SUPREME COURT.

Gisborne Standard and Cook County Gazette, Volume IV, Issue 574, 24 February 1891, Page 2

SUPREME COURT.

[Before His Honor Mb Justice Cosolly.]

BANKRUPTCY BUSINESS. Bankruptcy business was dealt with on Saturday morning.

CHOLWELL DEAN PITT, application for discharge; Mr Nolan for applicant. His Honor having read the report of the Official Assignee, said unless the application were opposed, there was no reason against the discharge being granted.— There being no opposition the discharge was accordingly granted.

WILLOUGHBY BRASSEY, application for discharge ; Mr W. L. Rees, with Mr Jones, for applicant; Mr Chrisp for Mr John Kenny and Mr Muir.— His Honor said there was no order closing the bankruptcy, which was the custom iu Auckland; there was very little information before the Court.—Mr Rees said there was some little difficulty in getting information, on account of the change in the Deputy Official Assignee. For instance moneys had been collected of which no account appeared to have been given. There was some doubt as to where the late Assignee was, and also as to his accounts. Mr Coleman had done all he could to satisfactorily discharge the duties devolving on him.—His Honor said in the circumstances Mr Coleman could not be blamed.—ln reply to His Honor Mr Coleman Baid so far as he knew about £4O had been realised of the book debts—the bankruptcy dated back to 1888. So far as ho knew Kenny's was the only wages claim unpaid, but the proof bad not been put in in proper time, and could not be admit'e-l without leave of the Court.—ln reply to His Honor Mr Rees said a resolution had been duly carried in favor of the debtor’s application of discharge.—ln regard to Kenny’s claim Mr Rees said technically it was not correct and would require the consent of the Judge, and further he had agreed to accept a compromise, though he alleged the conditions had not been fulfilled. It would also be a most serious thing if though money had been collected by the late Assignee a wages creditor had not been paid, and debtor himself was to be punished on that account. Mr Brassey believed £lOO had been paid into the estate. In any case the wages claim of £3O odd would not equal the amount received in the estate, Mr Muir was a creditor for legal costs on account of a libel action instituted by Mr Braesey, but part of the costs had been paid, the bulk of the creditors were satisfied to give Mr Brassey his discharge, and unless gross negligence was shown, that should not debar debtor getting his discharge—the bankruptcy had been running on for over two years.—His Honor suggested that Mr Chrisp should first call his evidence,—Mr Ohrisp said ha had practically no evidence, and would base hie application mainly on the report of the Assignee. He was instructed that the facts were that debtor had persuaded Kenny not to file, but subsequently Kenny had done so and the proof had bean admitted, If the Assignee had any reason to believe the proof was improperly admitted, there should have been application made, during the long lapse of time, to have it thrown out. It was a wages claim, and the Act stated that no discharge could be given until such claims were satisfied, —His Honor said there was no doubt if the proof had been admitted he oould not grant the discharge.—Mr Rees quoted subsection 7> which showed that the claim could not be admitted.—His Honor: It would be very unfair If a debtor presents his proof and the Assignee told him it was good, yet it was not. — Mr Rees : The law told him that. It conld only be admitted by the Court. —Mr Chrisp urged that in such a case as that of Mr Kenny, His Honor would take a lenient view of his mistakes, remembering that Brassey told him not to put in a proof. In regard to Mr Muir's case, the facts showed that Mr Brassey, shortly before his bankruptcy, sued Mr Muir for £5OOO damages for alleged libel, well knowing that he (Brassey) was not in a position to pay costs. Those costs amounted to £2OO, only £5O of which had been paid. Mr Brassey had had a lucrative practice, and through extravagant living became bankrupt, and had subsequently been adjudicated bankrupt in Napier, both times on his own petition. The liabilities shown in his first statement were greatly swelled, from £9OO to £2,700. He submitted it was clear that Mr Brassey had been guilty of a moral offence against the Act. Was it proper, knowing himself to be insolvent, to start a libel action for £5,000 npon which he could not pay the costs ?—Hie Honor: You are going further, and asking me not only to refuse the application, but to commit him. — Mr Chrisp said he did not ask for a committal, and would mainly direct his attention to clause 157 of the Act.—His Honor; You have a much better case on ths other side, that debtor should not receive bis discharge until he has paid Kenny. I ought to hear Mr Kenny.—John Kenny was then called, and deposed that he was working for Mr Brassey as general hand at the time of the bankruptcy—he was getting £2 2s a week, £34 odd being due when he left. He had not put in his proof at first, as Mr Brassey bad advised him not to ; it would be doing him a favor and debtor would pay him in three or four weeks, At the expiration of that time he asked him for some money, and debtor said he had none. Witness said if he had claimed io the estate at first he would have a better chance of getting his money. Mr Brassey then asked him why he had not put in his claim, and told him to go and do it, which he thsn did. Mr Croft accepted the proof without making objection ; witness knew of no objection until he got a note a tew days ago from Mr Coleman, He had been paid nothing from the bankruptoy, but had got ten shillings from Mr Brassey. About a month after ths bankruptcy he asked for a tank as part payment. Mr Brassey said he would give him tbs tank, but subsequently told hini the tank had been sold. Mr Brassey told him to go and order a tank from Mr Wade anl debtor would pay for it, but when it was done Brassey refused to pay for it, and witness did not get the tank, He had signed a paper on the strength of the lank being given to him.—By Mr Bees: Had been in Mr Brassey's employment tor about seven years, That was his signature to the proof of debt of July 21st, 1888, for 19 guineas (produced—beyond tbs time legally allowed), The second proof had been made up by Mr Jones—it was witness’ signature, he did not say the account was correct. ! Mr Bees: But you have sworn to it.] Mr Rees said the second proof was made two months after (September 4), for £34 14s. — Examination continued 1 Had got bis wages from time to time during the seven years. Was not aware of being in Brassey’s employment after the bankruptoy ; in fact he oould not say. Was in the employ up to the time debtor left his big house—perhaps that was some tips after the bankruptoy, Mr Croft had paid him a pound, and Mr Braxsey had paid him the 10a. He only got a few shillings on and off during the 12 months prior to Mr Brassey leaving his house. Worked with Mr Brassey after he went back to the house again, but did not work for him at the house iu Gladstone road. Mr Jones (then managing clerk for Mr Brassey) had made up the second account. Could not explain the discrepancy between the two acoounts for £l9 and £34.— To Mr Bees! Did you not tell Mr Jones there was a sum of £B2 accumulating for several years ?—Witness : I forget whether I did or not.—Mr Bees; Did you tell hint that you filed ths other aoeount ? —Witness 1 I really forget. —Mr Mees 1 Do you really think be would have filed that if he had known of the other P— Witness did not reply.—His Honor asked who had made out the first proof, and witness replied that it might have been Mr Jones.—His Honor: They are entirely different; they cannot both be made out by Mr Jones.—ln reply to further questions by His Honor, witness said he did not remember telling Mr Jones about the first proof, hut appeared quite confused about the two proofs.—His Honor said the discrepancy was an extraordinary one — Mr Chrisp then called R. N. Jones, solicitor, who deposed that in 1888 he was in the employ of Mr Brassey. Witness had checked Mr Kenny's passbook for him, but certainly not officially on Mr Brassey’s behalf — the latter knew nothing of it. ■ Witness then made an explanation. Kenny received his money from time to time, but not being proficient in such matters, wai always getting bis accounts in amass, ftnl

would then come to witness, who would advise him as a friend, and try and put his accounts in order. He advised him to get a passbook, so as to enable the accounts to be clearly kept, and made the first entries in the book for him. Kenny having told him he had not sent in his proof in the estate witness advised him to send it in, as there was then money coming in to the estate, and he might get some. Ho (witness) told him that it was then too late to send in the proof, but Mr Croft might accept it; ho made out the accounts for him, according to what Kenny considered was due, aud went with him to Mr Croft's office. Mr Croft said Kenny had already sent in a proof, but the latter one was then taken and marked ‘' amended proof.”] Could not say whether the account was correct To Mr Rees : The account was really made up because money was going into the estate ; he knew that, and when Kenny told him he had not proved, witness as a friend advised him to do so, as he might have a cliance of getting something for a preterential claim. Kenny told bim Mr Adair had put in the first proof, in whose handwriting be believed it was. Witness had been nearly ten years in Mr Brassey’s employment ; Kenny was there longer, and ha believed had nothing to complain of, excepting perhaps that he (lid not get his money regularly.— To Mr Chrisp : He would not likely have made it out it he thought it was a claim for services subsequent to the bankruptoy—the amount had simply been put in for so many weeks.—His Honor said it seemed o'ear how the discrepancy arose—both accounts bad been made up for so many weeks, one was for 9J weeks and the later one for 16J, thus giving the exact difference of seven weeks.—Mr Chrisp said any discrepancy ought to have been objected to by the debtor, during the long interval, he, too, being a solicitor.—His Honor said it was the other creditors and not the bankrupt whom it concerned.—Mr Chrisp: But it concerns the bankrupt now.—His Honor said the bankrupt could not be held reponsible far the negligence of the former Assignee. There was no proof before him that any wages were due prior to the bankruptcy. The other objection, about bringing the libel, did not weigh with him. He had no particulars before him as to whether it was improper or illadvised, or whether the verdict of the jury was a right one or a wrong one. He had nothing to do with the second bankruptcy. It appeared to him sufficient grounds had not been made out for opposing the bankrupt's discharge from the bankruptcy of February, 1888. — The application was accordingly granted. SAMUEL EVISSON, application for discharge; Mr Watson for applicant.—There was no opposition, and the discharge was granted, His Honor said people who went into trade without keeping books were bound to ooms to grief. AROHIBILD MCMILLAN, application for discharge; Mr Jones for applicant.' After reading the report, and making further enquiries, His Honor said the ease was a doubtful one, but as there was no opposition he would grant the discharge. MOTION to admit Messrs Nolan and Skeet as creditors in the estate of Pitt and Bennett. Mr Cooper for the applicants, and Mr DeLautour to watch the application on behalf of the Assignee. There was a long argument between counsel, and His Honor took time to go into the question before giving a decision.

YESTERDAY.—CRIMINAL BUSINESS, The Supreme Court was opened at 10,30 yesterday in the R.M. Court building, and adjourned to McFarlane's Hall, Ths following Grand Jury were calledß, Sherratt, H. M. Porter, John Warren, John Coleman, P. Donner, J. W. Matthews, John Allen, C. P. Browne, F. Parker, J. W. Sunderland, P. Bourke, James Brown, Murphy, Espie, Boylan, H. MoKay, Wells, H. Lewis, Muir, Chambers, C. P. Davies, W. Smith, G. Humphreys, James Rosie. Mr Chambers was chosen foreman of tht Grand Jury. The following gentlemen were called for the ordinary jury Rowland Hill, A. Walker, D. Dinan, Hubble, R. Hastie, Hugh Heeney, H. Currie, W. Stuckey, M. Kiely, W. M. Kirk v W. Mills, W. J. Hennessy, J. Price, A. J/ Neal, S. Roe, C. A Brown, Henry Tarr, James Brown, H. Tucker, J. Von Pein, D. Curtain, G. Page, W, F. Crawford, W. Law, Pool, A. Hansen, Mark Davie, John Cassidy, Stoddart, J. White, J. Biland, C Arnaboldi, O. F. Lewis, F, Clayton, Julius Hansen, C. Doyle, E. Chrisp, J. Vandy, C. P. Davies, J Cockrey, J. Morris, O. Evans, H. Lewis, J. Smith, J, Whinray, J. Barnard, C. Westrup. Mr Sherratt had telegraphed from Tologa Bay that he was prevented attending on aocount of the heavy rain. His Honor said he knew ero igh of the Coast to be aware that the excuse given was sufficient in such weather. Mr Parker could not be present on account of the steamer being delayed, and was therefore excused. Mr Basie had sent in a letter stating that he could not attend on account of being away on business, arrangements for which had been made before he received the summons. His Honor said he took it for granted that all gentlemen called upon to do duty as jurors must attend qt some inconvenience to themselves, and it he were to allow those who had business to attend to to remain absent, probably no juries would be procurable at all. In reply to His Honor, Mr Greenwood said be believed Mr Rosie’s request had been made on reasonable grounds, and an excuse was given. On the ordinary jury summonses had not been served on Messrs Kiely, Neal, G. Page, Stewart, Cassidy, Stoddart, Jim Smith, J, Vandy, and Morrison ; James Brown wag excused on the certificate of Dr Innes; Mr Charles Evans was excused on account of being over age. ADDRESS TO GRAND JURY. His Honor congratulated the jury off the lightness of the charges. On the charge of indecent assault he thought they would have little doubt when they heard the evidence. As to the charge of horse stealing it was clear tho horse was stbleu, and that it was in accused's possession, and ho thought they would say that the matter would bo better to send for trial in open Court before the Judge. The most important case was that of Lane, and a considerable part of the evidence would be as to what wee in the house, and there would be considerable evidence to show that nearly all of the furniture had been removed into the new house before the fire, and had been represented as being in the old house. The firebell had rung about midnight, when the glare was observed, but the prisoner, when arrested, made a statement tharhe was that night present at a circus, arriving home at about half-past ten, when he says the building was burned down. They would no doubt decide that the case should be heard in open Court As to the charge of fqhe pretences against the prisoner, the same application could be made, as the cases hinged upon one another; although there might not be sufficient evidence to prove the case as to burning the house, they might yet find there was sufficient evidence ar to the charge of false p etenqes, INDEOtNT ASSAULT. A true biil was found against Thomas Roberts tor indecent assault upon a girl ot ten yaaro. Prisoner pleaded not guilty. Iu reply to His Honor he said be had no counsellor, The following jury were empanelled: — Messrs Wills, C. A. Brown, W. Law, H. Currie, Arnaboldie, Crawford (foreman), Hastie, Hansen, Pool, Henry Tucker, Edmund Chrisp, Hill. Messrs Heeney and Curtain were absent when their names were called, but relumed a few minutes late sod after reprimanding them His Honor excused them. Mr Nolan, Crown Prosecutor, conducted the prosecution. He said that the child was a very respectable child, and had been well brought up by respeotable parents. He then went into some of the details ot the qiee, and said he oould not imagine why the prisoner, with such evidence against him, had pleaded not guilty ; probably he was going to try and shelter himself on the plea of consent, but that plea, he pointed out, would not hold good. He farther stated that the punishment allowed in such a ossa seemed to him absurdly light, only two years. The evidence wae being taken all the morfl

ing, and shortly after lunch the prisoner was allowed to go into the box to give evidence on his own behalf. The general evidence against accused was of a circumstantial nature, showing how the prisoner bad been suspected, and then been watched by the police. The evidence of • Sergeant Carlyon was of a direct nature, as he had gone round the back of the shop and looked in at the window. The prisoner, in his evidence, sought to convey the impression that he had been stitching the child’s apparel. He produced some sewing and said it would be the same as found on the child’s clothing. Mr Nolan said to his mind the evidence for the defence only aggravated the offence. If they believed prisoner they must disbelieve all other witnesses. Mr Nolan only took a few minutes with his address. His Honor in summing up, said the case required most careful consideration. The charge was a shocking one to bring against a man apparently of respectable appearance, and who had been carrying on business in the town, but apparently respectability only held good w hen the facts were indoubt. In this case they must be satisfied that the facts were all beyond reasonable doubt and that the child was telling the truth. He expressed regret that the mother had not been called, as she could have given most material evidence, especially as to the sewing. If they believed the girl’s statement fully, it proved the whole case. After analysing the evidence His Honor repeated that it was most unfortunate the mother of the girl had not been called, as she could give the most material evidence. In regard to evidence given by prisoners on their own behalf he felt it was always his duty to point out that such evidence had to be very carefully weighed as against that of independent witnesses. No person could have so great an interest in a case as the prisoner himself, and while he did not say they should disbelieve him, they should at least remember that he would naturally be biassed. The jury retired at two minutes past 3. At 25 minutes to 4 the jury returned a verdict of guilty. Prisoner had nothing to say. The police had nothing further against prisoner’s character. In sentencing the prisoner His Honor said the case was very sad indeed ; there appeared to be previously nothing against the prisoner, but there was no excuse whatever for the conduct. To bis mind it was almost impossible to understand how there could be any temptation. The sentence would be 12 months' hard labor in Auckland gaol, LARCENY. Dunean Campbell was arraigned on a charge of stealing £l5, and pleaded guilty, and said : I have no evidence to offer for my defence whatsoever. In reply to His Honor Sergeant Carlyon said the police knew nothing of the man excepting that he had come overland from Napier, Mr Beatty said he knew nothing of the accused and could obtain no word of previous police records against him. His Honor; It is a very sad thing that a man who had never yet committed an offence Should begin at 75 years of age, Prisoner; Yes it is a great mistake, I have been a very unfortunate man. In reply to His Honor prisoner eaid he came from Auckland, where, he added, he had always borne a good character. The sentence was six months with hard labor. ALLEGED HOBSE STEALING. William Capper was arraigned on a charge of stealing a horse, the property of Mr Se} 'mour. prisoner pleaded not guilty, Mr Nolan conducted the prosecution and Mr Rees (instructed by Mr Jones) appeared on behalf of the accused. The jury were:—Messrs Hubble, Whinray, Doyle, Dinan, Curtain, Hennessy, Cockrey, Price, Kirk, White, Heeney, and Davies ; Mr Whinray was chosen foreman. The Prosecutor briefly opened the case, and the evidence for the prosecution was much the same as that given iu the lower Court. Mr Seymour was first examined, and then his son. In cross-examination by Mr Bees the latter witness sajd he forgot whether the accused was joking or not when he said the horse might be stolen. ’Mr Bees pointed opt that at the RM. Court the witness said' accused appeared to be joking at the time ] Mr Seymour, senior, in reply to Mr Nolan, said Dick Brown the half-caste pould not read or write—he knew because Brown had said he could not read letters given him. Cross-examined by Mr Bees Constable .Reilly, of Opotiki, said on going to the 'accused the latter offered no concealment as to the fact that he had the horse. Dick Brown, in cross-examination, said he first learned of the horse being missed on his return to Whangara after the Christmas holidays. The only conversation be had with Mr Seymour was as to what a good mare it was. Mr Seymour’s son told witness the mare was gone, and said he thought Bill (Capper) bad it; witness bad replied that he did not know, as he bad not seen Bill, He had seen accused the day after the New Year's raoes at Ormond. Had attended the Gisborne School, He carried a small pocketbook with him, but it had no writing in it.— To Mr Nolan : Could not read or write.—To Mr Bees : When I was a little fellow I could do a little.—To His Honor: Was now 18, but did not know what age he was when he Was at school.—ln reply to the foreman of the jury witneass said he was in Standard 1. —Mr Hubblp (juryman) asked if witness remembered going to bis (Mr Hubble’s) house and copying an estimate he had made,— Witness ; Yes. (Laughter.) Mr Bees said he would only call one witness as to character, and also call the prisoner himself. The latter would tell them he bad bought the horse, and made no secret about it;whatever. He had left it in Mr Law's paddock for a time, and made no concealment about the animal when the police called on him- He would bring evidence to show that accused had always borne a good character, aud it was s most improbable thing that a young fellow like him would be guilty of such an offence. The only evidence upon which they could convict was that of the half-caste Brown, who swore be could not write and then admitted to a juryman that he could do so. Mr Law, of Ormond, said he had known accused from when the latter was a child, and had pot known him get into any trouble previous to this affair, Accused had made no attempt to conceal possession of the horse, The mare in dispute was left in witness’ paddock when accused went to Opotiki. Accused went on his other horse and left the cheatnnt mare for a young lady to ride pyer on, because her one had a oore back. The lady had ridden the horse down to the Park races. Accused-deposed : On Thursday, January Bth, I was coming down between Turehaii and Pouawa, when I met Dick Brown, who was riding one horse and leading another. Brown turned round and said, " Well, Bill, how are you getting on ? Where have you oome from ?” I replied that I had come from the Pakarae. I asked him what he was doing with the chestnut mare. He said he had bought it—cheaply. I asked him What he was going to do with her. He said, " Sell her, if I can ; I’ll sell it to you if you like.” On being asked how much he replied £6. I said, " Bight you are; if you come to Gisborne I’ll give you the money, as you cannot write a receipt here. We came on to Gisborne together) when I reached Turehau I Lft my own horse there, and rode the chestnut mare. On reaching town Brown tore a piece of paper from his pocket book, and witn an ink pencil wrote out the receipt aiainst the saddle. I put the stamp 08, asked him to sign the receipt; he at first hesitated, but then did sign. When I went over to Opotiki I gave my mother the trousers to wash, thinking no more about the receipt until the Constable asked me, When I found it had been destroyed. At Ormond I had left the horse for tbs young judy to fide over, at the request of Mr kelly, her cousin. I did not attempt to conceal the horse. To Mr Nolan: He had arranged with young Seymour to go bull bunting on the evening of the Sth, but Seymour was so long that he thought he would go and get his dinner at the Pakarae, He had been working for Mr Phelps, nd Mr Fiolay had settled up with him, Mt Phelps being iu the Hospital—he got £4 from Finlay and £3 from another man, to Whom he had sold a horse. Mr Bees said there was no doubt as to the Ownership of the horse (Mr Seymour’s), and What they must judge was between the accused khd BroWhi It was clear, from the reply to

Ithe juryman, that Brown could read and write, showing at once that the witness was not to be believed. If Brown was telling a falsehood in that, what was there to prevent him telling a falsehood in regard to the selling of the horse? ” They could judge between the two by the clear evidence given by Capper. Would any man be likely to steal a horse in the manner in which Capper was accused of stealing ? His Honor would probably tell them that the evidence of accused was specially important to himself, but Brown's evidence would be just as important to him. He (Mr Bees) submitted that it was Brown who had suggested to youug Seymour that “ Bill had stolen the horse.” The very terms used showed that there was something more than a reasonable doubt. Why, if Capper had actually stolen the horse he need never, in the circumstances, have let the police know of its whereabouts. Mr Nolan said it was clear that either Brown or the prisoner stole the horse—the only evidence against Brown was that of accused, but against the accused was the fact that the horse was in bis possession. He submitted that the evidence against the accused was very clear. It was strange that Capper was so careless about the receipt afterwards when he was so particular to get it Then was it likely they would come ”12 miles to write a receipt, even though they had called in at Turehau ? After all, when they came to Gisborne, the receipt was written on the saddle. Did not these discrepancies show that the accused was concocting a story to clear himself from the consequences ? As to the writing they would know that a lad would in the circumstances soon lose what facility he had to write. He would ask them who could not, if figures were put before him, copy them. [Mr Rees : If he can't write ?] Yes. (Laushter ) His Honor said the counsel for the accused had rightly urged every point he could in favor of the accused, but the counsel for the prosecution had, not rightly, urged every point he possibly could against the accused, as if he (counsel) had a personal interest in the matter—the duty of the Crown was only to try and see that justice was done. The case against the prisoner was very suspicious. He knew the horse, and also that young Seymour would .not sell it, but he was charged with stealing the horse and not of receiving stolen property. There was no evidence against the accused of taking the horse, except that it was found iu his possession. Where goods were stolen and shortly after found in the possession of anyone that was considered evidence of theft, unless a satisfactory explanation were given, but the accused had ruado no attempt to conceal the horse. In regard to the testimony of the prisoner he had always to caution the (jury, but in this case the witness Brown had, in a like manner, great interest in the evidence he gave. As to the question of reading and writing, he was satisfied that Brown could read and write, although to do away with the suspicion ha said he could not write, and probably if the receipt had beeen produced Brown would in any case have denied that he had written it. Then there was another point upon which they might have had an explanation, the long holiday which Brown had had. On the other hand they had strong testimony as to character m favor of accused. As to the bull hunting, the evidence was more meagre on the part of the prosecution than on that of the accusedWithout retiring the jury gave a verdict of not guilty, His Honor: Prisoner, your good character has saved you, in my opinion, your position being a very grave one in buying a horse in that way and at a price which you knew to be so small, from a halfcaste. I hope this will be a caution to you in the future. The Court then adjourned until IQ this morning.