RESIDENT MAGISTRATE'S COURT.

Oamaru Mail, Volume II, Issue 510, 18 December 1877, Page 2

RESIDENT MAGISTRATE'S COURT.

THIS DAY. (Before T. W. I'akkk:'., Ksq., U.XI.) KMUEZZLKMENT. Henry Victor Clifford was charged with having, at Oamaru, while employed in the capacity of cleric or servant, embezzled 10s. on the 22nd Noveinbev, and 2Gs. on the 24th November, the moneys of his employer, James Russell Hamilton, of New South Wales.

Mr. Balmer appeared for the prosecution, and Mr. Hislop for the accused, who pleaded Not guilty. Mr. Bahner briefly opened the. case. and stated iliac tho evidence would be similar to that given on tho former charges heard against the same prisoner. Charles Henry Wilkinson, manager in ISTew Zealand for Mr. James Russell Hamilton, of Sydney, gave evidence as to the aooused having been in Mr. Hamilton's employ to canvas for the sale oi hooks and collect subscriptions as they become- due. The prisoner was to deduct his commission of 71 per cent, from all moneys collected by him. He was to remit tho money collected every week at tirst, and afterwards fortnightly. He was to receive 12.1 per cent, en deferred payment salt'!-., and .15 per cent on ca*e: sides. The last settlement he (wuiiiss) had with accused was on the 'J-'.U'n October. lie

had never received the ■jiiut of it's, ec'leoted by accused from Mr. tlriiu'eii "it November 22. lie had not received from accused the sum of 20s. collected from Mr. Pratt on tho 2ith Nosember. ■ He had not seen prisoner since ihe 2'.hh October until he appeared in Court. He remembered receiving the card produced from tho accused about tho Ist December, stating that he had got into worse difficulties than oyer, and would have to clear ant, but that as soon as the alhiir had blown over ho would return, Tins signature on tho card was prisoner's. He recognised prisoner's signature on the cards produced (Pratt's and Greenfield's). There was an acknowledgment on Pratt's card of prisoner having received 'ids. from Pratt, ajid oil Qreenfield's it a nekiiowment of ltu. Prisoner had never handed those moneys over to him (witness). Prisoner was authorised by witness to collect those moneys.

Cross-examined by Mr. Ilislop : Tile prisoner was engaged in May to canvass for the qale of books, lie did not give him any written instructions at the time of his engagement. He might have done so afterwards, but could net say positively whether he had done so or not. He gave prisoner verbal instructions when leaving for Tim am, and had handed him the collection book. He thought this took place early in August, He did not engage the prisoner fur any len;;th uf time. He was to devote his time to his (witness') business. There was a verbal understanding that prisoner should employ all ids time in his business. The prisoner promised to do so. The prisoner had twice sent him (witness) money without bating what it was for 3 but had afterwards explained what it was. sent for. On one occasion it was LI os., and on the other LI 18s, The prisoner deducted his commission out of that received by him.

George Lender Grenfell deposed that lie had paid 10s. to the accused 011 the '22 nd November, as part payment of some books he had bought of Mr. Wilkinson. The initials on the card were those of the prisoner, and were a a acknowledgment of the receipt of the money. He had also paid the 20s. down on the card to the prisoner. Cross-examined by Mr. Hislop : He had paid 30s. to the prisoner altogether. Thomas Pratt deposed that lie had paid three of the sums on the card to the accused., He did not pay the amount paid 011 the 24th November. Mr. TJaliner then asKed to have the pase adjourned for a short time in order to procure the attendance of Mr. Pratt, who, it appeared, had paid the money on the 24th November. The case was then remanded until 2 o'clock. On the Court resuming,

Mr. Balmer stated that the police had been unable to find Mrs. Pratt to serve the summons, as she was not at home, 'and no one seemed to know where nho was to be found.

After some argument, Mr. Banner withdrew the application for a further adjournment, and closed the case. Mi'. Hislop asked his Worship to dismiss the case on the ground that tiie money alleged to have been embezzled did not belong to Mr. Hamilton as stated in the information, but belonged to Mr. Wilkinson, who had sworn that such was the case. Mr. Wilkinson distaiotly giypru that he was responsible to Mr. Hamilton for the books he and considered the his own property directly tiie books were sold ; that he had to bear any losses which occurred

in connection with the business : that he iv.ia entidt'd to sue in his own name for the recovery of all debts ; and that his banking business was carried on in h : s own name. He also contended that the prisoner did not occupy the position of a servant to the prosecutor, and that he could not therefore be prosecuted for embezzlement. He further contended that the prisoner could not be prosecuted for embezzling the sums named, as tin; evidence went to show that, before paying over the money, lie was entitled to deduct his commission. On these ".'rounds, he urged that there was no prime fcfic case on which to commit tlifi prisoner. Mr. Bidmer, in reply to the iirst contention of Mr. Hislop, said th:lt Mr. Wilkinson merely occupied the position of agent in Nuiv Zealand for Mr. Hamilton, of Sydney, and had to remit regularly the moneys received by him every month, after deducting his commission. The only feature in the business was that Mr. Wilkinson was responsible for any bad debts incurred.

His Worship said it appeared to him that in every case which might be brought against him would bo presented some fresh difficulty. The whole arrangement in connection with the engagement of the prisoner by the prosecutor was unsatisfactory. After referring to the diU'eioiit contentions of counsel, he said that while he thought many of the points raised were in favor of the accused, they still raised issue-? which required being carefully considered. He would therefore adjourn the case until Thursday.