ESCAPES GAOL

Dominion, Volume 4, Issue 1132, 20 May 1911, Page 6

ESCAPES GAOL

| CASE OF T. K. MACDONALD, M.L.C. I -ANOTHER ACT ENDED. ' | MR. BLAIR SPEAKS OUT. MEDICAL OPINION. \ INTERPRETATION BY THE BENCH, ' The Hon. Thomas Kennedy Macdoni aid, M.L.C., was discharged from cus-

j tody 'J. yesterday afternoon, because in i tho of tho Chief Justice' (Sir j Robert Stout) and Mr. Justice Chapi man after tho tho perusal j of certain medical evidence and tho ! hearing of argument in' Court) imj prisonment would endanger his life..

■ Tho" defendant had been nominally in i custody exactly .a. week. A writ of t attachment against him was allowed by | the Supremo Court on February 10, j- confirmed by judgment of tho Court : of Appeal on April 25, and issued last ! Friday, May 12. On tho following | morning defendant was accordingly . brought into Court by tho sheriff, and | ithe bearing which, then took place teri minated in .v further postponement un-. ' til yesterday, to enable tho question ■ -of tho defendant's stato of health as I. a ground for dischargo to bo gone into. j Tho attachment was for contempt of j Court, tho defendant not having conif plied with an order to pay into Court j- fthe sum of £3264 ss. 9d.' This amount j represented trust moneys misappro- : priated by tho defendant. Tho original i order of tho Supreme Court (made by ! consent on December 22, 1910) was for '■ payment of £.3647 3s. 3d., but tho I Court of Appeal held that a writ of atS Ttachment could only issue in respect of ' tho . smaller sum above-named. The j :plaintiffs in tho' caso wero tho chilI dren- of tho lato Ellen Greenfield and ' the lato Bobort Jlackay Greenfield, who I had-left their properties to tho plainj tiffs. and appointed - Macdonald trustco f under their wills. Tho first Supreme i, Court decision in this litigation is dated j 'April 19, 1907—four years ago. This I order, by • consent, that ac- '■ counts should bo examined beforo tho '■ "Registrar of tho Court. Tho hearing '-, by the Court of Appeal on April 4 (last • nionth) was tho first occasion on which '■ tho..public wero admitted to any pro- ■ ceedings. Up to that date press | ; representatives had been from time to [ 'time informed by Court officers that ,' tlie Judges had forbidden the news- ! papers to'mako any reference to tho ! proceedings or to publish so much as the names of tho parties. Hone© the designation, "The Secret Caso," by :' which this litigation has become most ! .Widely known. It is formally described ! as Roso and others v. Macdonald, the ! plaintiffs being Mary Rose, Janet Maci hay Rose, Ellen Roberta Greenfield, ■ and-John Greenfield. ' ; Macdonald lias not actually been in i gaol; It has been ascertained (though Diet .from the official source) that tho . sheriff, who was responsible for his | safe-keeping, detailed a Supremo Court • messenger to watch him night and day | from the rising of tho Court last Satur- : day (Until its sitting' yesterday, and that tho:defendant, spent much of tho in- : .terral at his privato residence. Ho wasfnot produced in' Court yesterday. : The proceedings wero watehed by 60 or more spectators. , . . Tho motion before the Court was , '■ that filed ;by Mr. C. H. Treadwell, ; counsel for Macdonald, last Saturday. ;■ It was as follows:— . ~;, "That tho Court inquire into tho ! caso and, dischargo tho defendant from i custody ion tho. grounds:—'' "■"' " '(1) That imprisonment will bo gravely prejudicial:to the defendant's I state of health.' ' ~';,'■' . . "'(2) T-hat'-no. benofit will accrue':to tho^plaintiffs from tho.imprisonment.' , . ":'(3)' That the real object of the at- ..< tachment. proceedings, is not to obtain '■ payment of the amount shown to bo I due; on'the.defendant's account.' "'(4) That'in all equity-anti-good ' conscience there aro largo' amounts 1 duo ;to the defendant which ho cannot ' legally claim at present, ' but which ■! ought to be taken into account in determining whether he' should bo ] committed to prison or not.'" '■ ', When this motion was before the ' 'Court last Saturday, tho Chief Justice : I said he thought Clauses 1 and 2 could -not bo gono into as the) matters alleged, therein had been already dealt (with, .or" if not, the defendant had had . ample opportunities of having thera - •dealt with". 1 When the Court sat yesterday, it . /had beforo it, in addition to Mr. Tread- < '\ well's motion, a number of affidavits, as set out below. 'Somo of these affidavits dealt with tho events which led . ' .up to the original litigation and others ■ j (which were chiefly referred to during \ ■yesterday's' ' proceedings) ' had _ been" . -sworn by certain medical practitioners ; ;-who had examined tho defendant. AFFIDAVIT BY MACDONALD, REVIEWS HIS TRUSTEESHIP. ] Tho defendant Macdonald, in an affi- i ! 'davit sworn on May 17, 1011, stated that < : practically tho wholo of his estate consisted of equities of redemption in vuri- ] ous properties which wero subject- to j mortgages and to an ultimate charge over ( ■ tho whob of them in favour of tho j Rational Bank of New Zealand. Owing to tho depressed condition of tho market ; ' for landj at the present time, it was , •utterly 'vtH'ossiblo for him' to realise his lands and to pay tho sum of .£3264 ss. 9d. | in respect of which ho was sought to bo ; attached in the matter. , I

•'On or about the eighth day of, March .last," he continued, "I caused my solicitor to offer to tho plaintiffs to pay the Him of ,£2OOO in cash, and the balance of the amount owing by mo by installments extending over three years. This .was at, a time at which publicity had not been, given to the proceedings, for attachment against me, such as was sub- ? sequehtly given by The Dominion news- ; paper, and I'belinvn at that timo I should ' havo been able, if tho plaintiffs had been ■willing to accent the said sum, to raise ■•sufficient' money, with the assistance of i my friends, for the purpose of paying : that sum. It is utterly impossible for 1 me now to raiso tho said sum of X32GI ss. Oct. l In addition thereto, the business in which I am the principal shareholder, carried on by T. Kennedy Mac- ■ ilonald and Co., Ltd., has been practically ruined'by the attachment proceedings against me, and tho publicity given thereto, and I shall in future bo unable to pay the interest on tho_ mortgages exist-' ing on the said properties, thero .can bo Do question that the mortgagees will realise the same, and that I shall 'bo penniless. "When the estate of the late Eobert Mackay Greenfield camo into my hands on the testator's death in 1895, it was sworn, for the purpose of assessment of duty under tho Deceased Persons' Estates Duties Acts, 1881, at tho sum of ss. 4(1. I havo spent largo 6tuns of money for the maintenance of the children of tho testator, for tho purposo of providing' them with trips to Great Britain and elsewhere, and giving them, '. in addition to a general' education, a knowledge of the world.

"Out of tho capital of tho taft'r estate , I paid a sum of about <£90QO to the pur- '■ chase of a farm for the testator's son, John Greenfield. Tho balance of >he estate, consisting of a sum of between ••£33,000 and .£33,000, was handed over to i.tho new trustees of the will, for the ; purpose of providing for the shares of i the three daughters in tho testator's estate. 1 In addition, I conveyed or transferred to the new trustees of tho will a property, subject to tho trusts of one of tho settlements, which is of the value of

approximately .£BOOO. This property I could have, and ought to have, realised ■under the trusts of .the said settlement, but I preferred to hold the same for tho purpose of ultimately increasing tho capital to which tho children of, llio testator wero entitled.

"I had an immense amount of tronblo in. tho management of tho testator's estate, which is moro fully, detailed in tho affidavit sworn by me in this honouraul-o Court in tho matter of my application for commission, which affidavit I crave lcavo' to 'refer to.

"By tho purchase of tho interest of Sir. James Lockio in tho Waipaoa llstnte, which purchaso was, as far as I was concerned, a breach of my trust, the estate of tho said Robert Mackny tireenfield boneiited on the ultimata realisation of the Wnipaoa Estate to tho extent of £8750.

"In July, 1903, the other members of the Waipaoa Proprietary desired to sell tho "Wnipaoa station, and asked my consent. Tho following is a memorandum signed by them, addressed to Mr. F. J. Shelton, commission twenty by which they proposed to authorise him to sell tho property:—

Wellington, July G, 1303, 1 F. J. Shelton, Esq., Wellington. Dear Sir,—Wo are willing to sell tho Waipaoa Station, and now place tho property on offer through you for a l period "of three months from this date, so that you may communicate ' with Mr. Murphy. Price: About 14,000 acres improved and 14,000 acres unimproved, ,£70,000. Stock to ba taken at a valuation. Terms: Stock ' to bo paid for in cash; £15,000, being * balance of mortgago to Public Trus- ; tec, may remain for three years at ! i\ per cent., or may be paid at any . time. The balance of purchaso money may remain for threo years at 5 per cent., or may bo paid off at any time. In the event of your negotiating tho ' sale of this property, your commission will be 2 per "cent.—AVe aro, yours, faithfully, WILLIAM MUIE, ..WILLIAM FINLAY, by his Attorney, W. M. Muir, CHAKLES STEWART. "As the result of my refusal to agrco to this sale, which was much resented by tho other proprietors, tho property was not sold until alxmt the year 1907, or 1908, when at a sale it produced .£135,000 or thereabouts. "That I verily and truly believe that I am in all equity and good conscience entitled to be paid, wore I not in default in payment of the money directed to be paid by mo into Court, a sum of between ,£2OOO and ,£2500 for commission in respect of my administration of the trusts of tho said will. "I believe that the balance against me i.n this matter is completely explained by the following facts:—l ultimately had to mako my accounts up from vouchers from tho bank account. A large number ■' of vouchers. for moneys paid'by mo wero destroyed by being burned, and I received no credits for tho amounts represented by those vouchers. . Hereunto annexed and marked 'A' is an extract from tho evidence taken by the Registrar beforo the Registrar and Accountant in this matter, snowing tho destruction of theso vouchers. In addition, I gave many sums of money to the plaintiffs for . ordinary household expenses without ever obtaining any receipt for them, and these sums of money I have not been allowed in my said accounts. I verily and truly believe that these amounts, together with tho amounts to which I say I am justly entitled for commission,: would quite balance any amount that is owing by me m respect of the moneys due on tho accounts taken." The extract of evidence referred to above, and marked "A," is as follows:— „_■ ."Monday, May i, 1911. 11 a.m. David Brand, clerk in Macdonald, Wilson and Co., great number of years. Beforo Mr. Greenfield's death and un to now. On making a search for a-number of papers,-1 cannot find them. .In shifting to different places I supposo our foreman, Mr. Price, must havo collected them and sent to tho destructor; A largo number: of vouchers and butts of chequebooks in this estate havo been destroyed. Ahe usual practice of Mr.. Macdonald was Greenfield and .'Various-members of tho family brought in accounts, which I paid, are marked as correct bv Miss tTreenfield, and they wero paid. I know they w-ero paid. "Bo destroyed vouchers: Wo have had several moves, and tho storeman must nave cleared away more than ho should have done. ''Except Macdonald, . Wilson account, this estate kept no special books. Tho account before the Court was mado' up upon tho bank books. I suppose the boy who went out paid the sundry accounts and i brought back vouchers. I think they were in Mr. Macdonald's room on tho files. I cannot Wmeinbcr every cheque that was drawn on the trreenfield' account. '. 'When reported to me-great difficulty m getting vouchers, I mado inquiries and found that Price had put old dirty papers and books in an express and sent them to the destructor. Explains why number of vouchers.not here, and cheque butts missing. Some of the Greenfield papers in private room, some in corner adjoining private room-all on ton floor 1 gave instruction to Price to clear up 7n OU ± er % fo ;i nd •"? Probably those kept in ono of theso places."

MR. BLAIR IN ANSWER. MACDONALD'S FINANCIAL MEANS. After reading Macdonald's affidavit Mr A. W, Blair (counsel for the plaintiffs) swore an answering affidavit. .. Mr, m ß , lair sai(l ha had read a copy of tne affidavit of T. K. Macdonald. ou ° r ,-about July 20, 1910, a motion was -filed on behalf of tho plaintiffs for leave to issue a writ of attachment against the defendant in respect of the sum of £1737 os. Id. The defendant approached luui for a postponement of the proceedings, and then had in his possession what, he represented to be a balancesheet showing his financial position and ho represented to him (Mr. Blair) that the assets which ho then possessed wero approximately of the value of £80,000. and that, after deducting the' incumbrances thereon, the net value of his as*ets was approximately £50,000.

iho defendant did not actually show nm the balance-sheet, nor had the defendant over produced a list of all his assets or any balance-slieot showing his financial position. The house in which the defendant resides was a very valuable property.situated on Wellington Terrace. '■•' A recent search which ho had mad© of tno register of T. Kennedy Ifacdonald, Limited, disclosed the fact that the capital of tho company was «S1I),000, and the defendant was the holder of £W% shares in tho company. Upon th© taking of the accounts, tho defendant was given credit for all moneys that plaintiffs believed had been pa'id by him whether he strictly proved such payment or not. The defendant was given credit in tho accounts for all sums paid by him in connection with trips to Great Britain or elsewhere.

Tho defendant received credit for tho whole of tho sums expended bv him in the purchase of tho farm for the testator's son John Greenfield. It is not correct to say that the balance of tho estate was handed over to the new trustees. Upon the salo of the Waipaoa Estate, plaintiffs insisted upon tho purchasemoney being- paid to Messrs. Stafford and Ireadwell, and would not allow tho defendant to handle any portion of the moneys. When defendant left for tho purpose of a visit to England, an order was obtained in Court for a change of trustees, and Messrs. Stafford and Treadwell handed over to such new trustees all Waipaoa moneys in their hands or the investments representing the same, and the dofendant transferred to tho new trustees any unsold properties in his hands The affidavit of W. H. Eoso and J. G. Hose, filed in support of the motion for leave to issuo a writ of attachment, fully explains what happened to tho balance o'f the.moneys which camo into the defendant's hands.

Tho defendant mado it a condition of consenting to tho joint purchaso by the other proprietors of James Lockio's interest in tho Waipaoa Estate that he should bo paid one-half the commission, amounting to .£2«], payablo to the commission agent who arranged the sale. It was true that Greenfield's estate ultimately received a. sum approximating ,£8750 more than it would havo received had the estate only had a quarter share, but it was to be remembered that the purchase money for the sharo was found by the bankers of the Waipaoa Estate, and was repaid out of the profits of tho estate.

It was true that (he sale of the property and st.ock ultimately produced

'. .£135,000 or thereabouts, but such sale in- [ eluded the stock and plant, whereas tho , price at which tho other proprietors were i 'agreeable to sell in July, J90:l, namelv, i .£70,000, was exclusive (if stock. llore- ■ over, James Lockie's iutcrot was purchased in or about June, 100'J, and with i tho exception of two dividends amount- ■ ins to X\sa lis. Sd. paid in 1005, tho i accounts iilcd by the defendant show 1 that no further dividends were paid from ■ 1002 up to tho sale in 100 S. The defend--1 ant's firm was allowed, without objection on the part of tho plaintiffs, a commission of 5 per cent, upon the whole of the income collected during the years defendant was administering the estate. Upon tho taking of the supplementary accounts it was proved before the registrar and accountant that the defendant received either in cash or credits from one James Hutcheu, of tho Stewart Timber Company, Wellington, a sum amounting to .£'6821, being moneys belonging to tho Greenfield Estate, and the defendant in his accounts gave tho estate credit for only tho sum of £2111 2s. Sd., and did not in any way account for tho balance of £1112 17s. Id. At the taking of the accounts he (Mr. Blair) lodged notice of intention to surcharge the. defendant in respect of the amount so unaccounted for. In order to bring tho proceedings to a close, and acting under instructions from the plaintiffs, ho (Mr. Blair) expressly notified . the registrar and accountant that he did not propose to proceed with such surcharge ,but reserved tho right to raise tho question if ever defendant should make any claim for commission. In effect, therefore, tho defendant has already been allowed by way of commission a sum amounting to £-1412 17s. <ld., which, assuming the capital value of tho estate to be .£IO,OOO, was more than double the maximum amount which could havo been allowed for commission. In addition to tho payment of the amount received from James Hutchen and unaccounted for by tho defendant, Mr. Blair said that. shortly . before the conclusion of the accounts he discovered that tho defendant had been keeping at the National Sank a further account in connection with Greenfield's Estate, which account was known as the advance account, and the existence of which had never been disclosed bv defendant. Large sums of money wore paid into this account and disbursed by the defendant, but no complete examination for inquiry into this account was ever made. The suggestion that vouchers had been burnt was not made until the taking of tho accounts had been in progress for some considerable time. A very largo number of tho items objected to by tho plaintiffs represented cheques drawn bv the defendant payable to bearer and cashed for gold over the bank counter. Many of tho items objected to and disallowed such as doctors' account," "burial'expenses, and several other items representing deb s due at Hid dale of the testator s death wero twice charged As for tho suggestion that defendant paid many sums of money for household expenses which he was not allowed in Ins accounts Mr. Blair said that tho terns disallowed in the nature of houson^f CXpe? - S<!S ■>* >, which there was no proof or insufficient proof of pavment were under the value of £1100, and in addition to tho items claimed a's paid by the defendant tho plaintiffs havo allowed a list of supp ementary vouchors produced b.v the defendant, but omitted by him in 7 f?,Ti ll amou i lt - iDg , t0 tho sunl of £12/8 14s. lid., and in addition to theso supplementary vouchers defendant hZ S n,^ 8 allowance of £M 0 The items disallowed wero items mainly described as "sundry account™' or household expenses, and the majority m™ n, ltCmS a , l,oWed in the list of supple! SSS VOUChDrS ,Vere itcms within that

MACDONALD'S RESIDENCE. THE PROPERTY OF HIS WIFE B™nKc!k£ tll9 affldarit of D - W w |l a ™"» J the affidavit of Archibald ™i T BI ? lr ' °, f , Ma - v 18 - T)le fc°« s <> and property referred to m paragraph G of tho said affidavit ,s not tho property of tho defendant but of his wife, Frances Eossiter Macdonald, who purchased tho same in the- year 1592. The said property is subject to a mortgage to the Citizen's Life Assurance Company, Ltd., securing the sum of .£I2OO and interest. LUlm " the medical evidence. defendantTjialadies. In tho fresh medical affidavits (given below) reference- is frequently made to tho affidavit of Dr. Hislop, which was beforo tho Court last Saturday, having been hied by the defence It was reproduced m The Domxkw on Monday last, together with a confirming affidavit by the Hon. Dr. Collins. Drs. Ewart, M'Gavin, and Herbert. Following is the joint affidavit of John Ewart, Ch.M., M.D., Donald Johnstono M Gavin, F.R.C.S., M,D., and "William Edward Herbert, F.R.C.S., M.D.:(1) We have read copies of the affidavits of Walter John Henry Hislop and William Edward Collins. (2) At the request of the solicitor for the plaintiffs we havo examined tho defendant. (3) Referring to paragraph (1) of the affidavit of Dr. Hislop. we have found upon our examination of the defendant that the physical condition deposed to in subclause 7 (abnormally and persistently high arterial blood pressure, some hypertrophy of the heart with alterations in tho heart sounds duo to high blood pressure, some degree of thickening and' tortuosity of the arteries, and a marked dictation of the capillary vessels of tho skin, especially on the face) to be generally correct. The symptoms mentioned in the other subparagraphs are not discoverable upon any examination, but would depend upon observation or information received, and for the purpose of the opinio'n hereinafter expressed we accept Dr. Hislop's statement of the said symptoms as correct. (4) With reference to paragraph 2 (re Bright's disease), we say that defendant has chronic cystitis (inflammation of the bladder), which is a diseased condition common in old age. Wo doubt very much the correctness of Dr. Hislop's opinion that defendant is suffering from chronic interstitial nephritis. We do not anticipate any immediato danger from tho chronic cystitis above mentioned. l

(5) "Witli reference to paragraph 3 (risk of apoplectic seizure if defendant were sent to prison), wo say that for the reason that thero is some thickening of the blood vessels, and on account of the condition of defendant's heart, and his general bodily condition, we are of opinion' that any mental distress howsoever caused may precipitate an "apoplectic seizure." The question as to what will or will not cause mental excitement will depend upon tho defendant's temperament. It is impossible for us to offer anv opinion as to this. Whenever we find thickening of the blood vessels, this indicates a certain amount of weakness

which will very probably bo present m Hie, bipod vessels supplying the brain. In the brain these particular vessels aro supported by brain tissue only, which is comparatively soft, and affords less support than tissue in any other part of t.ho bodv. If, therefore, blood vessels in tho brain become, weakened, they become liable ■to possible rupture. Any excessive physical exertion or any excessive, mental excitement might cause, such a rupture, and so bring on an apoplectic seizure. Tho ordinary _ treatment prescribed for a patient having thickening of the blood vessels, and tho condition of tho heart and general bodily condition of tho defendant would be complete rest and quiet and the elimination of any mental worry or excitement. In the case of an ordinary patient having theso symptoms wo would prescribe such treatment.

Drs. Cahill and Gilmer. Thomas Cahill, M.D., Ch.M., and Hamilton Andrew Hugh Gilmer, M.D., who also examined the defendant at tho request of the plaintiffs, each mado the following affidavit: — "I havo examined the defendant, and so far as tho defendant's symptoms are concerned. I concur in tho affidavit r,f Doctors Ewart, M'Gavin, and Herbert. Referring to paragraph (1) of the lastmentioned affidavit, I say that I inclino to tho opinion that Dr. Hislop is correct in his diagnosis that defendant is suffering from chronic interstitial nephritis, and I agree with Dr. Hislop that there may bo some risk of uraenuc poisoning. I concur in paragraph 5 of the affidavit of Drs. Ewart, M'Gavin, and Herbert." Drs. Hislop and Harly. The following affidavit was sworn by Walter John Henry Hislop, Ch.M., 0.C.5., and Garnet Wilson Harlv, M.8., 0h.8., F.K.C.S. (Edinburgh):--"X, Garnet Wilson Harty, under in.

.".truetions from Dr. Hislop, examined the eyes of Thomas Kennedy Mucdonald. the defendant in this action, and found evidence of disease, which consists of n number of whilo spots around the macular region in each eve. These snots are ircqiicnlly associated with disease of the kidneys, and their presence is always siißßPslive of lesion of tho kidneys The presence of changes in the eye in renal disease is usuallv of grave imnort. "And T, Walter John Henry Ilislon. say: I found it impossible to have an examination of the defendant's eyes mado while his examination by medical experts on behalf of the plaintiffs was incomplete, inasmuch as that might have interfered with their examination, and. consequently, I had to defer his examination by Dr. Harty until yesterday iMay 17). "And we, Walter John Henrv Hislop and Garnet Wilson Harty, say that tho concurrence of the signs sworn to bv the above-named Garnet Wilson Hart'v as existing in this case are corroborative of the existence of that form of chronic V -J? ,', llsca so known as interstitial nephritis. Dr Fyffo's Examination. By direction of tho defendant's solicitors, Dr. Fyffe examined defendant on Jlay 4 He entirely concurred with Dr. Hislop s diagnosis. Ho did not, however, take the same serious view as Dr. Hislop of the effect of committal to p'ison, but Jio agreed that this meant a large amount of mental distress and worry and his surroundings would in all probability produce an accentuation of tho nervous symptoms of uraemia, which might terminate defendant's life. It was very sudden in its onset, and required urgent treatment, which it would probably not bo possible to obtain in gaol It was certain that defendant was an invalid in a precarious state of health and would require constant medical attendance and supervision.

YESTERDAY'S PROCEEDINGS, A PLEA FOR INDULGENCE, SOME PLAIN LANGUAGE. When tho case was called on, the Chief Justice said he had read all the affidavits, including the new matter hied by Mr. Treadwell, but ho questioned whether that could be gone into now. -Mr. Treadwell: Your Honour is referring to the question of commission? TJie Chief Justice: Yes. I don't see what tho Court has to do with that now.

Mr. Treadwell: Perhaps not, your Honour, but I put it in in case your Honours should deal with tho matter from the point of view of the facts in regard to that question. The Chief Justice said thero were two questions for the Court to settle: (1) ■Whether they had power to order a dischargo on grounds . relating to tho defendant's state of health, and (2), if so, whether tho medical evidence was such as to warrant a discharge. _ Mr. Treadwell: Thero is a third question, namely, whether any good purpose is to bo served by the attachment. Tho Chief Justico said that should havo been taken before.

Mr. Treadwell reminded tho -Bench that ho mentioned it last Saturday, and tho Chief Justico had then said it was open to him. Tho Chief Justice: I don't say it is not open to you, but it is not tho main thing. Mr. Treadv,ielJ: I agree that the main thing is the defendant's physical condition.

Tho Chief Justice: Does Mr. Blair contend that .if we havo tho power to grant a dischargo the medical ovidenco is not sufficient.

Mr. Treachvell: It is submitted that thorp can bo no question that on tho medical evidence the Court ought to exorcise its discretion in favour of the defendant. Ho then traversed several passages in tho' medical affidavits, and referring to Dr. Harty's testimony, said that it appeared that in tho discaso from which tho defendant was suffering, symptoms could bo found in tho eyes of the patient. They wero unablo to Sot an examination of tho oyes by Dr. Harty until tho other doctors had finished, but had tho latter seen Dr. Harty's evidence they might have come to a different conclusion in some respects. The Chief Justice remarked that of tho five doctors called in for tho plaintiffs, three said they doubted Dr. Hislop's diagnosis, and two said they agreed with it. A Question of Procedure. Mr. Treadwell further reviewed the medical affidavits, and then referred to a question of procedure. Undor Supreme Court Rule 385, he submitted, it was essential that the defendant when attached should bo brought before tho Court, and that tho Court should fix a term of imprisonment within tho limit allowed by the law. That was not so in England. There tho defendant, on being attached, was committed for twelve months, and could apply for his discharge, but in New Zealand, when a person was brought before the Court on a writ of attachment, the Court could commit him to prison for such term as the Court thought necessary, and as was by law allowed, unless he sooner complied with the order of the Court. That was the position in 1910 when tho Judicature Act was passed, and Section i of tho Act was to be- read in that' light. Tho Chief Justice: That means you can argue- tho same question threo times. Mr. Treadwell: I' don't think so, but it may mean that the view Mr. Justice Cooper took was ' tho correct one. I apologise for not directing tho attention ol the Court to this rule before. It has a most important bearing • on tho meaning of Section 4 of the Judicature Act. Counsel then read the section referred to. The Chief Justice: That, surely, goes dead against you, because it assumes that you can raise, when tho writ is upplied for,. all that you seek to raiso now. Mr. Treadwell: No; I can surely raiso these points now? Tho Chief Justice: After they havo been decided against you? Mr. Treadwell said that was not so. He was not seeking to raiso tho question of want of means as a bar to tho vrrii, but he submitted that Iho Court should take the point into consideration when it had to decide whether this man ought to go to prison or not. That was a question for tho discretion of tho Court, as shown by tho rule and tho section of the Judicature Act, which he had quoted. He proceeded to refer to several cases in which he'said tho discretion of the Court had been exercised in England. Tho Point, Tho Chief Justice: No doubt it has been exercised in New Zealand. Tho point is: Can we discharge liim now on the ground of ill-health ? Mr. Treadwell said ho could find no cases on that point except those ho quoted last Saturday—Harris v. Ingram, in ro Freston, and tho passage in Seaton on Decrees. The Chief Justice: And,the caso of Street v. Hope. In that caso the Court exercised ■ its discretion in issuing tho writ. Mr. Treadwell: But does your' Honour say that that is final? The Chief Justico: No; 1 don't say so, if you havo other grounds, but you aro I trying to raise matter _ that has been decided thrco times—twice by tho Supreme Court and once by tho Court of Appeal. Mr. Treadwell then said ho would bo content to leavo it on tho ground of ill-health and tho ground that no benefit would accrue, to tho plaintiffs from tho incarceration of the ■ defendant. Ho quoted an English authority to show that tho ■ Court had power to inquire into a man's means, and as to whether any good purposo would be served ■by committing him to gaol—"tho law is not vindictive." Tho-Chief Justice pointer! out that this had since been "over-ruled.

Mr. Treadwell said he knew it was over-ruled in Marris v. Ingram, when it was held that the law was vindictive.

Tlio Chief Justico said lio was sure ho had road all the authorities Mr. Ti'oadwcll could quote. lie mentioned anotlicr ease, in re M'Konzic, in which the Judge had said that it would effect no useful purpose to send the defendant to gaol, because he had no means to satisfy the order.

' Mr. Treadwell said the order of this . Court was enforceable in every way ' against tho defendant's estate. "1 offer . to give to. tho plaintiffs security over , tho wholo of tho defendant's assets in . any form the Court may approve, so ■ that they may bo paid. In those circumstances, what good purpose could bo 1 served by sending this man to gaol?" ! Mr. Justice Chapman: They have it ; in their power virtually to tako what ! is due to them by making him bank- . rupt. 1 A Plea for Indulgence. Mr. Treadwell: No doubt; and from that very point what can be gamed . by committing a man in his state of health to prison? Surely it is a very strange way of trying to recover trie amount. You will seo that tho defen- • dant has not been trying to get out of his liability. I refer your Honours 1 to Mr. Macdonald's affidavit, where you will seo that at a time before publicity ] had been given to tho proceedings ho offered to pay £2000 in cash, and tho balance by instalments. Your Honours aro awaro of the position of tjio market in regard to land in this district at tho present time, as referred to in tho affidavit, but tho defendant's estate, if carefully husbanded, will be sufficient to meet tho liability in time. In view of tho few years of life that are left to him, ought the plaintiffs to endeavour in the way they aro doing—and I uso those words with a full sense of their significance—to cause this unfortunato man to spend the remainder of his life m gaol ? Ho is a man who had committed faults during tho past, and I do not wish to cover them up, but is their action ono to which this Cou=i can give its assjstance? I am entitled to ask your Honours to deal with it trom this point of view, and to exercise mercy, coupled with discretion, to secure to tho plaintiffs their fair and reasonable rights; but is vindictiveness to bo given effect to by this Court? They say that Mr. Macdonald has pmtZi , trust ., f »»ds. There is a g eat deal to be said on that matter, but it is cosed to me, and I do not propose to enlarge upon ,t. But is this nan to bo committed to C aol so that disgrace maj bo brought upon his faihilv, merely for the purpose of gratifying" the viudetive spleen of the plaintiffs? Bc . cause no other purpose would bo served TohZ ,° f tl l? oflcr l havo nucle-au-solutely no other purpose than that. Counsel concluded by reiterating his offer to give security over tho wholo of defendant's assets to ensure the amount duo to tho plaintiffs being paid. Mr. Blair's Address. x fW Bla ' r Sa 'x H 1 ? motion bef ° r e tho tourfc nas one to discharge the defendant from custody Mr. Treadwell had used anguago which would indicate that ho felt very strongly, or that his client felt very strongly, the disgrace of imprisonment, and he had quite overlooked the-fact that this point had been disposed of and that imprisonment had taken place. Tho Chief Justico repeated his statement that thero wcro two points beforo the Court, viz, whether they had power to discharge tho prisoner, and whether that power should be exercised. Mr. Blair said that was so. This was not tho case of an ordinary, cvervday honest man who would feel that 'if ho was in disgrace ho had done something deserving of punishment, and also that, the punishment being undergone, it would to some extent expiate his ohenco. I'rom Macdonald's point of view, the fact that ho had incurred disgraco was not what was causing him distress, but his distress was caused by the fact that ho had to undergo punishment which was tho ordinary, everyday result of tho acts ho had'committed. Mr. Treadwell could not blame tho plaintiffs if they invoked the punitive jurisdiction of tho Court, for it was intended not only for tho punishment ot dishonest trustees, but also to deter others from acting in the samo way. Mr: Treadwell had said that no good object would be served by sending the defendant to gaol. "I say," said Mr. Blair, "that a good public object will bo scryed, and if the Court discharges tho defendant becauso ho happens to ' bo sick, then it will bo necessary for peoplo in appointing a trustee to ascertain not only that ho is an honest man, but also that ho is a healthy man, be- ' causo a sick man may do with impunity ' what a well man may not do." ' _The Chief Justico: It is not a question of health. The question is whether imprisonment is likely to induce or precipitate dangerous symptoms that may * causo death. You havo to go that length. '

Mr. Blair said it would surely require a little more than tho fact'that the man was ill to tako awav from the plaintiffs what tho Court of Appeal had given them. It was their only means of enforcing this debt. Ho had'very little doubt, and tho plaintiffs had very little doubt, that if thoy got what the Court of Appeal had allowed thcin, the money would bo forthcoming. Mr. Treadwell: I am very certain it won't.

"Springs This Upon Us." Mr. Blair: I am equally certain it would. The condition of defendant's health is an old standing trouble. It was tlnre in March last, but tho defendant pit us to the expense of proceeding in tho Court of Appeal, and then at tho last moment,' when every other door is closed to us, he springs this upon us. He also conies here without any satisfactory evidence, but only tho word of a dishonest and fraudulent trustee, and asks you to believe that he has nothing. There is an affidavit showing that he is tho owner of practically tho whole of a large business in Wellington. Mr. Justice Chapman: Would not bankruptcy have brought tho whole of these matters to light ? Mr. Blair: Yes. But it is not a question of what the plaintiffs may do, but of what tho defendant has. Mr. Justice Chapman: That you can ascertain by making him bankrupt. Mr. Blair: The defendant could do that, and if he did so that would apparently satisfy the Court, but this possible bankrupt holds one of tho highest positions in the land. It is a paid office. It would take us six months to make him bankrupt Tho Chief Justice: How is that? Mr. Blair: Becauso wo have only got an order for payment, not a judgment. Tho Chief Justice: Can't you issue a sequestration order, and if the return is nulla bona, can't you at once get possession ? Mr. Blair: Perhaps so, but tho defondant comes and suggests that ho cannot pay one single penny of this amount. Mr. Treadwoll: They refused £2000 in cash . Mr. Blair: And the defendant now says that becauso we refused that wo arc to get nothing, because be hnpnens to bo a sick man. If the Court sayj that the more fact of possible danger to health from incarceration is sufficient to entitlo a man who certainly has some means to get off scot free, then tho position in regard to trustees is, from tho piiblic point of view, in a very dangerous condition indeed. "Mental Distress." Proceeding, Mr. Blair reviewed tho medical affidavits, and contended Unit tho particular temperament of tho defendant must be taken into account. Tho doctors merely referred to such mental distress as would be felt by any person who was deserving of punish'- i ment. So far as mental distress was caused by tho dfituidaaiffl osa* csrong- j

doing, that distress would go on whether he was imprisoned or not. If tho plaintiffs made him bankrupt, lie might be mado subject to the penal clauses of the bankruptcy Act, and they could not say that that would allovialo his mental distress. They had to look at a man of the temperament of tho defendant. Tho additional mental distress which ho would suffer through being put in gaol would not materially aggravate tho symptoms of his disease, since it would amount to very little more than the mental distress he was at present suffering. "The defendant," continued Mr. Blair, "has gone, about for many years amongst his fellowmen, posing as an honest man, and now wo know that for many years ho has been robbing a trust estate. Surely this man, who has homo for many years a burden of that nature without being in any way inconvenienced by it, must bo by this time- considerably case-hardened —and casehardened to wrong-doing, and, shall I say, crime ? Wo have, got to look at tho defendant's temperament. Will he suffer such mental distress as will add the last straw to tho diseased condition of tho blood-vessels of his brain? I do vj'ge that the onus is on tho defendant to satisfy your Honours abundantly that ho must bo discharged free, taking away from us that which wo have novcr in effect had, although tho Court of Appeal has given it to us. It will be necessary for him to show, not only in a general way, that gaol imports worry and distress, but that it will do so to a person of the defendant's temperament, and I sav that nothing that can bo done to tho defendant will bring upon him or mako him feel any greater worry and distress than ho should be experiencing at present."

! "Edifice of Effrontery." > His last affidavit i< tho coping-stone i upon a large edifico of effrontery which he has erected in this Court. Notwithstanding that the Registrar and accountant, and a Judge, said that ho was indebted to tho estate to a largo amount, ho swears that tho estate owes him a very large sum for commission. He has quite overlooked the fact that that has already been dealt »' tn - ' • , ,i i Mr. Treadwell: I didn't go into that becauso your Honours stopped mo. The Chief Justico: I don't think it has any bearing. Mr. Blair: I say it has a bearing on tho defendant's temperament. Gaol won t touch him. 1 It will bo no degradation to him. It is submitted that lie has not abundantly satisfied this Court that ho ought to bo discharged' scot-free, and that incarceration in prison will havo any prejudicial effect upon his mind. It 'is outside prison that the worst part of tho trouble is felt, and in the actual entrance to prison. Besides, so far as we aro concerned, ho is in gaol already. That is the position, though we do hear that he has not been put there. That does not depend in any way upon us. I again urge that if illness alone is to be taken as an excuse The Chief Justice: It is not a question of illness at all—l havo said so. Mr. Blair: But, providing a trustee can show that a little worry—; — Tho Chief Justice: That is not it. His Honour then quoted portions of tho medical affidavits. Mr. Blair again referred to the "very peculiar temperament" of tho defendant, and asked tho Court to remember what ho had already gono through. Proceeding, Mr; Blair referred to tho cases quoted by Mr. Treadwell, and said ho had not mentioned any case where a trustee had been able to procure discharge without somo purging of his contempt. Tho Chief Justico: There were cases where ho remained in contempt. Mr. Blair: Only ono that I could find, and there the Secretary of State intervened. •> : - - Tho Chief Justico said the Secretary of State had no power to instruct tho Court, but it acted on his letter alone without calling evidence, becauso it assumed that tho Government would not write that tho man was ill if ho was not. Did Mr. Blair wish tho Court to sot aside tho opinion of his own doctors, whom ho sent *o tho defendant ? Mr. Blair: They all say he needs rest and quiet. Is not tho Terrace Gaol tho placo whero ono gets, perhaps, only too much rest and duiet? The Chief Justice :* That is not what they mean. They say tho elimination ot worry and excitement. You are only reading half tho sentence. Mr. Blair: The mere fact of not w) g !?, - g ?°-J would not eliminate it. Tho Chief Justice: Why did not your doctors say so? You aro asking us to dccido a medical question against these doctors. Tho Question of Temperament. Mr. Blair: They all avoid the question of temperament. The Chief Justico: Do you suggest that wo can go behind what vour own doctors say? Mr Blair: Not one of them claims any knowledge . other than what thev gofc in examination of him. I do sav that he can stand everything ho would havo to stand. He has stood it already. The Chief Justice: That may have been tho cause of the disease. Mr. Blair: It is not suggested that it came on since last Saturday. ' the Chief Justice: But this trial has been going on for years; thero have been innumerable sittings. mi r- ' I ' r . c i ldwoll: y ° s —innumerable. Tho Chief Justice: I never had anything to do with it until recently, but it has been beforo other judges. Mr. Blair: I think probably the thine that worries him is publicity. Ho is distressed by what they call a breach of tho 11th Commandment: "Thou shalt not be found out." It doesn't worry him that ho has done something wrong', but only that ho is found out. He is constituted that- way.

The Chief Justice: Wo have no evidence of that.

Mr. Blair again referred to tho history of the trusteeship and the litigation. In regard to the. Court's discretion ho referred to tho caso of Marris v. Ingram.

Tho Chief Justice said that Sir George, Jessel had not tho power New Zealand judges now had under Section 4 of the Judicature Act.

I .Mr. Blair snirl that what Sir G. Jossol complained of was that ho had to put an innocent trustee' in gaol, but the present defendant came as a dishonest trustee .in a matter for which ho should bo punished, as the Court had said, and invoked the discretion of tho Court to discharge him. Such a discretion had never before been exercised. This Court could not be asked to discharge tho. defendant on the ground that imprisonment might imperil his health, or even his life. The plaintiffs had in their favour the judgment of tho Court of Appeal that the writ should'issue.' but this Court was now invoked to take away from the plaintiffs what the Higher" Court had given them. Tho Higher Court had said they were entitled to ' enforce their remedy in that particular way, and had said that this was one of the cases in which a dishonest trustee should be punished, hut now the defence asked this Court to allow him to go scot free. "The Court has a Duty to Perform." "I suggest," continued counsel, that tho Court has a duty to perforin in tho punishment of a fraudulent trustee. The last affidavit for the plaintiffs shows that there is due to them moro than th" amount, asked for in this case. The defendant has received special consideration. He is, in tho estimation of his I fcllowmcn, a man in a high position, who is supposed to be looked up to, but it is shown that ho is undeserving of that, position, and the offence, therefore, from his point of view, is so much the greater. The punishment also should be 60 much the greater. Yet Ibe'pun-

ishment in this caso—a more detentionis quito inadequate to what he has done, tf your Honours feel it your duty to lake away tho only remedy that is effectual for gettiug this money, you will deprive the plaintiffs of Hie i'riiit of some Jears of expensive litigation, in which t!i!.-y havo been met at every point by persistent obstruction, and they are met by another and a now obstruction today. If you look at it purely from tho point of .view of punishment it'cannot bo suggested that a person who has helped himself to stolen trust funds for many years could resist tho imposition of a term of imprisonment, if be were brought before tho criminal side of this Court. Tho defendant should consider himself lucky that the action has been brought in this way. It was a caso in which, if there was any doubt in regard to the possibility of disease " The Chief Justice: It is not tho possibility at all—it is the existence. _ Mr. Blair I meant the possibility of death by Bright's disease. They say ho ought nof to be punished, but is it suggested that to put him in gaol would render it impossible for a doctor to get to him? The gaol is not at 'Waiotapu. It is here in 'Wellington, and a man inparcerated there gets medical advice. I believe be gets it free. So far as tho present form of incarceration is concerned, ho is entitled to free medical attention and proper diet. All that happens is.that ho is detained, and he has the stigma of having been in gaol. If your Honours consider it a caso for the defendant to bo discharged scot free without paying one penny, the position from tho point of view of beneficiaries will bo a sorry one indeed. Mr." Treadwell said be thought bo bad nothing to add to what ho had already expressed. Tho question was a very serious one, and would no doubt moot with due consideration at the hands of tho Court.