RESIDENT MAGISTRATE'S COURT.

Timaru Herald, Volume XL, Issue 2947, 4 March 1884, Page 3

RESIDENT MAGISTRATE'S COURT.

GEEALDINE—Monday, Mabob 3. (Before H. C. Baddeley, Esq., 8.M.) BKBBZZLXMBNT. At ten o'clock the hearing of tbe charges of embezzlement against Joseph Maokay, adjourned from Saturday, was resumed, Mr 0. Perry, for the defence, continuing his cross-examination of Mr G. Thome, Superintended of Agents. Beforo commencing a little altercation took place. Tbe aeoused took powearion of tbe cbuir at the table whiob Inspector Broham bad ocoapied on Saturday, and spread out a number of papers on tbe table before him. When the Inspector came m he asked accused to make ropm. Accused, addressing His Worship, said he must have room for his papers, stood up, and placing one foot on the chair, faced tbe Inspector m an argumentative attitude. Inspector Uroham ordered him to stand np properly nnd show respect i'or the Court. Accused refuted. Ho would do no such thing at the dictation of an Inspector of Police. Tho Inspector whs exceeding hia dutj, and he would report him. Mr White said if accused conducted himself m that manner he would ask thnt he be ordered to stand up on the floor of tho Couit as prisoners usually did. Accused hud behaved m a scandalous manner towards himself before the opening of the Court. Mr Parry was surd Mr White was exaggerating. Mr White said bo was not; acousud had threatened him at Crown Prosecutor m tbe I most outrageous manner. His Worship retstored peace, and at Mr Perry's requost the accused nas allowed a seat at the tahlu. Mr Perry then ask«d if the depoiiit receipt book which he had asfceid for had been found, and was told that it had been found. It had been mislaid m the polioe office at Timaru. On its being found Miiokay was informed as snon as possible. The vase was then proceeded with. Geo. Thome, Superintendent of Agents, oross examination by Mr Perry (continued) : The Commissioner telegraphed to me when down South to see Mackay, who hid upplied for employment us agent. I inn him at Matsurs, and after teeing him I deoldud to reoomriiend him to the Commisiiooor for employment. I was then on my way to Invercargill, and from there I tent him, about tbe 16nh October, the papers to begin with. He bad got two cafes before the IChb, and the receipts were filled m m my pratenoo. In foot I filled them m myself to show Maokay bow to do it. He was paid communion on those two cases on Oct. 80th. Maoliay was not appointed till the date of bit agreement, 20th Uot., but be was aoting beforo that. When I returned from Inveroargill I trout to Mackaj's home two or three titrnn with ])r

G,ze and with Mr Deveril. I suggested thai Mackay should aecompacy Deveril for a time. If Deveril ow<s Mae:kay acvthii g he is well nble to pay i», as Im U m receipt of £600 to £700 a year. If Mackay had fent me up Ei list of thu caseß that they jointly obtained, 1 would have tried to sea fair ploy between theza, and if be hud setit any up m his owe name ho would have got credit for them. At' an official I could not reoogniae any partnership between them. Deveril waa pleased to take Mttckay, as Maobay said he knew the Mataura district well, but Deveril »oon found, bo he tod me, that Mackay was of no use to him. I elo not rneollect that any definite arrangement was coma to, but when I left I understood they were both going canvassing together. Ido not recolleot telling Miickay as an instruction, to go with Deveril on half commission. I only suggested it. If Dr Ghzd says 1 did, I must contradict him. I could not do such a tiling. I offered it as a Buggestion merely. I thought it would be a good thing for Muoltsy, as Dev.>ril had experience, and for Doveril, as Mackny said he> know the country. On tbe 16th Ootober I wrote him it lett-r while m the train, in which I said. "Do not forget when m Invercargill to get tout bond form filler! up when m Invercargill, and then you will receive your agreement. Strictly speaking, I ought not to have sent you tlo roceipt-book until tho forms wero duly complied with, but aa you are anxioua to ge& to work, bo long us you attend to the Bame within a fortnight, it will be all right." Ho therefore went to work before ho was appointed. If the Commissioner approved of his appointment ho would be all right ; if he did not appoint him I should hnve considered him my agent, and have knocked him off at once. I credited Mnokay with all work sent m m hia name. No worl: was sent m by him between the' 16th and 29th October,"but I got several telegrams from him about work. In reply to my telegram of 17'h January that he hud had £10 mere than £5 a week Bincii starting, ho telegrapher), " The £5 a woek referred to wae guaranteed for first month. You said whatever I made would be credited to me eich week on hearing from me eaoh week by telegram. I havo done so each week Bim-e entering service. If you expect mo to work for you as I have done for £5 a week you are mightily uiittak n. You have m me jour best agent m New Zealand, if you treat me fairly j if not, must devote my energies otherwise to better advantaze My personal expenses laft week vjare over £s— what is la como of my family p You are treating me unfairly, and that. I will not submit to. Understand that clearly once for all. My commission on business done before. Christmas alone was £90, on £12,000." It is not usual for agents when away from a bank to forward moneys received by them direct to the Commissioner. Their instructions specially provide for that. Ido not think it is done m nome cases. I had a note from Machay saying that he was going to do so. Cheques have never been forwarded to me by agents, and though Mackay told me m his letter of the 7th he was going to send cheques, ho did nob do so, that I know of. The Commissioner thould know if it was done. The accountant would know primarily, and he would report to the Commissioner. I was not aware, and am not now aware, thut the bulk of Muckav's transactions were done by cheques and orders sont direot. Ido not know that lie only banked at three places, and Bent cheques ttnd orders direct m other cases. Mr White objected to any further questioning as to what tbe witness did not know. The enquiry was to elicit what he did know. Mr Peny said hit client informed him that the greater part of his business was done m that way ; t hat is that he sent most of the money he received direct to the Commissioner, and if that, was the rase the special instructions had been practically set aside. He had not got tho witnesses from Wellington who were necessary to prove this, and he wanted to see if this witness bad not forgotten that Mackay hud so conducted bis business. Witness : T. Pringle ii insured m the department as shown by tbe credit notes. I know nothing of any order of bis upon the Natonal M9rtgage Company, Timaru. Mr Perry put m an order signed by T. Pringle for £19 Is 8d on the National Mortgage Company, Timnru, m favor of Government, insurance account ; also (by consent) a letter or certificate fr m the Bank of New Zealand, Timaru, that the order bad been reoeived from Wellioßton. Witness : I should not ba surprised tbab that order was sent to Wellington iv payment of the premium. I really do not know how the moneys received by Mackay were returned to the department. It was not my business to know. Persons m Wellington may pay premiums by cheque over the counter. As to agents at a distance, I do not know whether they send money by cheques or not. To Mr White : I sont the two telegrams to acouiied— " Money at Pleasant Point," on the 17th Jan., before I received Maokay's telegram of tbe same day, ai. tho hours on the telegrams show. Thoreforo it was not m consequence of receiving bis message that I sont them. Before tbe agreement was signed, Mackay sent only two proposals, as shown by the butts of bis receipt book. On the 30lh Oct., I credited him with the commission on those) two cases. Muckay and Deveril, if they worked together, mußt make their own arrangements as to sharing. Mr Deveril has boea credited with the work done on that trip, be having forwarded the urunl papers, banked the money, and forwarded tbe bonk receipts. I I believe he banked the money, but do not know of my own knowledge. I know ho received full cocsmiaskm. If there was any arrangement between Deveril and Mackay they must fetlle it between them ; the department has nothing to do with it. Mr Perry then put m the following telegrams: — Mr Thorno to accused, dated Dec. 16lh — " Congratulate you. Will send money if you want it, Monday. Wire where to." From accused, at Albury, to Mr Thome, dated 24th January — " Dr Nicholls was recalled home speciil message last night, owing wife's illness. I go Dunedin expense rival Company. Another Company's me.nager was otherwise to have met me at Fairlio Creek. Will regulate future movements from Dunedin and advise you. I can personally stand anything from anybody, but when anyone upoiln comfort, happiness, home, as you did— cannot forgive. My lengthy telegrams have been led by your example, leo urgent montage sont me Colonial Mutual Directors' visit." From DCRUBed to Mr Thornn, of siaie dute, frjm Albury : — " Your laet telogram adds insult to injury. At Commissioner has puid no attention to my late telegrams 1 have applied to Colonial Treasurer and will tulco means to expose your treatment, of me through next Parliament. Unless satisfactory arrangements made two o'clock to day, will transfer servicee Australian Provident Society. My Doveril trip three months ago seerui still unsettled by you, an no credit seems be ensdo thereupon." Robert Campboll Niven was next Called, and stated t I am resident agent m Dunedin for tho Nsw Zealand Government. Insurance Department. On or about the 26th Jummrj last I rnciiired a telegram from Mr Luckie. the Commissioner. I iit»w accused and asked him to pay m the money, £14 8a 2d, into thu Bank of Now Zualand, and to hand mo the bank receipt. He iiaid hejwus unablo to do so, having no fund;, nnd though he might obtain the mono; by borrowing; from friends, he preferred not to elo so, as he had given an order on the Superintendent of Agoots, and he considered that, suffioient. We had a lonj; conversation, but thai; whs tho result of it. £ communicated tho result at once by telegraph to the Oommissionor. Croiß-examined by Mr Porry : Tbe Commissioner sent ED: "argent" telegram to Maokay, aDd at the name, time an ordinary message to me, telling mo he had sent the meoagei to Maokty, and repealing its content*. Maokay got bis Orst, bi it was " urgent." He showed it to me and wrote a reply, wbiish he also showed me, but I did not pay attention to it. I got tho Oomminsiocer's telegram later, and replied stating that Maoiny said ho was hard up and refusod to bank the money, as ho had given an order on f -he Superintendent. At that mooting ho toU'l mo )j?sU (representative of another insurance oflloe) had offered him something, nn advance. At this stage, it boing one o'clock, the Court adjourned for an hour . Mary Ann Widlovr and Mr Wadlow proved the payment to aaoused, at Woudbury on Jan. 14Ui, of £0 9< Sd m cash, as 11 doposit on a proposal for insurance John Fi6old t.nd Joseph Ki(i«ld prorod the pay-

i ment, by the former, of a cheque for £3 2s . lOd, covering two sums of £1 16s 4d and £1 1 6s 6(1, deposits on two proposals. The pay- :> ment was made late m the evoning. •1 John Cunningham, agent m Geraldine for I the Bank of New Zealand, stated thnt 1 Fifieid's cheque for £3 2a lOd was not paid > into the Government aocounl., but was paid ■■ over the counter m notes and silver. Marks * on the cheque showed that. > To Dr Foster : Not within his knowledge • had a cheque payablo to the Government lu--1 eurancp account, drawn on the Bank at Geraldine, boen sent to Wellington and returned to : tho credit of the. account. From the 18th ! January to the 25th February there was £12 ! lying to the credit of accuse! It was not drawn out by him, arid was recalled. Could not say whether accused wi.b aware of its being there. To Mr White, lifter feUihing ledger : Fifiold'a cheque wae not puid m to the Government account by accused, nor was that specific amount paid m to that account by anybody. Only one amount has ever been paid m to the Government Insun.noe Account — £13 10b, on Jan. 9th. To Mr Perry : Thi« cheque of B. P. Bartrum for £10 7s 6d, payable toGovernment Insurance account,has passed through this bank. It came to me as a rimitt.ar.ee from Wellington, and wiib dealt with m the usual way. I cannot tell by whom it was seat to Wellington, nor for what purpose. Mr Bartrum lives near Gera'dine. Charles Philipson, clerk m the Bank of New Zealand at Geraldine, identified Fifield'a cheque. Ha had paid it over the counter to some one ; he could not say to whom. To Dr Foßter : M*okay wse m tbe bank after th« bank was closed on the 18th, and asked if liny money had cocie for him. I told him no. He aaid the-o was money coming to him from Wellington. He wob m the bank about a fortnight ago, and I told him tbet tome money had cooio for him. He said ho thought it had been withdrawn. He did nnt draw it. To Mr White : He made no enquiry about the money from the 18th Jen. till about a fortnight ago. Austin Kirby, detective, gave evidence as to his obtaining receipts from those who paid the Bums referred to m tha charge, and as to the arrest of accused. This closed the caßo for the prosecution. The prisoner on being charged said — " I throw the accusation m the (,ceth of my aeouserd, and leave the [matter m the bands of my eoumol." Mr Perry addressed the Court at considerable length against a committal. He thanked the Court for the indulgence granted him. It was a most unfortunate thing that accused should have lost the services of so brilliant nn advocate as Mr Stout, and still more unfortunate as Mr Stout was the only person who, when the case opened, had a knowledge of all ite bearing.!. In the first place, be pointed out that the prosecution had made a mistake m alleging thut the accused had embezzled the moneys on tbe 14th. He only received them on the evening of the 14tb, and properly retained them on that d»tt. If there had jeen any emhezrloment it must havo been later than the ]4lh. The whole prosecution j was a grand mistake. In call's of embezzlement, concealment or secrecy was a most important eloment, and here s.ioreoy and concealment was entirely absent. Roscon, 9th cd., 465 and 463 was quoted to show that embezzlement necessarily involv>s Becreoy, and that a detention of moneys under cover of a supposed right, though it might bo wrong, was not embezzlement. Accused had made arrangements for a long trio to the Mackenzie country, and telegraphed for money, and got a reply that money »as coming, but it did not come until he had, nccording to arrangements already made, >l,arted for tli6 Mackenzie country. Accused not getting tho money m time, he retained tbe moneys he had received, nnd telegraphed to the Superintendent to recaliitho money hci had askorl for and was promi»ed, nnd asked him to honor an order for the amount of the deposits he retained. Through the fault of the depirtment he had to do so to clear up his accounts before setting out for the Mackenziei Country. Then he nt once sent the " evidences of his guilt," the butts of the receipts, to the Commissioner, and instructed Mr 'I'horno to withdraw the money aont him. In the face of that he wai charged with embezzlement. His indigniinfc telegrams to the Superintendent ehoned that he was acting straightforwardly ; they were not the expressions of a dishonest man, but of an honeSt man braving his employer. The Commissioner when he received the order took it to the Superintendent £.nd said " Hera is an irregularity of Mackay'o." In saying that he hit the nail on the hmid. It was an irregularity and nothing more. What they should have done was to tell him he hall done what as thuir servant he ought not to have done, aDd h>> must leave their service. That accaued did not take the £22 telegraphed to him, ahowed he was acting honestly. He had wanted thu money, but it did not come m time so he gttva an order on the Superintendent, whom h-3 believed to hold a coEsiderable amount due to him, and told him to recall the money sent. And whero was that order ? The department had it still, and for aught accused knew, the» might jet, m»k» uen of it. That the order was a good one, was shown by the fact that accused had at loast i! 22 to hin credit when it was given. An important question was, whether accused was bound to pay the money he received into a bank. Heuubmitted that at that time bo was not. He *as going on a trip to the baok country, and had, he submitted, already started. Ho had given notica that ho would forward moneys direct whil'tcnthat trip, and no objection was made. Further, he submitted, the agreement about banking had been abrogated bnfore this time*. His client informed him that m most of his transactions he had Bont tho nrionoy direot to Wellington. The ovidonoo regarding the Bartrum cheque and the Prinze order havi»? been sont to Wellington, corroborated his client's Btntotneuts on this head, and the witnesses for the prosecution were not m a position to disprove them. If other peoplo's ohequeit and orders wore received, why should not nocusiid's order be received ? Aeoused had reason to believe that tho Superintendent hold more than enough to pay it. He had receive! proposals amounting to upwards of £24,000, and not having recaived notice of any rejections, he naturally assumed thnt he was auiitled to a large amount, of commission, and m ardilion to that there was his claim for £30 m connection wilh the Devoril trip. It was said he had been warned. Ho had been warned for sending at order to Mr Tborne atirt asking him to pny m money for him. In this c»se ho sent the order to the Commissioner himsolf, and ailtod Mr Thorce to honor it, m the most open manner, at the nine t'm.j asking Mr Thome to withdraw tbe larger nuin sent to him. His piinoipal oontetition whs that tho agreernant to pay into a bunk lull been abrogated, and if so, co embezzlement had been committed. His Worship said he did nit feel justified m disaiicfing tho case m the face of the evidonco bofore him. It seem id to be a oaie dumun-ling further investigation, and it would be better for the accused himself thnt the matter thould be mere fully investigated. He would commit accused for trial at the next se-nsion of the Supreme Court a!> Timaru on the threo charges. Buil wim allowed, iiooused m £100, and tv/o sureties of £aO each. Thu sureties were found nt onoe, m two persons strangers to accused. Tho aoouserl waß then remanded till nett morning on throe other oharges, and the Court roße at a quartor to llvo o'clock.