R.M. COURT.

Wanganui Chronicle, Volume XXXII, Issue 11502, 5 October 1889, Page 2

R.M. COURT.

CHARGE AGAINST ME ASHFORTH. COMMITTAL FOR TRIAL. (Before A. W. Brabant, Esij., R.M.) Fbidat, Oct. 4, 1889. The adjourned hearing of tho case Carrick t. Ashforth was resumed yesterday. Mr Jellicoe appeared for the plaintiff and Mr Baruicoat for the defendant. Stephen Carrick (the plaintiff was called) and having been duly sworn, was examined by Mr Jellicoe, and deposed that in 1875 ho •was tho proprietor of 11 shares of .£2O each in the Wanganui and Rangitikei Building Society. As far back as 1873 he was acquainted with Mr Ashforth, tho defendant, who was secretary to the society. In 1873 he was residing near Tawa Flat, ' in the "Wellington province Ho had also in 1873 £75 deposited with the Wanganui and Rangitikei Building Society (No. 2) deposited for 12 months, duo May 28th, 1873. In tho month of June, 1873 ho received the letter produced, and which was dated May 30th, 1873. [Tho letter was read and Bhowed that the defendant oppliod for a commission of 5 per cent, for collecting the moneys due on the shares.]' Had also received letters dated July 7th and 30th and August 23rd. The latter stated that tho defendant had placed the . sum of J675 to plaintiff's credit in tho said , society. He knew the Wanganui and • Eangitikei Society (No 2) was to termi- ' natein"lß7s. About November, 1875, ho ; received a letter from Mr Ashforth, and to which he replied as per copy produced. • He had looked for Mr Ashforth's letter, l but coxild.not find it. Believed it was lost. Tho letter referred to a statement t that the society had como to an end, and : asking what ho should do with his ■ money, and asking whethor ho should - forward it to. him or invost in tho society for him at' 7 per cont. He did not know ■ thai the defpndant was secretary to any I other society than the Wanganui Society. . Ho had eleven shares at that time of the value of £220. Ho replied to ono of the i letters from tho defendant according to , the copy produced. He made the cop? at . the time of writing. Xhe letter reforred s to, authorised defendant to invest his money in the society giving the highest - interest. He received a letter from Mr , Ashforth in return stating that ho had invested the money as desired. [The Chronicle of the date was produced, giving anaccountof the winding up of the j society. He assumed that his money was - safe in the society. Ho had never pref viously giyen Mr Ashforth authority tc use his money to pay off his (Ashforth's] bank overdraft. He received a lettei [■which was read] from. Mv Ashforth on Swap 13th, 1878, stating that ho had deposited the whole of his (tho plaintiff's) money in tho society, and- asking for <i commission for his work. On Octoboi T 26th, 1866, he received a lotter from Mi Ashforth, together with a prospectus of another company. Ho also received another letter on August 12th, 1874 Ho produced a. letter of 20th February 1877, in which the defendant stated that tho plaintiff's money (.£345 6s 8d) was deposited at 7 per cent., and sending n statomont of account. Up to March Ist 1877 he had novor given Mr Ashforti authority to use his money, and did nol know that ho had. dono so. - In 1887 he ;, was residing at New Plymouth, and lefl i- there in April, 1882, when he went to rer side in the Picton district. In 1881 ; r whilst in Picton, he had communicatec - with Mr McGregor, of Wanganui, will! reference to the Wangmni District Soi, ciety. As a result of his communication c ho found that Mr Ashforth had loft foi !i England. Had written (April 13th, 188G) r to Mr Ashforth, and in reply got a lettei c from England from the defendant, wlu t stated that his business was being cavriec •- on by Mr Liffiton in his absence, aad thai c his (the plaintiff) interests would bt a lookod after. He camo to Wanganui lasl d May (1889), and saw Mr Ashforth on his arrival at his office. Mr Ashforth nevoi told him thafc ho had not invested his it money (£220) in the. year 1875 in th< t Building Society. He did not tell hin: r , that he had not invested his ,£9O 6s 8d ir the sooioty. He did not say that instead of investing these moneys he had used ;. usod them himself. Mr Ashforth became o bankrupt shortly after ho (the plaintiff) o arrived in Wanganui. Ho had nevei r found out before tho bankruptcy that the f accused had not invested hi 3 .£220 ivnd .£OO in 1875 and 1877. Had found out 0 afterwards through Mr Fitzlwrboi-t that tho accused had used his (witness') money. This was tho first time that he hud ac--1 tually become aware of tho accused havi ing appropriated his money for his own use. Had never given him authority to do so. — Cross-examined by Mrßarniconfc: Came to Wangaimi in 1889, and had several interviews with Mr Afhforth. 1 Had a long argument with the accused in Juno as to tho rate of interest ho would be allowed. He wanted to give him 6 por cent., but witness stuck out for 7 'por j cent., as it was the original amount . agreed upon. Tho matter was arranged ' eventually, and the defendant allowed - him 7 por cent for tho first seven years • and G per cont for the last five years. Ho ; produced a statement of account that Mr . Ashforth gave him, Had not agreed to • the 6 per cent, but Mr Ashforth said ho > could not givo more, as tho society nover ■ gave more than this. He had asked him i to make it 6J per cent, for the last five , years, but he would not give more. Ho • had always thought that his money was » safe in tho society until lie had come to ■ Wanganui about it. Had asked Mr Ashforth in Juno where the money was. This , was when he was trying to get a setfcle- • mont. Had askod the accused if lie had put his money into tho Building Society, and told him that it should have booq thoro. Did not know whother Mr Ashforth replied to him or not. Thought ho ; listened, but remainod silent. When he got tho account from Mr Ashforth he did not think the money was in the society. Did not think until ho came to Wanganui that Mr Ashforth had the money himself, Did not ask Mr Ashforth whore his money was invested when he camo to Wanganiu, because he thought thero would be no difficulty in getting a settlement, ho boing the manager of the successive societies,and Loan and Investment Society. Thought his money was in the loan and Investment Company. Knew of that Company's existence when ho first came to Wanganui. Did not communicate with Mr Ashforth for some nine years, because he had written to him from Now Plymouth, giving him final instructions to invest his money iv thesoeioty giving the highest rate of interest, as appeared in letter "O," and to let it bear compound interest, as ho had complained to him preT viously that he was givjng him (Ash, forth) too much trouble in correspond, once. Ho was to take the interest aqem. j ing every year and add it to tho princi- ■ pal.' [A letter from the plaintiff was read (dated 1SS8) to accused, after his return from England, in which he stated that he had trusted tho defendant as a brother, and hoped he had his money safe, and that his account would tally with that of witness's.]— Examination continued: Had made up an account himself, showing how much he expected ! to get. Had mado up his account on a \ slate, and calculated interest at 7 per i I cont. The agreement was for 7 per I cent., and if there had been any a]tera- ! ' tion in the rate given by tho society ftp j had expected Mr Ashf orfch to write to him I about it. Had written to him as the > secretary of the suceessivo socioties, , though he might not have addressed the • letter thus. Accused had only to invest ! witness's nionoy in the Building Society. If he had known that Ashforth was invosting his money in his own private account ho would have .asked for security. | ' Had communicated with Mr McGregor, of ; Cherry Bank, in 1886, asking information ' 1 as to Mr Ashforth's position. [Mr Me- ' 1 Grogor, who wa3 in court, handed Mr -. 1 Barnicoat a letter from Carrick, but Mr t Barnicoat refused to produce it.] Had ' correspondence with. McGregor u p_ to tlie i

time of leaving PictonV "When he wrote in 1886 about the District Society he was not aware that that Society had terminated. To tho best of his knowledge lie had written a letter similar to the copy produced marked "O." Was^not in tho habit of making copios of letters, but thought ho had written out a draft copy, and then sent the letter to defendant. To the best of his knowledge tho exhibit "0" was a draft of the letter sont. Had not found tho copy till ho came to Wanganui, so that he must have been about 14 years without seeing it. Mr Ashforth's. letter acknowledged recoipt of it. Romonibered writing the letter. The . letter of final instructions might have boon writfcon a year after the document "O." Did not think there would bo .any movo in the letter sont to Ashforth than was' in the draft copy. Had actually been paying property tax on the money he thought was invested in Building Society, and which Ashforth had dono him out of. Did not mention tho name of tho Society in his proporty tax return, but stated morely that the money was. iiiYosfccd in a Building Society. Ashforth had got tho money out of the Society without his authority, because he had hold tho deposit receipts, and could havo again invested it in any other society. — After a protest from Mr Barnicoat, the lotter of February 26th, 1888, from Caw-ick to McGregor was allowed to be road.— Jße-examined by Mr Jellicoe : Had written tho lotter just road. When he wrote with reference to compounding the interest, it was not he thought in answer to the lotter " E," but was in answer to a lotter of Ash r orth's, in which ho complained of tho trouble he was put to. Had , not heard .of the Wanganui District Society having terminated. Did not know as a fact that the Wanganui District. Society had terminated before he came to Wangamxi, when he found that the Society had become the Loan and Investment Society. Did not know the names of the differont societies until ho came to Wanganui. Thought the Mutual Society had followed the District Society,- and -before the Loan and Investment. Mr Ashforth was secretary to the Loan and Investment Socioty, and this was tho reason he thought his money was in the samo society.— Ec-examined by Mr Barnicoat : Had never told Ashforth that he was quite satisfied at tho money boing in his hands, as he had hoard of him au a very rich man. Had told him that he had heard in Blenheim that ho (Ashforth) was a very rich man. When he told Ashforth this- ho did not know that his money was in his (Ashforth's) hands, but thought before his arrival in Wanganuiit was safely invested in tho Society — John Notnian* D.0.A., was next called, and examined on his former oath by Mi Jellicoe. I soo page 412 of tho exhibil (ledger) marked " D." It is in defendant'! handwriting, and contains his account ai the Bank of New South Wales in 1887 On tho debtor side of the ledger appears an amount of -£91 6s Bd, which had beei already mentiouod. Before this sum was paid into the bank Mr Ashforth was ovordrawn by .£773 13s Id. The court here adjourned for lunch. On resuming after lunch, W. P. Downes, manager of tho Bunk o: New South Wales, was re-called, anj: examined on his former oath. — Mr Barni coat asked him whether at the date o the moneys referred to were paid in, Mj Ashforth had permission at the bank t< overdraw, and whether ho had a limit Mr Downes snid ho could stato from tin security register of tho bank that oi November, 1875, and January, 1876, hi had a cash credit in tho Bank of Not South Wales secured by a bond to tin amount of J3IOOO. Could not sa, 1 whether ho had ever exceeded that limit — [Mr Jellicoe : ob jocted to these questions as they related to matters of which wit ness could only speak by hearsay.] — Cross examined by Mr'Jollicoe : First becam acquainted with thobusiness of tho Wan gauui branch in March last. —-This close< the case for. the prosecution. — Mr Jollicoe addressing the bench, with reference to in formation under section 74, said it ha< been practically proved that Mr Ash 0 (.forth was in a position of agent, and hat ,1 charge of money to bo invested in a par n ticular manner, and he had no right to in 1 vest it othorwise. He had made uso o j the money for his own purposos, anc 3 thei-ofore made himself liable under sec ) tion 72 of the Act referred to. Aftei r quoting several easosfromthe Law Time; 3 report, Mr Jellicoe submitted this pre I sont case was mot with the caso of tb( t Queen v. Forlargor, which he quoted.— Mr Barnicoat addressed the bench, anc slid there were two charges against his . client, under sections 74' and 75. He was . quite aware that at presont it waa onlj i for his Worship\ to. consider whether j thero was a prima facie case, and, there- . fore, he would not go further into details I than necessary. Tho essence of the offence under the sections of the Lavcenj [ Act was more than a breach of trust, arid I would amount to larceny if it were noi : for cortain aspects in tho case. He did : not proposo to go into ovidence fully, but \ ho would point out that tho moneys had [ boon easily traded by an outsider. (Mj I Notman) in the defendant's books, whici i proved that Mr Ashforth had not tried , to hide anything. It could not be Bup' . posed that any man would have pul , down figures in books which would coni i domn him if he had had any intention oi . defrauding. There was some evidence [ from Carrick's late .* letters, statin" that i generally he was satisfied with the money being invested in his hands. As ! to the deposit, he contended that the , money having been withdrawn in Novein- , bor, 1875, and tho letter entrusting Ash'forth with it was only dated December 3rd, 1875. He quoted tho case of Begina v. Brownlow, 14 Cox, Criminal Reports, and wont on to contend that' tho money was, received not from Currick, but from a third party— tho Building Socioty. Mr Barnicoat noxt contended that there was a further ground which must entirely cut tho ground from under tho prosecution — there was no pi oof that Ashforth was an agent in the meaning of the Act. In a rec.ont caso Regina v, Portugal, 16 Queen's Bench Division, page 487, tho court held thq.t tho town agent appliod to those whoso occupations were similar to those bracketed — viz., banker, merchant, broker, or attorney. He quoted at length from this case in support of his contention. Ho submitted that there was no proof that Ashforth was an agont [of the class mentioned, ov one "whose, business or profession it was to receive (that is, as C. H. Ashforth, not as manager of the Building Society) moneys, securities, or chattels for safe custody or for other special purposes." On the whole, ho consideredthere was bo case, to go to a jury, for the reasons ho had cited. — His Worship, after carefully considering the ov idenco, said the accused was charged with haring appropriated certain money of the prosecutor to his own uses, The learned gentlemon had carefully gone into the caso, but ho hold that he was not obliged to say whether ho committed for trial as he had only heard ono side of I the case. If the accused had nothing more to say than what had fallen from his solicitor, then he would commit. With regard to Mr Bavnicoat's contention that Mr Ashforth was not an agent, he hold that it was clearly proved that accused was an agent in the legal sense of the word. It mnst be allowed that the evidence of fchq money beii^g sent to Mr 4shforth for a speqifie object was a little weak, but it appeared to him that the money was entrusted to tho accused by tho prosecutor to invest in a building society, and not in his own business. It appeared that the money was invested in accused's own business and the prosecutor had lost thereby. "A moral wronghad been done, and unless accused, could bring forward anything in defence ho would feel bound to commit. His Worship then addressed the accused and formally asked him whether he had anything to say, and at the same time gave him the usual admonition as to, any statement he might utter, 'w.hich "s\fould be used against' hiinJ— Mr' Barnicoat intimated JtW Jjis, clioJVv bad nothing to J

say. — Mr Jellicoe asked that this should be put down, but Mr Barniooat objeoted as he submitted that the prisoner said nothing. He, would ask that the words • ." I reserve my defence " be put on the usual printed form of statement. ' He, . however, objected to the accused being asked at all. He would apply to have .. his client examined.— His Worship said ;, ho would ask the accused himself -what-i)-he_ wanted pitt down.— Mr Asbforth, on , v boing asked by the Bench what be wished to have his evidence taken. — C. H. Ashforth, the accused, having been sworn was examined by Mr Barniooat and said he had been resident in Wan- ■ ganui close on 27 years. First knowStephen Carrick about the year 1872. From 1872 to 1873 attended to Carrick's investments in the Building Society, Could not remember receiving, a letter . marked •• 0" from Carrick. Had r<*> ceived a letter dated December 30, 1875, — for he had acknowledged one of this date. What was in it ho could not say. Had been in the habit of receiving large suing of money for investment ever since ha had been in business. For the last 20 years he had done so.— [Mr Jellicoo objected to these questions as irregular.] — His practice with regard to receiving ' deposits was to invest them according ;to the arrangements made with the parties for periods of either 3, 6, or 12 months and at a rate of interests. In his loger atpago ICO was Carrick's account! At the date of December 9th the balance of .Garrick's money, £220, was in his own hands at interest and was entered in his ledger. Sent a statement of account of Carrick in-^. November 1877, showing an indebtedness"' of .£325 odd, and he fully thought that he (Carrick) would have understood and believed that the money was in his (Ashforth's) own hands. The account stated as much.— [Mr Jellicoe objected to several succeeding questions by Mr Barnicoat, maintaining that they •were leading questions and not admissable.]— Did not remember receiving 'any specific instructions, with regard to the money. . Saw Mr Carrick several times in the early part of June 89. He did not saiy anything about hiß money being invested in a building society. He came to his house. Carrick asked him why he had not made \tp a statement of the account between them. He said he did not want his money, but simply a statement* of account. He then asked him (Ashforth) if he had seen a local in the evening paper of the previous day referring to a financial agent in difficulties. Told him he had not seen it. He (Carrick) then said people told him it referred to him (Ashforth), and that if he were in his place he would, go for the paper. Carrick. also said ho did not wish to harass him for the money as he believed in giving every man a, chance, Nothing else tookplace at this interview, but later on he waited on him (accused) at the office. This was about a fortnight or three wpoks ago. Ho said, " Are you going to give me money? " He told him (Carrick) it was absurd to ask him. such a question, seeing he (accused) was a bankrupt. Carrick then said he would prosecute mm (Ashforth) for fraud. He ordered Carrick to leave tho room. The interview at the house was prior to his bankruptcy and' just before his accounts had been made ■ up. — By Mr Jellicoe: Never knew a Wanganui Benefit Building \ Society. Was secretary to the Wanganni-Rangi-tikni Building Society. Commenced his . duties as secretary in 1868 and -acted as" such to its termination. The "book pro-: duced was the minute boob of the; said ' society. Ho produced tho minutes" of the resolution for the termination of the society. The final meeting of this society was held on November 26th, 1875. On tho 23rd November, 1875, Carrick had 11 shares in this society. Could not say whether any scrip existed at that time. Could not say whether he had written to Carrick and told him of the proposed ' termination of the society. Very likely ho did. Had previously acted as agent for Cairick in a small way. In November ■ ■ 1875 there was another society in existonce of which ho; was secro'tary, and was called the Wanganui and Eangitikei Land and Building. Society (No. 2). .The minute book he produced. John Ward wii3 chairman. There was also another society called ' the Was ganui District Land and Building Society in existence at the same time. Was secretary to this company also, and ho produced the minute book. John Watt was chairman in . 1877. Kenie.mbernd that on August 23rd, 1873, ho received .£7B 7s for Mr' Carrick from the E<tngitikei society (No. 2), and that he deposited £75 of this amount with tho Wangamii District Society. Book produced was the Wanganui District Society's deposit book, which showed the entry of the £75 referreel to on tlie date mentioned. That money was paid out with interest on ' November 13th, 1874. Tho total amount paid out was .£BO 10s. The cash book did not show where this amount was put. There was £80 deposited with the same socioty and on the same day. ■ The entry' was in hi 3 (witness*) hand writing. That sum was in the society on December 9th, 1875. He held the deposit receipt which was not transferable. Acted as Carrick'e ' agent at that time. Had been charging Mr Carrick at different times a small amount for looking after his ' interests and paying small calls on the society, and also for once recoiving his interest from tho society. Tho interest he received was in January 1877. Carrick used to remit him "calls "on his shares. He was secretary to the'society and paid tho money for "calls" tothesociety. He did not charge Carrick for. doing his secretarial work. Would not swear he had. not charged Carrick for collecting calls. Could not say whether- he asked Carrick what h_e wished dono with the money, but ho thought it likely. Had some of Carriok's original letters in 1872. Admitted having reeoived a letter from Carrick dated Docembar 3rd, 1875. Could not say whore the letter of 1875 was. Had preserved some of his business letters of 1875. Had seen the letter prodixced and marked " O." Would not awoar that the lettev ho receivod, datod 3rd December, ' 1870,_ was not a copy of exhibit " 0." Admitted tho lbtter marked " P " was in his hand-writing. On November 23rd, 1875, he received Carrick's £220. When he received it did not consider it his own money. Considered it Mr Carrick's money. Must have been awaiting Carrick's instructions in reference to this money on that date. Was holding it for safety in tho meantime. When "he received tho letter of instructions, dated December 30th, he had not got his £220 as he had previously paid it into the Bank of New- South Wales, to the credit Of his overdraft. Had not £220 to his credit at the Bank of New South Wales. He could have ' drawn a cheque for it* Had not £220 to his credit between December 3rd and December 9th. His account was overdrawn all the. time On December 9th, 1875, the £80 belon<nne to Mr Carrick was safe with theWan<*aniu District Building Society. Had° previously deposited it there. When he wrote to Carriole on the 9th, he had deposited Ins £300 j he had paid £220 of it into his own account.— The witness here appealed to the Bench, and said .- I cannot be bullied as he is doing. He is behavin* aa no gentleman would. He is a brute, and. I must have a doctor,— My Barnicoat t My friend is aotjng as no gentleman of the j»r should. I nover examine a without due regard to his condition. Ask the question quietly, and not in that theatrical manner— Mr Ashforth hero had to ask for some water.— Mr Jollicoe said he was treating the accused with no distinction because of his position. The ' law paid no respect to persons, nor did he. To accused : Now let's try again.— Cross-examination continued: Did not wish Carrick to understand that he had borrowed money All ho wished him to understand was that he placed it out 2 interest. Did not wish, hh,, to draw any distinction b,oiwe.an the pacing of tho 4SoandtliQ £220. He had no thought of deceiving him.— Mr Jellicoa .■ &HJin«« that you had placed £50 of Carriole's money wifch tie District Society, wtyd#

you not tell him in your letter of the 9th December that you had only placed £80 Of hi's money with the jSociety, and had used the balance of the .£3OO referred to in that letter for your own pur- - poses ?— Witness : The .£BO was deposited in tha |District Society nearly two years before. —Mr Jellicoe : This does not answer the last portion of my question, which I repeat. Why did you, not tell -fliim that you had used the .£220 for his purposes.--- Witness : I did not think it necessary. I thought ho was quite satisfied. Did not wish him to believe that the £220 was placed in the same way as the £80. Wished Carrick to believe that the £220 was not lent to me, but that he could have the money by applying for it. Exhibit "R" was in his hand-writing. Did not know where Carrick's letter of June 4th, 1876, was. Had said in that •letter that he had deposited the full value of Carrick's eleven shares (£220), ■rs, stated in exhibit "R." . Had deposited it with himself on November 23rd, 1875. Had paid it into tho Bank of New South Wales.— Mr Jellicoo : I ask you as an honest man whether you expected him to.understand that the .£220 was certainly in your hands.— Witness : Yes, I did* —Mr Jellicoo : JfTliore was the money ? — Witness: It was- at the Bank of New South Wales.' {My account was overdrawn. I ; £ad a cash credit of £1000. I had the liberty- to overdraw to the extent jof £1000. — Mr | Jellicoe: Had you a thousand pounds ?— Witness : No. — Mr Jellicoe: Why, did. you not distinguish between the "deposit and the depositing of the £220?— Witness: I do not know. I did not wish to mislead. If the £220 . had been deposited with me, the interest would have been payable by myself. If the interest was paid by himself he would not have charged him with interest.— Mr Jellicoe : Did Carrick ever get the interest on the money. — Accused : No, ho never applied for it. — Me Jellicoe : What did you owe tho Bank when you filed ? — Accused : About £1000 ' The whole was secured by property, which has not been realised. The letter of February, 1877, is in my handwriting, And the £325 6s 8d referred to was received for Carrick from the District ;Society, and included £91 6s Bd. The £325 6s 8d was in his hands, but he conld not toll where. He took the £61 6s Bdout himself,- as he had put it in himself. Did not communicate with- Mr Carrick that he was going to take it out. Did not want the money, but wanted to give Carrick 7 per cent. Had not given him any of the 7 per cent, because he had never - applied for it. . Could not say whether he had told Carrick that the Society was about to terminate. He might have done so, but could not say. If he did, letters would bo in one of the books produced. Whon he wrote to Carrick that he could withdraw by paying 6 per cent, and re-depositing the balance, he meant that he could withdraw tho money. —Mr Jellicoe : Withdraw tho money from whom ? — Accused : From myself. I was Secretary to the Wanganui District Society at that time, as also for Society No. 2. After some further questions had been answered by the accused he was formally committed for trial, bail being allowed, in two sureties of £100 each.