THE "SECRET" CASE.

Taranaki Daily News, Volume LIII, Issue 310, 25 May 1911, Page 7

THE "SECRET" CASE.

MR. BLAIR'S CAUSTIC COMMENTS. TRUSTEES SHOULD BE HEALTHY. AS WELL AS HONEST. "THE ELEVENTH COMMANDMENT." At the Supreme Court at Wellington last week, the Press telegrams told us, T. K. Mac Donald applied through his solicitor, Mr. Treadwcll, for the discharge of a writ of attachment made against him. The Press Association agent did not forward a very full account. We take the following from tho Wellington papers. The particulars will be read with interest. It will be recollected that the despositions of a number of doctors were handed in to show that defendant was in such a state ol health that imprisonment might ,prov« detrimental to him.

Mr. Blair, in replying to the arguments of Mr. Treadwell, was verv caustic. He said that Mr. Treadwell had used language which would indicate that he and his client felt very strongly the disgrace of imprisonment. He had. however, quite overlooked the fact that that part of the matter had already been disposed of, as imprisonment had actually taken place. The ordinary, everyday honest man felt it was a disgrace to have done something that was worthy of punishment, and probably also felt that, having undergone that punishment he had to some extent expiated the disgrace. But this was not MacDonald's point of view. The fact that he had incurred disgrace was not a matter that worried him, but it was the fact that he was liable and that there was a risk that he would have to undergo punishment. Mr. Treadwell had asked what good object would be served by the imprisonment. He (Mr. Blair) said that a good public object would be served and that, if the Court discharged defendant because he happened to he sick they would arrive at this position—that when people were choosing a trustee, not only would they have to ascertain that he was an honest man, but also that he was a healthy man, because a sick man could do with impunity what a w'ell man could not do.

"It is not a question of health at all," the Chief Justice interposed. "It is a question of whether imprisonment is likely to precipitate dangerous svniptoms." Mr. Blair apprehended that the Court would want a little more than the mere fact that the defendant was ill to take away from the plaintiffs that which the Court of Appeal had given them—the only means they had of enforcing payment of this particular debt. He had very little doubt that if they got what the Court had given them the money would be forthcoming.

"It is not certain it will," remarked j Mr. Treadwell. ' OBSTACLES IX THE WAY. | ''l feel just as certain of that as my friend is uncertain," Mr. Blair replied. "We are brought here at the last moment, and every possible obstacle is put in our way. The eondij tion of the defendant is a long and | old-standing trouble. It was there in ' March last, but the defendant puts us to the expense of proceeding in the Court of Appeal, and then at the last moment, after he has failed and every oilier door is shut, he springs this upon us and comes here with no satisfactory evidence except his own word—the word of a dishonest and fraudulent trustee. 1 He asks us to accept his word that he has nothing. But there is another affidavit that says that he is interested in a company and owns practically the whole of it.

Mr. Justice Chapman: Would not bankruptcy proceedings bring all these matters to light? Mr. Blnir: Yes. but you will see that it is not a question of what we can do subsequently, but what means of payment the defendant has now. Mr. Justice Chapman: That you can ascertain through proceedings in bankruptcy. SOME REASON BEHIND. Mr. Blair: The defendant himself could do it. He could divest himself by going bankrupt, but he does not. There is some reason for it. If he was bankrupt it would at once satisfy the Court that he has nothing, but he doesn't do it. He holds one of the highest paid offices in the land. Mr. Justice Chapman: You could ipake him bankrupt. Mr. Blair: But you will find it would take us a very long time to do, probably six months. The Chief Justice: Why? Mr. Blair: We have not got judgment yet. The defendant comes and suggests that he cannot pay one single penny of this amount. Mr. Treadivell: But you have refused £2OOO in cash. Mr. Blair: So you say that having refused it we will got nothing because he happens to be a sick man? If their Honors consider that the mere fact ol possible danger from incarceration in gaol is in itself sufficient to entitle a defaulting trustee and a man with some means—for there is 110 doubt he haf> some—to go soot free, then the position with regard to trustees is very dangerous indeed. The doctors' affidavits show that defendant is suffering from

two maladies. They appear to be agreed that the question as to whether there is danger to health depends upon ex cessive mental worry or excitement. The Chief Justice: C'oine, they don'i say that. On the contrary, tlioy say "any mental distress howsoever caused." Mr. Blair urged that it was necessary to separate mental distress so far as defendant was concerned n.-cording to the manner in which it was caused. So far as any mental distress was concerned, that was a matter which would he present whether imprisoned or not. Mental distress or worry would come on, supposing defendant was made bankrupt. "The defendant is a man," said counsel, "who for many years has gone about his business as an honest man, but we know that for many years he has been robbing a trust estate, and surely a man who for so long has borne a burden of the kind without seriously inconveniencing himself must be a man wlio by this time has become casehardened to wrong-doing and crime. We must look at the defendant's temperament, and the question is: Will he suffer that mental distress which will possibly bring on a recurrence of his trouble or, at least, weaken the tone of the blood-vessels of the brain? There is an instance of what lie can stand. He was in the Court last week when it was decided that he must go to goal. Did it bring on a mental attack of an apopletic seizure? It was a sentence, that was a shock, but it was not a suffi-1 cient shock to bowl over the defendant in this case. We know what he will stand. He stood the shock of the proceedings and the order against him, and the virtual sentence of imprisonment, and, having done this, he must be of a temperament to stand anything. We are dealing with a man who is casehardened to this sort of thing, and can stand more than the ordinary man possibly could, so far as publicity and talking about his dishonesty is concerned. "EDIFICE OF EFFRONTRY."

Nothing that could be done to defendant will bring upon him or make him feel any greater worry or distress than he at present feels. The very last affidavit he filed has but the coping •stone upon the large edifice of effrontry he has created. He says that notwithstanding the judgment of the Court the estate is still indebted to him in a large sum for commission, quite overlooking the fact that he has already been allowed commission. Gaol wouldn't 1 touch any man who had had the effrontry to do that. No case had been quoted showing that a trustee was able to procure his discharge without some purging of his contempt. "REST AND QUIET."

The Chief Justice: But how otherwise are you going to get over these affidavits? The doctors have stated that the treatment the defendant needs is "rest and quiet," and that he be kept free from mental worry and excitement.

Mr. Blair: Well, your Honor, even if he does need rest and quiet, is it possible that he could have that and be imprisoned to? It seems to me that he could have enough rest and quiet in the Terrace Gaol. The mere fact that he is imprisoned might eliminate mental worry and excitement.

The Chief Justice: You are asking us to deal with a medical question against the opinion of the doctors you call as witnesses.

Mr. Blair: Every one of the doctors avoids an answer on the question of the man's temperament. Your Honors will see that, if you take the affidavits of the doctors as a whole, ,they are speaking of what to their mind would be a very great shock to an ordinary man. ■ , "THE ELEVENTH COMMANDMENT."

Mr. Blair: There is no doubt that mental worry of this particular kind has had something to do with it, but I think that probably the thing that worries liiin most is'what is called u breach of the. eleventh commandment, "Tliou shalt not be found out." It does not worry him that he lias done this tiling. What worries him is that he has been found out. I suggest that in this matter the Court has a duty to perform in the punishment of a fraudulent trustee. A later affidavit shows that there is more involved than the actual amount) asked for in this case. The defendant has received special consideration. lit was a man high in position in the estimation of his fellows, a man supposed to be looked up to. He was a man undeserving of that particular position in which he was. His offence, therefore, from that point of view, was so much the greater, ami liis punishment should be so much the greater. The judges ruled that in view of the medical evidence they could not order imprisonment. They'made an order of discharge without prejudice, pointing out that the defendant remained under contempt and it was still open for plaintiffs to insist on payment by every means open to them.