SUPREME COURT.

Wellington Independent, Volume XXVI, Issue 3143, 9 March 1871, Page 2

SUPREME COURT.

Wednesday, Bth Maboh. (Before his Honor Mr Justice Johnston,) His Honor took his seat on the Bench at 1O o'clock. ' BREACH OF AEMS ACT. Francis Bochez, alias Minilla, a Spaniard, waa charged with having sold to one Wiremu> Tupera, a Maori, a double-barrelled gun. Mr Izard prosecuted for the Crown, Mr Allan appearing for the defence. Mr Henry Cowper was sworn as interpreter: in the case. On explaining the charge to the prisoner,, he pleaded not guilty, and having explained that he did not require a mixed jury, the case was postponed, and the case of John Anderson* • gone on with. * FBATOULENT INSOLVENCY. John Anderson was charged with fraudulent insolvency; with having omitted to place a certain sum of money, amounting to £30, in 1 his insolvency schedule, according to law. Mr Izard prosecuted, and Mr Allan appeared for the defence. Mr Poulson was chosen foreman of the jury. Mr Izard said it would be for him to show that when prisoner filed his schedule he had cash in hand about which no mention wa» made. Mr Walter Johnston, merchant of Wellington, had advanced moneys to the prisoner for the purpose of purchasing merchandise ; that he had so expended a portion of the money advanced, but had retained in his possession a sum of £50, for which ho had accounted in no other wuy than that he intended to apply it to his own exclusive benefit, and that it wflß not his intention to hand it over for the benefit of his estate. Some time after fche filing of his schedule Mr Johnston met the prisoner, and spoke to him about the balance of £50 remaining in his hands, and told him that he should have included this money in his schedule for the benefit of his creditors. Prisoner explained that he had paid certain creditors with a portion of the cash Mr Johnston had advanced to him, and that whatevor balance he had in hand he might require for the purpose of going away South j that he wasnot going to starve. It would be proved that at a%ale prisoner, being still an uncartificated bankrupt, had offered £50 for the purchase of goods. The following evidence was called. Henry Ingpen : lam deputy registrar of the Supreme Court. I produce a .certain papers relative to the insolvency of John Anderson. No other papers was filed but those produced. Subsequently prisoner put in an amended statement of accounts. Mr Walter Johnston was appointed trustee in the estate. There has not been any bankruptcy discharge granted .to the prisoner. Frank Morton Ollivier '• I am a solicitor. The declaration of insolvency produced was signed and declared by the prisoner before nae. It contains a statement of assets and liabilities, and is dated 12th November. Accued swore an affidavit before mo, relating to liabilities and assets, on the 22nd November. Mr Allen objected to the admission of the second statement of accounts of 23rd Novemher, maintaining that it bore no relation whatever to the specific charge alleged. His Honor thought it would be better to go on with the case, and introduce the statement at a fitting stage. On subsequent discussion the document was adduced. Walter W. Johnston : lam a merchant in Wellington and am trusted in the prisoner's estate. Previous to the Bth November we had dealings with the prisoner, who isa wooletapler. It wa« the habit of prisoner to deliver thewool to us as his agents. We made advances to him to enable him to purchase tho skins. It was his practice at the beginning of every month to furnish us with a statement of the amount of moaey required to pay for skins purchased in the preceding month. It wasalso customary for him at the beginning of every month to furnish us with a statement of money required to piy his workmen. In the beginning of November last he came to us according to his usual custom. We have had dealings with each other for^about two years. In November he brought a list of skins purchased by him during the preceding month. We advanced to him then £131 by cheque. A day or two after he asked for money to pay workpeople for dressing skins in October. I advanced him £55 on that account, by cheque produced. We were a considerable sum in advance of goods reoeived from prisoner. I gave him the cheque fotf £55 on the 7th November. I saw the prisoner on the 9fch November. I told him I had seen in the previous day's paper a declaration of his inability to pay his creditors. I asked him how that could possibly be when I had advanced him money enough to pay all his creditors. He then told me that he had neither paid hia furnishers nor his workpeople,-, and went on to say that in consequence of a conversation he had with Mr Pharazyn on the wharf, he was under the impression that he might close his account at any moment, when he would not have a penny in his pocket, bo he made up his mind to get some money in this way. He stated that he had filed his declaration of insolvenoy for, the purpose of having sufficient money left out of this advance to go down South. I told him the money was not his ; that it belonged to bis creditors. He then told me that out of the£lß6 he had paid £100 to Mr Donald at Kaiwarr», in payment of shares in gold mines at the Thames, that he had g yen £15 to Mr Allan, solicitor, to pay his costs in bankruptcy, and mentioned two or three other small disbursements. I put these amounts down on paper in bis presence, and added them up. I told him that tkere was still about £60 unaccounted for. I asked him where that was, and he told me that he had placed it in some house where ifc was available for hiß own purposes. He Baid, " I haven't got it here, and I haven't got it at Kaiwarra, but I won't tell you whore it is." I told him that he could not possibly return this money ; that it bolonged to his creditors. I advised him to hand it over to me, because I was requested by some of the creditors to do so. I have repeatedly spoken to him about it since I have been elected trustee, and he has always Bteadfastedly refused to give to me. The last time I asked him to give it up he said, " Well if I give it up will the creditors make me some allowance for my support?" I said I supposed eofc. He said he could'nt starve. I told him if he did not give it up, I would oppose his discharge. Cross examined by Mr Allan : We have had considerable dealings with prisoner; We were in the habit of making advances to him for goods placed in our possession by prisoner. We charged him 2£ per cent as agency on advances, and 10 per cent until the money was returned by sale of wool in England. The wool in our hand belonging to prisoner has never come up to the advances made in cash by us. At the time of bis filing his schedule we had 250 bales of wool belonging to prisoner. They were Bhipped. We had a mortgage of sale over property of prisoner's on Adelaide road as security for advances made. We took it as security, but it was not of the value of the amount advanced by us. The bi lof sale was over his stock-in-trade, which was of very uncertain value. I received fourteen bales as the proceeds of wool left on the premises by the prisoner. The land at Ngahauranga belonged to us, but there was a house on it belonging to us, which of course belonged to us when prisoner left it. The value of property on Adelaide Road was about £200. The arrangement about the property at Ngahauranga was that we were to buy the land. We advanced the niotaey to build the house, and part of the wool received from prisoner went in diminu* Aj tion of hia debt to* us. It waa arranged when he gave the bill of sale that we were to make advances. I don't remember the milking of such a condition as that we would not raaka any advances except on three months 1 bills. Prisoner told me that from what Mr Pharazyn had told him he was afraid the account would be closed, and he would be without furads. I don'fc remember that it was a condition that he should deal with us on bills. Prisoner told

me distinctly that ho wanted t£e balance of money unaccounted for for his own private purposes. I was so much annoyed at this that I thought of at once giving him into custody on a charge of obtaining money on false pretences. I did not wait on prisoner for the purpose of obtaining this money for my own bended it to go to the estate. I had no authority at that time to ask him for the money. Subsequently a fresh statement of accounts was presented to me. I, of course, desired to bo appointed trustee, as we were the largest creditors, and I was appointed. Prisoner's liabilities amounted to £6800 ; of that he owed us £6100. I remember you desired that I should go into a statement of accounts between oursolves and tho prisoner, but I did not consent, because the first rectification I proposed to prisoner to make he point blank declined. I met prisoner several times, and ho asked me if I had signed the accounts, and I told him I would taf do 89 until ho inserted the item of cash TJjHiccounted for. When I returned from the chantry I looked through the schedule to see if any entry of the kind had been made, and finding there had not I instituted this prosecution. Thomas Steele : I am teller at the Bank of New Zealand, and was so in November last. I believe I paid tho amount of the cheques produced to prisoner. Charles Walter Laugsfcon : lama butcher living in Wellington. I knew prisoner towards the end of January. About that time he and I went to Kaiwarra together. In reference to business matter, he told me he was in difficulties, and that he had filed his schedule. I saw him a day or two after, and had a conversation about money. He said he had £1300, but didn't meition whether ho had it in his possession. I recollect buying some pigs at Mr Thomas's in January. I afterwards put the pigs into Messrs Veunell, Mills and Co/a hands for sale. This was after prisoner and I went to Kaiwarra together. At tho sale at Vennell's prisoner told me he was going to buy £50 worth of pigs. He also told me he could let me have £200 if I required it. After that he began abusing me, and pulled out what appeared to be a handful of bank notes. Judging from prisoner's appearance now, I think he must have been out of his senses that day. Cross-examined by Mr Allan : We both had been drinking that day. He continued to abuse me all day. The quarrel was about the pigs. I told him I didn't believe he was able to pay for them. Prisoner said if ho had his rights he would have £1300. The following witnesses were called for tho defence : — William Donald : Prisoner has owed mo as much as £200 at a time, and I never had a scratch of a pen from him in acknowledgment. He paid me £128 in cash in payment of a debt he owed mo. When I gave him the receipt he said, " I am sorry I have owed you this so long." I received a cheque from prisoner for £20. This wao about Novomber. I don't remember that previous to tho payment of the £128 he gave me a cheque for £20. The receipt for the £128 was a formal settlement between us, but 1 will not swear that I received the full amount of £128. I cannot say exactly what amount he did pay mo. The money was paid partly in notes. I have no idea of the date of the latest cheque prisoner paid me. I received the cheque produced, dated November 3, from prisoner as part of the £128. lam a bail for prisoner, and received no promise of security for the amount of bail from any person. John Groodwin, laborer : Prisoner owed me £8 for wageß up to 7th November. He paid me that amount in notes. James Waldin, laborer : Prisoner owed me £10 sg, which ho paid me about the beginning of November. I gave the receipt on the date of the receipt of the money. William White, publican : In November prisoner owed me SA 3s. He paid me on the 7th of that month. I know that is the date, because I entered it in my books. John Prosser : Prisoner owed me £4 or £5 about the beginning of November. I gave a receipt for it on sth November for the amount of £4, 175. Mr. Allan then addressed the jury. In a new act such as the present one under which therohad uot been many judicial decisions — an act entailing such dissension as to cause difficulty amongst lawyers, for many legal discussions had taken place in that Court, and nolater than this morning, as to the interpretation of its provisions, and it was hardly to be expected that men in the position of the prisoner could steer clear of its entanglements. As to the statement of the prisoner that he was worth £1300, and so on, that went for nothing, for even although evidence on the point had been fished up months afterwards, it went for nothing because even most respectable people were contiunally in the habit of boasting of their flourishing business position for the reason, he supposed, of endeavoring to improve their position in the world. If the prisoner had been going to defraud would it not be more likely that he would do away with his stock in trade, articles which were less identifiable than specific sums of money. To say whether a man intended to defraud it would bs necessary for them to look at the opportunities the prisoner had for committing fraud, and, looking at those opportunities, they must consider that he had many better opportunities of fraudulent dealing than in the manner imputed to him. It very often happened that a man was not thoroughly acquainted with the law, and very seldom acted strictly up to it. According to law, a bankrupt vas compelled to put down every penny of his assetß, but many such persona said to themselves, " I've a right to see that I have enough to keep me going, and I won't put this down." There was no other interpretation t» be put upon thoße words than that he had a right to do aa ho did. There ■was no concealment in the matter. The prisoner had throughout told Mr Johnston that ho bad the money, and certainly ■was not conscious that he was doing wrong, or that he was puttiDg his creditors on the wrong track. If he thought that he was criminally wrong, what would have been more easy for the prisoner than to put the amounts in Tub amended schedule. The question fov them to decide was whether he intended to defraud. He had undergone many irregular examinations, at which ho need have made no statements at all if he chose, but he had never at any part of the whole proceeding made any concealment of the fact that he had the monoy. Hi 3 Honor considered tho case was rather one of importance h«'e, on account of Hb being the first of the kind brought before the Court. He must protest against any of those doctrines given expression to by tho learned counsel for the defence that because a man came before the Bankruptcy Court, and eaid in a defiant tone thab he would not give up moneys belonging to his creditors, it was evidence of his unconsciousness of his guilt. It was a fraud nevertheless. It was none the leBS a fraud that a man came before the Court boldly and said, " I will not | give up the money, and you have no right to demand it." The refusal was only aggravated by the defiance. It must be assumed by all men of reason that the concealment of funds by a bankrupt was nothing lesa than fraud. It was not for them to say whether the provisions of the Bankruptcy Act were wise or not ; if it left a man bare oi necessities it was to be regretted ; but it certainly left him provision to the extent of £25. He would lay it down as a matter of law, as well as a matter of reason, that no man could come before tho Court to ask, &b a bankrupt, for protection in such a defiant manner as the prisoner had done. He must come and say, according to the provisions of tho Act, " I come here to claim the provi4^to£^ns of the Act, and I ask now for the benefit jß^itß provisions ;" but if ifc were allowable for 0p him to come before the Court and say, "I have the protection of the Bankruptcy Act, and have evaded some oi its penalties," under such circumstances our bankruptcy laws would be a curse io the community. ( The conduct of the prisoner 16 a matter for you to decide. The counsel for the defence fcad accouctesl for gome of the money which

the prisoner waß charged with making away with, and had given the offence a complexion of one of degree. But there could bo no question of degree, because the act provided that a bankrupt could retain no property boyond the value of £25, and in this case it was proved that the prisoner had made away with property exceeding that value. He did nob wish it to go forth that it did not matter what prisoner did with tho money, beeauaeit wasimperatively necessary for him to employ it in the specific manner directed by Levin & Co. If he did not do so ho was guilty of fraud. If the jury believed the statement of Mr Johnston, he could not see how they cculd come to any other conclusion than that the prisoner has been guilty of the fraud with whioh ho was charged ; tho fact of its being boldly done did not affect tho matter at all. The fact that he had paid away £145 out of the £186, was no defence at all, aud therefore, that part of the evidence should not occupy any part of their consideration. It should never be said in that court of justice that a man could come there and say that he could defraud his creditors in the defiant manner the prisoner had done. It might be one of the hardships of the bankruptcy law that a man was not left with sufficient money to pay his legal expeuses. The prisoner had stated to one of the witnesses, " Well, if I gavo up the money will the creditors 1 make me some allowance?" which surely implied that he had some property. If that were true it bore intention of the fraud. Even if the greatest possible hardship had been inflicted, still it was tho duty of tho bankrupt to come into Court and give up all for the benefit of his creditors. There was also no reason to suppose that tho action was dictated by any but a proper spirit ; there was nothing to show that it was malicious ; and the prosecutor, Mr Johnston, deserved the thanks of tho public for tho action he had taken. He could not agree with the learned counsel for the defence that 'the refusal of the prisoner to put the amount of his second schedule was evidence of conscious honesty, and as far he could see the case for tho defeuco did not touch tho case for the prosecution. His Honor requested the jury not to view t.L • circumstances of the case harshly, bub at the same time to remember that they were the protectors of the public morally, and that the safety of all commercial transactions was in their hands. After an absence of twenty-five minutes, the jury returned into Court with a verdict of guilty. Hiß Honor, in sentencing tho prisoner, said a more impudent defence by a prisoner was never made in that Court. The prisoner had been furnished by a firm with means to carry on large works, and in the face of that he had defiantly turned round and told his creditors that he intended to keep actual cash advanced to him for the purpose of sustaining him in business. Although ho would not inflict the maximum of punishment, it would only be trifling with justice to inflict a merely nominal sentence. The prisoner would be sentenced to eighteen months' imprisonment with hard labor, BBEACH OF AEHS.ACT. Francis Rochez was then placed in the dock on this charge. Mr Miller was chosen foreman of tho jury. Mr Izard shortly stated the case for the prosecution. Tho facts were thab the prisoner had bartered a gun for a horse to a Maori named Wiremu Tupera. Wiromu Tuperu : I live at Oroa, in Rangitikei. I know prisoner. He was at Oroa in August last, and came to me about "his gun. He asked me to change his gun for my horse. I said, " It is well." I saw the gun. Ho then told me to go and bring the horse. When I gave him the hjrse he gave me the gun. It was a r double barelled gun. The gun produced is the Bamo. I took the gun away, and he took the horse away. Ho came back some days after and said I must give back the gun, because he was afraid of being arrested by the police. I gave him back the gun, and he returned the horse. He came back again and asked me to give him back the horse, and he would give back the gun. Wo again exchanged. The gun was shown to the magistrate at Wanganui. Cross-examined by Mr Allan : When the gun was taken before the magistrate at Wanganui it was taken from the house of Hoipa, where prisoner was staying. I was not lmng there. My elder brother asked me to leave the gun at his house, when I took it back. There was no one besides prisoner and ourselves when the exchange took place. I give back the gun to him becauso I had been told to do so, prisoner promising to return it at some future time. He wished to throw the police off the scent. I did not consider whether it was right or wrong ; I consented to his proposal. Prisoner gave me the gun ; I did not take it from him against his will. It was later than August when we first spoke of the gun. I have the horse now. The horse came to m« as a marriage portion. I have other horses. Hare Pekamou : I live at Oroa. Prisoner lived with me about six ioonthß. He has been about three years in the distriot. He first lived with me in March. When he came to live with me he had a gun. The one produced is the same. When he came to live with me I took care of his gun. He took it away in August j tkftt vras when he sold it and returned with the horse. I asked him who owned the horse ; he said it belonged to Wiremu Tuperu, and that he had bought it for a gun. He accused me of having told about him selling the gun, and I admitted. He said it was very bad of me to tell, and that be would be arrested by the police. He then said he would bring back the gun, which he did. He then said that if he returned it to Wiremu Tuperu I was not to tell. Ihe gun disappeared about two weeks afterwards. Cross examined by Mr Allan : He was living with me at the time he was arrested. He went to work at a place about twenty miles from my place. He was there when he was arrested. He did not have the gun, when he left my place. Wiremu had had it a long time. He spoke English very badly ; I didn't altogether understand what he said. This was the case for the Crown. Mr Allan addressed the jury for the defence, and the jury returned a verdict of not guilty. SENTENCE. Morton Quiu was brought up for sentence. Mr Allan stated a case for the Court of Appeal, and applied to have tho prisoner admitted to bail. His Honor said that if the Court of Appeal was likely to sit early he would not bo inclined to grant bail, but as it was likely that the Court would not meet for a very long time he did not wish to keep him in prison for any lengthened period previous to sentence. Of course, since the prisoner had been found guilty it would be necessary to find heavier bail for hie appearance in the event of his conviction being sustained by the Court of Appeal. Bail was fixed at two aurelies of £200 each, aDd himself in £200 ; prisoner being a bankrupt, to be bound over to come up for sentence at the first sitting of the Court after the Bitting of the Court of Appeal. The Court then adjourned until Monday at 10 o'clock.

The New Proverbial Philosophy. — Ask no woman her age. Never joke with a policeman. Do not play at chess with a widow. Never contradict a man who stutters. Be civil to rich uncles and aunts. "Your oldest hat, of course, for an evening party. Always sit next tho carver if you can, at dinner. Keep your own secrets. Tell no hunjan being you dye your whiskers. Wind up your conduct, like your watch, once every day, minutely examining whether you are fast or slow. 1 Make friends with the steward on board a steamer ; there's no knowing how soon you may bo in his power. A circus rider, in Texas, tried to turn three sumersaults, on horseback, the other day. — Tho manager sent back to New Orleans for another somersault man. Paris ' Fashions' are now described as tears and lamentations.