Magistrate's Court, Queenstown.

Lake Wakatip Mail, Issue 1579, 4 March 1887, Page 5

Magistrate's Court, Queenstown.

lforaar, 21st Fdkvaxt, 1887.

(Bcfora J. S. Hkkaoo, Esq., R.M.)

Begina v. Philip Burbidge Boult.—An information wherein accused was charged with having, in the month of August, 1883, as clerk and collector to Lake County Council, received and taken into his possession on account of the said Council the sum of £7O, and fraudulently and feloniously embezzled the same. Mr W. Turton, Crown prosecutor, opened the case. Inspector J. Hickaon was also present. Accused was undefended. John Black, Lake County engineer, clerk and collector, deposed—l produce the bond tender, acceptance of tender, schedule of prices, specifications and outer sheet, giving details of contract No. 4, Skippers road—the original price being £1634 lis lOd. The deposit wss £7l. The contract was acc-pted January 5, 1885. The tender (produced) dated 6th August, 1883, for No. 4 contract, Skippers road, was for £1749 lis lOd. In the book of minutes of committee meeting of that date It wss decided to accept the tender of Welsh and Co. for £1749 for No. 4 Skippers road, conditionally on the necessary financial arrangements with Government being satisfactorily completed. I find in the book on sth January, 1885, a provisional acceptance of the tender of August, 1883, as amended. I produce six vouchers connected with the same contract. The fourth voucher is for £777 15s, made up as follows:—" Rf fourth and final payment—balance, £705 15s; extras as per attached account, £72-total, £777 155." The fifth voucher is for extras made out at £134 13 7 less maintenance portion ... 34 0 0 receipted for ... ... £IOO 13 7 |

The sixth roacher is for £24, balance due maintenance on contract No. 4, Skippers road, receipted by contractors on 14/10/85. The third voucher is onreceipted, but it is certified by T. Powell and is for £455. I produce book containing accounts passed for payment by the Council on 6th July, ISSo, the accounts being totalled up and ruled off comes to £606 7s 7d. Underneath all that 1 find an entry, " Davis and Co., balance No. 4 contract, £707 165." The amount corresponds to fourth voucher. On the face of Davis and Co.'s tender I find written, " Deposit, £7l, returned to me 6/1/85, W.D., and on sareties signing the bond." W. Davis is one of the contractors. I can't swear whose handwriting is across the tender. At page 115 of the county cash book I find items for various rates, totalling ap to £165 19s. Reference is made at that page to £165 19s having been paid into the Bank of New Zealand. At page 165 of county cash book, July 6, 1885, I find the following entry as having been paid—"By contract No. 4, Skippers, Davis and Co., £777 15s" —a reference being made to the bank pass book produced, page 80, under date July 8, ISSo, the County Council being debited with £777 15s. I also produce a letter from Da\ is and Co., dated October 3, ISSS, requesting settlement of their contract for No. 4, Skippers road, of balance due, £24. I also produce letter from county solicitor to county chairman, dated 26th September, ISSo. J. M'Fadzean, accountant at the Bank N.Z., Arrowtown, produced cheque on the Arrow branch of bank for £7O, drawn by W. Welsh, dated 3rd August, ISS3, payable as deposit on contract No. 4, Skippers, or bearer. It came to the Arrow as a remittance from the Queenstown branch, and the -cheque was paid 20th August, 1883. Witness did not know what account it went to. John Butement, farmer, Hayes Lake, deposed that the total of his rates for 1882-3 was £7O 16s 3d. Looking at the county cash book at page 116, be found them entered as Greenstone riding. £22 15s; Shotover, £3B Is 6d ; and Arrow, £9 19s 6d—total, £7O 16s. He paid those rates to accused by giving cheque for £49 16s 3d, sth March, ISS3, and signing a voucher for £2l for travelling expenses. The amount in county «.-ash book waa 3d less than he paid. To accused—The cheque and voucher for travelling expenses I have seen to-day. A. H. Douglas, farmer, Hayes Lake, deposed that by county cash book he saw his rates for ISBI-2 were pat down at £l2 2s. He paid £l3 13s on Ist April, 1882, by cheque on the Bank X.Z., Queenstown. It was debited on 3rd April, ISS2. £l3 13s was demanded by accused.

To accused—l have seen that cheque to-day. J. Bevin, ledger- keeper. Bank N.Z., Queens town, produced cheque for £7O, drawn by W. Welsh on the Arrow branch of Rank of N.Z., date I 3rd August, 1833, and lodged to the credit of the county fund account on August 17, 1883, as per paid-in or credit slip dated August 16, ISS3. It was paid in with sundry other cheques mentioned on the pay-in slip, with half-a-sovereign in silver—amounting in all to £165 19s, the same as mentioned on page GO of county pass book. Witness produced cheque for £777 16e, dated 6th July, 1885, payable to Davis and Co., No. 4 contract, Skippers, final, and debited on Bth July, ISSo; it was signed by F. H. Daniel, treasurer, countersigned by Chas. C. Boyes ami F. H. Daniel, and on margin signed Philip B. Boult. The cheque was marked on back "Ds A Coy." The cheque was a remittance from the Arrow hank. J. M'Fadzean (re-called) depo«ed that the words "Ds 4 Coy" on cheque for £777 16s were in his handwriting, and meant it had been credited to Davis and Co. Remanded till Tuesday, 22sd Febrcart, 1887. Regina v. Boult.—Remanded case from previous day. William Davis, Arrowtown, deposed—l was one of the contractors for No. 4 contract, Skippers road. We originally tendered at £1749 lis 10d, which was accepted as soon as the county could arrange money nutters with the Government My party got a cheque (produced) from Mr Welsh, Arrow, tor £7O, dated August 3, 1883, but we found the deposit was not big enough, and I pinned a £1 note to the cheque. The money, with tender, was put in the County Council tender box. After that a small portion of the contract was let to one Egan, and consequently we afterwards reduced our tender by about £l5O in January, 1885, making it £1634 lis lOd. The £7l deposit originally made was held

against the amended tender for the reduced amount. The amended tender was accepted by the county in January, 1885, at the amount put in by us, and we proceeded with and completed the work. The Council held oar deposit for nearly two years. We got it bock in the final payment of £777 15s. They held the deposit from August, 1883, to July, 18S5. The balance of contract was put down at £705 15s and deposit money £72. The extras put down on voucher attached as £72 are wrong, as there were do extras for that particular amount. The amount was paid back to me in the Council Chambers. The £1 more than £7l was given, aud accused said it could go towards a wheelbarrow got from us on No. 3, Cardrona road. Our extras are represented by the two vouchers now shown to me for £202. My partners never got back the deposit money in any other shape than in the £777 15« paid. Re the tender produced and words written across, "£7l returned to me, 6/1/85, W.D., and on sureties rigning bond," I knew nothing about the words. W. Davis" U my signature to the bond produced, and it was signed in the presence of Mr Daniel. We did not get back any money of any kind when the bond was signed. I don't think the initials on the tender are mine. I am certain we never got the deposit back except in the £777 15s. The letter produced, dated 3rd October, ISSS, was written for our firm, demanding £24 as balance ot our extras. Looking at the third voucher for £455, and certified to by Thomas Powell, it was included in the voucher for £777 15s. To accused—l can't tell bow many works we tendered for with the County Council altogether. At same time as this we tendereJ for two others. We tendered for all the large contracts. Thomas Powell, Gorge. Queenstown, Government inspector of works for Lake County, deposed—l was appointed inspector, amongst other works, for No. 4 contract, Skippers road. It was part of my duty to certify for progress payments, extras and the balance doe on any contract. I certified to the first three vouchers produced. The third voucher for £455 was not paid to the contractors at that time, bat it was included in the final payment of

£777 15*. The amoant £777 15s is inserted on voucher produced, No. 121, and there is also pat down m the toUl amount of contract £1706 Us 10d, when it ought to have been £1634 Ua lOd—making it joat £72 too much. I know nothing of extras put down at £72 as per attached account _ The extras on contract were about £IOO. Looking at voucher 202 for £124 13s 7d, 1 believe the extias are about £IOO. The £124 13s 7d waa made up by m> brother, with whom I meaaured them off, but I did not make up the extras. They certainly would not come to £72 mora than the £124 13s 7d. P. H. Daniel, settler, Olenorchy, deposed—l was | chairman of Lake County Council from November, I 1880, to November, 1884, after which latter date i Mr C. C. Boyes became chairman. I was appointed j treasurer November, 1881. which office I held till

January last, when Mr Butement was appointed. I remember the tender for contract No. 4, Skippers road, being brought before County Council Committee on August 6, 1883, when Welsh and Co.'s j tender for £1749 was accepted, conditionally on I Government giving a public grant under the Roads and Bridges Construction Act. I was present at the Council meeting on sth January, 1885, when the matter waa again discussed and allusion made to the conditional tender, and when the amended tender for £1634 lis lOd was accepted. The deposit wss, I see, £7l. On the front sheet is put down £72, apparently in accused's handwriting. I remember a dispute with the contractors about a slip on the contrsct, and the matter being referred to the county solicitor, \V. Turton, at committee meeting on 28th September, 1885. His opinion and that of Mr Denniston as to the Council's liability were read in committee meetinp, there being present Messrs Boyes, Douglas, M'Briae and myself. The 1 minutes of meeting are signed by the accused. The document produced is the opinion of the county : solicitor (yourself) read at that meeting. I remember after ordinary meeting of the County Council on 7th September, 18S5, going to the county solicitor with W. J. Powell, county inspector. I also have a recollection on that occasion of an account of £72 j being pointed out to me as being deposit money j instead of extras, or rather of a question arising

I ! about extras or deposit money, but wLat it was I , I cannot say. | } Mr Turton —Then perhaps this will refresh your ' memory on the matter. (Counsel then read the j following letter.) Be DAVIS ft CO. Queenstown, September 26,1555. The Chairman, Lake County Council, Queenstown. Diaa Sri,—On 7th init. you consulted me in reference to i Contract No. 4, Skipper* road, and as to the liability of the 1 contractors to remove the land-lip thereon. I advised that, under General Condition No. 23, I thought the contractors were not liable, but that if they were in poueuion o] the tcorki i (and 1 was informed there was no doubt the contractor* were to in possesion), I thought they would, under General Condition No. 18, have to remove the slip. My opinion was necenI sarily a hurried one, being given whilst you and the Council were waiting. Since the meeting the full papers hare been submitted to me, and I find that the contract was completed to the satisfaction of your inspector, that the vhole eontraet money (including the /24 maintenance money mentioned in the contractors' schedule of quantities) and also the contractors' deposit money has been paid over to the contractors. The last voucher signed by them for £777 15s is worded, " To third and final payment on completion of Contract No. 4, Skippers." The underlining (italic) is mine. The first sheet attached to the papers shows the contract price and also " Extras, L 72." Thm L 72 is, I believe, the contractors' depoMt money and not extra*—the extras being on a separate sheet and for L 124 13s 7d. The L 24 that the Council have In hand, and are supposed to hold apainst the maintenance clause in the contract, has been retained out of the L 124 13s 7d of extras and not out of the eontraet money, as it ought to have been done. Should the contractors sue tha Council for their extras .. £124 13 7 giving credit for amount received 100 13 7 they would, I think, recover the balance of .. £24 0 0 Under the new as|<ect of the case presented to me by the full |*pers, I am of opinion that when the landslip took place, the works were not in the possession of the contractor* but of the Council, and consequently your body will have to remove the landslip. You will remember when I first read the conditions, I mentioned that there was something left out of the maintenance clause, and Mr Dcnniston points out that it's the word " maintain," and that the omission of this word makes a difference. These conditions are often altered for different contracts, as what is suitable to one is sometimes unsuitable for another. The maintenance clause in the«e conditions

could be made a great deal clearer, and more binding on the contractor. The usual ajrecment is not with the papers, but Mr F. H. Daniel informs me he saw it executed. Still, it i* vnttamped, and the bond with the papers is unstamped. The result of this is, the Council is liable for stamp duty on agreement, OXO Fine thereon 500 Stamp duty on bond 0 10 0 Fine thereon 600 Total /IS 11 0 There seems to me no excuse for not stamping these sort of documents, as 1 have |«inted it out more than once, and also the expense thereof and of drawing up all these contracts does not fall on the Council but upon the contractor. Even if the Council paid such charges in the first instance, they to be deducted out of the first cheque coming to the contractor—

see Central Condition No. 29, which in very explicit, and throw* all law and other costs, etc , on to the contractor. In conclusion, I would remark that in a matter of this sort, involving a question that required M>me thought and perusal of paper*, it would have been better to have submitted all the taper* to me lome day* before the sitting of the Cquncil, so that I could have gone ii to the matter thoroughly before the meeting. As it is, in the fir-t instance I advised on a set of farts which subsequently turned out to be wrong. I enclose copy of Mr lienniston's opinion.—l am, etc., Wislit Tlrtws, County Solicitor. Examination continued—With regard to the liability of Council to £lO lis for fine, etc., I recollect the remark made about it. I heard the county solicitor's opinion (as aliove) read at committee meeting on September 28, ISBS, but took no steps, although treasurer, to fcee if the £72 really was the deposit money. The letter was addressed to the chairman, and I did not think it was my duty to trouble about it. I remember going to the county solicitor, nevertheless, with Mr Powell, about the matter, but not in the present form. I remember something about the £24 to be taken off the extras as surplus. On the 6th July, 18S5, at meeting of the Council, it was resolved—" That the balance due on contract No. 4, Skippers, be paid to Messrs Davis and Co. forthwith, together with extras £72 " I cannot say when the resolution was passed, whether the words " together with extras, £72," was in the resolution or not. On the same date of meeting, an amount of £777 15s was passed to Davis and Co.—which amount agrees with voucher No. 121. I was present at meeting of the Council on sth October, 1885, and I proposed a resolution—" Jte application of Davis and Co., that the contractors receive the balance of their contract, £24." I was away when final payment was made to Davis and Co.. and I never went further into the matter of £72 after leaving your (Mr Turton's) office. All this trouble about those four cases of defalcations of deposits might have been prevented by careful enquiry. I left the matter to the [tresent chairman, as I said I had not the time to ook after auch matters. Looking over the first three vouchers I find they come to £1634 lis 10d, and exactly exhaust the amount of contract. I cinnot tell what that £72 added to the £705 15s is for—it is marked as "extras." It appears to be the refund of deposit money and is not for extras. I did not take any notice of the county solicitor's letter on the matter. I signed my name as treasurer to the balance sheet produced for the six months ending 30th September, 1885. That balance sheet would include the £72 carried forward as extras.

W. J. Powell, contractor, Queenstown, and inspector for Lake County Council when contract for No. 4, Skippers road, was going on, deposed— I signed the six vouchers (produced) as correct for contract No. 4, Skippers road. The amount of that contract was £1631 lis lOd. The amount on voucher No. 121 is not correct—it is £72 more than it ought to be. The figures are those of accused. I passed the voucher for final payment for £705 15s, and the £72 is refund of the deposit. The words "extras —as per attached account" is in accused's handwriting. When I signed the voucher I knew it included the deposit of £72. The extras on the contract amounted to £124 13s 10d, as per voucher 202—and to nothirg more. I recollect in September, 1885, telling Mr Daniel, county treasurer, in the county solicitor's office, Queenstown, that the £72 put down in voucher as extras w.-is incorrect, and that it was refund of the deposit money. Afternoon Sittings. H. Livingston, Dunedin, provincial district auditor, deposed—ln the course of my audit in November, 18S3, of accounts for the half-year ending Septemlier, 1883, I came to page 115 in county cash book produced, and find under date 17th August, 1883, certain rates as having l)een received by accused, commencing with J. Butemeut and ending with R. Johnson, and amounting to £165 19s, which sum accused represented to me waa paid into the

D bank oa 17th Angust, 1883, and appearing in bank t pan book, page 60, where reference ia made hack to I, page 115 of county caah book. In. bank paaa book g after the entry of "chqoa and c." is the word (in a pencil) "rate#," in what appears to be accused's a handwriting. In making a special audit recently t with the asaiatant-controiler, we found it consisted s of cash 10s and cheque, as endorsed on pay-in slips, E to £165 9s. The last cheque on endorsement slip reads, " Welsh, per Wel«.h and Co., No. 4, Skippers, 1 £70." That £7O represented part of the deposit on No. 4, Skippers contract. On voucher 121, £72,1 I saw it was passed by the Council as extras, but am , satisfied now it was the deposit and £1 clerical s error. Taking the deposit into account there ia a 1 deficiency of £7l in the accounts for the half-year I ending 30th September, 1883. The deficiency is caused by the £7O cheque and £1 cash not having i been brought to account.

At this stage Mr Turton asked for a remand I (which was granted) till Wednesday, on which date i the additional evideuce was taken of W. S. D. i Trotter, sheep farmer, Wyndham, and of F. H. I Daniel (re-called), which was merely a repetition of i that given in the previous charge of embezzlement i of £75 4s. I This concluded the evidence, and accused, who . reserved his defence, was committed to take his ; trial at the next sitting of the Supreme Court, at Dunedin, on 4th April next. , Mr Turton explained, in reference to three other charges of embezzlement against accused, that the i specific amounts being for rates were included in the first and third charges against accused, heard on the 28th and 29th January, for £l3O and £125 respectively, and the object was that accused might be indicted separately as well as collectively. The cases were as below. Retfina v. Boult,—Embezzlement of £3 lis 4d on 24th September, 1884, a furtbur sum of £4 4s 5d on 4th November, ISB4, and a further sum of £3 2s 5d on 13th January, 1885. J. Black, Lake County engineer, clerk and col- ! lector, produced books containing entries and butts of rate receipts, one in the name of J. Fox for £3 lis 4d, rates for year 18S4-5; also R. Gunn, £4 4s sd, and A. Brown, £3 2s sd, both for the same year. James Fox, fanner, Spesrnrass Flat, Robert Gunn, farmer, Miller's Flat, ana Alexander Brown, farmer, Sptargrass Flat, produced receipts from accused for the respective amount* of rates abovenamed. James Bevin, ledger-keeper, Bank N.Z.. Queenstown, and H. Livingston, provincial district auditor, Dunedin, also gave evidence on the matter. Accused was committed to take his trial at the Supreme Court sittings, at Dunedin, on 4th April next. I Some v. same.—A charge of embezzling, on or ' about September, 1884, the sums of £1 lis 3d, ' £2 16s KM and £1 15s B<l, Lake County rates. J. Black, Lake County clerk, etc., produced books bearing on the case. Thomas Kinross, storekeeper, Gibbston, James O'Kane, hotelkeeper, Frankton, and J. E. Haines (for his son, Charles Haines), proved payment to accused of abovenamed amounts

respectively for rates. James Bevin, ledger-keeper, Bank N.Z., Qucenstown, and H. Livingston. Dunedin, provincial district auditor, also gave evidence bearing on the case. Accused was committed to take his trial on the charge at next sitting of Supreme Court at Duuedin. Wednesday, 23rd February, 1887. I Regina v. P. B. Boult.—A charge of having, when j Lake County clerk and collector, embezzled on or • about 26th January, 1884, the sum of £3 2s 6d and j i

£2 16s, and on or al>out 9th April, 1884, the sum of 1 £4 5s lOd. At the request of Mr Turton, the ] information was amended so as to include the first 1 two items in one sum for £5 18s 6d, and the last- ! named item was struck out. J. Black, county clerk, etc., produced cash books i showing r.tei received on 9th April, 1884. totalling up to £4B 15s I Oil. J. Bevin, ledger-keeper. Bank N.Z., Qucenstown, produced pay-in slip for £4B 15s lOd, but averred that no surh sum was paid in to the county fund for rates during April, ISS4. j F. H. Daniel, settler, Glenorchy, averred that he did not receive any part of the £4B 15s lOd rates, and that during the same period Thomas Gilmour ' collected rates, but whether his appointment was regular or not witness did not know. H. Living- J ston, auditor, also gave evidence, and John Kerin, j

farmer, Cardrona, deposed to having 0 n 26th ' January, ISB4, paid to accused in cash, amongst other names, £3 2s Gd for Maidman aud £2 16s for Bovett's rates for the year 1883-4. This concluded the last case, and accused, who reserved his defence, was committed to take his tri »l on the charge at the next sitting of the Supreme Court at Dunedin on 4th April next. His \\ orship stated that he had taken into consideration the application of accused at a previous sitting for release under the First Offenders Proba- | tion Act, but his Worship was of o| inion that such i a course was out of his power in the face of the I fourteen committals recorded against accused —at I least, he would not take the responsibility. At the same time, if accused could find bail at the amount previously fixed (£500) it would be accepted. The Bench, in reply to Mr Kerin, said that the expenses of all witnesses in the cases heard would be paid after the sitting of the Supreme Court, Duuedin.