SUPREME COURT.—Friday.

New Zealand Herald, Volume III, Issue 648, 9 December 1865, Page 5

SUPREME COURT.—Friday.

CRIMINAL SESSIONS. (Before His Honor Sir Gh Arncy, Chief Justice.) His Honor toot his sent on the Bench at 10 o'clock. ffUAUDtJLENT AM) IIANKUUPTCr. Henry Harris (43) described aa a cartcr ofCftbbngo Tree Swamp Koad, was indicted for wilfully and fraudently omitting certain effects from tho schedule to his petition, presented to the Supreme Court in it* Insolvency Jurisdiction, ia which ho prayed to be relieved from his debts, under tho I) ebtors' aud Creditors' Act, 1562. Mr. Brookfield appeared for tho proso cution. Mr. Connoll defended tho prisoner. A largo proportion of the evidenco in this case wag | documentary. The prisoner filed his petition on the Sfch M«y, tho consenting creditor being Mr. Mears, corn dealer, to whom tho iusolvent was indebted to the amount of £74. The total amount of liabilities wore £1693. The prisoner hid assets to tho extent of bet ween £I*lo to £150; but a bill of sale was held over some horses, which wciv seized, nnd also a deed of preferouoo to his brother, to whom ho owed £152, but fc tho deed was null, nnd he induced his brother to go in with tho other creditors. He had a contract current with the Commissariat Department for clearing ashpits and cesspools at £21$ per annum. It was charged against the prisonor that he had concealed tho existence of this contract from his creditors, and that ho had received £02, u quarter's payment under it, which ho had not entered in his schedule. .For tho defence it was contended that this contract was what is known in law a* an 41 entire contract/' itud was not payable until completion. That the money leeeivod waj received to pay the necessary expenses arising under it for labour, horses, ca» ts, &c., that tho prisoner acted in iguoranco and under a mistakon notion of what were his rights. Mr. John Gallagher, deposed : I am Quartermaster iu tho Commissary Qenoral's Oilico. I have, in my possession tho advertisements for tendei'3 for Commissariat work. I produce a tender, signed by tho prisoner, and a bond for tho cleaning of cess* pools and a*h*pit£, from Ist April, 1565, to the 31st of March, 186 G. (Tenders were read by the Kegis-

Cross-examined by Sir. Comiell: I am conversant with tlio practice of llio commissariat otlico. 1 have known many ouch contracts taken. I have known a failure of performance, ono more particularly by tlio predece.-sor of tlio prisoner. I cannot say whether the contract was paid for aitcr the failure of the previous contractor lor work dono before. I know that paynieut-i were made quarterly before the failuro, but I do not know that any noney was paid afterwards. Mr. Brookfield said, fhat thoro was no connection between tho present case and previous contracts. His Honor said it was possible that tho object of tho question was to show that the department would only pay at particular periods, and that if a contractor became insolvent they would not pay him at all, but would pay it into the benefit of tho estate. Then it might be important to tho prisoner to show that he did not know that tho department would pay him at the time that he becumo insolvent, so that not being entitled to the money it had not matured to 1 tho quality of an asset; therefore thoro was not a fraudulent conccalment within tho meaning of the estate. Mr. Connell said that was the object of tho examination, and it was with tho viow explained by his Honor, that ho had asked it of the witness. Thomas Potter Mines deposed : I am a Sergeant in the Commissariat Otlice, and a Clerk in tho ollice of the Military Accountant. I am awaro that tho prisoner had tho contract referred to by the last witness. Jfo performed the work for two qua-terfl, but ho only received payment for ono. He wis performing that contract on tho Gth Slay. I hold in my hand a receipt ol the prisoner for £62. Cross-examined by Mr. Urookfield : I have a notice in my hand with tho prisoner's signature, requesting that no person but himself should be paid. Ho ciune to tho Military Accountant's office, tho Commissariat ofiico. This requisition was dated the lltti of July. Tho prisoner had no other contract, and the requisition referred to ono. Theophilus Kissling deposed: I am Deputy-Ro-gistrar of tho Insolvent Court. I havo in my chargi tho petitions of insolvents filed in the Supreme Court. I produce a petition signed Henry Harris, datod the 6th of May, 1865. There is an affidavit annexed, verifying the truth of it. There aro certain s -hedules annexed to the petition. There aro tlireo altogether, and a balance sheet, showing debts, assets, with a balance sheet. Tho petition was filed on tho eighth of May. I cannot tuy how often the prisoner appeared beforo the Court, but I can aUito that he appeared on tho 23rd of May, and several times subsequently. I liavo in my custody also a deed of arrangement between tho prisoner on tho ono part and Thomas Milne Machuttio and J nines Soppct on the other part. It is dated Juno tho Ist, 18G5. Cross-examined by Mr. Connell: I was present at tho examination of tho defendant on his petition. I cannot say that I remember anything being said on the first appearance. I remember the examination on the 6th of October, when it was referred to.

H?. T. S. Weston proved tho deed of arrangement as attesting witness. I was employed by tho defendant in accordance with his instructions. The schedules wore also prepared in strict accordance with his instructions. I saw the defendant attach his signature to the various dscuinents. Boforo the defendant filed his petition, it together with tho schedules wore read over to him. The body of the notico to Commissary Stanley Jones is in my hand writing. To tho best ol my recollection I was present on every occasion whoa the defeudant cuine up lor hearing. I think the insolvent wis examined onco. I cannot say when it was precisely. I presented the deed duly oxecuted by tho insolvent's trustees and creditors. It was subsequent to tho registration of that deed tli.it tho in solvent was opposed'ind that anything was heard of the contract with the Commis-ariat.

Cross-examined by Mr. Conncll: That was the first time it was heard of in this Court. I cannot say whether I was informed of it prior to the execution of the deed bearing date tho first of June. (Tho deoc. was put in). I cannot say whether I heard of the contract previously to the filing of the petition. My impression is. that I did not, but I believo I did hear something about it, about tho timo of making tho deed of arrangement. Mr. Conncll: Did you ever advise the insolvent to include the claims under tho contract in hi) petition ? Mr. Weston: I advised him to put all money) earned under that or any contract in his schedule. I did so whon I heard of the contract. I romeinber advising defendant in tho presence of Mr. Machattis to try and arrango the matter, but I could not induce him to do so. I went evon as far as to say that if he would arrango tho matter with tho trustees I would again take his case in hand and on tho next hearing day procure lor him his discharge. As to tho residue I told him that if the trustees allowed him to carry on tho work, he having earned tho money would be ent tied to receive it. Thero was a meeting of creditors at my otlice tubsequent to tho deed respecting tho purchase for tho prisoner of some horße.s, and it waa then that, as I beliove, a contract w.th tho Commissariat was mentioned for the first timo.

lie-examined by Mr. Urookfield: Tho instructions as to drawing up the petition wevo given at diilbront times.

Henry Hill, .solicitor, deposed that his signature was attached to the affidavit annexed to tho petition, i'ho prisoner Bwore it before me Thomas Milne Muclmttio deposed that ho was a creditor for £17 or £±8, and was appoiuted trustee under the deed of arrangement. It was after the execution of the de«d tbat I heard of tho contrast with the Commissariat. Thero was no estute- io realize. Tho horses had been seized by Mr. Win. Swanson. That was the wliolo of tho estate. I gave n >tie to tho Commissary-General on the 6th or 7tJi of July last. By Mr. Connell: I had a conversation with tlio prisoner respecting the claim of tlie trustees to a portion of the contract money. I had several conversations with him. The first was after tho examination of prisoner before tho Court. After ho had been apprehended upon this charge, the prhoneroll'ered payment of £62, part of the contract. 1 bud asked him previously for an order to roceivo tho money, but ic positively refused. This closed tho case for tho prosecution.

Mr. Oonnell addicssod tho jury. Ho said that the prisoner had offered to pay Mr. Machattie tho £(12, but Mr. Machattie refused to take it. It would bo proved that the contract was one contract, that it was not duo until tho end of a year, and that the money defendant drew of it was Jo pay his men. John James deposed: I was in tho employment of the prisoner on the contract for the Commissariat. I was employed/rana tho Ist of to 13th of i, dan atfa&a £&M VMtati&l wae Employed w.-xh

mo, a.sO i the prisoner's brother and nephew. The prisoner s horaes and carts were employed. We wore paidby cheque - from tho Barracks on tho Bank of Auckland, which prisoner got cashed and then paid u. Prisoner paid mo £9 4 3 . for work done. P By Mr. BrookQeld: I w on t to work on tho 3rd of stables 369 Wor ° kcpt in tho P r ' 9oner ' s

•Yni T ! a :I am brother <o the prisonor, I workod for him at tho barracks from tho Ist °f April to tho end of Juno. I was living with the prisonor at tho time. He found mo board and lodging aa payment for my labour. Ho owocf mo money in May last. He owed mo about £152, secured. I wont to Mr. Weston's offico with the defendant. My brother told Mr. Weston about the contract. He told Mr. Weston that it was not due, and Mr. \\ eston said ho did not think tlioy wore entitled to it. Mo added, " I'll make it all richt • leavo that to tno." My brother persuaded me to go to Machattio, or I would not have done what I aid. Oross-oxaminod by Mr. Brookfield : I did not know that tho defendant was in difficulties at tho tuno ho gavo tho deed. I hnd trusted him with money bol'oro ho camo to Now Zealand. Ho was in temporary difficulties at the time, but I thought ho would recover. John Taylor, examinod : I remember hero in tins Court on tho Gili of Oclober. I remember houring u conversation between tho prisoner and Mr. MjiclmUio to compromise the case. The prisoner ollorcd £30 down, and £30 in thrco mouths. Machuttio said lie would have all or none. A witness named Frccmont also deposed that he had beon paid £9 'is. for work dono on this contract. I hat tho prisoner got the cheque, got it cashed, and then paid his men with it. Robert Ifurrid made a similar statement aa to the disposal of tho money received in payment for a quarter's {icrforman'o of tho contract Mr. brookfield addressed tho jury for the prosecutlo contended that, tho evidence in fcho cases sustained the charge iu the indictment. His claim to honesty, because of getting his brother, who hud a bill of sale to come in with tho other creditors, was disproved by tho naturo of tho transaction, and there was nothing voluntary about it. It was proved beyond all question thut ho had omitted to pay tho £62 ho had received from the Commissariat for the benefit of creditors. Mr. Weston had proved that notice to tho Coniinissuriut was written under tho prisoner's instructions, and Mr. Maehnttio pr ved that tho prisonor had positively refined co tho emolument derived from his contract with tho Commissariat to be divided for the benefit of tho creditors.

Ilia Honor sum-nod up the evidence with gloat minuteness. He charged the jury that a person in the situation ot tho prisoner was bound to give every assistance in his power tj the creditors, nnd tho statute visited concealment of property or omission of it from (lie schedule with heavy punishment. Wore it otherwise the fair trader would be entirely at the mercy of designing and dishonest persons. The jury retired, and after about twenty minutes' at fence, returned into Court with a verdict of guilty against tho prisoner.

Llis Honor, in passing sentence, snid that he would deal with t-lio prisoner in the samo spirit as hud boen manifested by the prosecution throughout the inquiry. Looking to the amount that was duo to one individual who was the prosecutor (Mr Hachattie) in this case, the Court could not help feeling that the trustees woro actuated by no other wish than that of doing their duty to the creditors and also to Lho publie, and thought the public wero very much indebted to them for this prosecution, and forcing home the proof of tho offence of which the prisoner had bean found guilty, showing that creditors are not to be tricked by persons who coino before tho Cou t ns insolvent, at tho samo time lli.it they eoncoal or omit to insert a portion of their assets from their schedule. It appoirod to the Court that tho c: editors very frequently did not get all the property which of right bolonged to thom from insolvent debtors, and that tho schedule wiu frequently a Irap for tho creditor to full into, whllo tho dobtor held aloof from tho snaro. Indeed I hero did seem to ho a feeling ia tho mind of some debtors that they weio very injured individuals, for that having got tho money of their neighbours, and becoming insolvent, 110 sooner did that happen than they had merely to go to thoir atlornoy, instruct thom to mako an application to tho Court, and so let tho creditors tako thoir chance. Insolvonts in several cases esteemed it quito a favour to come to tho Supremo Court to (jivo ovidonce to enablo their trustees, and when tho trusteo3 caino to look at tho echodulo, although they found morely a list of dressed up assets, tho insolvent thought thero was nothing moro to do than to get his as a matter of course, and go nbout- his business. (His Honor read from his notes several passages of tho defendant's evidenco before tho Insolvent Court.) The prisoner hud exhibited a disposition to set at defiance and to conquor his creditors. A porson who had within an hour after his deed of assignment received £20 had omitted from his schedulo, a very important item of emolument which was accruing. Ho assured the prisoner that if ho pursued this course ho would never got his discharge from his debts. The Court would, as the prisoner had been told, deal with him in the sumo spirit as had boen shown by the prosecutor, but it should be und> rctood that debtors could not apply lo tho Court for their discharge without giving the fullest information as to their affairj It was possible that tho prisoner might get out of tho Colony, but if ho woro over to hopj to bo relieved from his liabilities, )io must como to tho Court with the fullest account of his estate. The Court hoped that tho leniency shown would have the < fleet upon the prisoner of inducing him to moot his creditors in ft proper spirit, when ho had done so, and tho whole of his ca«e was bbforo tho Court, his Honor would h'ivo tho greatest pleasure in relieving him from his liabilities. Tho fentenco of tho Court was that the prisoner should enter into his own bond for £100 and find a substantial surety for £200' to como up for judgment when called upon. TUB BENCH AND TUB COMMON JURY.

During tlio retirement of tho jury in tho case of Harris, Mr. Spittle asked permission to address tho Bench upon a matter which was of very serious importance to that section of tho public liable to servo on tho common juries in tho Supremo Court. Ho begged to bring under tho notice of his Honor that the juryoon wero taken from a class of mon who maintained themsolvos and families by daily lnbour, and to tcso (heir time, which represented a valnablo equivalent in monoy, was to them a very Berious loss. The object ho had in addressing tho Court was to impress upon his Honor the great ineonvonience, as well as loss, persons of this c'ass wero put to by being obliged to attend tho sittings from day to day for a fortnight or three weeks, so that his Honor might in some way remove the grievanca of which many poor men had to complain. His Honor, in reply, taid that public opinion was divided upon tho subject—one section appearing to think, that jurymen ought not to bo puid, and the other that they should obtain some compensation for their loss of timo. Tho fueling, howover, was gaining ground in England that jurors wero entitlod to aomo payment, not for their services, but by way of compensation for loss of time, or inconvenienco or expense occaiioned. Tho subject might bo capable of arrangemont by allowing fur tho jurymen some such scale on account of loss of time or for expense incurred, such as wore allowed to witnesses coming to give evidence. No doubt it was a groat evil, and a gentleman informed hiir.° that ho had to keep a man's family from actual distress during the timo the head of tho family was attending in Court to boito on tho jury. Th ro was a great difference iu England, for there the men who were summoned to sorve on tho petty jury were mostly tradesmen, furmers, or others, of substantial means. Here it was totally different—it was a sort of universal Buffrago hystem. Iho Judgo had, however, no power to interforo in the matter. He would only recommend those who were 1 ablo to servo on juries to take some action towards petitioning tho Legislature on tho subject The power to change the existing mode, lay with the Legislature alone. Mr. tjpittlo then retired. The Court rose at 20 minute 3 patt 5 o'clock, until Monday morning at 10 o'clock.