DISTRICT COURT.

Temuka Leader, Issue 2454, 21 January 1893, Page 4

DISTRICT COURT.

TlMAßU— Wednesday, January 18th

[Before His Honor Judge Ward.]

THE BOSS CASES

Application by the Official Assignee to set aside a mortgage and memo, of transfer D. M. Ross to Mary Elizabeth Rosa. Mr W. D, Stewart with Mr Kinnerney for the Assignee ; Mr T. I. Joynt with Mr Hay for Miss Ross. The following is the continuation of our report: — E. H. Lough, town clerk of Timaru since 1868, stated that the Arcade property, or any portion of it, had never been rated in the name of Mary Ross; that name had never been in the ratebook for any property in Timaru. Ross, and tenants, paid the rates on the Arcade property. R. A. Chisholm, manager of the Bank of New Zealand, Timaru, for the last 30 years, stated that Ross had an open account at the bank from 1877 till his bankruptcy. The account was practically inoperative in 1889. Ross, Sims & Co. opened an account in September, 1877. Mrs Mary Ross opened an account in June, 1877, which was closed in June, 1878. (Copy of whole account—a short account —put in. It showed a £7OO cheque debited on 2nd November, 1877.) Witness detailed Ross’s account from 1878 to 1891.

Emil Hall, builder, Timaru, had a contract with D. M. Ross in 1887 for building part of the Arcade —the central block. (Sketch and estimate put in, estimate £3796, of all buildings in the Arcade, including Priest & Holdgate’s.) Had the contract for brick work, £364, and Ross paid him, mostly in £2O notes, but he gave one cheque for £3O. The next witness, Nathaniel Wolfe, engraver, Christchurch, was called as an expert in handwriting. He examined and compared the signatures “ Mary Ross ” ou a cancelled mortgage, Mary Ross to D. M. Ross, 1878, and mortgage Mary Ross to Munio, N ovember, 1882. Assuming the signature on the former to be genuine (a witness will bo called to prove this), he was of opinion that the other was not ; that they were not written by the same person. The signature on the second was not by the same hand as that on the cancelled mortgage, but by the person who wrote the body of the document —(D. M. Ross). The witness had a number of mortgages, releases, etc., put into his hand to compare the signature “ M. Ross ” on them with that of the cancelled mortgape, and he gave the same evidence in each case ; that the signature “ M. Ross” was not like the genuine one, but was like the same word in the body of the documents. At 5.15 the Court adjourned till 10 o’clock next morning.

Thursday, January 19th.

His Honor took his seat at 10 a.m

Mr N. Wolfe should have returned to the box for cross-examination, but ou resuming, Mr Stewart stated that they

would not press the evidence of forgery, as, owing to the absence of two witnesses through illness, they would not be able to prove it conclusively. Mr Joynt then suggested that His Honor should strike out Mr Wolfe’s evidence, —treat it as not heard—and the other side offered no objection. Mr Wolfe was therefore not called again. Thomas Albert Robson, clerk and accountant, formerly of Timaru, now of Sydney, first knew D, M. Ross about November, 1874. Entered the employment of Tate & Ross early m 1875. Thought the firm had no clerk before. Kept the books of the firm from the time he went. Found the books in a great muddle. There was only one bank account ; moneys of clients were banked with the fix-m’s; and both partners had cheque-books, and each drew on the account for private purposes. Tate bought no properties, but Ross did—on William Street, Cain’s Terrace and LeCren’s Terrace. He paid by cheques signed “ Tate & Ross ” drawn on the firm’s account. Left the firm in 1876. Found the books iix a muddle, and as far as he could he put them straight. The single bank account continued while he was with the firm. The bulk of the in the account belonged to clients, principally to McKeown, Oaird,and Rev. Fendall. Was away from the firm three months, in business on his own account, and then returned to them at Ross’s request. During that time copied in triplicate three deeds respecting the Dunedin property. The Dunedin action was then pending, and the deeds were copied for the counsel’s briefs. On returning to the firm, fonud the property that had originally stood in Ross’s name transferred to his mother. Two sisters of Ross, Ellen Ross and Jessie Barclay Ross, were also concerned in the property, the latter with a lease of the Cain’s Terrace, and the former with a mortgage, but the money for the mortgage came from trust moneys belonging to George Filmer. Ross did all the family transactions himself, drew out the papers, etc. Had no real knowledge of the reasons for these transfers. His impression was that they had something to do with the Dunedin trial. When Ross returned from the Dunedin action (January, 1877), he asked witness what he thought of it. Replied “ Tate and I have had a terrible time ” —meaning fixing up clients. Ross asked: “ Do you think it will be only a nine days’ wonder ! ” Said ; “ I don’t know. That Park and Curie’s case is the worst feature of it.” Ross said: “ Yes, I’ve got the verdict, and that is the worst part of it. I’m not sure whether I can face Timaru again, whit do you think 'I ” Said : “ Under the circumstances, as you have got the verdict you may be able to do in Timaru yet. But Tate is determined on a dissolution.” Ross said: “J expect that, after what has come out.” The partnership was dissolved, and witness was appointed liquidator, by both parties. The books were in Tate’s possession, in his safe. Was never liquidator in reality, the partners practically took it out of his hands. Each partner began business on his own account; some of the clients going with Tate, some with Ross. Ross “ adjusted ” some of the trust accounts by moneys received for the fix’in. Ross paid Tate a balance of £550 conditionally that Tate took over all the liabilities of the firm ; these liabilities were principally for trust moneys misappropriated. The cheque was paid sth April, 1878. The “terrible time” he told Ross of during the Dunedin trial was the rush of clients for moneys and securities. Mr Woollcombe was one and the Rev. Mr Fendall. Others took away deeds ; some demanded their money. Tate and he managed to pay all demands for money. If all had demanded their money they could not have been met. Five or six ■weeks afterwards joined Ross, and remained with him till 1880, about three years. During that time Ross took in Sims as a partner. Was book-keeper for the firm. First knew Ross’s sisters in September or October, 1876; saw the mother first in 1878. They were in very poor circumstances. In 1876 Ellen was housemaid at the Railway Boarding House, and Jessie was a dressmaker at Gabites and Plante’s; the mother lived with her son. The old lady always seemed poor, sertainly not to be possessed of money; a poor old illiterate Scotch woman. The £550 paid by Ross to Tate came from Ross’s general banking account into which his own money and clients’ money went, Ross commenced to do business (buying properties) in the names of his mother and sisters immediately he started on his own account. They had no moneys in the books at that time. There were a great many transactions in their names. Was aware that at the time (February, 1877) a new trial of the Dunedin action had been moved for, and concluded Ross was afraid of the former verdict being reversed. Ellen Ross was married in August, 1877, and there were no more transactions in her name. In Jessie’s name transactions were carried on till July, 1878. (Ledger referred to.) Ellen’s account was closed in 1878 by transferring to D. M. Ross’s account a debit balance of £39 10s. In Jessie’s account the last entry was on July 22nd, 1878, “ Cash from Mewia, 5s rent.” That account had never been balanced. Mary Ross’s acccouut opened May 19, 1877, with an entry of cash £3. There had been transfers to her before that, The £3 was for rent from Williams street, transferred to her in July, 1876. The books were balanced when Sims joined Ross, and Mary Boss’s account then stood in credit £lO3 12s 4d, principally derived from rents of property transfei’red to her for nominal considerations, Jvnew that the entries were for rents. The rents were paid to D. M. Ross’s bank account, and were drawn out by Ross. Referring to the Arcade purchase, witness stated (with reference to books) that Ross paid a first deposit of £IOO to Mr LeCren on 20 th October, 1877, by his own cheque, and debited that sum to Mary Ross’s account in the ledger, her account then standing in credit £lO3 12s 4d, derived from rents of properties transferred to her by Ross, the consideration being “natural love and afiection and 10s.” £7OO more was paid by Mary Ross’s cheque, on a bank bank account in her name. Witness paid in £215 4s lOd, towards making up the £7OO. The £215 4s lOd was made up as follows (1) cheque by Riden £lO for rent of boardinghouse; (2) cheque of Cornish £l6, rent of Bonner’s leasehold Saltwater Creek ; (3) cheque of Filmer’s £25 Igs Od. (Ross had £350 of Filmer’s at this time, and owed £24 7s6d for interest on that. Instead of receiving this Filmer gave Ross a cheque for £25 12s 6d to make up £SO, and that was added to the principal making it £400.) Filmer was never aware that his money was lent to Mary Ross ; he never knew Mrs Ross in the transaction : his money was used but he was not aware of it. (4) Cheque of D. M. Ross £63 12s 4d. Wheix Mrs Ross’s account was balanced at the end of September it showed a credit balance of £163 12s 4d. This was reduced by £IOO, a debit for the first instalment to LeCren, That left £O3 12s 4d supposed to be due to Mrs Ross, and that was the anjoqirt of this cdecpie. (5) Cheque of

D. M. Ross £IOO. This was supposed to be some of Filmer’s money. The block of the cheque was marked “ G. Filmer,” and Ross marked this in the duplicate pay-in-slip, ii pencil, “Filmer.” These made tip the £215 4s lOd paid in by witness. On November Ist Ross paid in £496 10s made up as follows : (1) cheque for rent C, S. Fraser, £l6 10s; (2) cheque J. B. Ross, £3O. Jessie Ross had an account at the Bank of New South Wales, kept going by Ross paying in, and he operated upon it, getting her signature. (3) Cheque of D. M. Ross £450. This was money received from Guscott for investment—(“ for one one year at 10 per cent”) —and paid into Ross’s account. An entry in Ross’s hand showed that he intended that cheque for £450 to represent Guscott’s money. This entry was in a private ledger by Ross, which witness had never set eyes on till a month ago. The two lodgments made up £7ll 14s lOd, on which Mrs Mary Ross drew a cheque for £7OO to pay to LeCren. She drew another cheque for the balance, and that was paid to Ross’s private account. That was in June 1878, and closed her bank account. £2B5 —£84 for interest and £2OO in reduction of principal—was paid in November 1879, the £2OO being received from A. Sinclair, as part payment for property in North street. In April 1878 Mary Ross purchased it from one Johnson in North street, and paid £5 deposit. That is, Ross paid it, and debited it to her. That sale appeared to fall through, as the £5 was returned to Mary Ross, and the transaction was taken up in the name Jessie B. Ross, who was debited with £IOOO, the purchase money, on the 13th April, 1878. The purchase money was made up by the sale of a property in her name, in William street, for £500; D. M. Ross advanced £IOO by private cheque handed to the firm; by transfer of mortgages in her name to A. J. Bower, £300; and Ross, Sims & Co. seem to have advanced £IOO, making up the £IOOO. The “ instructions ” in the the journal were, to make the transfer in the name of Mary Ross, that was altered to J. B. Ross ; and after all the transfer was made out in the name of Mary Ross, although she had not contributed a penny to it. The costs of the transfer were debited to J. B. Ross by the firm. The land was sold by Mary Ross to A. Sinclair, in September 187 8, for £I4OO. Sinclair paid £45 down, which was credited to Mary Ross. Sinclair was to pay £2OO down, and for the balance he transferred two mortgages, together £155 ; these were transferred to D. M. Ross, not to either of the women. Sinclair gave a mortgage for the £I2OO, balance of the purchase, in the name of D. M. Ross. The purchase was by J. B. Ross, the transfer in the name of Mary Ross, and the mortgage in the name of D. M. Ross. One of the mortgages transferred by Sinclair was paid off, £IOO, and that went to the credit of Mary Ross in the books, the money to Ross’s private account. (Mr Stewart said he had gone pretty fully into this case as a typical one showing how the three names were used when necessary.) In March 1879 Sinclair paid off £2OO. That was admitted in a statement furnished to Sinclair, but it was not recorded in any of the books. In August he paid £SO for interest; that went to Rosi’s account and to Mary Ross’s credit in the books. Another entry to Mrs Ross’s credit was £BO, entered by Ross to Mary Ross “ received from Sinclair.” On Ist November, ’79, Sinclair paid £2OO off his mortgage and that went to reduce LeCreu’s mortgage by the same amount. The payment was debited in the firm’s books to Mary Ross, and also £BS for interest paid the same day. In May, 1880, £75 was paid by Ross’s cheque, and that was not booked any vhere. Mary Ross was debited with no more payments, and her ledger accounts closed in August 1880. There were some later entries in the cash book but not in the ledger. Later payments were made by Ross or by the firm’s cheque, in the latter case being debited to his private account. The witness showed that in some cases the “ D.” of “B. M. Ross ” had been crossed out, leaving “ M Ross,” in another case “ D ” had been altered to “M ” and “rs ” added. The mortgage to LeCren had been paid off partly by a fresh loan from Munro, and interest on this loan was always charged to Ross, Munro transferred his security to LeCren, and then Mary Ross’s name came into use again in a memorandum by Ross signed by LeCren. (This was the case where “D ” was altered to “ Mrs.”) A later mortgage of the South Arcade to secure a loan of £2OOO was in the name of D. M. Ross. At 1 p.m. the case was adjourned till the 31st inst. PETITION FOR ADJUDICATION. Mr Raymond rose to apply, on behalf of a creditor, for an order adjudicating James A. Gracie, auctioneer, a bankrupt. Mr White appeared to oppose, and he saying the case would take at least half a day His Honour said he could not deal with it; it must be left for the clerk of the court to hear. The application was accordingly adjourned till noon of Monday next. The Court at 1.15 p.m. was adjourned till 10.30 a.m. on the 31st inst.