SUPREME COURT.

Taranaki Daily News, Volume LV, Issue 244, 5 March 1913, Page 6

SUPREME COURT.

XI'W I'LVMOCTII SESSION?. (KIMINAI, CASKS. The New Plymouth of tin Supreme Court opened yesteniav morn ill!? before Mr. Justice jji'imintou. GItAXI) the Grand Jury empanelled ronipned: —\Vm. George lieid. Samuel Teed. Alfred E. Sykes, .Tames C. Webster, Edmund G. Skelton, Robert \\". D'Arcy Robertson. D. K. Morrison, James McNeill. L. A. Nolan. J], T. .Toll, W. T. Jennings. Win. Jenkinson, IT. V. S. Griffiths, Arthur IT. Glasgow, Frank W. Hall, A. Alexader, Charles E liaker, E. 11. C. (1 ilmour, E. Beckbessinger. A. S. Hasell. H. J. Gilbert, C. Pilling, .S. W. Shaw. Mr. Shawwas chosen foreman of the jurv. HIS HONOR'S CHARGE. i In his charge to the Grand Jury, his Honor said he was very pleased to be able to congratulate the district upon the calendar, which was exceedin»ly. creditable for the good all-round lawabiding nature of the people of the district. Tt was several months since the last sittings at New Plymouth, and the calendar contained only three eases, ami these could not be called serious, llis Honor also remarked with satisfaction upon the total absence of cases involving offences against women and children, which were so prevalent in some parts of the Dominion. Such a position was very creditable to the district. There were only three indictments, and none of them should give the jury the slightest difficulty. Their business was not to try the eases, but simply to decide upon the evidence of the prosecution whether there was a prima facie case to go before a jury. His Honor briefly reviewed the eases, commenting that they were all exceedingly simple as far as the Grand Jnrv were concerned. TRUE BILLS. The jury returned true bills in all three eases, as follows:—James A. Tuthill, alleged fraudulent preference and allegedly contracting a debt of £2O 18s without any reasonable or probable expectation of being able to pay the same, as well as his other debts:"Ernest \V. Stockman, alleged 'breaking and entering, and also theft; Frank White, alleged misappropriation of money due on the sale of a Tangye engine. BANKRUPTCY CHARGE. The first ease was that of James A. Tuthill, lately in business at New Pl\mouth us a hotelkeeper, who was charged, oil four counts, with making alleged fraudulent preference payments to "his wife, in connection with his bankruptcv totalling £217 ss. Tuthill was also charged with contracting a debt of £2O l.Ss with Messrs Hawkins and Smith, without any reasonable or probable expectation of being able to pay the same. [ as well as his other debts.

The accused, who was defended liv' Mr. T. M. Wilford, M.l', (associated with I whom was Mr. A. H. Johnstone) pleaded \ not guilty, and the following jurv was empanelled:—Fred. Mattock, George! Marsh. Edward Harris. James Harvev > Leslie Tate. Harry C. McEwan. A. i'. Lister. A. W. McEwan, L. E. Hoffmann Wm. Lints, V. Russell and Jas. McLeod/ Mr. Marsh was chosen foreman. - •• In 'opening the case, the Crown Prosecutor (Mr. C. W. Weston) said that'-tIK allegations did not involve' merely a technical offence, but an offence against the lkw of fair play. Abraham Goldwater. trading at, New Plymouth as a wine and spirit merchant, under the name of Coldwater Bros., said that accused started dealing witli him in 1!K)!) until his credit was stopped. He then,owed about £3OO, which included an advance in tasli to the amount dt £IOO. The date of the last debt. t in ; his ledger against the accused was Jujy 17, 1912. It was shortly after that that lie stopped his credit. Witness, had given the accused ever}' latitude' inrespect to reducing the account. When lie stopped the accused's credit he told him (witness) that he would have to i purchase goods elsewhere, so as f to reduce > the amount of money owing to I him. On August 3 witness also wrote J to the accused to the affect that lie was ' unabla to supply him with any more goods. The accused, in company with a Mi-. Cook, then came and asked for further time. He pleaded tliat times, were hard and trade was quiet. He later found out that Cook was a solicitor. A promissory note Riven by Tuthill. which was due on September 7/ was dishonored. Consequent upon this witness again wrote to Tuthill. After he stopped Tutliill's credit, the latter rang liiin up for some further goods, and witness declined to accommodate 'him. M itness attended the second meeting of creditors held on September 20, when a list of Tutliill's creditors and his assets and liabilities were handed in by the bankrupt's solicitor. The excess of liabilities totalled £2OO. The accused himself hanjled in a memorandum of his takings and his outgoings. The payments to accused's wife, disclosed in the statements were—August 13, £108; August 20. £2O; August 28, £4l as: September 3, £4B; and another amount of £1 10s. The meeting passed a motion requesting Tuthill to file a petition of bankruptcy. Mrs. Tuthill was not represented at the meeting, and the statement of liabilities did not disclose her name as a creditor. On the advice of his solicitor, Tuthill declined to file. Eventually Hawkins and Smith and witness had Tuthill declared a bankrupt. To Mr. Wilford: Tie (witness) moved the 'motion requesting Tuthill to file. Notwithstanding this. Tuthill did liot' file. He was one of the petitioning creditors. He did not know whether the Deputy Official Assignee took an action through the Court to recover the amount of money paid to Mrs. Tuthill by her husband. He knew, however, that Mrs. Tuthill had paid a certain amount to the D.O.A. lie denied that be gave authority for the D.O.A. to receive from Mrs. Tuthill a sum of money in full satisfaction of the whole matter. He heard that Mrs. Tuthill had paid i £IOO back to the D.O.A. out of the j money in question. He did not say to Tuthill that he wanted his pound of flesh or he would make hitn a bankrupt! Neither had he been on Tutliill's track like a "sleuth hound" right from the start.

Mr. Cloldwater (to flic Judge): Tip is insulting mo in every way. and T decline to answer liim! TTis Honor: Mr. Wilford is within his rights. Your best and simplest way is to answer "yes" or "no." It is one of the privileges of the English Bar to insult witnesses as much as counsel likes. Mr. Hold water: I feel his words very much, your Honor. My answer is "No!" Further cross-examined, witness said it was not a fact that from the time Tuthill had owed him money lie had constantly been 011 his track and had been to Hawkins and Smith to prevent him getting credit there. lie was lint aware that at the time he was moving a resolution to make Tuthill a bankrupt that the accused had received an ofler of £4OO for the purchase of his lease. Witness did not arrange for Emeny to take over the lease. Witness, as a creditor, at the instruction of another creditor, valued Tutliill's slock. He did not know that for months Mrs. Tuthill was acting as cook at the hotel, and. in fact, doins the whole of the work of the house. Witness did not agree with thp valuations placed on the assets. lie

was not aware that the furniture had been insured for £301) after having been v.ilued by Mr. Webster at only £2OO. Ik- (lid not see that it had been grossly ui lervaliu'd. He would not admit that fi i,:n the time Tutliill took the hotel till tl. - time he was made bankrupt ho cond" ted the house in a better manner t! .'.ll ever before. He knew nothing

■ -ainst this, however. lie was not ■ware that something like £24oo—a ridiculously large amount —was paid by Tuthill to go into the hotel. He knew il was a large sum.

James Smith, of the firm of Hawkins and Smith, said that before August, 11)12, he did no business with Tuthill. During this month Tuthill gave an order for five cases of whisky, valued at £l4 4s (id. Then on August 7 the accused was supplied-with 17 gallons of brandy. The brandy itself cost £0 lis Qd aiid the duty, which witness himself paid, ran into £l4 (Is fnl. The next order was a case of English stout, costing £2 lfis. The total came to £4O, but there was a small credit. When witness approached Tuthill for the amount of the duty the latter said he could not pay, but gave witness a post-dated cheque for £l4 (is sd. Tt was presented and dishonored. Tuthill made no reference to the fact that he was being pressed by other creditors. The day after the cheque lie received a notice asking him to attend a meeting of creditors of Tuthill.

Cross-examined by Mr. Wilford, witness said that lie rang up Tuthill and asked him to take 10 gallons of brandy, when lie had only asked for two. Witness tried to get the balance of the brandy back when he heard he was going bankrupt. By this, however, he did not desire to get preferential treatment over the rest of the creditors. He was emphatic on that. He would not swear—although he thought so—that he got the notice calling the meeting of creditors after he endeavored to get back the balance of the brandy.. Re-examined bv Mr. Weston* witness •said that when Tuthill first approached him he did not know that Goldwater had stopped his credit. James Hawkins, of Hawkins and Smith, remembered TuthiU's cheque being dishonored, and gave corrobprative evidence.

To Mr. Wilford: He got the notice of the meeting of Tuthill's creditors after the iclieque was dishonored. He was quite certain of that. Some time' Before, the cheque was dishonored he told Tuthill that he had a purchaser for the balahee of the lease: . He knew that Tuthill was dealing with goldwater. The patter had not told liiirv that he hail stopped the accused's credit. Evidence was also given hy A'. IT. Glasgow,' manager of the Union Bank' at New Plymouth, and lie produced three cheques drawn by the accused ih "favor of Ifrs. Tuthill. ' '

John Terry, Deputy .Registrar of the Suprjeme Court at New Plymouth, produced the order adjudicating 'Tutfeill bankrupt on September 80, ' J. | S. »S. Medley, Dejmty-Official Assignee, at New Plymouth, gave'-'ftifnial evidence. . -. v-.

TojMr. Wilford: The furniture tff tJie hoteljwas insured;!) the'Guanliair Office for £SOO. When Tuthill's : affairs canre in-' to liis hands, a valuation of 'the'-furm; -ture iwas made by someone outsids* Bis officel Tile valuation wasf mia-de-' •at- ;tlip instapce of the mortgagee,--,-Jtfteil.rTut-. liill became .])ank«optc witness,- i«stitn ; te(J. proceedings to recover ..tliftr money-paid to Mps. Tuthill. serving ber with a clarm for £2OO, the limit which eoulcl'ber sued' for ii the Magistrate's Crairti--,tle-. wasofterqd by Mrs. Tuthill £IOO in full'.s.'ctt Lemon t. He .consulted... thx.ee. of: the creditors, including Mr. (iokLvvajter. :Wh.o agjceeji to the offer. He had ■?'iji.iplv..given' a. recjeipt for the £IOO.. The, .mortgagee, ,sej?c4 everything,. but he, (witness) recovered the stock, on the.ground f tMt it did not come within the" scop'd of the bill of sale. .Mr. Wilford contended that the Cr,Qwp had neglected to. prove a coitstitwjnl part of the ofl'ence. Jlis,learn-, ed frjend had failed r to prove thitt- Mi's. Tuthill was a creditor, f6r it mnst : W remembered that the indictment alleged that the offence was paying ihotifey to a' creditor. The evidence "before : tls' Court proved that she was not a creditor.' If she \yas not a creditor there-was'no offence, This, he contended, of ,the first four counts. ■ Hisj Honor, however. pomtcd out .tliat the bankrupt had admitted that his wife had lent him money; .thus' vlnafly- establishing the fact that she was a creditor. Mr. Wilford's point .nuist. therefore fail. Mr'. Wilford persisted in -his -eoutention,|l»lding„that,.there was not.affirmative proof that Mrs. Tuthill was a. cred : . itor i . ...

Further argument -ensiwd, _ l»it llis .Honor adhered entirely to his .Vuii'Hg.' Summing up, the Crown Prosecutor submittal, that the evidence , of. the Crown had not been shaken by. Mr.' W'ilford's ''very vigorous" cross-exapiinatiiju. Mr. ilVoston then went on to point. o\it, that, the fact that Tut hill's wife and some of her' advisers considered fit to pay part of the money (£lQO)"rnight be considered as some evidence' of' wl'ial the' wife herself thought of the'prosecution'. Counsel concluded that when the accused purchased the spirit-; from' Messrs. Hawkins and Smith he knew that li(' was "done" financially. Mr. Wilford did not call tiny- evidence, but proceeded to address the jury l at considerable length. In - emphasising that there was 110 criminal intention on the part of the accused, counsel 'said'in regard to the second charge—tha't of ob ; tabling credit from Messrs. Hawkins and Smith—that it was one of those. ea ; ses in which the man who caused the sale pushed his trade beyond the requirements of the buyer. ' Tuthill asked for t.\v,9 , gallons of brandy, but was persuaded into accepting delivery of Hi gallons—far more than he realiv required. Xo one but Tuthill himself knew whether he had reasonable prospects of paying for the goods, and counsel suggested that iE he, had not been harrassed bv his creditors into bankruptcy he would have been able to pay his way and would never have been in the position he was that day. 'Regarding the charge involving alleged fraudulent preference, Mr. Wilford. by courtesy of the Crown 'Prosecutor. produced a receipt from Mr. llutchen (solicitor to the Official Assignee) to Mr. A. 11. Johnstone (solicitor for Tuthill) accepting the sum of £lO2 10s in full settlement of the action of the Official Assignee against Mrs. Tuthill for the recovery of the money paid to her by her husband. lie also read a letter written bv the D.O.A.'s solicitor in which the words "in full settlement" occurred. The creditors had made Mrs. Tuthill disgorge £IOO, and yet in the face of this they bad proceeded against her husband for fraudulent preference in respect to this sum and the balance of the £217.

In summing up. TTis Honor said it was a clear case for the jury to adjudicate upon, if thcv confined themselves to legitimate evidence and brushed aside all tlio extraneous matter and insinuations introduced by the defending counsel. I 1 is Honor also pointed out that the fact hat the creditors had accepted £IOO from Mrs. Tnthill in full settlement of tlie money paid to her by lut husband had no bearing upon the action involving criminal misdemeanour. A significant fact was that within a period of three weeks immediately preceding the bankruptcy the accused had paid to his wife four sums of money aggregating £217. thus preventing his other creditors from being paid in full Whatever his intentions were they could not overlook the actual result. His Honor also commented on several other features of the case which he considered strength-

enedlthe case of the Crown, and then went! on to refer to the charge of obtaining credit while in a state of insolvency. In. this case, he commented, the fitet that the accused had been persuaded into buying from Messrs. Hawkins and Smith considerably more spirits than i lie required, should weigh to a .certain extent with the jury. He also ■pointed out to the jury that the goods had | been ordered before the accused madei the payments. to his wife, .and, therefore, it was perhaps' reasonable to presujme that he was 'then in a position tQ pa|y Sor them. He concluded by putting the following two issues before the ,jury:i—(l) Did the accused, within three months of the commencement of his .bankruptcy, - when unable to pay his debtsl as due, give with intent to defraud his other creditors, undue preference :to his wife (a creditor) to the extent of £217? (2) Could the bankrupt, af'tlje time when his debt to Hawkins and Smith was contracted have'had any reasdnable or probable expectation of 'being able to pay the same a3 well as his either debts? ; 'After four hours' retirement the jury announced that they were unable to 'iigrnij' on the first charge (4 counts in all),i hut that they acquitted the acou'se<J on the second charge. . . Oii| behalf of the Crown, Mr. Weston applied for a new trial on the first four counts. 1 Mr. Wilford asked when the new trial • Wjonlil take place. At the next sittings? .... Jl'h Honor: I. see no reason wliv it should be held- over.- What does the Crown say? / Mr. Weston offend no objection to the .course suggested bv Mr. Wilford, and the case was accordingly set down 'for trial at the next sittings of the Court at Xew Plymouth.