SUPREME COURT—WESTLAND CIRCUIT.

West Coast Times, Issue 732, 28 January 1868, Page 2

SUPREME COURT— WESTLAND CIRCUIT.

SITTINGS UNDER THE DEBTORS AND CREDITORS ACT. Fkiivat, Jakpaey 25, 18G8. (Before his Honor E. Clarke, Esq., District Judge.) The Court opened at 11 o'clock. 1 EE BTJBKE AND M'IIUGH. - Mr Button, for petitioners, moved for their final discharge. Mr Harvey said that he was instructed to oppose on behalf of several creditors. John Burke, examined by Mr Harvey — I was at one time with Morris Dowling, in Molbourae. I have seen him several times in Melbourne. I was there with him four years ago, and liavo been thcro with him subsequently. I went to meet him when, he arrived, four years ago. I met him there iv August last. He came down to Hokitika with me, with the intention of opening a business here ; he told me he brought goods with him. I do not kuow where ho purchased those good 3. I went with him to purchase goods. I do nob know what description of goods ho brought with him. I never, to my knowledge, heard tho name of Clarko and Co. iv Melbourne. I do not kuow tho uamo of Adams and Co., of Elizabeth street. I saw a houso of silk mercors and ribbons, oither in Swanston street or Elizabeth street. I never, on my oath, went with Morris Dowliug to a house iv Elizabeth street to purchaso goods. I do not remember seeing tho goods Dowling brought with him. Dowling was stayiug at his brother's house (the Plough Inn) iv Bourke street. He asked mo my opinion about Hokitika, and I gave it to him ; he had his mind made up to como to Hokilika. lam not aware that Dowling consulted me what goods he should bring to Hokitiku. Mr Hime3 and Dowling were in partnership in South Australia ; I believe they had no shop there; they were not wholesale merchants; they used to travel about with goods: they did not carry their goods, horses carried them. His Honor — Why do you shuffle in that way ? You fence every question — you shuffle with every question put before you. Examination continued — Mr Dowling did not tell me that he was going to buy goods to bring to Hokitika to open a draper's shop ; he told me had bought goods. I did not ask him him what goods ho wns bringing. I swear that I did not see the packages containing tho goods. I have a remembrance that ho told me was going to buy some silks. His Honor — You ought to bo very cautious sir! Witness — I did not see the invoices of the goods. I believe Morris Dowling sold those in Hokitika, I know that he sold part of them. He opened a shop in North Revell sti eat, he was living at the Shamrock Hotel when he was selling those goods. He was also staying with me. His Honor — You are not telling the whole truth Mr Burke, you are concealing something. Witness — I never saw any of his goods at my place. Dowling sold some of the goods about the town, and went to Ross and sold some. He told me that he had made money in South Australia. I have known him for some time. I know that he had money when he arrived in Victoria four years ago. I have not seen John Maioney lately. I have not I made any inquiry after John Maioney, I c.n't exactly say when I saw him lust. 1 could not tell you where John Maioney was living at the time ho gave me the two bills of Exchange — one for LIOO, and the other for Ll2O, drawn by him on us. Those bills were given for moni'y lent. I have known John Malonoy for several years, I knew him when I was a boy. We did not come out to the colony together. I came to Hokitika in March, 1866. I do not know whether Maioney was here theu. I first saw him in Hokitika about January, 1867 ; but I don't exactly know when. I did not borrow tho money from him whon I first saw him in Hokitika. When I first met him Hokitika I was glud and surprised. He was then living on some of tho diggings, but I do not know where ; I did not even ask him where. I did not ask him to dinner, ho did not como to livo with mo, i but eanio frequently and bought- goods from j me, and then I borrowed L 220 from him. We kept no partnership books. I made no memorandum of the inauucr in which I expended the money I borrowed. Before my second examination, aud subsequently to my first, I saw John Maioney — at that time I believe ho was working somewhere on the Waimea, it strikes me that was the case, but I. cannot swoar to it. I did not kuow then that John Maioney was a material witness in my behalf. I have uot scut to the Waimea to inquiro for him. I have not advertised for him since my last examination. I am still in the employment of Mr Morris Dowliug. I am in the receipt of uo wages. I have made no agreement with Mr Dowling up to tho present time. I got money as I want it ; he is to pay me according as the businoss pays. Ho lives in Revoll Btroet. I think I have received L 7 from Dowling since I have beeu in his employment. I am Bure I have not received LlO from November to the presont time. I have boarded in the house with. him. I cau't tell you at the present time where Mrs O'Grady is. I saw her about two days ego at Mr Dowliug's. She is not at Mr Dowling's now. Ido not know whero she went to when she left Dowling's two days ago. I received a summons to appear here to-day. Mrs O'Grady's name appears in it. I told her that I had received the summons, but I did not bliow her the summons. Ido not remember telling her that her nuino was included in it, and that she would be called as a witness today. I heard that- she was going to spend a few days in the country. I can't swear that I did not tell her that her name was iv tho snnimons. I live with Mr Dowling at the shop in Revell street. Mrs O'Grady was living at the same place. lam not aware that she has any particular business up the Hau Hau Tramway. Mrs O'Grady waß living with Mr Dowling as housekeeper, as she formerly was with me. She was never more than a housekeeper to me, and I paid her 30s a week. I was nine montliß in Hokitika before she came. I knew Mrs O'Grady in Ireland. I served my time to her sister. I am not aware whether sho was in great distress and proverty when she came to livo witli me. Ido not think Mrs O'Grady has left New Zealand. I nt>ver asked Mr Dowling or tho young men where sho was going to. After I received the summons I heard her say that she was going into tho country for a few days. His Honor — I am going to ask you a few questions, and I tell you I shall take tho answers down very specially. By His Honor — I do uot remember telling Mrs O'Grady that her name was in the summons 5 I merely told her that I whs suni* I

moned to appear ou the 23rd. She said not a word to me about her being summoned herself. Mrs O'Grady never lived with me as a mistress. I swear that Ido not know where Mrs O'Grady is. She never told me where sli3 was going to. She went alone. Mr Dowling is not gone into the country. Mrs O'Grady has been living with Mr Dowling since November last. We sometimes take our meals together. There are three rooms, viz., two bed-rooms aud sittiug room used, also, as a kitchen. When I went over to Melbourne to purchase goods I took over L3lO with me. I never said anything to people in Melbourne about my having given bills. I returned from Melbourne in August, and filed my schedule in September. Mrs O'Grady, when I went away, kept two or three sheets of paper as a check on those in the shop. Out of the L3lO I took to Melbourne I purchased L2BO worth of goods. Ido no? know whether Mrs O'Grady has money in the bank. Mrs O'Grady never received from me more than L4O, except what may be entered in the books for goods charged to her in the shop. That book was kept by two young men, Carron and Goraon — I kept a day-book and a ledger — the accounts were entered up regularly from tho day-book into the ledger. I did not examine the books particularly when I came back from Melbourne. L 339 was received in the shop during my absence, and this money was handed over to Mrs O'Grady as it was received. When I returned she handed the money to me. I took up Maloney's two bills, L 220. With tho rest I paid Sargood, King and Sargood, Duuedin, L 25, aud L 8 also — I also paid L 23 to Royse, Mudie and Co — I paid Mr Harvey Llo— l paid Morris Dowling L 8 2s 6d (money I had borrowed from him) — I also paid away L4l and L 45 — There was also paid L 22, expenses of journeys. L4O was paid to Mr Button. By Mr Harvey — I never gave Mrs O'Grady a single penny of that money. I never put a sum of money, LSOO or L9OO, for her to take. I did not bank my money after I returned. His Honor — I do not think Dowling was present when I beard that Mrs O'Grady was going into tho country. I do not recollect hearing her say that she was goiug into the country. The Court adjourned uutil the following day at eleven o'clock. Saturday, Jakuabt 25, 1868. The Court re-opened at 11 a.m. BE BUBKE AKD M'lloftH. Morris Dowliug, examined by Mr Harvay— I have seen Johu Burke, a quarter of an hour ago, up at my place. I have sent for him. When I was in Melbourne, about six months ago, I bought a parcel of goods, to bring down here with me. I do not kuow the valuo of that parcel of goods. I will swear it was not over L 40 0; it was loss than LIOO. I will not swear that it was moro thau LSO. I will not swear that it was more than L4O, but I believe that it was. I have refreshed my memory since 29th November by thinkiug the matter ov"er. I do not recollect from whom I bought vhe goods. I should know the stuff again (samples handed up). Yes, those are like them, but I do not know, where I got them from. I should not kuow the names of the parties I bought them from. I don't think it was Adams and Co., of Elizabeth street ; Clarke and Co. was more like it. I kept no accounts of the purchases; I do not know whether the exact amount of the purchase was L 42. I have not looked at the invoice since I was here last. How much money had you when you came down here ? Witness — Am I bound to answer that question ? His Honor — Yes, certainly. Mr Button — But this is not connected .with the estate of Burke and M'Hugh, but with the witness's own private affairs. Mr Harvey — I think that after this examination I shall be able to find out sufficient to warrant an indictment for conspiracy. Mr Button — Then don't answer a single question. No person is bound to answer questions which may tend to criminate himself. Mr Harvey — Very well. 1 I will take a different line of examination. Examination continued — I know Mrs O'Grady. She returned to town this morning, and is now at my place. I can get her down here. I am not aware that she lives up the Hau Hau Tramway. I do not know where Mrs O'Grudy went to ; she did not tell me. I did not tell her that I hud been summoned to attend here as a witness. I did not shew her the summons. Ido not recollect having a conversation with hot'on the subject. She did not tell me where ske wa3 going to, nor did she ask my permission to go, although she is my housekeeper. I believe Burke and Mrs O'Grady are on friendly terms. I know that Mrs O'Grady has money ; it is very hard for me to say how much money she is worfch.She might have LIO.OOO for what I know. His Honor — You are giving your answers in a very improper way. Do you kuow what _ money she has got ? *£""' Witness — I believe she has got about LQw. She has been in my employment about three months. lam not aware that she has been ill since she has been iv my sorvice. I do ; uot recollect showing. Mr Burko any goods at ! all ; he did not know what goods I purchased. I believe I mentioned to him when on board j ship that I was bringing down silks. By His Honor— l paid Mrs O'Grady 30s a- woek a3 wages. When she came back this morning I did not saj anythiug to her about her leaving with uiy permission. I keep no other female servant. Have you any idea where Mrs O'Grady's money is ? I put the question solemnly, and be careful how you answer it ? Witness — Yes; I have got hor L6OO, and iuvestod it. I knew Mrs O'Grady at home. I have known her to be in very good circumstances indeed. I oannot toll's when I first loavued that Mrs O'Grady had L6OO. By Mr Harvey — It was after my previous examination that I first know she had-got the money. By His Honor — It was through the examination that I kuow that she had got L6OO. By Mr Harvey — I gave her no security for tho L6OO. I do not think I gave her receipts for it ; I do not think she aßked me for one. How did you invest that,»s6oo ? Wituess — I paid .it 'awajr to wholesale houses iv Melbourne, viz., M 'Arthur, Sherrard and Co., and Banks Brothers. It was not with that money I started in business — that helped me a little — I started with more than that. How much more ? Witness — About L 355 in addition to the L6OO. I did not brii.g that L 355 down here ; of that money, viz., L3OO, was lodged to my brother's account, my brother afterwards drew it out, and I got it when I arrived at Melbourne; my brother's name is Patrick Dowling ; he keeps the Plough Inn, in Bourke street ; I think he banked my money in the Bank of Victoria. By His Honor— l took L4OO of the L6OO to Melbourne with me. I bought a placo here for the other L2OO. I recollect now that I had about L4OO in addition to the L6OO when I commenced busiuess. I bought goods in Melbourne to the value of more thanL7oo. Mrs O'Grady has been living with mo since I returned from Melbourne. Sho did not receive money for goods sold in tho store. I keep books, I am not aware that Mrs O'Grady ever mado any entries iv the books. Mr Burke and tho boy make entries. By Mr Harvey-j-Beibre I went up to Melbourne I hud an account at the Union Bank. I cannot say whether I had L9OO there. I banked there the L6OO I got from Mrs O'Grady. I cuunot say how much money I had there when I banked tho L6OO. I invested the L6OO in mj business. John Burke examined by Mr Harvoy — -Mrs O'Grady was living with mo as housekeeper for some months previous to my bankruptcy. She was ill during that period ; I caunob tell what was the matter with her. Dr Young I attended her. I oannot Bay that I wns aware

Mrs O'Grady had lent L6OO to Mr Dowling. I never had auy conversation with him aboufc it. You first made mo aware that Mrs O'Grady had got LSOO. She had 30s a week as my housekeeper; I never asked her to lend me money. Mrs O'Grady is living in the same house with me and Mr Dowling. I will swear positively that she never was out of Mr Dowling's house for one night ; she does not live on the Hau Hau Tramway. I told her this morning 'that I thought she would have to come down here. When she went into tho country sho went to the Arahura. Patrick M'Hugh, examined by Mr Harvey — I am not now iv the employment of Mr Dowliug, but have been. I know Mrs O'Grady. I have had no conversation with her lately. I and Burko quarrelled before I went to Charleston. There was nothing said about Mrs O'Grady at that time. Ido not recollect ever having a quarrel with Burke about Mrs O'Grady. Ido not know the John Mttlony to whom my partner says he' paid L 220. I never heard a word about the acceptances to John Maioney uutil my last examination. By his Honor — I do not know much about the way in which the business was conducted here, as I was conducting the business at Charleston. I never got an account from the shop in Hokitika. I nevbr got an invoice with the goods that came down. By Mr Button — When I gave up busiuess, I sold off and came down to Hokitika, and gavo up the money to the sequentrator. The Court thgn adjourned to Monday. Monday, Januaby 27. The Court re-opened at 11 a.m. BE BUBKE AND M'ITOGH. John Burke, re-called and examined by Mr Harvey — Mrs O'Grrady has never at any time been living with me as my mistress. We never slept together. I Mr South said he had been retained to J watch tho interests of the person referred to. Mr Harvey — You have no locus standi. His Honor — I cannot hear you, Mr South. Mr South — I am only advising the Court of my position, and that I have a right to do. Examination continued — There never was anything improper between us. Mr Harvey— Call Margaret O'Grady. Mr South — I appear now as counsol for Margaret O'Grady. Mr Harvey — I object to your appeariug as counsel for a witness. I never heard of such a thing. Mr South contended that auy person had a right to bo represented by couusol, aud if his learned friend would show any case where a witness could not havo a couusel to protect him, he (Me South) would bow to it with great respect. His Honor — I think that tho onus lies with you, Mr South. Mr South — It is the practice of the Bankruptcy Court iv England to allow counsel, watching tho case for a witness, to suggest questions to be put through the Court. Mr Harvey — That is a very different thing. His Honor — I do not object to that. Mr South — I am now retained for Burke and M'Hugh. Margaret O'Grady, examined by Mr Harvey — I am married ;my husband is not living with me. Mr South — Under the direction of the Court, don't you answer any question until the Court tolls you. I object to that on the ground that the question is totally irrelevant to the bankruptcy of Burke and M'Hugh. His Honor ruled that the question might bo put as introductory* Examination continued — About twelve months since I entered Mr Burkes employment as his housekeeper, at 30s per week. I remember Mr Burke going to Melbourne, but I do not recollect when. During the time he was away I took tlio cash. I banked some money at tho Bank of New Zealand, but I d<s not remember the amount. I returned that to Mr Burke on his return to Hokitika. You had an account of your own in another Bank ? Mr South objected to this question unless it was shown that the money was the money of Burke and M'Hugh. His Honor — Your argument now goe3 to protect the witness ? Mr South— Yes. His Honor — You are not here to protect the witness. I think after what has come out in evidence, I cannot exclude tho questiou at present. If I find the answer ha 3 nothing to do with the matters in issue. I shall strike it out. An imputation has been cast upon Mrs O'Grady, by the evidence of Burke and Dowling, and I should have thought she would have been glad to have that cleared away. Mr South — I think it a most monstrous proposition to ask a witness what was the state of his private banking account. It is contrary to British law and freedom. Witness — I had an account at another -\B?nk, to which I think I paid in LSO9 — it might have been L 529 — that account was opened iv my maiden name. ' <- Whore did you got that mouey from ? Mr South — I think the proper way to have put that would be, " Was that your own money ? " Mr Button eaid that many of the questions might bo refused to bo answered, in conse?iuence of a threat made use of by his learued riend — that ho intended to bring on a crimiualprosecutiou. Bus Honor— Put the question as suggested by Mr South. Witness — The money was my own. Where did you get it from? • Mr South objected — If his learned friend could prove the money was not Airs O'Grady's he knew what course to pursue, but he had no right to ask a witnoss where she got the i money from ; it was an infraction of the liberty of the subject. His Honor, after referring to " Taylor on evidence," ruled that the question must be answered. He did not see how it could prejudice the witness. Mr Harvey said that the rule that no perbou was bound to answer a question which might tend to criminate himself happily had not been euforoed in a Court of Bankruptcy, otherwise a fraudulent insolvent would have nothing to do but to put the money in his pocket and then refuse to answer any questions because they tend to criminate himself. His Honor — I see nothing in the question to criminate the wituess. Mr Harvey, can you got the evidence by any other means ? Mr Harvey — No, your Honor. J'll put a few more questions to the witness. How much money had you when you landed in New Zealand s Mr South— l object to that question. His Honor — I think, under the circumstances, the question may be put. Mr South — I protest against it most indignantly. Witness — I paid my own passage down here. Mr South — Well, I protest against that. His Honor — You were not here before, Mr South, and you don't know how Mrs O'Grady has been connected with the insolvents by the evidence of Burke aud Dowling. Mr South — No, your Honor. I do not. But I conceive it to be my duty to protest against questions referring to a witness's private affairs, and not connected with the insolvent's estate. Cross-examination continued — My sister made me a present of money to come down here. I forget whether I opened my private banking account after or before I paid the money to Burke on his return from Melbourne. I opened the account in my maiden name iv the Bank. I only earned 30s a week in Hokitika. I earned more in Dunedin. Did yon bring the L 529 with you from Dunedin ? Witness — I won't answer that question. Had you the money before you came to New Zealand ? Witness — I shan't answer that questiou. Mr South submitted that, under the Debtor and Creditor! Act, 1862, the question could

not he put as it was wholly irrelevant with regard to the insolvency. Moreover, on grounds of public policy, he woald submit that the question ought not to he answered by the witness. The converse of the proposition was, if L 529 of Burie and M'Hugh had been by other evidence traced into witness's hand without consideration; then his learned friend would he justified in tke course he was pursuing. _ Mr Harvej said that his learned friend was either here as Counsel for the insolvents or Counsel for the witness, that latter position had ruled could not be sustained, sm/u certainly it was most strange for the Counsel for the insolvents to come forward and to dictate to the Court what was relevant in the evidence of a witness. Did you bring that money with you when you came to New Zealand ? Witness — I won't answer that qnestion. Mr Hartey — Then I'll ask his Honor to commit you. Mr South — Perhaps my learned friend will show that your Honor has the power. His Honor — Do you doubt my power ? I sit here in Bankruptcy as a Supreme Court Judge, and have all the powers of such a judge. The power of committal for contempt is inherent in the Court. Mr South — My learned friend will have to prove that it is a contempt. His Honor — Are you prepared to argue the point, Mr Souths Mr South — No, your Honor, at present I am not. I would if I had time to prepare. His Honor — You shall have time. I have I already heard enough in this case to prove to me that it should have the strictest and gravest examination, and for the sake of public justice it shall have it. I adjourn this case until to-morrow morning. BE SPEOT AKD OBAIGK Mr Harvey applied for insolvents' discharge, and contended that two preferential claims ought not to have been deducted from the gross sum realised, as otherwise the estate would have paid 6s 8d in the pound. His Honor granted the final order of discharge. The Court adjourned till eleven o'clock next tUy.