EXTRAORDINARY PROSECUTION

Otago Daily Times, Issue 18349, 13 September 1921, Page 8

EXTRAORDINARY PROSECUTION

SON VERSUS FATHER. CHARGE SCATHINGLY DISMISSED. Tho case in which Hector Freeman James proceeded against his father, John James, on a charge of having received the sum of £329 11s 7d on terms requiring him to account for tho same to Joim James and Co. (Ltd.), and having fraudulently omitted to do.so, was continued in the City Police Court yesterday.—Mr H. Brasch appeared for the informant and Air Hanlon for the defendant. Mr Hanlon continued his cross-examina-tion of Francis James. Witness said that

tho terras of the agreement under which Hector was to work for his father were discussed in the family. Be did not know directly what occurred. between Hector and his father. His sympathies were with Hector in (he matter; he believed him to be in the right.—Mr Hanlon read extracts from letters written by witness alluding to his father in derogatory terms. Witness acknowledged that he had no time for his father, but denied that he would go out of his way to do him an injury. Hugh Mitchell, recalled by Air Brasch, submitted figures made out by him from the books. He said it was impossible to give dates, but be believed that the figures gave a true account of matters. Mr Brasch was inclined to treat the witness as hostile, but the magistrate pointed out that ho must show tnat there was hostility. Mr Mitchell, explained that a sum of £3CO shown as a fictitious entry had been put in by Melville James to "put one on to” Francis, and give him something to take to his brother Hector (the applicant). The sum was counterbalanced by a cross entry. Denis O'Connell, builder, gave evidence as to paying cheques to the company fpr work clone to the amount of £317. Evidence was given by the informant. Ho said that after he loft school ho joined his father on the underatmdincr that tie was to receive a one-third interest in the company and to draw 2s 6d a week till he came of age. He continued lo work for his father till ho went to the war, about four months after he became of age. His father strongly objected to his going to the ivar. When he returned from the war hia father told him that he had forfeited all his rights, but that a company would be formed in which he (informant) would receive a one-third share. A company was formed, and the memorandum and articles of association were those produced. Ho worked for the company up to.-May. There was £63 owing to him for wages, and he. had applied for payment of this on several occasions. Differences arose through the company wishing informant to hand his pension over to the company. His father told informant he was “boss,” and that if fie did not hand over his pension, he could go to —. Witness did not ask to remain with the company, but he desired to do so. He loft the service of the company and went to New Plymouth, where he received a letter from Air Nichol (the company’s solicitor) suggesting that to remove an obligation on his (informant’s part) to pay £6OO odd for his shares ho should transfer them to his father. Witness regarded tho letter as a swindle to rob him of his interest in the company. Informant knew what profits tho company was making and what contracts it had carried out. The business was very remunerative, and was practically without opposition in Dunedin. Informant returned to Dunedin and asked to see tho books. He made repeated applications to see the books. He heard discussions that led him to the conclusion that his father intended to leave Now Zealand, and ho wrote a letter warning him that such an action would lead to his being arrested for fraud

The informant was submitted to a lengthy cross-examination, in the course of which many extracts from letters were read, and Mr Hanlon showed that the evidence of the informant did not Hilly with the' affidavit ho made in Wellington when obtaining the warrant for his father’s arrest. To other questions, witness said he had “paid £B3 6s on his shares in the company, £SO towards payment of the shares and £33 interest. That was in December. He found a cash book in his father’s bedroom, and mentioned certain entries to his brother Melville. Informant did not consult any solicitor other than Messrs Sievwright, James, and Nichol until after May 5, when a general discussion took place. Witness acknowledged having consulted various legal firms. In one case he was told that the company was prepared to allow him to appoint his own accountant and have the books made up, but he (informant) did not consider that,it was his place to get the books made up.—Mr Hanlon produced an extraordinary letter in which the informant referred to liis father in ftiost abusive terms, and demanded a settlement at £5500. The informant said that this demand was made in order to compel the company to make up the books. —To Mr Brasch: The figure £5500 was an absurd one, and was merely “bluff.”—Further questions by Mr Hanlonrelated to the applicant travelling to Wellington on the ferry steamer the same night as his father, and obtaining a warrant there 1 for his arrest The applicant refused to acknowledge that he knew his father was only going to Sydney to be married. T’he case for the proseution having been concluded, Mr Hanlon submitted that the informant had completely failed to make out a pHma facie case against the defendant, and that the defence should not be called upon at all. He would like to say, however, that it had been a very terrible blow to the father that he should have been arrested at the instigation of his son just as he was going over’ to Sydney to be married. The son knew perfectly well that his father was well off, and it was absurd to suggest that he would steal a few hundred pounds from his own sons, to whomactually he had intended to give the business. The original intention of the father had been to make the business over to his two sons, but he had been advised by his' solicitors that the safest and best thing to do was to convert the business into a company, partly in view of the fact that the Lad just returned from the war might kick ever the traces. The boys, up to the time the alleged theft 1 took place, had not 1 paid a shilling into the company. So far as the father was concerned, it was his desire that sooner or later the business should bo handed over to his boys entirely, and so far as the informant was concerned, every effort had been made to pacify him by giving him the opportunity to have a voluntary liquidation, and do any mortal thing that might appease his desire to make a row about affairs. With regard to the suggestion that his father was disloyal,-it was absolutely preposterous. Defendant had been a Volunteer for 40 years, and was a particularly strong royalist. To say that he did not want his son to go to the war was wicked; defendant was only too glad that some of his sons had been fit and able to go to the war. Then to say that he wanted the. boy’s pension was a foul suggestion. It was simply a coinage of the ■ young man’s brain, or the coinage of his brother. Counsel did not suggest that the informant was as bad as his brother, who made the balls for him to fire. The other was in a lawyer’s office, and for that reason thought he know everything. He was the “gentleman” who wrote the wicked letters, and they thought to some extent bad led the other boy astray. Ho (counsel) said these things because one side of the case had got to the public, and he would like to have the opportunity of clearing matters. Not the shadow of a case bad been made out that the money had been stolen. He could not see the slightest suggestion for the allegations that had been made that the accused had intended to defraud the company, and, through the company, the informant, of the amounts alleged to have been fraudulently withheld. The magistrate agreed with counsel that there was no case to answer. Ho said that the prosecution should never have been brought. The solicitor appearing in the case for the informant was not consulted before the proceedings had been instituted; he took the case after the proceedings had boon taken by the son himself. The proceedings were the result of the affidavit in Wellington, and the result shewed absolutely no foundation for the young man coming into court and laying a criminal charge* Mr Mitchell’s' evidence showed what the position was. It way, more than clear that the books had not been well kept. They were first kept by the informant and when taken over by the older brother the latter followed the' others’ system, which was bad, though there was sufficient in the books to enable them to be made up. It was clear that both amounts wore debited to the defendant, who did not keep IHe books. There was nothing secret about the thing. All that defendant did was to sign hi? name as the person paying in, the butts being written out by the son, Melville. There was nothing secret and nothing underhand. The informant’s position in regard to the father had been put before the court from almost the time ho left school, and in fairness to the defendant. it should be said that his position in regard to the company was founded on an agreement of December 10, 1919, Tty which the father founded the company with a capital of £2OOO, and the father and