ALLEGED BREACHES OF THE BANKRUPTCY ACT

New Zealand Herald, Volume XXXI, Issue 9477, 5 April 1894, Page 6

ALLEGED BREACHES OF THE BANKRUPTCY ACT

FURTHER- CHARGES AGAINST A. HEANY DISMISSED.

At the Magistrate's Court yesterday, before Mr. H." W. Northcrofb, S.M., Alexander Heany, formerly a hotelkeeper and storekeeper at Lichfield, was charged with having, on the 19t.h of October, 1893, then being adjudged a bankrupt, unlawfully failed to deliver up to the Official Assignee part of his property, to wit, £70 10s in money, which was divisible among his creditors. Mr. McAlister, instructed by the Crown Solicitor, conducted the prosecution, and Mr. James Russell appeared for the defendant. Charles Rutherford Walker, clerk at the office of the Supreme Court Registry, was the first witness called. He produced the creditors' petition and affidavits sworn in the matter of adjudicating the defendant a bankrupt; also the receiving order made on the 11th of October, and the order of adjudication made against the defendanb on the 19th of October, 1893. William Gray, a member of the firm of Cook and Gray, Auckland, accountants, deposed to serving a duplicate of the receiving order on the defendant on the 12th of October, 1893. Witness was supervisor of the estate under Mr. Lawson. On the morning of the 19th he asked the defendanb to give him his estate, which would include books, papers t assets, etc. The defendant handed no money over to witness. Ho asked him for his bank books, .and' he said he had none,(but he handed witness a ledger, a cashbook, and a daybook, which were used exclusively for the store business. Witness asked if there were any books in connection with the hotel, and defendant said that he had some. Witness made repeated application for them, and ultimately gob two small pass-books. Witness said to him, "If these are all the books you have for . the hotel, the less said about them the better." ' Witness was present on the 7th November, when defendant was examined as to-his assets. He heard him tell Mr; L&wson that he had no banking account. Witness discovered the banking account between the 11th and 13th November, being one mouth after he had taken possession. In the original statement of the 6th .October was mentioned £12, and in the statement of the 12th £20. No payments were mentioned during the period from the 6th October to Pith October, 1893. During the month the Official Assignee was in possession and carried on the business, the takings averaged from £5 to £5 10s. Witness ascertained that there was a bank account. The store cash-book showed a balance to credit of £12 to £15. Witness found in this bank account a certificate that was put in by Mr, Hume, manager of the Bank of New Zealand at* Hamilton, showing that £70 103 was drawn out on the 18th October, 1893, and there were no payments to credib from thab date.

Throughout the whole of the examination in . chief there was considerable argumentation between counsel as to the irrelevancy of the evidence, thab the prosecution sought to elicit, defendant'* counsel making numerous objections. Mr. McAlister thought that if he did nob bring out certain facts, evidence would be given, when be bad closed his case, by the defonce showing that sums accounted for by the defendant was part of the sum of £70 10s. His Worship said that Mr. McAlister could ask any questions bearing upon any particular point arising out of the crossexamination.

Mr. McAlister thought thab the Magistrate and Mr. Russell wanted to take the case from him. He did nob seem to be allowed to prove anything. Mr. Northcroft said he had always been of opinion that the duty of a Cfown Prosecutor was to investigate fully any case in hand, for the purpose of eliciting any facts that would tend towards establishing a prima facie case and then leave the Bench to decide, to hold the scales of justice as fair between the prisoner and the Crown, and not to import any suspicions into tho case. He had always understood that this was the duty of the Crown Prosecutor. In the present case, however, he could not say that this had been done. . His Worship then invited counsel to proceed with his case.

Cross-examined by Mr. Russell, witness said that he was appointed supervisor of the defendant's estate at the first meeting of creditors after the bankruptcy. Previous to this meeting Heany came to their office and consulted with his creditors. A meeting was afterwards held on October 6th, 1893, at which Heany said he had a purchaser for his estate which would enable him to pay his creditors seven shillings in the pound, but the creditors refused that and requested him to file. Witness was virtually in the hands of the Official Assignee, and took his instructions from him. According to this bank account and the evidence given by Mr. Hume, the defendant had drawn out £70 10s on the 18th October, and on the 19th October was adjudicated a bankrupt. This item of £70 10s was the subjecb of the present charge. Particulars of the bank account were obtained from the bank by Mr. Lawson after witness bad given him information on the subject. These proceedings were nob commenced until the 28th February. One reason for this delay in prosecuting was because there was to be a public examination, and subject to that witness had been away from town for some time. The Official Assignee knew of the existence of tho banking account about the 15th November.

John Lawson, Official Assignee in Bankruptcy for the district of Auckland, and in the estate of Alexander Hoany, gave evidence as to his dealings with defendant. Mr. Russell, in his opening remarks, said ho thought the prosecution must fail for several reasons. There had, in the first place, been no demand made to the defendant to hand over the property referred to in the information. It was necessary, before the Crown could succeed, that some demand should be made.

His Worship ruled that the intention of the statute had been complied with. Mr. Russell, in continuing, submitted that there was no evidence to show any attempt to defraud. He briefly went over the evidence, and showed that the account in the Hamilton bank had been opened for the purpose of allowing ' the defendant to change the cheques received by him from different men in the locality. That of the amount drawn out on the day in question over £50 had been paid to men who had entrusted Heany with cheques, and the balance had been used by the defendant in order to obtain the necessaries of life, and to pay bits expenses to Auckland. The men to whom the various amounts had been paid were known. He submitted that they should have been brought into Court to prove that they had nob received these amounts. He further stated that the defendant was not aware of the order of adjudication when the cheque referred to was drawn. He spoke at considerable length, and concluded his remarks by saying that it was necessary for the prosecution to prove that the money was divisable among the creditors. He thought it would be straining the Act to a considerable extent if the Bench should find the charge was sustained.

Mr. McAlißfcer in replying said that the defendant had on the 9th October drawn a cheque on the Bank of New Zealand at Hamilton for £7010s. On the 12th October a receiving order was served on the accused. He argued that under these circumstances it was reasonable to suppose that this money was the property of the defendant, and ought to have been accounted for."

Mr. Northcroft said it appeared from the evidence adduced that the defendant had been entrusted with these amounts by men living in the district, and the money was not therefore his property. In his sworn statement when examined at the Supreme Court the defendant had stated this fact, and also given the names of the men to whom the money had been paid, and if there had been any doubt as to the truth of his statement tho men ;should have been called to disprove it. : The defendant had drawn the cheque on the 9th ,of October and paid it away, and therefore it could nob be said to be money divisible among his creditors. He considered that after the defendant's explanation made to the Supreme Court as bo the manner bo which the money had been disposed of, which statement' had nob; been shaken, he could only discharge the accused. Mr. McAlister asked permission of the Bench to withdraw the second charge. ,