DISTRICT COURT.

Southland Times, Issue 1619, 13 August 1872, Page 2

DISTRICT COURT.

(Before His Honor Judge Wabd.) Saturday, June 10. The usual sitting of the District Court was commenced on Saturday, at 10 o'clock. Hia Honor said — Before commencing the business of the day, I have to express my regret at being unable to appear in the usual official costume. Owing to the unforeseen delay of a steamer, I reached Dunedin 48 hours later than I expected, and in consequence was compelled to choose between ri ling overland from the Clutha —a journey in which the conveyance of official costume was impossible — and waiting for a steamer at Dunedin. It seemed to me that, as the latter course would necessitate an adjournment of the court to some day next week, and great consequent inconvenience to witnesses and to the public, it was better to dispense for once with official paraphernalia. I must say that the present state of the roads scarcely tempts mo to repeat the experiment. It is much to be regretted that some attempt at improving them should not be made without delay. James M'lntosh, settler at Limestone Plains, Jacob's River, was charged under sub -section 3, of section 302, of the Bankruptcy Act, with concealing a debt due to him from one John Lyon M'Donald, amounting to £20 15s sd, with intent to defraud his creditors. Mr Harvey appeared for the prosecution, and Mr Wade for the defence. Mr Harvey having stated the case for the prosecution, called William Stewart, Registrar of the Supreme Court, who stated that the prisoner had filed a declaration of insolvency on 3rd June last ; that the order of adjudication was granted on 24th June ; that the usual " four days' statement" was filed on 7th June ; and that the affidavit verifying it was dated on Ist July. A copy of the order of adjudication having been produced, prisoner's counsel objected to it being received without being verified ai a copy under the seal of the court, or unless the witness could positively swear to its being a true copy. | A discussion ensued on this point, which resulted in the witness producing the minute-book of the court, which contained a minute showing that the order had been granted. This was held by the court, along with the itatement of the witness, to amount to evidence which could be submitted to the jury as to the fact of the adjudication. The bankrupt's statement of affairs was then read, and found to contain no reference to the debt in question. The witness further proved that the first meeting of creditors was called for sth July, on which occasion neither the bankrupt nor any creditors appeared. The meeting

was accordingly adjourned till 12th July, on which occasion the bankrupt did not appear, and the creditors elected a trustee. Thomas Perkins, the trustee in the estate of the prisoner, proved that he had not baen informed of any debt due to the prisoner from Mr J. L. M'Donald. John Lyon M'Donald, storekeeper in Hirer ton, stated that he bought 1000 bushels of oats from the prisoner, and was due him a balance of £20 15s 5d on the transaction, before his bankruptcy. He received a letter from the prisoner, dated 30th May, regarding this balance. Letter produced and read, as follows :— " In vercar^ill. To J. L. M'Donald. May 30th. Dear Sir, — Would you be kind enough to put Mrs instead of Mr where you have my name in your books. I cannot deliver any more oats to you, I suppose, how I am situated. You would oblige me very much if you would sand the balance to me. Yours, &c, J. M'lntosh, Limestono Plains. Yon might give it to Dougal." Witness received this letter through the post on Ist June. A written order was produced and read, as follows : — " Invercargill, May 29th, 72. To J. L. M'Donald.— Please ] give the bearer, Dugald M'Donald, the balance , of the price of the oats, as I owe it to his mother. | Archie got 65 bags, 5 from me, so I think there is | only one bag between us. — Yours truly, Jambs M'lntosh." This order was presented to witness about 12th July, and he refused payment, on the ground that notice of insolvency had previously appeared. This closed the case for the prosecution. In opening the case for the defence, Mr Wade cautioned the jury that before they would be justified in finding the prisoner guilty, they would have to be satisfied first that the prisoner had been regularly adjudicated a bankrupt, that he had not been divested of the debt, at least to the best of his belief, when he filed his statement, and that he concealed the debt w ith intent to defraud. He then called Ann M'Donald, who stated that prisoner was married to her daughter. Witness lent prisoner £6 Bs, in the harvest time, and rendered him some services at the same time. Sent her daughter to work for his wife, she not being able to work. M'lntosh knew that he would karo to pay for her services, but made no special agreement with him. Expected 10s per week for her daughter's services. She remained nine weeks. Witness attended his wife in her confinement for eight weeks. Expected £2 per week for that. Witness lived with another son, but found her own clothes, and earned money for that purpose by going out as a nurse. By the Judge — M'lntosh said he would leave an order for some money for witness on the table. The order was taken to Dugald a few days after. It was for services rendered, and the money he owed her. Cross-examined by Mr Harvey — Left James M'lntosh's house the same day the policeman took him to town. Was living there eight weeks before that. Could not tell how long the order was signed before he was arrested and taken to town. Thought that he was taken to Riverton on Saturday, and to Invercargill on Wednesday, but was not very sure. He wrote the order a good while before his removal to Riverton. Was quite sure of that. When the daughter went away no arrangement was made for wages. Dugald M'Donald, with whom witness lives, does not pay any wag«s either to the daughter or to witness. Mr Wade having addressed the jury for the prisoner, contended that the debt had been pirted with by tha prisoner, and could not be regarded as his property at the time of his filing his declaration of insolvency ; that even if the debt was not divested by the order, there was no doubt the prisoner believed it was, and that therefore he could not honestly put it in his schedule, as a debt due to him, as the order might have been paid for all he knew to the contrary, before that time ; and argued that the jury could not reasonably find a man guilty of concealing property which he did not believe he possessed. He cautioned the jury against entertaining the question whether an undue preference might have been shown to any creditor over the othiT9, as that was not the issue they were to try. Mr Harvey, in replying, urged that the debt was a fictitious one, and that the transaction in reality amounted to a conspiracy between the parties to conceal the bankrupt's property from his creditors ; and dwelt on the fact that the order and letter were dated from Inyercargill, only a day or two before the declaration of insolvency, with the evident intention on the part of the prisoner to remove the property from the control of his creditors and derote it to his own purposes. The Judge gummed up the evidence, and charged the jury, pointing out that three circumstances must be proved to their satisfaction before they could convict : that the prisoner bad been adjadicated a bankrupt ; that he was not divested of the property at the time of filing his statement ; and that he concealed the money with intent to defraud. The proof of the first point he held to have been complete ; with regard to the second, the order had not the effect of divesting him of the property ; and it was for the jury to judge from the evidence whether it had been concealed with intent to defraud. The counsel for the prisoner objected to the charge, and requested His Honor to instruct the jury that if the prisoner really believed that by granting the order he had di vested himself of the debt, the offence had not been committed. His Honor refused to amend the charge. The jury retired, and' after a short absenc?, returned with a verdict of guilty, accompanied by a recommendation to mercy on the ground that the prisoner might have thought he owed the money to hia mother-in-law. To this, however, one of the jurymen objected. Sentence was deferred till Monday, to allow counsel for the defence to produce witnesses to character. Monday, Augu3t 12th. His Honor took his seat on the bench at 10 o'clock. James M'lntosh was brought up for sentence. Mr Wade called as witnesses to character, Messrs Cochran, G-oodwillie, and Fairweather, who concurred in stating that the prisoner had borne a good character for honesty for many years. Hit Honor, in passing sentence, said : — Prisoner at the bar, it has been proved before me by the clearest evidence, so far as I can judge on the most careful consideration, that you are a most honest and respectable young man, who has borne a good character for many years, and has been guilty of a gross fraud upon his creditor*. You have been found guilty by the jury, and I recommended to mercy on the ground, which I am bound to say however, some of the jury did not concur in, that you were on such friendly terms with your mother-in-law, as to be willing to give her a fraudulent preference over the rest of your creditors. I am unable to see in these circumstances any claim to the lenient consideration of the court. This is the second case of the kind that has come before me in this province. In the other, the principal offender was unfortunately beyond the reach of the law. In this case it ia not so. The sentence of the court is that you be imprisoned and kept to hard labor for the space of twelve calendar months. In Bankruptcy. An application was made by Mr Macdonald, iv the estate of Daniel Kingaland, for a declaration of the complete execution, of a deed of assignment, filed on 9th August. Application granted. _^__^____^____«