SUPREME COURT.

Timaru Herald, Volume LVII, Issue 6065, 26 September 1894, Page 3

SUPREME COURT.

r- ♦ TIM ABU— Tuesday, Skbtkmbbb 25th. (Before His Honour Mr Justice JDepniaton.) His Honour took his seat at 11 ftaJD. • GBAND JVOX. Tbe following persons were called _bs the Graod Jury for tbe criminal business:— Messrs 8 B Davies, J Guild, B Holdgato.aenr B Mo Queen, S A Bristol, W Croll, J Lane, T D Young, W Kvaoa, .0 David, P B Bunde. Ben, W Buthorford, B 1 Palliier, W Quinn, P W Eiby, W McKeowo, J MoKab, D J Caldwell, B Orwin, M Ferguson, B Edgar, J B Gilliet and 0 Clark. Mr Bristol was ballotted out as an extra grand juror summoned. Mr W Evans waa chosen foreman. Hia Honour said the Grand Jury would be already aware that there was very little business for them on this occasion. There was only one person charged, w^th two offences under the Bankruptcy Act, one of these offences being the incurring of debts without reasonable and probable expectation of being able to pay these dtbts aa well ea all bia: ether debta then due, the other the not keeping proper books of acoount. His Honour explained to tbe jury at some length what constitutes each of these offences, Under the old Bankruptcy Act it waa an offence to incur a debt without reasonable expectation of being able to pay that particular debt. A man might be able to pay one debt and not to pay all his debts. The new law is more strict, making it a mh« demeanour to inour a debt wheu a person has cot reasonable expectation of being able to pay tho whole, pf hia debta m full. His Honour sketched the circumstances surrounding the charge, and said it waa for the Grand Jury to say whether the accused had reasonable grounds, when he incurred the debta m question, of being able to pay all his debts m full. Xte amounts of the debta, £10 and £5 Bs, were oomparativoly small, but there must be taken into aooount with them all his other dobts, acd hie means of pajment whioh were disclosed m his own statements before the Offioial Assignee. As to tbe second oharge, of sot keeping proper books, what would constitute propor books depended upon the nature of amaa's business but the lair demands that, if a man goes into business at all, be must keep such books that his bininees transaotisns can be tested by them if bo goes bankrupt, and that if he dots not do bo he shall be punished. Whether the acoused had kept proper booka for the purpose of his businees the Grand Jury as buuaess men would be able to decide from inspection of them, better than from asy evidenoo about them. The Grand Jury having retired to their room the petty jurors were called and sworn. A few mtnutea later the Grand Jury returned with a true bill on the single indiotment placed before them, and were discharged. FRAUDULENT BAHKBTJPTCT. Jeremiah Oostigan was placed m the box and charged with (1) incurring debta of £10 1b 7d to Harris and Son, Ohristchuroh, on 3rd August, and of £5 8s 2cl to Milea and Co, Timaru, on the 11th August, without having reasonable and probable expectation of being able to pay the Batne as well as all his othor debts; (2) failing to keep proper booka of accounts within three years preceding hia bankruptcy on 21st August, The aooußed pleaded not guilty. Mr J W White, Crown Prosecutor, conducted tbe proseoution ; Mr Baymond appeared to defend. The following were eeleoted as the petly jury : — H A Bur don, B Morgan.B Chapman, H B Goodeve, F Aroher, A Montgomery, J A McDonald, G Shepherd, H Diofien, r Orr, W Bowman, W Measles. Nearly twice as many called up were challenged by Mr Baymond or ordered to stand by by Mr Wb^te. Mr Morgan waa ohoaen forem an. Mr Whjto pppoed (he oaie to tbe jury. Aa to the first charge of incurring debta, it would ba shown that on \Dgust oth, 15 days before he filed, a promtsaorj note of his for £42 4* became due and was dishonoured and he bad notioe of the dishonour j a summons was issued for the amount, end would have been beard on the 220 d, but on tbe 2lst Accused filed. On the Bth, tiro days attar the dishonour of the note, accused gave a bill of gale over all his stock and furniture and two horeea for a cash adranoe of £40 at the rate of 20 per cent— l 6 per cent for interest and 5 per cent for commission. On the 21it he filjpd, showing unseonred creditors £?53. A few days before the dishonour of the bill of sale he gave an order for £10 to Harria and Son of Ohriatchurob, he already owing then £46, at the same tjose promitiog to pay m a short time a portion of the forme? cjehfc, a promiso he never kept, Three days »ttev be gave the. bill of sale he obtained tobacco from Miles and Co to tbe value of £5 8s 2d he already owing the firm about £60. It would be shown that the aocused banked at tho Bank of New South Walea and usually paid m weekly up to the 16th July, and after tbat date be only paid m once £9. and * few day* later drew put £?. The bolder of the bill of sale took possession on the day Bcomed's filed, and cold the property, with the result that there was a balanoe of only about £15 to come to the Assignee. The only assets left to the bankrupt were section and cottage, nut down at £80, but mortgaged for £50, and tome book dobts to about £160 estimated to,produce £120, bat of these over £100 -. waa for betting debta, whioh are not recoverable by law ; aDd the balanoe cannot bereoovered for want of particulars m the books, bo that the book debts were really valueless ; hence the only available assess, trerg the balanoe over the mortgage on the oottagb, and (;he ba|»npo coming from Mr Wells. On the, secood oharge of not keeping proper booka it would be shown that only two books had been handed to the Assignpe and that they were utterly valueless for the purposo of disclosing the accused's financial position and his business tramaotions. . T Howley, clerk to the District Court of bankruptcy, proved the filing of the accused on 21st August. To Mr Baymond : Had known acoused for some yeari, acd ao far aa he knew him he had been a respectable person. Alex Montgomery, Deputy Official Assignee produced accused statements m bankruptcy, and read some figures from them. The secured debts were £155. The book debts were £135, estimated by bankrupt to be worth £12Q, but over £100 was for betting . debte. UWoritood he £a<i done a gtqod d^alin the way 1 of betting. Had not sent any oqqouotß i lor tbe balance of trade debts, for want of neoessary particulars m the books. He had 'not asked any of the debtors to pay the bet (ting debts, (His Honour thought they might be aiked' to pay's' tb.°Hgh *>§*! a \&^> np?i be recoverable m law tyerfl wait uqteing to prevent one asking for tbem.| Witness gave evidence as tp (be small mortgaged property and the b(U of ea,le to Welji, Was to receive a bslanoe of £.15. 5i fid from Wells, Praduced tbe bookß given him, whioh uoouwd. said were ell he had (booka described). To Mr Bavmond : Acoused gave me all tbe ggßiafcuse he poulj). U(, a»)d be OOflld sot give me any further partipulara. Did not look through hia betting books, did not aak for them, auppoaing them to be valueless, to himi Aoouied appeared to be a very illiterate men. Got gome particular from spoused about tbe acoounta, but he oould give no correot datea nor items. Took aotian— had him arrested— before the first meeting of creditors. Had had some bad books, but these were by far the worst. Jt was not a large business, but a fair one of its kind* To Mr White : He oould have* got some one to keep his books properly for 5b * week. To Hia Honour: The fewest books suoh a tradesman should keep would bo a day book, cash book, ledger, and bauk pass book,

B Pratt, tobaooonist, deßoribed the books he finds it neoessary to keep m his business. Alfred Harris, of M Harris and Son, Obristohuroh, gave evidenoe' of business done with acouserJ, of his promise to pay a portion of a debt of £45, and giving an order for £10 la lid more, at the beginning of Auguit. this order being filled, and of further promises to paj- a portion of the debt. He now owed the firm £55 18s lOd. To Mr Raymond : Could not fix the date of the last order within a day or two. Knew that the accused was a batting man. Had a bet of £J!5 to 25s with him on the Hew Zealand Cup. Aooused told him m Christ, ohuroh that he bad lost a lot of money at the raoea, and he gave that as the reason for his not being able to pay his debt. Henry Todd.porterat 'the Groavonor Hotel, proved the delivering of goqda from last witness to acoueed on 4th August. John Mcc, manager for Milei and Co, showed that aocused obtained a box of Juno lobaoao, worth about £5 from tbe firm on 6tli August. He then owed the firm nearly £60. To Me Baymond : His boy came for the tobacco. The boy had often been before for tobaooo. Made no enquiry whether the boy was authoriied. Possibly aooused was at Ghnstohuroh at tbe time. He was formerly i a tenant of witness, and always paid his rent { punctually. To His Honour : An invoice was sent some daya later, could not say when. His Honour (aid it must be proved that the aooused knew of the debt before he could be made liable for it. * Witness ? Thought the account containing tho item of £5 was not sent out before the •filing. X Clark, storeman to Miles and Co, delivered tobaoco to accused's ahepboy on the Bth. The boy had obtained tobaooo ■ before. Sent no invoice or memorandum with the tobacco. J T Warren, commisiion agent, gave evidence regarding dishonour of a p-n. for £42 4» on 6th August* and of an interview with acouaed about it. Agreed to renew it if accused brought him certain endorsements, but these were not obtained. Told him he would sue unless an arrangement waa made immediately. Accused said he was going to Obristohuroh and he woujd pay when be returned. Ultimately sued him, but aooused filed before the summons oould be heard. To Mr Baymond t Had an idea that aconsed was a belting man. T Well?, financial agent, on Bth August advanced accused £40 on a bill of sale over stook, furniture, and two horses. Charged him 15 per cent and 5 par cent commission. The money was repayable on demand. On tbe 10th gave him £10 more, and ou the 11th £40, and £10 2s on 14th. Took possession on the day he filed, and sold— had a balance of £15 5 j 6d to pay the Aisignee. To Mr Baymond : In making out the schedule went through the shop and was satisfied there was sufficient security. Saw sojused each day at the races, aooused aaifi he had .lost, but not how muoh. Would not have taken possession if acoused had not filed. Witness stated bow he disposed of the property. If the goods could have been sold m the shop by retail they should have fetched nearly £100 more. He wished to do that, but could not arrange with the landlord of the shop. A Stedman, manager of the Bank of New South Wales, showed accused's banking tranoaotions reoently. This ooncluded the case for the prosecution at 1,5 p,m, and the Court adjourned till 2, tbe jurors being set, free with a warning not to disouss the caie even among themselves. On resuming Mr Baymond addressed the Court on behalf of the accused. In reference to the debt incurred to Harris acd Sop, Mr Baymond analysed the accounts from tbe figures available, and argued that at the time of giving the orders to Harris and Son the acoueed was quite solvent, The Crown had not proved that he then owed more than £158, bub even taking the amount of debts put down at the date of filing, £253, there were moro than enough asseta to pay all debts at the date of the order to Harris and Sod. It bad not been suggested tbat the booka had been purposely negleoted for the purpose of fraud, and it bad not been proved that any loss had been made to the eatate— the Assignee had not even tried to colleot the account?, He urged that they oould not expeot first rate book keeping from a man m tho aoouaed't way of business, and thought the jury would aay the booka were sufficient m tbe oircumetancff. When Mr Baymond proposed to take up the debt to Miles and Co, Hia Honour said he did not think the Crown had sustained that charge, and Mr White said he would abandon it. Ac to the oharge of not keeping books, Mr Baymond argued that the books were as good as t yob a man m auoh a business would be likely to keep; There were imperfeot entriei bu( many of these had been made utisfaotory by the Assignee from information given by bankrupt. His Honour aiked Mr White what be had to say to Mr Raymond's use of his figures. They must take the evidenoe for the Crown as they had it, and this showed that there was surplui of assets at tho beginning of Augußt when the debt to Harris wbb inourred. Mr White urged that the alleged eacrifioe of £100 by the forced e»le should not be reckoned, bnt His Honour said they must reckon it ; it was m evidenoe and there was no evidenoe against it, whatever they might think about it. Mr White suggested that the bill of sale was a proof of the scouted'a insolvency. His Honour said no, it showed ojily that be was not able to get money other, wise to gamble with. Hia Honour summed up the case on the Harris debt, dismissing tbe other aa unproved. And aa to the bookkeeping he said this was a muoh lesa aerlous offence, but it waa an offenoe, 'Ihe law now says that a. ma.n ihall cot trade unless he keeps proper books j if a man oannoli keep books he either must not trade or must employ a competent book-keeper. And the acoused's booka were not books of aooount at all, and were perfectly useless to meet the. requirements of the Aot. The jury retired and after ten minutes ooneideration returned at 3 p.m. with a verdict of guilty on the second oharge only— of not keeping propor books. His Honour supposed that it was pretty well known that aoouied was a bookmaker ? Mr White : Tobacconists very often are. His Honour : There is no neoeßqary connection between tobaoco and, the odds, esoept that' a tobacconist's afoop is a, convenient plaoo for d.oing business on the odds. In this oaae the acous.ed seemed to have made his tobacoo business a aort of medium for big betting business, and all his creditors seamed to know that, If people ohoie under these ciroumstances to keep a man m business they must take certain risks, as m the present case, of seeing their money disappear through unsuccessful selection of the winners. It was not a oaße for e> eerious penalty. Hie Honour then sentenced accused to one month m Timaru gaol without hard labour. In reply to Mr White His Honour said it was no use making an order for payment of the costs of the prosecution out of the estate, ac there would be nothing left to take it from. The jurors were then all discharged. DIVORCE OAgD On the application of Mr Baymond an order was made m the oaae Orton v. Orton, completing the divorce. Al-ffiAl, CASE. Mr Kianerney appeared to preient an appeal from the decision, of Ihe Beji^ent l^ajjlst^to m the case q( Manning v, Jon a*, claim £81 7« sd, an aotion for damages, and Mr White appeared to oppose, In January last Mr Jonas, as landlord, distrained for rent upon the goods and Qtwtteli of his tenant, M B Brown, on a farm at Fairview. Among the goods seized and sold waa a portable engine, whioh was under a bill of sale to Manning for a balance of purohaae money £68 16s 6d, and this article waa told for £100 at the auction to Alexander Sutherland, father-in-law of Brown, aa agent for Jonas. The balance of the alaim waa for expenses inourred by the mortgagee m trying to defend bia property m the engine. The mortgagee sued for the amount m the Magistrate's Court, and judgment waa given against him, and now appealed againat this judgment. Mr Kinnerney presented the appeal on two grounds, finr, that m ft owe of distraint thert must be a real sale,- and m this case the land* lord sold to himself ; second, that owing to a misdeioription of the land m the memorac dum of lesas there was no, such tenancy at

1 would giro a power of diitraint. (The latter ground was abandoned during the discussion.) Mr Kinnerney quoted a number of oases 1 whioh lay down the law that when a landloid [ distrains the property must be sold to some other party ; he may not even take the property on appraisement by other parties. 1 Mr White said the sale was properly conducted. Appellant and Sutherland were the only bidden, and the engine fetched a better 1 price than it would hare done if the mort« gages bad bean the only bidder, and therefore the landlord was doing his duty by (he tenant m improving the price. This case differed from those quoted by Mr Kinnerney, inat> much as here the tenant was a consenting party. The sale was made under the Distress and Baplevin Aot, wbioh makes chattels on i the premites under bill of sale, the property of the tenant for purposes of distraint, and if he consented to the landlord buying them no one else could objeot. His Honour pointed out that if the consent of the tenant was material then it was a tale by the tenant to the landlord, and not a sale under the distress,, . ■ • Mr White ooptended that the sale at the worst was only irregular, and damages must be sought undsr the same Act, the measure being the differenoe between the results of a regular and an irregular sale. Here tbe results had been improved by the supposed ' irregularity. The distress being supposed lawful, there had been no loss made to be a subject for damages. (Several caies quoted.) His Honour remarked that Manning was nevertheless a loses by tbe transaction If the landlord's agent had not bid ha would hare got the engine at his own price. According to the law the landlord had no right to bid, and bis bidding was against Manning. Mr White admitted that he would have had no right to bid without oonsent of the tenant, His Honour did not see that a tenant haß a right to content to another person's goods being sold to pay bis rent. In reply Mr Kinneraey argued that the Distress and Replevin Aot does not give the tenant any right over a third person's pro. perly. He could not give bis landlord any rights that he hat not by the Aot. ' He submitted that there Bad been no sale, but a mere form gone through; and if it was suggested that it was a sale by the tenant that would be outside his powers altogether. The bidding of Sutherland may not have improved the results of the sale, as other people would not bid when they saw Brown's relative bidding. Hii Honour reserved judgment, and the Court rose at 4,30 p.m. His Honour afterwards dealt with a few motions iv chambers.