SUPREME COURT.

Timaru Herald, Volume XIC, Issue 13389, 12 September 1907, Page 6

SUPREME COURT.

TIMARU, WEDNESDAY, fc>EI f T. llih. (Before His Honour Mr Justice Chapman.) ALLEGED EMBEZZLEMENT. Tlij case against G. H. Parsons was resumed at. 10 a.m. Tbt> case for the prosecutions was concluded the previous evening, and Mr A. R. Barclay. for accused, opened the defence. Mr Barclay quoted first a couple of English authorities. "Stone's Justices' Manual," and " Outlines of Criminal Law,"- both stating clearly that the intra failure to account for money was not enough to constitute embezzlement. It might bo due to careleisness or negligence, and to constitute the offence there must }rave been criminal intention. His Honour said the Xtw Zealand Code "was not the same as the English Act on the subject. Mr Barclay went on to say that the defence was that the man had b>en endeavouijng to do far too much, and the consequence wws that his accounts got into such a mess and muddle that he did not know his own p<M?itioa. He had Ik -n extremely foolish in attempting to do more than he could, and more than ww» necessary, and might have been negligent", foolish, culpable, but not criminal. He calkd the following witnesses: — D. A. Morgan, auctioneer, was a member of the Waimate Borough Council up to April last. As chairman of the Water and Finance Committees - , taw something of the work Mr Parsons had to do, and considered that he had far too much to do. There was a. great ueai of work connected with the waterworks for three years, and the initiating of the gasworks came on.during teh same time. .A great deal of his work was done at night. More than once asked him for permission to propose to the Council that ho should have resistance, and epoke f> the doctor about it.. Accused had 110 extravagant, habits, and lived very simply. To Mr White: Knew that he bought a section for about £IOO, and built a hoose costing £6OO or £7OO, or it was built for him; and ho also bought some gas shares. He was an active man physically, and had not shown much difference in that respect. G. Pitcaithley, headmaster of the Waiinate School, knew Mr Parsons well. Hi< attention was called to his condition on 3rd May. Asked him on that day if he was in financial difficulty. Ke said no. but his books were*in a muddle, and it' he got Lis books made> up he would have money coming to him. He pointed to some items in which he had credited people with payments that he wast not sere of, for fear of doing thsm an injustice. Suspeci'-d that he was in want of money, and offered to lend him £ICO. or £l5O, or £2OO. but he said he did not want- it. that he would be all right if he hid his books made up. That was. on Friday, May 3rd (b fore 'his suspension on the Bth}. Told him he could hold the of.'.r open tOl Tuesday. They were not intimate, but near neighbours. He 'had not thought Mr Parsons a strong man, and ho found him a forgetful man. ills Parsons, wife of accused, ctated that they had been four years at- Waimate, coming from Christchurc-h, and previously from Victoria, where her husband held a good position at Xorfolk. of which place Iw was Mayor for i;nm» yesrs. He li st money by land ii|>. ctilatioia and canto away with a very small balance, after all debts were paid. Witne::; described the long hours her hufbiuia worked at VVai mate. Ha was very seldom at home in the evenings except on Sunday:-, f-'iie knew that her bought a section at £7l and paid one-third of £6O for a. second. She understood thnt this ni'-.ivv cane from a sale of gad sliav.s. -The house was built on borrowed vi->i:ry. T!) house was to have b.-en built for £475. but the materia!.-) alone came to £456. arid this worried her hut-hand greatly. Th'.ie: was the labour to pay for besides. Mr Manchester supplied all the mat'-rials, found all the money, and had a mortgage over the property. Her husband had good health until he had an attack of influenza, about two years ago. and'he v. ent Ixu-k to work before he was fit for it. He Miffs. led from deafness for souk- time: I--t nearly all energy, ceased to do odd things about the house that he used to do; and still he continued to work long hours, and at night. II- hr.d not. been the same man since h - had the influenza. Mr Barclay then addressed the iurv. He began by pointing out that tli_- indictment referred to thro- sums totalling £27 Is, while there was £27 10> in i c;«sh box, and it was impossible for ativone to say that the money in tin- cashbox was not the money they accused hini of stealing. The define-* was a bona fid<_and simple one that the man was grosslyoverworked. He began with a Miinll yci-vc from the Borough Council, and took some outside work. Then the Borough Conned launched out- with the waterworks scheme and then put- a gasworks ischmne on t'-p of that, %vith their long discussion* ;md interminable streams of people with in-ouiri-s. Mr Barclay enlarged upon the »;verwo;k. and upon the -fivers of the attack of influenza. Upturning to the clung;-, Mr B trclay said i.he <i'.'.->tion

was fraudulent- intention. Mr Crawshaw, the one man who had investigated the accounts, isaid, after the investigation, ih.-st he could not help treating Mr l'ansons us an honest man. Referring to the demand made upon accused for £135 4s 5d on 23tii May, Mr Barclay said no time was given to the man to look round, for he was arrested three days later. He (Mr Barclay) had written offering to pay riie amount actually found to be due, and he attached no conditions whatever. No reply had been sent to that letter. The address next dealt with the accused's refusal of monetary assistance, a few days before the crash, as a proof that he had not knowingly robbed the Council, or lie would have jumped at the offer of means to put his accounts' right, ill- Barclay concluded with an appeal to the sympathies of the jury for a man who. in tile interests of his family, undertook more work than he- could do, and broke down under the strain. Mr White also addressed the jury, presenting a matter-of-fact view of the case, and deprecating a sentimental corniderKtion of it. The lint suggestion of tindefence, that- the missing money was in tile cashbox wa-.- valueless, because there was a total deficiency of £BO. All soils of tticn.'-ci- had lie- n offered, but there v.-ai> the one ruling fact—[he money had be-n stolen. Tile letter of Mr Barclay he characterised as most injudicious, after criminal proceedings had been commence;!. He submitted that the prosecution l::td not only proved the charge, but that no real answer had b-eh offered in the evidence. It had been proved that dishonest dealing with the moneys of the Council and otiitr bodies had been going ou for some time. His- Honour spent twenty minutes in r.-umming up the case to the jury. The oca question for them was whether the accused had dealt with the moneys referred to. with a dishonest mind. The ju'.y would probably not pay any atten- - lion to the suggestion that the money was : n the c;i- hb»x. because the items had been received some months before, and the | cathbox had b.-.-ii in constant use. His ; Honour dealt with the explanations of the I defence, overwork, muddle, culpable carelessness, negligence, and with the de>j fence founded on the medical evidence, j and pointed out that the question was: ii moral one. of state of mind, dishonest ; or not dishonest. It had been made j clear that the accused was a fairly cap- | able book-keeper, his books were well ! kept, up to a certain point, and the jury I would consider why .such a man allowed I his books to get- into a muddle. If it I was through over-work that would not be criminal. In a brief remark on Mr Barclay's letter. His Honour said it was a I quite proper letter, but it did not affect ■ the case. It offered to pay any money I that accused had failed to pay. It was no crime to fail to pay a debt : the crime was incurring a debt dishoii oriy. The money.-; were evidently missing, and thejury must decide whether these sune; were dishonestly made away with. The jury retired at noon, 'and returned 25 minutes later with a verdict of not gui'tyThe Crowh Prosecutor pointed out that it was only half an hour from' the usual time for adjournment, he asked for half an hour to consider whether to go ou with the other charges, and his Honour consented io this. Jurors and witnesses were therefore told to return at 2 p.m. At 1 p-rn- White telegraphed -to the Attorney-General recommending the withdrawal of the remaining charges, v.r.der section 411 of the Criminal Code Act, as the question of intent was the same in thes; as in the first case. No reply had been icceive l at a quarter to .-r'x, and Mr White said hj; w;c in doubt whether he could take the responsibility of saying that he would not i ff. r any evidence, and Hi; Honour suggested that the proper course would be to adjourn till next morning. 'lhe jurors weie then told to return "at 10 a.m. tlii- morning. CIVIL CASES. Civi! ca.-es being reached eonie arrangements w-ei-e made ee to ordtr of hearing. Two c;»e-: weie disposed of: - 'i'arke v. Parke, claim arising under a will. Mr White for plaintiff, stated that both inn ties- desired a postponement till next ; ession.—Agreed to. D. Wt-.i (Mr Solomon and Mr Kinnerner) v. A. W. Mclvenzic (Mr Raymond; claim for specific performance of agreement, to Lase shop ill Church litreei. Mr Raymond stated thai this case had been settled, and it was struck out. A WILL CASK. Mr Khun rir.-y apjieared for Mrs Xiall to apply for authority to -.lie trustees under the will of the late John Dore to pay to Mrs Xiall. a minor, daughter of deceased", the whole of tile income of her •-liar- of the property under the will,- and s-eeontilv, to ask for an interpretation of the will in regard to the payment of in come of the widow. Mr Raymond appeared for the Trustees. Mr Kinnerney explained that the will trave Irs client a definite annuity of £7B. but the- TiitsU';-.- were also given discretionary power io increase that amount if 'h y though: i::. The Trustees were willtug to in d<e additional payments, but there v,:is ;l difficulty about the re.vipi. Mrs Nidi b -ii:g a minor. lie i.tiggrsl'-d that a tru.stj--e could l>e appointed to reC- ive ill-- i:io!it-y. t Tht- total inconn- was stated io be about £-iC'J a yor, divisible

1»-1 tiie widow and iive children.) \i ;■ Kinneriiey said -Mis Xiall s ease was deserving of special consideration as '■ ■ l ' \\ as i:o',v in llit 1 Hospital recovering fioni :i "!:H!n>;e I ip;"ia I e' li. A! 1 l] lat was ask-d lho Trustees filiiiulil be authorLed tr pav any sum they deemed lit, ami that ;h' present guardian, Mr Leslie. l>e appointed trnstee to give a quittance to the trustees under the will. The trustees weie quite willing to do what was asked, r.ii.vi.!. .1 tint th'y could do it properly. Ifis Honour made an older declaring that iJi- Tvuoti-ts at liberty in their discretion to p-.iv to the daughter, -Mrs Xiall sm-h money as they think lit, ou ac-<;oi;:-.t i.f income oil lir-r sliare from the date of her marriage; also appointing Aicxand-er Ltsli '. mill employee, irustee. «lti» li*jr h-re minority to receive such sums. l iiiT question of costs was held over. -\ Ki'SCL'L' dt 1 THK I'AROERA STRIKE. 1). P. .McLean v. Canterbury Frozen Meat Company. claim £l6O 'damages for breach of contract. Ml' Hamilton for plaintiff. Mr Rolkston fi.r defendants. Mr Hamilton staled that plaintiff was a. farmer at Hook. He purchased a- line of 2830 lambs from Mi' Teschemaker near Maheno. At Oamaru he niet T. Thomp.;o«. a buying agent of the Company, who y creed to buy llio lats out of tile lot at old for first" and 4§d per lb for second qualit-v. Thompson drafted out 590, and his drover took them away. Soon after the drover started Thompson received a telegram telling him. nob to send any more sheep at present as) the slaughtermen lu(d struck. Thomifion asked Teschsmaker what he could do for feed and the latter offered him feed for a week, McLean taking no part in this arrangement. As the lambi were inilk-fats it was plaintiff's in-terei-.t to have them killed without delay. The Company took the lambs to the Parcora works, but on account of the strike they could not be killed. Mr Candy, for I ho Comjiany, wrote to j)laintiff asking him ,to remove "your lambs," as they could'"not find feed for them. Plaintiff replied that they were not liis lambs, as he had made a straight out sale of them to the Company's agent, and the Company must take the responsibility. Plaintiff, however, afterwards agreed to take charge of the lambii, under protest. His solicitors wrote demanding iSs per head for lambs (this being plaintiff's estimate of their value at the time of sale) plus 3d per head per week for grazing; or he would accept so much per ib if they trere killed within a reasonable time, plus grazing and droving charges: failing acceptance of this position by the Company, he might have to ise'.l at the* Company's risk if lie found himself unable to "keep the lambs. The Company replied that plaintiff was in error. They bought at per pound, and in such a case the lambs remained the .seller's proper! y till they were on the hooks. The Company's estimate of value, too, was less than his —lis per head. Moreover the Company did not buy on its d'.vn account, but for client.--. I'laintifi's i-olicitors replied that the Kile was a straight-out sale, and Mr -Thompson drafted out tl«=> lambs that fiuited him as a buyer. The Company had not named any principal, and therefore must take the responsibility of the sale. A number of letters pati-ed between ths manager of the Company and plaintiff's solicitors. Eventually Mr McLean sent some of the iambs to Smithfield as 1..' cculd not keep them and .sold some at St. Andrews, and the proceeds were credited to the Company. His Honour tentatively summed up tlifci side of the case. The claim is on the. footing of a sal;, reasons for re-sale are rjiven. and credit for the jirice at re-sale is given. The statement of defence , denies the suk, denies delivery as a sale, and seta up a contract short of sale with delivery. If it was such a contract, ths price to be determined by killing, that might not alter the relations of the parties, and the Court would have to find some way of fixing the price. If they were the Company's sheep, plaintiff could not sell them without the consent of the Company, and this might cause trouble in sett-ling the amount of .credit. Mr Hamilton: If plaintiff wrongfully sold the Company's sheep they might hav© a chum; but- that did not affect the present claim. D. P. McLean, the plaintiff, gave evidence regarding the sale of lamb; to Thompson, a. straight-out sale at per pound on killing weights. It was untl-er-stood that they were to be killed at once, or he would not have sold. Thompson wanted deliveiy at once i-o that he could gel tin-in trucked at -Maheno t-h-.it clay. Thompson agreed to buy all the fats, and lie hand-pieK-ed them himself. Witness twice complained to Thompson that he wpj not taking all the fats, btit wait "picking for skins." He. thought there nere at lease- 900 good fats in the line. The 590 lamb.s were selected, counted and delivered to Thompson, and were a mile and a half on the way to Maheno when a telegram came to ■ Thompson : 'Slaughtermen i-:truclc fi don't send lambs in."' Thompson consulted Tescheinaker, but did not consult plain till', aii to what ha should do, and Ire decided to ,«end them on. Witne.is estimated- the average weight of the lambs cold at 361bs, and they were practically all first quality. Plaintiff detailed his subsequent refusal and then his acceptance of the lambs, under protest; he fed them as long as he could, sacrificing other lambs, i'to make roeni for tlieni, and then sent 329 to Smithfield for freezing and shipping to Liverpool. Ke had olfered to credit actual results or 14s 6d per head for these. Tl;e lambs went back very much while they were at l'areora ; they received such a check that they could not be fed up again to their proper weight. A lamb otf the ewe would lose 3tbs in two or three days-, and another 31bs in a fortnight. These averaged when killed 32.58 lbs. This was about sibs less than his estimate when he Gold them two monthsi before. 'J hey were growing, but not fattening, and they .scarcely passed muster at the works. He sent 222 to St. Andrews, amongst others, and lie gave credit for full value. His loss would be fully £ICO more than he was claiming ; he made his claim as moderate as he could, and expected it to be recognised at once. He gave the Company credit for £238 lQs. 6d for lambs killed at Smithfield ; £l3O 12s for those told at St. Andrews; £9 for 20 unsold, and 19 were missing. He made charges for feed, for droving, and for dipping. Plaintiff' was- examined a.s to some, communication from tile National Mortgage and Agency Co., regarding lambs: but that Company liatl nothing to do with the T-tschemaker lambs. Mr Rolleston cross-examined on his r-eli-tion; with tlr- National Mortgage and .Agency Coy., hir> business agents, and pi-odui-e-l letters- the Company had written Oil his behalf. He bought I In- lambs ill December of the previous year, at lis, io be determined in February.- At the time of delivery the drought was aboutat i's worst, and he was therefore anxious io g; 1. vcrything away. Thoinp.-ein made no oiler of a price for tire lambs "on tluir fee!."' Xn mention w:n; mad': about railage, and the Company would have to piiv that. The Company look deiiverv and became responsible lor tlr- iambs from that time. If one died on the road, the Company must lose it, and allow for it as an average wJghi. The

Company would have no right to reject any at the works, because tliey picked the lambs themselves. Thompson did not say that if he picked mole tliey would be rejected. Did not object- to the lambs staying a day or two at Mr Teschemaker's. II was thought the works would only be closed a- day ur - t \eo and .L'liompson said " You'll see. I'll get them killed before Saturday." Believed he -said he was buying for the l'areora "Company, not for the " l'areora. Works." He did i-.c.t know that- the company did not buy ; ire believed it did. Mr Holles'lon quoted the company s advertisement, sstLing forth their policy, directing that tliey were not buyers. .Plaintiff: Had not before heard the name. Sims and Cooper, of Christchurcii, now sai.t to be the linn for whom Thompso.i '..as buying. He always understood that iiie Company was buyjng for orders. Ihey had buyers going about -the district. . ■las Me.eonoehie, a s[ock agent for the :\'.M. and A. Company al Oamaru. stated Unit he heard Thompson arrange to buy the fats - from the line of lambs, and he saw Thompson p-;ck the lambs—s9o out of 2900 odd. He picked a very good line. Heard McLean say he should pick more. Both Thompson and McLean gave him the prices. These were: np to 42105., 4»d over 42; 4|d second quality. The lambs wer-s started for Maheno, and then the telegram came about the striice, and the lambs were brought back, Mr T'oschemuker telling Thompson he could have a ■ nibble paddock. Thompson said he would send them on as soon as- 'ne could. Witness estimated the average weight of the lambs at 35 or 36 lbs. at the time of -sale. Lambs were bound to go back a,iter being taken from the :»WBS, and no farmer would fell Jambs with a risk of having them thrown back- on his hands. To Mr Rolieslon: Plaintiff took no part in the arrangement for feed of the lambs. On the question of railage, witness thought it a matter of arrangement. Aisx. Stewart, drover, Wainuae, described the .selection. Thompson did not pick out all the fats, lie was going more tor hulfbreds than for -threequarter-breds, and .McLean, said lie was going for the skins. Witness afterwards took the same lambs from the Pareroa works, and were then in a very different condition. Thev. could scarcely travel for want t>f feed" and he estimated that tliey had lost lour or iive pounds. • . Alex. French, manager for Mr itscnemaker, described the ls9oo as a fair line, and Thompson picked the best out of them, getting a iot of good freezers, probably averaging 341bs. Xo Mr Rolleston: Mr Tescheinaker picked a draft of ewe lambs the week beioi'e, and these worked out about- 301bs, but he picked 1056 out of 5000, and Mr Thompson only 590 out of as many wethons. . . F. W. Jones, a buyer for the Christchurch Mea-t> Company at Waimate, received a wire from the Company not to send in anv more slitep. Had some oil the road himself that day. He could not say what ths purchaser's or seller's share of such risks were. A little disctueion took place on th:s question, his Honour pointing out thatgeneral evidence of opinion or practice could not be available, in regard to so unusual irtid unanticipated a circumstance as a strike. Mr Hamilton said olio of the defences) was that continuance of work at the* works was an implied condition of the contract. His Honour did not think that- could be so. No one would think of a strikein making such, a bargain, any mure Hum of a collision Vmi'.ishing a- lot- of - sheep being railed. It was the old, case of tile Coronation. No one could have counted on the leases of sight-seeing structures being rendered valueless by the King's attack of appendicitis. Witness admitted that he did not know what contingent) risks, were considered in buying lambs at per pound. Alex. Scott, auctioneer. Timaru, eold lambs for plaintiff in April—222 at 12s Id. H-e had not heard of lambs being returned after a. purchase at killing weights. The witness gave many details of the custom here, in reply to the Court. The usual practice was for the seller to deliver to the works. He would say if a purchaser took charge of sheep and took them on the road, lie ought to become roiponsible for them,' rw they were out of the vendor's- control. At the- same lime such purchases were often conducted on other lines. This cloyed the plaintiff's case and at 5.45 p.m. the Court adjourned till 10 a.m. to-dav.