SUPREME COURT.

Lyttelton Times, Volume LVIII, Issue 6692, 9 August 1882, Page 3

SUPREME COURT.

CRIMINAL SESSIONS. Ttjbbdat, AtrotrsT 8. (Before his Honor Mr Justice Williams.) KBAtTDULBNT BANXBtrpTOT. Nathaniel Yale was indicted for not having delivered up to his Trustee, Mr T. B. Craig, cows and other property to the amount of £4l 14s, he having filed a declaration of insolvency. He pleaded ," Not guilty." Mr 0. A. Fisher appeared in person to proseoute, Mr M'Oonnel appeared for the prisoner. Mr Fisher said he had been given to under* stand by his solicitor that should the prisoner be committed for trial, the Government would prosecute. He had applied to the Crown Solioitor, who had refused to undertake the case, \He (Mr Fisher) was, there* fore, compelled to appear in person. . His Honor: You can examine the witcesses, but you cannot address'the jury. Mr M'Oonnel objected to one of the counts (the third) laid under subsectien 1 of section 4 of the Fraudulent Debtors Aot,irhieh was to the effeot that the offence was not dis-. dosing property, " except such property as had been disposed of in the ordinary way of trade." The iidiotment omitted the words quoted, and h» (Mr M'Oonnel) submitted that the count should be quashed. His Honor thought the proper course would be to dirtot the jury to find a rerdiot of Not Guilty on that count. On looking at the sub-seotion his Honor said'that the exception only applied in oases where the charge was that the bankrupt had disposed of part of his property, and had not informed his Trustee of iow ho had disposed of it. The oount, in hit opinion, was not defective. Mr M'Oonnel submitted that the count was bad, inasmuch as it did not set out that the bankrupt bid not discovered to his Trustee for what amount he had disposed of his property. ! His Honor thotght he could not quash the oount.

Mr M'Oonnel quoted Begina v. Nieholl, Law Times 48 Jew Series, Crown Cases Beserved 672. . -fl» Motion in the English Aot was word fer word the same as that in the Colonial Act. \ His Honor rtther thought that Mr M'Oonnel was rigbS. He did not think the third count would hold water. It would be impossible, however, to separate the evidence on the third count from that on the other counts. The mestsatisfaotory course would be to ask the jury to find a separate rerdiot on each count. f-» would not quash the count. i A jury was thenjempanelled, and the following evidence was. led by Mr Fisher t Andrew Bobert Bloxam, Begistrar of the Supreme Court: froduoed the declaration of insolvency filed Vr the prisoner on Jan. M, 1682, also the lUt «tt statement of assets and liabilities filed on tb> same day. The assets are put down "furniture and olothing about £20." There U »'- mention of the goods mentioned in the indictment. The statement is the "four daya' rtafcemeut." No further information with rtyard to property was given in other papers lUbiequenlly lodged. A summons was taken eat against him. In consequence of no TrusUe being eleoted by the oreditors, witness aptofotsd Thomas Brown Craig as Trustee. Proiuoed the acceptance of the offloe of Bruited b\ Mr Craig. Thomas Brown Ojaig t Was appointed Trustee in the estate pf prisoner. Prisoner gave witness a ptpwf purporting to be a oepy of the one filed in ha Court. It showed liabilities £Bl Oe 8R knd household furniture £lO, Asked bansropt to be sworn, but he refused on the mom that witness had no authority, he not being* Justice of the Peace. Witness asked prisoner to go into Mr Weston's o«oe, where he was sworn. Betumed to witnest' oMee, and witness kiked prisoner several questions. .. i Mr M'Connel objected to prisoner's answers being given fa'evidence. Witness: The questions were asked by me as Trustee, and in purtoanoe of the oath. He answered one or tiro, but refused to answer any more. In oonsequeaoe I applied

to lib Htnor tiu Judge for an order to compel the bankrupt to answer. Hit Honor informed Hr Fisher that the answers of tht bankrupt oould not bo mod against him in criminal preoeedingi. Witness (to hit Honor) t I hat* no reeol lcotion of a»y itatenient being volunteered by the prisoner. Witnett (to Mr Fisher): In consequence of information I received, I gave the bailiff instruetiont to seize certain good*. They; oontiited of a oartmaker'i ttook—felloes, ipokt•, eVo. I tad an inventory, but bar* not got it now. I saw the goods. They were Talned by the bailiff at £2l. The goods were told for that amount

Hit Honor 11 have looked at the depositions in the Court below, and it appears to me that a good deal that wat not evidence was admitted then.

Witness: The list produced it the list of goods seized by the bailiff. When prisoner attended under order of the Judge, and after the goods had been seized and valued, he attended at my offloe, and, after examination, he voluntarily asked if five shillings in the pound would be accepted. Mr Spackman, my solicitor, was present at the time. 1 told him that I could not acoept five shillings in the pound; that I should not deal with him j • that the goods were valued at £2l, and if any friend bought the goodi. for him or on his aeoount, I would acoept the amount. I de> olined it in any way at a compromise. Nothing that ooourred could, lead prisoner to think there wat a compromise. I got a letter pur* porting to be signed by the creditors, but only one creditor (Mr Fisher) hat -proved. Mr Fisher never consented to a compromise. I vailed a meeting, and. only one oreditor was ? resent. I could not grant his discharge, 'risoner is still a bankrupt at far at I know. Cross-examined: I have never teen the letter (produced) to my knowledge. (The letter was a consent to- a settlement for five shillings in the £.) The letter prodtioed (another one) is a copy of one I reoeived asking that a meeting should be oalled. It was signed by the tame creditors whose names are, on the former one. They have not proved. The bailiff took possession somewhere about Feb. 16,17, or 18. I had no knowledge of the goods, except what was furnished by Mr Fisher and another creditor. Mr Fisher took a prominent part in procuring evidence. So, far as I know, the goods were brought from the shop. I believe they had been seized for rent on Feb. 16. I do not know that the goods were in prisoner's pot* teseion when he filed. I acted all through by my agents. I never was at prisoners place. , I had at many agents at were necessary. I paid the solicitor £l2 for expenses connected with the matter—the order for examination of the debtor. lam in no way connected with, these proceedings, except limply aa a witness. To Mr Fisher: The Gazette notices produced were dated Feb. 8. One wat in the Telegraph of Feb. 3 and the other in the Globe of Feb. 7.

James Martin, engineer and blacksmith: I know the prisoner, who rented premises from me some time previous to Jan. 23. At that time he had the usual wheelwright's stock. I saw him removing some goods on Jan. 20. There were four pairs of dray wheels and one pair of spring-eart wheels, and a quantity of spokes, felloes, &c. Next daylaskedhimwhathewasremovingthegoods for. He said he had lost a case in the Magistrate's Court, and wanted to put them away out of the road. I told him he had better bring them back. He brought back five pairs of wheels. I said I would buy the four pairs of dray wheels. He asked £4loi a pair, and I purchased them for that price. He asked me if I would buy three cows. I refused to have anything to do with them. He said he did not wish to sell them, but to make a sham sale, so that I should keep them for him. I would have nothing to do with it. I asked what he had done with bis horse and cart He said he had made a sham sale of them to a man of the name of Knight To Mr M'Oonnel: That wat before he filed.

To Mr Fisher: I mentioned that they could follow the cart, and he said he had got a receipt from Knight, dated back. He showed me the receipt, but I did not pay much attention to it. He said he was hiring the cart off Knight. To his Honor : He used the words " sham sale."

To- Mr Fisher: I heard prisoner offer three cows for sale to a man named Patterson. That mon the same day. He jaid to Patterson, " I don't want you to keep them,; I will hire them from you." Patterson said, "If I buy a cow I wish to keep it." That is all I remember to bare taken plaoe between Yale and Patterson, and between Yale and myself. Yale said he had lost the case against a man named Fisher. He said he wished to pay everybody 20s in the £ except Fisher, to whom he would pay nothing. I seized some, goods for rent after prisoner had failed. They were in the shop. The bailiff will bo able to tell what the goods were. Yale was cot very often at the shop after he filed. He kept the shop looked and carried the key with him. Cross-examined: No person burst in the door by my instructions. I was absent when the bailiff took possession. The conversation thattookplace between Yale and Patterson was as follows:—Yale asked Patterson if he could buy some cows. Patterson said he could do with a good cow, and asked, the price. 1 don't recollect any price being named. Yale said he did not want to sell the cows altogether, but he wanted Patter* son to take them over, and he (Yale)' would hire them of him. Patterson said," Oh no if I buy a thing I buy a thing." Three cows were referred to—two cows and a heifer. (The depositions of the witness in the Court below were here put in and read, to show that witness had stated that Yale had spoken of one cow. and not of three being hired.) Yale was indebted to me between £2O and £BO for work done. I got an order from Patterson for a spring Tan. I asked Yale to do the wood-work. The cart was not made. About a day's work was spent upon it by Yale. I never got paid for it. The goods that were in his shop when he failed were allowed to remain till I distrained upen them. At the date of his filing £6 or £7 was due to him. The rent was 5s a week. I gate him notice that I would double hie rent every week till he left. That was to get rid of him. He made a moonlight flitting sometime after, and I distrained on all! could get. I raised the rent from 6s to 10s, and from that to 20s. I could never get an aooount from him. I rendered bim my accounts regularly. He denied that he had run over Mr Fisher, and that was the reason he would pay him nothing. lam cot aware whether or cot he got timber from merchants after he had filed. He worked at times, but Tery little after he filed. I never saw a man named Swindle in Yale's shop. I saw him one day when I was tarring some wheels.

Te His Honor: Prisoner had been carrying on tiuiness for about a year. His shop. was ktttw b*ok of mine, in Tuem street Witness (re-called) : Yale worked for me by contract.: ' Cross-examined: I made a spring cart for a milkman named Martin. Vale did woodwork of that, and I have accounted to him for it. Henry Home : Had worked as a journey* man for the aooused. Had made six pairs of wheels for him—four pairs of dray wheels snd two pairs of cart wheels. Prisoner in January lived at Sandridge, in Sydenham. Witness went there on the Sunday before the prisoner filed. Saw some cows there. A horseman e*me with a stookwhip and went into the house. S»w him come out, and leave the oows in the paddocki. Went there on a subsequent ocoaiion, and the oows were not ' h Oroo-ex«nined: Not much work had been bestowed upon the express eart--»bout two davs' work. I don't know whose oows I se,w. Nothing was done to hide the goods in the shop? 'Vale bought the bellows from Mr Preeoe, but I believe never paid for them. Jemima Merrin, wife- of Jamee Merrin, contractor: Met prisoner in Pteece•_«-•• yards on March W. Prisoner asked her to buy a oow. Bought the cow for £8 10s, and paid for it in the Al Hotel. Prisoner said he would take back the cow if it was not satisfactory. Cross-examined: Prisoner sighed N, or Nat. Yale, to the receipt. My ton paid over

the mosey, bat it wu my mowj. I idd the oow at taction on the following Wednesday, Francis Motrin, ton of the tot witness, gave corroborative evidence. John Martin, dairyman at Heathoote Valley: Bought a oow from prisoner for £8 on April 7. Prisoner laid he came from Xaiapoi Island. There were two or three other eowi when witneie took the oow away. Prisoner did not say he wae an agent for any one. Witneie received from the pritoner the receipt produced. (Itwai signed "N.Vale, for Mr Jonee.") Oharlee H. Parker, eommiiiion agent and bailiff: Had seized, under instructions, and taken by hie men to Alport's yard*, a number of goods. Saw * portion taken off the dray. Valued the goods at £2l. They were wheelwright's stock. Made out the list produced. A man named William Lancaster seized the goods. There were two dray-loads of goods. Cross-examined: I had authority to seize for rent at the accused's private house. That was on Feb. 16. They were the same goods. That distress was paid out the same afternoon. In May there wae another distraint on the same goods, and the man had to follow them to Bydenhaa. The goods were sold, and did not pay the claim, £9l6s. Be'-examined: A portion of the goods first seised were seized again. William Lancaster, bailiff: Had seized prisoner's goods on Feb.' 17. (List produced.) Valued them at about £lB. Seized a horse and cart, which prisoner said belonged to Mr Knighl.

Cross-examined: The cart was not worth £ll.

Charles John Ellis, clerk to Mr Preece: Had entered for sale two spring carts on account of prisoner. One was sold for £l2, and the other prisoner took away the same evening. Prisoner received the money, less commission.

Cross-examined: I did not see prisoner take away the seoond cart. This was the case for the prosecution. Mr M'Oonnel submitted that there was no case, as there was no evidence to show before whom the declaration of insolvency had been taken. There was no certificate put in, as provided under the Act. On Mr Fisher offering to call Mr Hobbs to identify prisoner, Mr M'Oonnel waived his objection, and addressed himself to objecting to the first count on the ground that there had been no direction on the part of the Trustee, and there was nothing to show that the property mentioned had not come into the debtor's possession after he had filed his declaration. Mr M'Oonnel also objected to the other counts, there was nothing to go to the jury upon them.

His Honor overruled the objections, exeept in respect to the third and fourth oounte, but reserved some of the points raised: —On the first count, That the debtor was not bound to deliver, and that there was no evidence of any demand by the trustee; on the second count, that it did not show that tbe goods omitted formed a material portion of the debtor's estate; on the fourth eount, that the evidence did not prove any concealment.

Mr M'Oonnel then opened for the defence, and called Annie Eliza Deroase, atepdanghter of the prisoner; Had lived with her stepfather for eight years. Had never known him to have cattle. He had had cattle to sell for other people. Crow-examined: My itepfather, on or about Jan. 83, had one cow and two calves. He was not depasturing any stock for anyone else. Mr Home never was at our premises. I have never seen him at our place. The cow and calves belonged to me. I bought them with my own money. It was a reddish cow. I sold the cow at Mr George's sale. The calves I still have. One is quite young. One is white, and the other red and white. A gentleman on horseback comes to our place nearly every Sunday. He has a black and tan dog with hue. He has no stockwhip, but only a riding whip. Mr Fisher here re-called Mr Horns, to prove that he (Fisher) was with him (Home) when he visited prisoner's place. Henry Knight, butcher: Had purchased many things from prisoner. Had told the bailiff that a horse and trap were his. Claimed it, and got it back. Lent it to Mr Yale for a month, and then authorised him to sell it. Told Mr Freece that it was to be sold, Wanted £l2 for it, but received £ll 10s from Vale for it. Cross-examined : I know of only one cart. That was the one I bought, with horse and harness, for £2O. The horse was worth £B, and the harness £2. I bought them on Jan. 4. I paid by oheque, which was cashed at once. It was a genuine sale. I did not - buy any pigs or cattle from prisoner. Thomas Henry Jones: Had exchanged cows with prisoner in February. Prisoner was to give 60s to boot, but witness had not seen the money yet. Prisoner brought the cow from witness* place, on the Waimakariri. Witness' landlord was Tisoh, but witness did not recollect prisoner asking him to bring in a cow from Tisch. I recollect now that he did ask me, but he afterwards said he had got someone else to bring it in. Cross-examined : The cow I got from him was a red and white poley cow. Vale never received authority from me to sell stock. I valued the oow at £B, and sold the other at 50s. I have been at Vale's house, once after the exchange of cows. I saw stock there, one oow, red and white, darkish red, and one young calf about six months old. That cow was not the same that I received in the exohange. Daniel Manhire, in the, employ of Messrs Montgomery and Co.: Had supplied the accused with goods on Feb. 9. (Invoice pro. duoed.) To His Honor : They are not yet paid for.' I can't say that I was aware that he was ah uncertificated bankrupt. To Mr M'Oonnel: I know nothing against his character. Ho has always paid for what he had.

This wm all the evidence for the defence. Mr M'Connel addreiaed the jury for the pritoner. Hit Honor tummed tip, and directed the jury to find a separate verdiot on eaoh of the tour counts of the indictment. The jury retired at iix o'olook, and after an absence of an hoar and ten urinate* returned to aik on what date the bailiffi were in pos« session foe the first time. ■ Hii Honor gave the neoeseary information. The Foreman asked if it wae necessary for the jury to find " with intent to defraud " on every count. Hie Honor replied that the question of fraud wae raited in every one of the counti. The jury again retired, and at half-past eight brought in a verdict of "Not Guilty " on all the oounte but the second—omission from hii statement—on which they found a verdiet of "Guilty." Hii Honor laid he had marred the point raited on the eeeond count, and it would be argued at the Court of Appeal The priioner wai admitted to the lame bail a* he had previously had. Mr Fisher applied for the coiti of the proseeution, to be paid out of the estate. Hit Honor laid he oould not make an order t he wai not aware of any Act ambling him to do io where » lingk creditor proseouted. . . .... Mr Fisher had been informed by a fohoitor in the lower Court that His Honor had the reiterated his statement as to bis having no power. What Mr Fisher should have done wai to go to the Bankruptcy Court, and under section 7 get an order from the Trustee to proseoute. The cost would then have been paid by the State, not out of the estate. , ..,,,« The Court adjourned at 8.4* p.m.talllO a.m. on Wednesday (to-day). LAW HOTIOBS.-THIB DAT. UtBAXCO. (Before His Honor lb Justioe Williams.) Young t. Hill and othen.—Beturn to order of May 3, 1881, for trial of plea of record in action 1661. Mr Harper. " Land Aet, 1877 " ft appeal of M. Fegan against Land Board of Canterbury.—For hearing of ease on appeal. Mr Gamok. rt Land Aot> 1877/' re appeal of William Baunders against Land Board of Canterbury. •—For hearing ef case on appeal. Mr Qarrick. Wan and Jones v. Lyitelton Harbour

Board.—For argument of demurrer. Mr Joint. , f*", 3 , *£&!** A< * rt eave *t So- 896, lodged by William Bowden.— Betum to order of June 20, 1882. Mr Bruges. Tisoh t. Bright.—For a deoroe declaring plaintiff entitled to hare the agreement in the declaration mentioned specifically performed. Mr Wilding. The Creditors' Trustee in Bankruptcy of George Green v. Wildie and others.—For hearing of ease on appeal. Mr Martin.