosecutor— wbo was the head of the tJatholie Body, in the up-country districts, in a peculiar and gainful position, it was, resolved to brin^ the matter before a competent tribunal, in order to fix the resp"6nsibilitj on whom it justly fell. Some time since, a Eoman Catholic School waserected in Lawrence, and various me«jis were resorted to in order to raise the ! funds necessary to pay its cost. Anung other devices, an art union was proj toted. The sanction of the Superintendent was obtained, and the accused as teicker of the school was entrusted with \he work" of getting it off. The idea o? an art \inion was after wards abandoned, and efforts had been made to get aclused to account for the moneys he had received, but without avail. He concluled by pointing out that it was not nwessary to prove the offence of embezzlement, but that it would be ♦competent for the Bench too omnait for larceny as a bailee, quoting Justice Johnstone's Justice of the Peace in support of that view. He called

W. J. Larkin, Roman Catholic clergyman, who deposed that early la&t March preparations were being made to pay off the amount" due on the Roman Catholic School, then approaching completion. Amongst other things an art union was to be got up. Accused was teacher of the public school in connexion vith the Roman Catholic body, engaged by witness. A few days before the 17 th March, he (witness), gave accused a programme of the sports which were to come off, and entrusted him with obtaining the tickets for the art unioi, which were to be printed at the Tu-apeka. Times office. He showed a sanwle, which was approved off, stating thai he had ordered 300. There was notiing further done until the day the arfcunion. was to come off, Sfc. Patrick's daj. On that day, he (witness) said the drawing would have to be postpoied, as other prizes had been forwarded. The plan was subsequently abandoned. He had resolved to publish tin whole proceeds of the art uuion and spirts ; for that pu.r,pose aslced Spronle j foi an account of the money he had receeived for the art union tickets. The sprts were held on the 17th March. Witness was there and saw accused dispeing of the tickets. He asked accised repeatedly to give an account of tfe moneys he had received, which he pomised to do. About 3 months befcre he was dismissed from his office as SGioolniiister, he handed in a statement, (produced). On being asked for the ntmey, he made some incoherent excise, but did not give it. He never at aiy time denied having the money for tie 39 tickets mentioned in the statement. Afterwards he (witness) requested Sproule to call in the tickets, and refund the money to the purchasers, which he agreed to do. He deferred doing so from day to day. When j« tytrntjstbwn, witness observed in the j Tctapeka. Times a letter signed " Protestant," reflecting on all connected witlAhe art union. When he came back to Lawrence, he told Sproule of the state of affairs, and insisted on his calling in the tickets. Spronle brought down an advertisement for insertion in I the Tuapeka Times, which he asked witness to sign, but he declined to do so, telling Sproule that he had had the whole management of the affair, and ought to refund the money. The advertisement appeared in the Tua"pek v Times, and in consequence of it several people who had purchased tickets, waited upon Sproule for the purpose of having their money refunded. Sproule however, refused to pay back any money, saying that he (witness) had not paid him. Several people then came to him (witness), and as he did not like to see them go without their money, he paid back the price of the tickets. He then placed th,e matter in Mr. Mouat'a hands, instructing that gentleman to write to Sproule demanding an account. On or about the 2nd December, in Mr. Mouat's office, he received another statement from Sproule, (produced) and a letter. The statement was unsatisfactory, as it gave credit only for t 12s 6d. Sproule returned 211 tickets, which he said he had not sold, and said he had ordered 300 (thejll tickets produced). On paying the account to the proprietor of the Tuapeka Times, witness found that 450 had been charged. To shew that more than 300 tickets were * printed, he produced tickets numbered 450 476 and 500. The tickets were Bold at 2s 6d each. The second statement shows 13 tickets not called in. Witness had called in and paid for 28 tickets, (produced) some of which were procured before and some after the last statement was handed in. The tickets were got ajl oxev the country — Alexandra, Clyde, Cromwell, Waifcanuna, Blue Spur and other places. 14 or 15 tickets had been received during last week. The price of some had been refunded and in? ovher cases arranged for. None of tne tickets were signed. Cross-examined by Mr. Coplanti^The tickets repurchased by witness were numbered. The statements made, by him in a previous case that he Had nothing to do with Sproule's school, referred to the private $}hool. Sproule received the school fees, of the 'Eonjan Catholic public school as salary. c • The. Resident Magistrate — Where- is the Superintendent^ sanction to the artixmioni Witness— »t tincierstaod from a parly of gentlemen in Dunedin, tTjat the Superintendent had given his sanction. i The Eesident Magistrae — | would

not have asked the question, if counsel in his ~bpemng : teimarks "h%d- c h6t" Mated that the Superintendent's sanction had been given ; thus legalising the. art union. It is a well-known rule of law that counsel must not mislead the. Bench. Statements made by the bar to j the Bench are considered sacred. Mr. Mouat must now substantiate his assertion by producing the Superintendent's sanction in writing. Mr. Mouat — I was instructed that the Superintendent's sanction had been given. Witness — I understood so and told Mr. Mouat.

Mr. Mouat — The production of the sanction is immaterial. It does not follow that bepause the transaction is illegal, that a' servant should embezzle moneys received \n course of carrying it put.

The Eesident Magistrate— lf a servant obtained money for selling liquor, and stole it, he apprehended if the the master had not a license, he pould not prosecute.

Mr. Mouat — A man can be prosecuted for stealing stolen property. The Eesident Magistrate— Not by the original thief surely. Mr. Mouat — By the Queen, and in this case the Queen is prosecutiing. I wish to point out that every act is presumably legal until the contrary is* proved.

The Eesident Magistrate — Yes j but the statement has been made that the Superintendent's sanction had been obtained. The case must not go further until the written sanction is produced. Mr. Mouat — Surely you will not stop the case at this stage, and refuse to*hear further evidence.

The Eesident Magistrate — No ; give any evidence you please. But the Superintendent's sanction in writing must be produced, before the accused is called upon for his defence. Mr. Mouat— The Superintendent does not always give permission to hold art unions in writing. It is sometimes given as a mere instruction to the police. Besides, the same strictness is not required at a preliminary inquiry, as in a trial before a jury. Tue Eesident Magistrate— l will take no oral evidence on tbe matter. If a case was brought under the Ordinance for illegally holding an art union, unless the written sanction of the iSuperintendent were produced, I would certainly convict. Mr. Ferguson was then called, and was about to give evidence, when ; Mr. Mouat said after conferring with his client, he found that he had been somewhat misled regarding the sanction, consequently, it was useless to proceed further.

The Eesident Magistrate — I do not wish to stop the case. At the first blush, the non-production of the written sanction seemed fatal. However, counsel could proceed.

Mr. IMOQat; uiiUeujtwinl that Ills Worship considered the objection fatal. "

The Eesident Magistrate said a counsel was expected of course to substantiate »any statement he made. It was doubtful whether it was possible to convict a man for embezzling money obtained for an illegal purpose. The Superintendent was the judge of tbe nSorals of the public, and his consent was required to tepalise. any art uuion. He doubted toheflier a higher Court would listen" to the case. Mr. Mouat said he would now leave the matter in the hands of the police. The Eesiaent Magistrate — The police are not interesting themselves in the matter. The best course is to withdraw the case. Mr. Mouat — I have no power to do so. The Eesident Magistrate — I think you have. There is another matter in connection with the case. When sums of money are received at different dates — and there are no dates fixed, a jury would scarcely convict. Besides, there had not been adduced any evidence to show tba^ accused had disposed of any tickets. To ensure a conviction, it was necessary to prove that* Qe jb, a d no^ accounted for a particular ticket. One ticket in such a case was as good as five thousand. Mr Mouat said he fully concurred with what had fallen from |his Worship. To prove the sale of tickets would, however, neegsjjitate the calling of a larsrejiumber of witnesses. He would accept bis Worship's suggestion, and withdraw the case. T/ife EesidenJ; Magistrate— The case is withdrawn, and •, the accused discharged. Mr. '^Copland objected to the case beinsp withdrawn, and requested the Bencn to take a note of his objection. The Eesident' • Magistrate said he would note Mr. Copland's objection. * The Court then adjourned.