MAGISTRATE'S COURT.

Nelson Evening Mail, Volume XLII, Issue XLII, 19 February 1907, Page 4

MAGISTRATE'S COURT.

CHARGE OF MISAPPROPRIATION. The hearing of the charge against Wm. Bettany, junr., of misappropriating a cheque for £270 in the estate of the late Wm. Wilkie was continued at tho Magistrate's Court before Mr EyreKenny, S.M., yesterday afternoon. Mr Hayes appeared for the Trustees in the Wilkie~Estate, and Mr Maginnity for the accused. Wm. Haddow, an original trustee in the will and estate of the late Wm. Wilkie, storekeeper, deposed : Annie Boyd Wilkio (now Baigent), and Edward Moore, solicitor, were the other original trustees, and Mr Moore then dealt with all finances and signed cheques. There were then a trust account and a mercantile account in the Bank of New South Wales. Henry Barltrop was manager under Mr Moore, but witness did not remember whether Barltrop signed cheques or not. Mr Moore retired from the trusteeship on June 14th, 1901, and Wm. Bettany, junr., was appointed in his stead. There were two accounts, the trust and mercantile, and Bettany operated alone on both. Witness never signed a cheque. The cheque for £270 produced bore Bettany's signature. There was no occasion he knew of to draw a cheque for £270 out of the mercantile account. As a business man he would say it was a most irregular way of drawing a cheque. At the time the cheque was drawn accused told witness nothing about it. Did not know what became of the £270. Could not say without referring if the trustees' account was operated after 17th July, 1903. The Estate lost money by the accused through the accused's operation of the accounts. Witness was proceeding to give further evidence when — Mr Maginnity said his client had confessed judgment in a civil Supreme Court action by the co-trustees against W. Bettany, jr, had consented to have accounts taken, and had relinquished his position as trustee. There was also a suit pending by the beneficiaries in Wilkie's estate against the trustees, and in this also the accused had confessed judgment. Hence the preseut criminal action was premature and put the accused in a dilemma. The estate's loss of money was not due to ordinary trade losses, or through dealings the. accused was authorised to make with the moneys. The money was lost by embezzlement, he considered Bettany took the money. Mr Maginnity -. We ave fighting a myth at present. What money? Who took the money? Witness : With money received frorn second mortgages realised deducted, the Estate lost through the accused £1500. Tho losses were incurred up to 13th February, 1906. They were detected on the 12th February, 1906. Accused had not accounted for these losses previously. Accused had been asked repeatedly for a balance-sheet, which with tho audit of the books should have been made every year. The last audited balance sheeet was presented by the accused to his co-trustees three years previously. Witness taxed accused with the loss of the £270 this year, some time — could not tell the date. Tho accused said he did not know what he had done with it, but he admitted that he had had the money. He made no excuse — he sail he had no excuse to make. Mr and Mrs Baigent, the ac cused, and witness were present at the interview — no one else. Accused had no property or right in the £270 of which witness knew. Ho was under obligation to account for it to the Trustees of Wilkie's Estate. He had not done so to witness. He had taken civil proceedings against accused to recover the money, when judgment had been confessed, but the money was not further accounted for. To Mr Maginnity : In his confession of judgment in the civil proceedings accused also consented to accounts being taken. The accounts had been taken immediately before, at the end of the year, but accounts had not been taken since the consent and confession had been filed. Accounts had not been takon under an order of the Court. Mr Milner took an account, Mr Hampson checked it, but Mr Morpeth never completed his account-taking. The £270 of this charge formed part of the whole loss of £1499 16s. It had not been repaid to the trustees that he knew of. Mr Maginnity put in a mortgage deed by Mr Bett a ny, jr, dated February 16th, 1906, and a deed of release dated 16th August, 1906 to Wm. Haddow and A. B. Baigent, covering amounts owing by Wm. Bettany jr, then owing and amounts not then ascertained, but exceeding £1000. Witness : The signature on the mort-gage-deed and deed of release was his own and Mrs Baigent also signed. Did not find out about the existence of the cheque for £270 till after the mortgage was executed. When ths mortgage was executed witness did not know what was short, or the nature of the shortage. Could not possibly know till the balance sheet had been prepared. Understood some of the books kept in the business of Wilkie and Co. Did not examine them all, as there was an auditor for the purpose. The trustees had passed a minute that Bettany was to have sole control of the banking account. Witness could not see tho necessity for answering the following question.— "If on the taking of accounts there was a deficit of only £150, could it be held that the accused had embezzled £270." He had been assured by Mr Welch, who had full control of the business, that the £270 had not been returned. Mr E. Moore when trustee, drew cheques to meet demand drafts or for stock purchased. The fire at Wilkie's .•/__ about July, 1903, at that time a gpo4 dea) of ifioiiay was being paid out, and a. good (leal was coming in from the salvage sale — '£1700 oM- It would not have been reasonable to dra«r a cheque for £270 payable to cash to meet, a qumber of accounts. He would have drawn segar_tg p)ieques for accounts of £5 and upwards.' Witnes never asked Bctlaiiy to let him see the bank pass book, which with all the book? and accounts of the Estate, wero in Bettany's custody. Accused never refused witness acces§ to any of the books; witness had never asked him Could not tell now the exact amount of Bettany's liability to Wilkie's Estate. The accurate facts could be obtained from the audited balance-sheet Believed that Milner's audit was correct .Morpeth's audit was not completed, and WJ)S IWfc Jakeu advantage of, could not tell why Morpotl, _i_ ;,ofc complete his account. Ho was engaged by &i(,t and Moore, and the trustees had nothing to do with him, There has been a gieat ,deal of trouble wltfc tho estate Witness and Mr E. Moore had been sued _n an action on a question of commission, and an attempt to upeet the will by the widow of the late Mr Wm Wil few fopw Mrs Baigent). Had to refund ppe-tlurd ot pur commission. When Bettany was appointed trustee he had to follow the system adopted by Mr Moore. Mr Moore madeV complete , fcalanee sheet every year. Stock was taken up to 31st December last. .A ' letter cW 9th July, 1906, accused ro- , ceived from- Pitt and Moore, asking ac c-Ufipd to meet witness and Mrs Bai Bej£B e j£ t0 fi '*"»J!y fix accused's indebted- ! 'At this stage of .the proceedings the ' Point adjourned till 2.3Q ' ' * ,9 IQnjf Ver S '?,"u ed b _ c i le l ues bGfo *'« Feb., 1905, on either of the accounts. Bettany had the B 3me « Moore, taking the Jatter's placo The ' co- trustees never at any time raised a ' question as to the disposal of moneys ' <

drawn hy Mr Moore. Mr Moore also received all the interest monies on mortgages, and negotiated the mortgages. Oould not say whether when moneys came in Mr Moore paid into the Wilkie's estate accounts, or to the trust accounts of Pitt and Moore, or whether commission paid to him as a co-trustee was paid in Pitt and Moore's cheques on Pitt and Moore's Trust Account. If ) money drawn by cheque the £270 or any portion of it, were paid to demand drafts, purchase of stock, workroom wages, or bills matured, it would not be regular — workroom wages are paid by cheque. If that had occurred he had no means of testing whether, even if irregular, tho course might have been — he declined to answer. He did not pretend to explain the account taken by Mr Milner. Thero were other mortgage deeds besides the one put in. Had been served with his co-trustees with a summons to satisfy the claims of the beneficiaries in the Wilkie's estate. In par. 2in the statement of claim of the beneficiaries it is prayed that an account bo taken in the Wilkie estate since the appointment of W. Bettany jr as a trustee. No accounts under orders of the Court had been taken. • Did not remember that owing to some disagreement with Mrs Baigent, the trust account was not operated upon for some years. Bettany would give P.N's for debts due by the business, and the bank would pay the bills. Bettany would also give a cheque if required. Did not remembei that Mrs Baigent, accused, and witness gave cheques on the trust account. Bettany was to have an absolutely free hand with regard to the business account at the bank. Did not know whether the £270 was brought to account in the account rendered to Bettany. There was another witness, the accountant, who could answer these questions. Bettany said he would pay the full amount of shortage, with interest' to date, and all expenses. No definite result was arrived at at all. Had waited 12 months. Had not taken criminal proceedings before because the trustees had given every opportunity to make restitution. In furtherance of the accused's statement the trustees accepted certain mortgages from him of properties in Nelson. Those properties had been sold and the net proceeds taken by the trustees and credited to him. The last money paid was £278 16s B—about8 — about two months' ago when Bettany's house in Examiner street was sold. Did not think he knew when this money wa3 paid or the matter of the cheque for £270, tho subject of this charge. Knew about the £270 when the civil writ was issued, because it was included in the writ sued for. Could not tell whether the money for the Examiner street property was paid in after the issue of the writ — it must have been. About July last year witness went to Wellington to see Mackay, one of the beneficiaries. Did not know then of the £270. He said this distinctly. Did not remember having any meeting with Bettany after 9th July. Had declined to' meet him again. It was at that meeting, or rather a previous meeting, that witness had asked Bettany whether he was paid the cheque for £270 in gold. It was too far back for him to remember. Could not say either way whether the trustees had met Bettany after the 9th July. Had no meeting with Bettany after seeing Mr Mackay in Wellington in July. It was very likely witness had known of the existence of the £270 cheque beforo he met Mr Mackay.

To Mr Hayes : The trust cheque book (butts) the butt No. 18591, 17th July, 1903, was in the handwriting of the accused. It said "cash, £270." Witness instructed the late Mr Ambrose Mooro to "prepare tho balance sheet, and asked the accused to facilitate matters with the books, etc. Accused repeatedly promised to have the balance sheet prepared. The liabilities of the accused were more than £1000. Not a penny disappeared in Mr Moore's time. Accused had admitted getting the money, but said he did not know what he had done with it. He said he had done wrong, and he had no excuse for him, and there was nothing but the river for him now. Accused was taxed with failing to bank moneys he had received.

To Mr Maginnity : Never remembered himself signing a cheque for £270. When the Trustees confronted the accused he was charged with the whole of the shortage and not specified items. V. C. Rowley, of the Bank of New South Wales, recalled, deposed that there were two accounts in the Estate — a general account and a mercantile account—in 1903. Cheques on the former were signed jointly by the three trusteees. There were not very many operations in the year, and the operations were small compared with the others.

To Mr Maginnity: The cheque produced was drawn on the mercantile amount was brought to charge and appeared in the Trustees' pass book. There was a cheque for £270 drawn on the trust account and signed by the three trustees. He had seen it. He thought it was dated lst May, 1903. Among other signatures on the cheque was Mr Haddow 's. The cheque was a transfer from the principal trust account to the mercantile account. Both transactions could be easily seen on referenco to the pass books. Henry Baigent, hotelkeeper, husband of Annie Boyd Baigent, a co-trustee in the estate of Wm. Wilkie, deposed that Wm. Bettany, junr., had been managing trustee, but was deprived of his position a year or so ago. At a meeting between the trustees and the accused, witness as spokesman asked, accused to account for the deficiency of over £1000, and he said he could not do so. He added that he could not account for what he had done with the proceeds of the large cheques, only drift Ha <ljd not suggest fet there had been losses in business. Witness said, lou must give an account," and accused said, "I admit I have taken H. He also said, "There is nothing for me but the river." Witness detailed ihe mterv ew in corroboration of William Haddow 's evidence. To Mr Maginnity: Did not remember Bettany saying everything would be squared np before the end of the trust. He said he would square up if ? lve ," t™c. a»d make all deficiencies good. Tho matter was put in the hands ot rttt and Mooro. , No agreement was made between Bettany and the trus tees as to squaring up. Sums in reduction of shoi tage had Ijeen paid in as results of the sales of mortgages given by Bettany. Ernest Charles Kelling, Deputy Registrar of the Supreme Court, produced the vvrjt of summons and statement of claim in the caso Wm. Haddow ' end Annig Boyd Baigent against Wm B a " a «y. summons dated lst November, laub, also confession of ju/^ment filed by defendant's solicitor, da'ed 7th November, 1906. There was no statement of defence filod. | The Court adjourned till next dav accused being admitted to bail on his ' pwn recognisances of £100. I