Supreme Court.

Star (Christchurch), Issue 333, 8 June 1869, Page 3

Supreme Court.

CRIMINAL SITTINGS. This Dat. (Before bis Honor Mr Justice Gresson and a Common Jury.) His Honor took his seat in Court precisely at eleven o'clock this merning. FALSEFTING BOOKS. The case of Kegina v. Bernard Simpson was called on. Dr Foster said that the defendant was in Court, sitting by his Bide. His Honor: And being for a misdemeanor, you ask him not to be put in the dock ? Dr Foster: Yes, your Honor. Hie Honor: Well, that is his right. The Registrar directed the defendant to stand up. The defendant stood up accordingly, and was formally arraigned. His Honor: I understand you demur to this, Dr Foster ? Dr Foster: I do, your Honor. His Honor: Have you your rejoinder ready, Mr Duncan ? S^Mr Duncan said he would put in hia rejoinder by and by. His Honor said he had considered the grounds of demurrer so far as he had an opportunity of doing so in the very limited time at his disposal, and had come to the conclusion that the demurrer must be over-ruled on all the three grounds argued. He did not mean to say that he should not have liked to have had a longer time to consider the case. He thought it was the intention of the Legislature that the Debtors and Creditors Act, 1862, should have a retrospective operation within three months before the defendant's bankruptcy. Therefore, upon the three grounds, the demurrer must be over-ruled. Dr Foster: Your Honor gives leave to plead ? His Honor replied in the affirmative. He had previously expressed his willingness of giving every opportunity to discuss the matter. Mr Duncan complained that he had not been served with the notice of demurrer, and of the grounds intended to be argued, until the last moment. Ilis Honor said he thought notice should have been served much earlier. Not only had the Crown Prosecutor, but the Court also, been placed in a difficult position in consequence of such short notice. Dr Foster: I will plead "Not Guilty." The Registrar desired to have the plea from the defendant, who stood up and pleaded "Not Guilty." Dr Foster: I think it very probable that

we shall take proceedings in error upon your Honor's judgment. A jury was then empannelled, and Mr Wm. Schmidt was chosen foremaa. The witnesses on both sides were ordered' out of Court, at Dr Foster's request. Mr Duncan then briefly stated the case to the jury, and called the following evidence in support of the indictment : — R. W. Fereday : I am a duly qualified barrister and solicitor of the Supreme Court in New Zealand. On the Ist of August, 1867, the affidavit produced was sworn before me by Bernard Simpson, signing himself " B. Simpson." That is my signature attached to the affidavit. This is a petition for sequestration, protection, &c, under the Debtors and Creditors Act, 1862. R ; chard Davis : In the month of August, 1867, I was acting as Deputy-Registrar of the Supreme Court, at Christchurch. The petition produced was filed in tbe Supreme Court on the 2nd of August, 1867, and was presented to the Court on that day. An order of sequestration and protection was made on the 2ud of August. I hold in my hand an office copy of the order. [The order was read to the jury.") James Edwin Graham : On the 2nd of August, 1867, I was appointed scqueatrator and receiver in the estate oil Bernard Simpson, under order of the Supreme Court. In pursuance of that appointment, I received two books from Simpson [produced]. I employed John McGregor to make out accounts of what appeared due, and to collect them. I received through the hands of McGregor cortain amounts. He rendered me an account of what he collected. I think I had the books nearly three months. I sent them back to Simpson's shop at the request of Mr Louisson. My attention was called particularly to one account in the ledger marked W, under the head " Lizzie Harding." I observed there a closed account, at the Resident Magistrate's Court the other day. Dr Foster objected to this evidence being received. The witness had not s:ud a word about the state of the accounts when he received the books. Mr Duncan said he was going to give evidence under the indictment if he were allowed to proceed. Examination continued : 1 believe that account was closed when the books were first in my possession. I went through the whole of the ledger, along with McGregor, when the books first came into my possession. The account in question, I believe, was then closed by three credits, the first of £60; the second, £15; and the third, £8 18s 10 i, amounting altogether to £83 18s lOd. When I examined this book at the Resident Magistrate's Court, I found another account under the head "Lizzie Harding," at page 349. I found it by referring to the index, where the name "L. Harding, 349," appears on the last line. On turning to that page, I found an open account, shewing a balance due by her of £53 18s lOd. I was subpoenaed by Miss Harding to give my evidence as late Inspector in Bankruptcy in the cause of Simpson's accounts. The plaintiff was Alfred Louisaon, and the defendant Lizzie Harding. I examined the account of J. J. Loe, when I first took possession of the books. It was at page 387. I found that also a closed account, shewing the last balance of £18 19s as paid by cash. I examined the account at the Resident Magistrate's Court, and found it an open account. It appears that there is a balance of £18 19s due by Loe. I noticed something peculiar in the index, namely, an alteration. I find that the figures 387, referring to the folio which shews the account as closed, has been altered to 386, by writing over the 7. At 386, I found the open account. Dr Foster asked that the Crown Prosecutor might be put to his election of one particular account on which he would proceed. The learned counsel objected to the evidence as to Loe'fl account being received. His Honor overruled the objection, being of opinion that the defendant ought to be prepared to shew that the books had not been falsified. Examination continued : The open account was not there when I had the book in my possession before. lam sure of that. There is an account under the head of " M. M'Donald." The index states "M. M 'Donald, hairdresser, Lyttelton, 196," and the figures " 372 " following. On turning to page 372, 1 find there an erasure on the credit side of the figures " £15 8s 9d." Those figures on credit sides were in the book unerased when the book came to my possession first. It shewed a small balance of £3 18s as due by M'Donald. I examined John Hart's account also when the book was first in my possession. The following is the index of the ledger, "J. Hart, Devonshire Arms, 35, 318;" then comes a figure which has been written over, which I can distinctly read as 388. That has been written over, and now appears as 390. When the book came in to my possession, there appeared to be 14s due by Mr Hart. I collected that. There were two credits by cash at page 388, amounting to £7 16s, leaving the 14s due. At 390, 1 now find an open account against Mr Hart of £7 16s as being due. lam quite certain that Harding's, McDonald's, Loe's, and Hart's were closed accounts, so far as I have stated, when the boots came into my possession. The effect of these accounts being closed, was to make the estate apDear smaller than it really was, and to prejudice the creditors. I didn't hear what arrangements had been made by the defendant with his creditors. I checked the entries in the ledger with those in the journal when the books first came into my hands. The entries by cash in the cases referred to are left undated. All the others are dated. Cross-examined by Dr Foster : I received two other books, I think, from Simpson — one a store-book, and the other a bank-book ; I won't be certain. I received all the books about the 4th or sth of August. They were given up immediately upon my asking for them. I went over the accounts within a week after receiving the books. They were

under lock and key at night ; not during the; day. My duties require my being a great 1 deal out of the office during the day. I had' 1 my brother and McGregor in the office at that time. I mrde no note in writing of the' accounts as I went through the books. I went through the ledger for the purpose of examining the accounts generally, in order to get a general idea of the estate. I cannot say but for subsequent inquiry that my memory would have been accurate as to those accounts. My first subsequent examination ot the books was on the occasion of Harding's case. The plaintiff did not gain a verdict in that case ; the defendant obtained judgment. The effect of that judgment was, of course, to show that the account was proved. Mr Duncan said that Mr Graham could not give proper evidence of the effect of the judgment. His learned friend should have brought the Resident Magistrate as a witness, if he wanted evidence as to the effect of the judgment. His Honor expressed a similar opinion. Dr Foster contended that it was competent for a person who was in Court to give evidence of what had taken place. His Honor : Evidence of facts, but not of inferences. Mr Duncan's objection was allowed. Cross-examination continued : This book was produced to show that defendant paid the money. The erasure in McDonald's account, at page 372, was made while the book was in my office, and is initialled by "J. McG." That was not done iv my presence. The erasure or the initialling was not there when I first saw the account. I became aware of it about a quarter of an-hour after it was done. I don't recollect Simpson calling my attention to that particular account. McGregor first called my attention to the erasure; he told me of it; he told me that Simpson had been upstairs with him. I scolded McGregor for allowing the erasure to be made, and he told me he had done it himself. I recovered the account from McDonald. I don't know whether Simpson can read or write English. R. W. Fereday recalled : Pointing to the signature "B. Simpson, " I said to defendant " Is that your name and handwriting ? Do you swear the contents of this your affidavit to be true, so help your God ?" He replied '• yes," and took the oath. [The affidavit was read to the jury.] John J. Loe : I am a publican, residing at Leeston. In 1867 I purchased some goods from Mr Simpson to the amount of £18 13s. I did not, previous to August, 1867, pay Mr Simpson £18 19s; but I paid £18 13s to Louisson and Luckie, Simpson's trustees, under the composition deed, on January 17th, 1868. Mr Simpson sent me a promissory note enclosed in a letter. I was asked to sign the note, but I did not. I have seen Simpson make out a receipt, not a detailed account. I answered the letter, and addressed it to Mr A. Louisson. [Documents handed in.] John McGregor : In August, 1867, 1 was acting as clerk to Mr Graham, the Receiver in Bankruptcy. I received the two books produced 'X and W) from Mr Graham. I examined the books with the office copy of the schedule produced. Harding's account in ledger W, when I examined it with the schedule, was closed ; there was no balance shown as due, either in the ledger or the schedule. Loe's account was also closed when I examined the books. McDonald's account at page 372 shewed a small balance due by McDonald of £3 18s. There is a credit given of £15 6d 9d. When I received the book the account was not in the state in which it is now. <£3 18s was the balance returned in Simpson's schedule. The credit for £\5 6d 9d is now erased. Mr Simpson erased it in my presence, and I initialed it. That was done while I was making out the accounts ; it was done while I was working at the books in Mr Graham's office. After the erasure was made, I received £18 6s 9d from Mr McDonald, in Mr Graham's office. I found Mr Loe's account balanced in ledger and not appearing at all in the schedule. The/c was a balance due of 14s by Mr Hart when I examined his account. The same amount appeared in the schedule. I received the 14s, and gave a receipt in full. I have examined the book since as to those accounts. I find other entries under the same headiags, showing open accounts and balances due. I made out -the statement produced of the amounts collected. The accounts referred to by me appeared in the ledger as closed acaccounts when I examined them ; now they appear as open accounts on other pages. I believe I compared the entries in the journal in those four several accounts with the entries in the journal, and found the charges for goods against the parties to be correct. [Left sitting. "J