Skip to Content

Decisions of the Superior Courts of New South Wales, 1788-1899

R. v. Simson and others


Supreme Court of New South Wales, Port Phillip

Willis J., 20-21 August 1841

Source: Port Phillip Patriot, 23 August 1841

Friday, August 20th ---Before His Honor the Resident Judge, and the following Jury of inhabitants:---

John Rankin, John Sutch, John Richardson, John Hunter Patterson, Robert Reeves, Thomas H. Power, James Palmer, Thomas Strode, James Purves, William Patterson, George Somerville, and Thomas Robbins, (Foreman.)

DONALD CAMPBELL SIMSON, JAMES MONCKTON DARLOT, and HECTOR NORMAN SIMSON, were jointly indicted for conspiring to defraud Frederick Manton, W.J.W. Gosling, Arthur Kemmis, and others, trustees of the estate of William Hampden Dutton, by the said Donald Campbell Simson and James Monckton Darlot, selling and disposing the property of the estate of W.H. Dutton, to the said Hector Norman Simson, at Melbourne, on the 16th of June last. The second count charged the defendants with conspiring to defraud William Verner, D.S. Campbell and Alfred Woolley, lawful creditors of the estate of W.H. Dutton. Third count charged the defendants with conspiring to defraud William Verner, a lawful creditor of the estate; fourth, fifth and sixth counts, were almost similar, merely changing the averments, and laying the property as belonging to Dutton, Simson and Darlot, with intent to defraud W.H. Dutton. The sixth count, charged the defendant Hector Norman Simson, with corruptly purchasing the property he being at that time a man of no substance. The defendants pleaded not guilty.

His Honor addressing Mr. Clay, said there was an application made the other day, for a copy of the information. At the time I directed it should be granted I knew it was laid down in some of the books that the creditors are entitled to a copy when charged with a misdemeanour; I have since found that authority, which states that parties charged as I before stated are entitled to a copy of the information free of expense.

Mr. Clay said he had several objections to take to the information, and he wished to know if he should state them now, or at the close of the case for the prosecution.

Judge Willis---I will if you wish it take them now, and I will make a note of them, in order that you can argue them in case you find it necessary to move for an arrest of judgment, or a new trial which you can do, within the first four days of the next term; but I presume from what you have already stated, that you do not wish to take advantage of any legal technicality, that it is still your intention to meet the case on its merits.

Mr. Clay---I do not at all fear the result, and will try the case on its merits.

Judge Willis---I conceive the course you adopt a highly proper one, and I am glad you do not wish to shirk the question; name your objections, and I will make a note of them.

Mr. Clay---The first objection your Honor is, that the indictment does not lie generally.

Judge Willis---I will at once relieve you from that impression, and refer you to the case of Beilby, and also to the case ex parte Cowthorne; I will make a note of it, but I do not think you will take any thing by the objection.

Mr. Clay----Your Honor, Lord Eldon has expressed himself strongly on the subject, particularly as regards a combination.

Judge Willis---Every combination is a conspiracy. His Honor then referred to the case of Beilby, who was tried in Sydney, and sentenced to two years imprisonment for making a fraudulent transfer of his property to his son; the case was tried before Mr. Justice Burton, and His Honor said he would be happy in case Mr. Clay had occasion to move for an arrest of judgment, or for a new trial, to assist him in procuring the notes taken by Mr. Justice Burton in that case.

Mr. Clay---my second objection is, your Honor, that the indictment charges the defendants with selling their own property as well as that of the trustees.

Judge Willis---I again refer you Mr. Clay to the case of Beilby; the validity of the sale will depend on the purity of the transaction.

Mr. Barry---Your Honor as in the case of the Queen v. Beck, laid down in Grange's latest edition of Roscoe.

Judge Willis---I believe I am rather premature, but I feel it my duty to call the attention of the gentlemen of the jury, to certain paragraphs that have appeared in one of the newspapers relative to the present case, which might tend to prejudice the case against the defendants; I therefore call upon you gentlemen of the jury, to dismiss from your minds any thing that you have heard of this transaction, and I am sure you will religiously observe the oaths you have taken, to give a true and impartial verdict according to your conscience, notwithstanding any thing that may have been said or written, which you have seen previous to coming into court.

Mr. Croke, asked Mr. Reeves who was on the jury, if he had not expressed an opinion as to which way the case would terminate previous to coming into court.

Mr. Reeves---I can't say I have; at the suggestion of His Honor Mr. Reeves left the box, and Mr. J. Passmore was called in his stead.

Mr. Barry then opened the case---the learned gentleman stated the information contained six counts, which differed merely in the way the property was laid, as the averments were precisely similar; the learned gentleman stated the nature of the counts contained in the information, and also that by the consent of the defendants, it had been agreed that attested copies of certain documents should be read in evidence, and of which notice had been given to the other side.

Judge Willis---I must say Mr. Clay has acted very commendably in admitting the documents in the manner he has, and I am sure the Crown Prosecutor is obliged to him.

Mr. Croke, the Crown Prosecutor, then addressed the jury in a speech of considerable length, ably explaining the law of conspiracy and its bearing on the case before the court, impressing on the jury the importance in a new colony like this of checking the practice of fraudulently conveying property beyond the reach of creditors, and concluding with an earnest adjuration to the jury to divest their minds of prejudice and deliver an honest and upright verdict.

William Verner sworn---Knows the defendants D.C. Simson and J.M. Darlot, but is not acquainted with the defendant H.N. Simson; has had dealings with Mr. W.H. Dutton; sold him a team of bullocks, for which he received in payment a bill of exchange at three months, which, at Dutton's request, was afterwards renewed; does not know the hand-writing; has seen Dutton write, but cannot swear to his writing; the bill for £126, now produced, is the bill spoken of; it has never been paid.

Cross-examined---Witness sold the bullocks to Dutton, does not think the firm was mentioned in the transaction; there was no understanding that the bullocks were sold to Dutton and not to the firm.

John Hall Gaull [Coull??]---Is bookkeeper to Messrs. Campbell and Woolley, there is an account on the books against Dutton, and a balance due to the firm; the goods were some for Dutton, some on account of the partnership, and some for the inn at the beach; the balance against Dutton is £93 5s. 4d.; against the firm £64 2s. 10d.; these accounts have been admitted as correct; there are also open accounts against the Merri Vale estate for £68 11s. 2d., and against the inn at the beach for £65 16s. 6d; this last is for wine and spirits, the duties on which were paid by Mr. Darlot.

Cross-examined---The duties were paid by a cheque on the Union Bank; does not positively swear whether Darlot or Simson gave the cheque, but believes it was in the joint names of Dutton, Simson and Darlot.

By the Judge---Is sure there are accounts due to Campbell & Woolley from the partnership estate.

F. Manton sworn---Is a merchant in this town, and knows the defendant; has acted as a trustee in the estate of W.H. Dutton, and his acts as such were recognised by D.C. Simson and Darlot excepting in the newspaper transaction, when witness and Mr. Kemmis, the other trustee, sold Mr. Dutton's share in the Herald newspaper, to Captain Cole, by the advice of Mr. Meek; Simson and Darlot did not in the first instance object to the sale, but they objected to the appropriation of the money; witness was party to a suit in equity, the object of which was to restrain the defendants D.C. Simson and Darlot, from disposing of the property; the application was in the first instance refused on the ground of informality; two or three days after, witness met the defendant D.C. Simson, who remarked, referring to the application for an injunction, that he had sold all the property, and the trustees would be devilish clever to get to windward of him; but he did not say to whom he had sold the property; on the 17th July last, witness met the defendant H.N. Simson, in Collins-street, and told him that his purchase of the whole of the property from Messrs. Simson and Darlot could never be allowed and must be investigated; defendant said he would call on Monday, by which witness understood he would call about the sale, but he never called; he admitted he had purchased the property.

Cross-examined---witness sold nothing without the sanction of D.C. Simson and Darlot; did not sell but sanctioned the payment of £500 for the Herald; theMelbourne lighter, was sold with the consent of D.C. Simson in Darlot's absence; the price realised was about £600; the proceeds went to Mr. Gosling, to whom the trustees remitted £673; the whole of Mr. Gosling's debt is not yet due; D.C. Simson and Darlot consented to the sale of the share in the paper, but said the amount should have been paid to Arthur Willis and Co., Dutton's share in the paper was one-half.

By the Judge---The trustees did what they considered the best for the advantage of the creditors.

Cross-examination continued---The trustees considered the half share of the paper as part of the property conveyed to them in trust; the trustees sold some cattle belonging to the estate, out of which £673 4s., was paid to Mr. Gosling, £111 7s. 6d. to Daily for wages, £59 9s. 3d. to Mr. Baillie, for expenses on sheep; £50 to W.H. Dutton, by order of the Sydney trustees, and several other items; these payments were made with the consent of Simson and Darlot; the cattle were sold by the Auction Company by the joint authority of Simson and the trustees; the money was paid into the Bank, to the credit of the Auction Company, who made an advance to the trustees, which they remitted immediately; witness does not recollect whether Simson and Darlot received any part of the advance; there were also some sheep sold by order of the trustees with the consent of all parties; £4 10s. for cattle, and 6s. for sheep is a fair price; witness has no recollection of any offer on the part of D.C. Simson to take all the cattle and pay the debts of the firm, nor of any proposal to put up the whole estate to auction for that purpose; witness never received a notice from Simson and Darlot to the effect that if the accounts of the firm were not furnished, they would be obliged at whatever sacrifice, to sell the property to meet the overdue bills; there has never been any demand made to the trustees for the accounts; witness received a letter from D.C. Simson requesting his consent to sell the inn at the Beach to Messrs. Thomas, Enscoe [??] and James, but the trustees were advised by Mr. Meek to refuse their consent, and it was consequently withheld.

The Deputy Registrar then read the deed of partnership between Dutton, Simson, and Darlot; the deed of assignment in trust from Dutton to Gosling and others; the further trust deed appointing Manton a trustee; the agreement for the sale of the stock, and of the marine hotel to H.N. Simson, a letter addressed to H.N. Simson hiring him for £200 a-year to serve the firm; and a receipt from H.N. Simson to Dudley, on the delivery of the stock at the Loddon.

Arthur Kemmis sworn: Knows the defendants in this case, and has acted in the capacity of trustee for Dutton, who was in partnership with the defendants D.C. Simson and Darlot; witness has been treated by the defendants as a trustee, and was appointed as such in the original deed by Dutton; Mr. Manton acted with witness, having been appointed by a subsequent deed; Mr. Manton was a trustee when D.C. Simson consented to the sale of the barge Melbourne and 300 head of cattle; part only of the cattle and some sheep were sold; witness does not consider that any sale of the Herald took place; the deposit only, paid by Mr. Dutton, was taken back as part of the property; D.C. Simson often spoke of taking back the £500 deposit, offered by Cavenagh, for the payment of Willis & Co.; at other times he said he did not care to which of the creditors it was paid; in the first instance, in the sale of the cattle and barge, the written consent of the parties was obtained; witness considers that in giving his consent to the payment of the £500 to Capt. Cole, he was acting in strict concert with D.C. Simson and Darlot; witness was a party to a bill in equity filed by the trustees against the defendants D.C. Simson and Darlot; about the time when the injunction was applied for, witness met them in the street; Darlot was violently angry about something over which witness had no control; they said they had sold the whole of the property, but did not mention to whom it was sold; they did not offer to bring the proceeds into the accounts, nor was there any thing said about paying the (Mr. Dutton's) third; witness met Mr. D.C. Simson last Thursday week near the Bank of Australasia; this was after the injunction had been granted; he addressed witness, and said he wanted money to pay the expenses of the estate; witness said the trustees had no money, and that it was improper to speak to him at such a stage of the proceedings; witness saw D.C. Simson at Mr. Locke's at the commencement of this month; he said Mr. Burdekin held a mortgage on the property, interest on which was due, and he wanted the trustees to advance money to pay it; witness said the trustees had no money, but that he should consult Mr. Manton on the subject; subsequently, witness met the defendant Darlot, who proposed to draw money for the payment by a bill which the trustees should discount.

Cross-examined---Mr. D.C. Simson appeared to disapprove of the whole transaction in regard to the newspaper; he had repeatedly spoken to me before of the £500 that Cavenagh would refund; the trustees remitted about £8,600 of the proceeds of the estate to Sydney; the Auction Company made an advance on the cattle, part of which, witness believes, Simson and Darlot received; witness does not consider that £4 10s. is a head a good price for the cattle, and has seen more than 6s. a head given for scabby sheep; witness thinks Mr. D.C. Simson made a proposal to the effect of having the whole of the property transferred to him, and he would pay the partnership debts; witness received a notice, in writing, from Simson and Darlot, that unless the accounts of the estate of the late partnership were closed they would be obliged to sell to meet overdue bills; the accounts had been a matter of question often enough; witness obtained books and accounts, such as they were, from Dutton in January last; Simson and Darlot said before they could do anything they must pay off the partnership debts; the trustees never advised Dutton to make over to his brother the Merri Creek property, he spoke to them, but they declined to give any opinion on the subject.

Re-examined---When sheep are sold at short dates purchasers pay less in proportion; witness thinks 6s. is not the average value of sheep, and, giving such credit, would not sell cattle at £4 10s. a head.

By a Juror---Witness does not know what the sheep fetched that were sold by the Auction Company on account of Dutton's estate, but they fetched more than 2s.

G.W. Cole, sworn---Knows the defendant H.N. Simson; witness is a creditor in the estate to the amount of between £3000 and £4000; no tender of payment has been made to him by the firm; Mr. H.N. Simson, in the presence of Mr. Darlot, offered to give witness 500 head of cattle at the rate £5 15s. with the run called Far Creek on the Loddon; witness conceived he was acting on behalf of the firm; this occurred on the 15th of July; he had several times before said he was the owner of the property, and then also; witness acceded to the terms proposed, and signed an agreement to that effect in the presence of Mr. Darlot, but the agreement was never carried into effect; witness made the arrangement because he considered he had a right to sell, having a bill of sale; the condition was broken by Mr. D.C. Simson; witness had also notices from Mr. Manton and others that the cattle belonged to Captain Flint in England; the accounts were adjusted on the 15th of July in the presence of Mr. Darlot, and had previously been signed by Mr. D.C. Simson; on the 10th of August witness was in conversation with Mr. Kemmis, when D.C. Simson came up and asked Mr. Kemmis for money, which he said he wanted to pay the wages of the men; Mr. Kemmis said he had none; defendant then said, would it not be better to have the estate valued, but Mr. Kemmis said it would be highly improper to speak of anything of the sort under the circumstances. Mr. Cavenagh did not refund the £500 which he received from Mr. Dutton, but he paid the amount in bills at 3, 6, 9, and 12 months, none of which are yet due, and witness took them as cash.

The Court was then adjourned until 9 o'clock the following morning.

Saturday, August 21.

G.W. Cole was again called.

His Honor said, that in fairness to Mr. Clay, he would read over his notes of Capt. Cole's evidence, and he requested that if he had made any mistake, Capt. Cole or Mr. Clay would correct him, for he wished the case to go to the jury as it had appeared in court. [Notes read.]

Capt. Cole examined---The agreement with H.N. Simson was not made with the knowledge of the trustees, and witness does not know whether they made any remarks about it; witness considered H.N. Simson was acting on the part of the firm; the transaction took place on the 13th June; witness did not take the cattle, because he heard there was an injunction applied for, and because he had heard that there was a claim for the cattle on the part of Capt. Flint; an action on some bills was pending before the agreement was entered into; all securities were to be given up to H.N. Simson on the delivery of the cattle; after the agreement was entered into, H.N. Simson said he was ready to give up the cattle immediately.

Cross-examined---Witness entered into no agreement save that of June 15th ; there was a proposal that the cattle should be handed over to Campbell & Woolley, and the bills given by them to witness; they were to hold the cattle as security for the bills; the agreement was broken off by D.C. Simson; these means were resorted to, to secure the cattle from the other creditors in payment of the debt due to witness; witness received £500 from Mr. Cavenagh, but is not aware that there was an arrangement for a certain proportion of the Herald to be sold; the negociation for the £500 was with the trustees; Simson was paying every one's debts that pressed him, but did not pay witness, who did not press him.

By the Judge---Witness did not think, from what he saw in the deed of partnership between Dutton and Cavenagh, that the latter was bound to refund.

His Honor---I should like to see this partnership deed, and when the forfeit took place; and also, if, after that, Cavenagh thought it a form of honour or legal responsibility to alter the imprint of the newspaper; the law makes parties liable to certain penalties if this is not complied with. Of course I shall not ask Mr. Cavenagh that question as it might tend to criminate the parties. This is a very intricate and confused case, and I wish it thoroughly sifted for the benefit of all parties.

George Cavenagh sworn.

His Honor cautioned Mr. Cavenagh that as certain Acts of Council imposed certain pains and penalties he need not answer questions which would tend to criminate him.

George Cavenagh examined---In the examination of last witness allusion was made to the deed of co-partnership between Dutton and last witness; it is in witness's possession, but not in the court, and he objects to produce it because it appeared from what had fallen from His Honor witness would be rendered liable.

His Honor---You must produce the deed.

Witness---Your Honor, I would rather not.

His Honor---You must produce it. I order its production; I will look it over, and if I find any clause in the deed likely to injure you it shall not be produced, nor shall it affect you in any way.

Mr. Clay objected to Mr. Cavenagh's evidence being received until the deed was produced.

Mr. Cavenagh said the deed was at his residence, some distance from town, but he should go for it and produce it to the court.

W. Locke sworn.---At the request of Messrs. Kemmis and Smith, witness acted as an accountant to wind up the affairs of W.H. Dutton; witness was not employed by the partnership, but was to investigate the whole of the accounts, and make up a balance sheet; Dutton's books were handed over to witness in January last; the accounts were finally closed about two months ago; they were very difficult, for there were no books kept; witness made out an account of the private estate of W.H. Dutton, both his liabilities and assets, and also the assets in the partnership, but not the liabilities; the balance sheet presented to the defendants D.C. Simson and Darlot amounted to £14,200 13s. 6d., in favour of Dutton; there was also a balance in favour of D.C. Simson, with Dutton, of £7000, and a balance in favour of Darlot of £1,556 15s. 11d.; witness made no valuation of the partnership assets, as he could not obtain particulars of what they were; Dutton's private estate amounted to £60,000, but his liabilities were computed at £57,000; witness was called upon by D.C. Simson and Darlot to furnish the accounts without delay; they objected to some of the items; all due diligence was used in preparing the accounts up to the month of March last, when Mr. Unwin raised no objection to the deed, and the accounts were in consequence put back for a short time; witness laid under some difficulties in getting the accounts ready, as Dutton lived out of town; witness has acquired the same knowledge of sheep and cattle that other merchants do in the town, and he should consider that a quantity of sheep at 6s. per head, and £4 10s. a head for a mixed herd of cattle, with £500 deposit, and a running credit for two years, would not be a sufficient price; indeed, he knows a party that lately sold scabby sheep at 14s. a head, on a short credit.

Arthur Kemmis re-called---Witness was asked yesterday in his cross-examination, whether he consented to Dutton's handing over some property on the Merri Creek to his brother; the property referred to was not partnership property, therefore the trustees were not bound to account for it to Simson and Darlot, though they were to Dutton's creditors; they agreed to sell it for its full value on receiving good endorsed bills; witness would have given any account demanded of him to any of the parties.

Cross-examined---Witness does not remember the price Mr. Francis Dutton was to give for the Merri Creek property, but it was valued; witness has never seen the property, and does not know what W.H. Dutton expended on it; witness does not consider Mr. Francis Dutton a man of property, and therefore asked for good endorsed bills; this was a precautionary measure on the part of the trustees.

William Locke re-called---Previous to the 1 st August Simson and Darlot came to witness; they wished to get the trustees to pay the interest of the mortgage held by Burdekin; witness met D.C. Simson after the injunction had been applied for; Simson said, "so the trustees have applied for an injunction, but did they get it---they will have to be very clever to get the better of me, or any thing from me;" witness said he thought they would be very clever; subsequently Simson introduced his brother for the purpose of settling the partnership accounts; he proposed that they should meet and arrange the accounts; on one occasion H.N. Simson said he had undertaken to manage and settle the debts of the firm, as witness understood, on behalf of his brother D.C. Simson, and that he had settled Willis's debt; he did not say he had purchased the property, or that he acted either with the consent of Dutton or the trustees; this was in July; it was subsequent to the proceedings, on the 16th June.

Cross-examined---Witness was not employed by Simson and Darlot; the books and papers were received in January or February last; Mr. D.C. Simson had a rough sketch of the accounts during the time Mr. Darlot was in Sydney; the delay in rendering the accounts was occasioned by a point being raised by Mr. Unwin upon the partnership deed, and a legal opinion was taken upon it; the balance witness makes is about £14,000; according to the accounts there would be a balance of about £5,000 in favour of Dutton; witness considers the trustees used all due diligence; D.C. Simson said he had no objection that Capt. Cole should have the £500 from Cavenagh, but his comment ought to have been [noted?]; the defendants were always ready to make out the accounts; the item of £741 in the account was expended by Dutton, at Cumberland Cottage; the defendant D.C. Simson always objected to that item in the account; witness recommended that a balance should be struck, and that the disputed items should be referred to arbitration; witness had heard that there was some wool delivered by the defendants D.C. Simson and Darlot to Mr. Kemmis, in December last, but does not know what quantity was given; does not think the wool is mentioned in the account; witness does not think 6s. a sufficient price for scabby sheep, but if they had the catarrh they would be dear at any price; the average price obtained for Dutton's sheep was 5s. 5d.[??]; sheep were since sold so low as 2s.; D.C. Simson stated that the reason he wished his brother [?to assist?] was, that he was a very clever accountant.

George Cavenagh recalled---Witness sold a half share in the Port Phillip Herald to Mr. W.H. Dutton; this is the deed of partnership.

The deed was then read, and it appeared inter alia, that it was provided that in case of any of the bills being dishonoured by Dutton, Cavenagh was to receive the whole of the profits until the bills were settled.

His Honor said a very erroneous impression appeared to have been [contemplated?] by the trustees; under the clause referred to, which was certainly a very [??????]one, Cavenagh had the power to pay himself, consequently no forfeiture could take place. There was nothing in the deed that Mr. Cavenagh had reason to be ashamed of.

Cross-examined---Witness did not consider the share in the paper sold to Dutton, Simson, and Darlot, but to Dutton; did not know Simson and Darlot in the transaction.

Alfred [?Lingham?] sworn---Is an innkeeper, and resides on the northern shore of Hobson's Bay, known as the Beach; witness is not the owner of the inn, but [???] other [???]; witness's original agreement was with W.H. Dutton; witness was to pay a certain per centage on the erection of the buildings, and to receive a third of the profits; knows H.N. Simson and Darlot; recollects having an interview with D.C. Simson and Darlot in Collins-street; D.C. Simson said witness was the very person they wanted, and they would come to him at the Beach; witness went home, and Darlot and H.N. Simson came; some conversation took place between the parties; Darlot said to Simson, "you had better produce your authority;" he produced an authority in writing, which witness delivered to Mr. Meek, and which has since been lost in Mr. Meek's office; the letter was signed 'Simson and Darlot,' and it directed witness to make over the property at the Marine Hotel to H.N. Simson; it concluded with a request that witness would consider himself under the same agreement with him as he was with them; on another occasion witness was about leaving the hotel, but it was found, in endeavouring to settle the affairs, that it was impossible to strike a balance, W.H. Dutton having retained the whole of the cash, leaving witness the bills to pay; witness suggested that the better course would be for Simson and Darlot to allow him a weekly salary, to which they acceded; this took place at Cumberland Cottage; witness objected to give up the house until the whole of the claims were satisfied; there was some conversation about sundry debts due in town, for which witness was liable; H.N. Simson requested witness to make out a list of the claims and receipts of the estate, which was done; Darlot said they wanted to settle all the claims; the letter stated that Mr. H.N. Simson had become the purchaser of the property; when witness objected to give up possession, Darlot said, "now mind, we can do without you;" witness replied, "you may do what you like, but I will be no party to it;" there is about £300 due from the inn, besides witness's claim; Mr. H.N. Simson has not, in pursuance of the arrangement, paid any of the debts; witness considers from £1,000 to £1,500 a fair price for the buildings, but they might be worth more to one person than another.

Charles Dudley sworn---Witness is in charge of the stock that originally belonged to Dutton, Simson and Darlot; witness received the charge from Mr. Darlot; about the middle of June witness received instructions to deliver the stock to H.N. Simson; the receipt produced is H.N. Simson's receipt for the stock on the Loddon.

Cross-examined---D.C. Simson offered to Mr. Manton to take the stock at a valuation, or to allow it to be put up by auction and he would buy it in; but witness does not know what was Mr. Manton's reply.

[Orders for different sums paid by Simson and Darlot were put in and admitted.]

John Levien sworn---Is a butcher residing at William's Town; knows the firm of Dutton, Simson and Darlot; about four or five months ago witness purchased stock from the firm, and in July last purchased a quantity of fat wethers from H.N. Simson as his property; they were delivered from the Cumberland estate; witness paid 11s. a-head for them, by a bill at three months, which he conceives to be the fair market price; if two years' credit were given, witness would give a higher price accordingly.

Cross-examined---Would give more per head for fat sheep than a mixed flock; if purchasing extensive mixed flocks with bills spreading over two years, witness should consider between 5s. and 7s. a fair price.

By the Jury---Witness was never on the Loddon but has seen the Cumberland estate; in June sheep and cattle were rather higher than at present.

Alexander Thomas Shaw sworn---Is a shepherd in the employ of Dutton, Simson and Darlot at the Loddon; on the 5th June last witness took 1911 sheep from the Loddon to the Cumberland estate by the orders of Mr. Dudley; witness continued with the sheep till the 25th July, when he gave them over to a man of Mr. Power's; H.N. Simson said he was sole proprietor of all the stock at the Loddon; when witness entered H.N. Simson's employ he received the wages due, £20 in cash and a bill for the balance, of £42.

Cross-examined---Witness agreed that in case he wanted a horse or bullock Mr. Simson should taken back the bill; it was at witness's own request, for he did not require all the money, and he believes if he had wanted all cash he could have got it.

William Mortimer sworn---Is a butcher in Melbourne; knows the defendants D.C. Simson and Darlot; has purchased sheep from D.C. Simson, which were delivered in the month of July; witness purchased them from the defendant D.C. Simson, early in the month of July last; it was not understood by the witness, in the first instance, that there was any agency in the transaction, until witness was called upon by the defendant Darlot, who took him on one side and said he wished to impress it on his mind that the sheep were sold on agency for H.N. Simson; witness paid 10s. a head for them; they were not dear had they been delivered according to contract.

Cross-examined---Witness did not pay cash for the sheep, but gave an acceptance for the amount to the defendant H.N. Simson; remembers his calling on him for it, and as witness complained of the bad condition of the sheep, a reduction of 1s. 6d. was, in consequence, made by the defendant H.N. Simson.

By the Judge---Sheep have been sold of a similar description, by the Auction Company, for 7s. per head.

By Mr. Barry---The number of sheep purchased was 200, and the original price was 11s. 6d. per head.

By the Jury---Witness has purchased rams at 5s. weighing from 65 to 70 lbs., but some sheep he has purchased he considers were cheap at 10s. The credit is a great inducement to buy; indeed, less than twenty per cent. would not be equivalent for a credit of two years.

A. Shaw recalled---The sheep on the Loddon were very scabby; the station is about 90 miles from Melbourne; it took a month to bring the sheep to the Cumberland estate, and they were considerably lighter than when they left; they would weigh on the average about 40 lbs.

This ended the case for the prosecution.

Mr. Clay made an able speech for the defence, commenting contrarily on the evidence adduced, which, he said, was altogether insufficient to support the averments, and denying that anything like fraud had been proved against his clients. The learned gentleman, referring to the peculiar circumstances in which the defendants had been placed from the absence of counsel to conduct the case, said, that though he had not shrunk from the responsibility, he was deeply conscious of his inability to do justice to the case of his clients, and he regretted that in a matter of such importance to them they had not been able to obtain better assistance than he could afford them.

His Honor said, Mr. Clay need not make any such apology, for he had conducted the case with great ability, coolness, and moderation.

Mr. Clay then called the following witnesses:---

Mr. Carey, Managing Director of the Auction Company---(Witness did not appear.)

K.M. Sayers sworn---Received from Simson and Darlot £100 payment of an over-due bill.

Cross-examined---The bill was for land in Collins-st., sold in November or December last, for £1,300; payment was made by a bill of £100, and the rest in [notes?], which were delivered to the witness by Darlot in January last.

Charles Williams sworn---received money from Simson and Darlot to pay off over-due bills for land sold to them.

Mr. Croke, on the part of the prosecution, admitted, that the defendants D.C. Simson and Darlot had paid sums on account of the estate of Dutton, Simson and Darlot, amounting to £3,000.

This was the case for the defence.

Mr. Barry replied at considerable length, and with much ability.

His Honor then summed up the evidence, pointing out to the jury, that the question for their consideration was, whether the defendants D.C. Simson & Darlot, sold the stock and the inn at the beach to H.N. Simson with the intention, on the part of the sellers and of the purchaser, to defraud the trustees and creditors of the estate of W.H. Dutton. His Honor's address occupied upwards of three hours.

The jury retired at half-past six, and returned at a quarter before seven with a verdict of Not Guilty---coupled, however, with a censure on the defendants for the suspicious nature of the transactions.

The Court then adjourned until to-morrow, at 11 o'clock.

Published by the Division of Law, Macquarie University