[insolvency]

In re Dudfield

Supreme Court of Van Diemen's Land

Pedder C.J., 3 and 8 August 1838

Source: True Colonist, 17 August 1838[1]

This morning, Mr. George Dudfield, through his counsel, Mr. Stephen, applied for his discharge under the Insolvent Act. He was opposed on the part of one of the creditors (Pollard) by Mr. Dyne, who undertook to prove, that the insolvent had forfeited his claim to a discharge, in consequence of having committed several fraudulent acts, connected with his insolvency -- such as removing some goods a few evenings previously to his declaring himself insolvent, shewing a preference to certain creditors, and not accounting to the assignee for monies received. Mr. Stephen contended, that Mr. Dyne ought to confine his case to certain individual points of objection, as referred to in the Act, relative to the nullification of a discharge, and not to bring forward a number of charges, any one of which might lead, hereafter, to ulterior proceedings. If the object was to bring certain specific charges against the insolvent, that was another matter; but, in the present instance, Mr. Stephen maintained, that the directions of the Act of Council ought to be strictly followed.

His Honor the Chief Justice observed, that in accordance with the 79th section of the insolvent Act, if the insolvent had omitted to make a full disclosure or discovery of his estate effects, he might be successfully opposed.

Mr. Dyne -- I contend, that if the insolvent intended to commit a fraud, by any of the means referred to, he cannot be entitled to his discharge.

His Honor -- Well, then, I rule it otherwise. We have nothing to do with any person’s intention.

Mr. Dyne now proceeded to call the witnesses for the opposing creditor, and proceeded to examine.

John Telford -- Who is a shepherd at Anstey Barton, and who deposed to paying Mr. Dudfield, since or immediately previous to his insolvency, the sum of £15 10s which he paid by an order on his employer, Thomas Anstey, Esq. Dudfield said to witness, that as his affairs were not going on quite right, he should be glad if he would settle with him; witness accordingly gave him an order upon Mr. Anstey for the amount above stated, which order, at Dudfield’s request, was dated back three or four months.

In his cross-examination by Mr. Stephen Telford stated, that he did not know whether the order had been paid or not; he brought it to Mr. Crombie, the assignee, as a letter from Mr. Anstey.*

On his examination by His Honor, he declared, that he did not know when he gave the order whether Dudfield had been declared insolvent or not; he had not seen any notification thereof in any of the newspapers.

William Kellow, of York Plains, stated that 4 or 5 months ago he exchanged a horse for a mare at Mr. Dudfield’s, for which he gave a bill of exchange, at 3 months, for £23. This bill he paid with £5 in cash, half a bullock, and some hay and straw, leaving a balance of £4 still due to Mr. Dudfield. When he paid the bill Dudfield tore the note of hand, and put it in the fire, observing that short reckonings made long friends. At the time of this transaction the witness declared his ignorance of Mr. Dudfield’s insolvency, but admitted that he understood he (Dudfield) intended to ‘take the benefit,’ but did not know the nature of the proceeding.

His Honor observed that he was sorry for the witness, as he would have to repay the assignee the amount of his debt to the estate.

Mr. Crombie, the permanent assignee to the estate; here observed, that he had given Mr. Dudfield permission to carry on the business for the general benefit of the creditors; but he (Dudfield) had not accounted for this sum.

Kellow, in his cross-examination, stated that the bill was drawn in behalf of a Mr. Newman, and that the mare belonged to that person; but that the bill was passed over to Dudfield, for a debt due to him by Newman.

Mr. Dyne stated, that in the schedule the book debt due by Newman was entered as only £10, while in Dudfield’s books there was an entry of £38 8s; by which it would appear that he had not given any credit, as he ought to have done for the £23.

Richard Newman’s testimony went to prove that he had received a bill from Kellow, and passed it to Dudfield, in payment of an ordinary debt for board, &c. as he was living at Dudfield’s at the time; he did not recollect seeing any goods removed from Dudfield’s about the time of his insolvency as he was not living there then; he had heard many flying reports relating to this subject, but paid no attention to them; he could swear positively that he never saw anything removed from Dudfield’s.

Sarah East was examined at considerable length, and deposed to the following effect: She recollected being at Mr. Dudfield’s house, at Oatlands, about 5 or 6 months ago; heard him say that he had lost the case with Pollard and must send for Mr. David Solomon, of Antill Ponds, who came the next day. Mr. Dudfield said to him; ‘Will you stand my friend, and sign for me for £400?’ She did not know what he was to sign for, but she heard Dudfield say, he was going to try and take the benefit of the Act. Mr. Solomon said he would do so, or any thing else Mr. Dudfield liked.

At this part of the examination, Mr. Dyne proposed, that several individuals, whom he saw in Court, should retire, as the evidence about to be adduced, might place them in an awkward situation.

His Honor replied, that the parties might do as they pleased, but, he had no doubt; that they would take care of themselves.

Mr. East’s examination was then continued. Mr. Dudfield then said to Mr. Solomon, ‘Then you will come down to-morrow to the stores, and guage [sic] all the liquors’. Recollects that Mr. Davis was at Dudfield’s house in the evening, when this conversation took place; he said; ‘Shut up the house as soon as you can, that we may begin to move the things.’ The house was shut up at half-past eleven that night; the waiter, Cashmere Israel, was there, a man named Clark, and another man named Solomon, not David Solomon, but a person who goes by the name if Stommacks. After the house was shut up; they removed several casks which the witness understood to contain rum, brandy, wine, and porter. These articles were removed to Mr. Davis’ Auction-room, which is exactly opposite Mr. Dudfield’s house; none of the packages got broke. Clark got his finger jammed, and Israel his arm and side grazed. Two pier glasses, with some plate from the sideboard in the parlour, were also removed -- as, likewise, some chimney ornaments. Mrs. Dudfield told Israel not to take the spoons as she could put them in her pocket. Some blankets were taken that night -- nothing else, besides what she had mentioned. The next day some beds, with other articles of furniture, were removed to the store, for the purpose, as witness understood, of being sent to the Auction mart.

On her cross-examination, Mrs. East stated, that Mr. Dudfield was in Hobart Town when the things were removed, and when he returned several things were brought back such as glasses and candlesticks; she could not say, whether any casks were returned or not. This witness, also, acknowledged; that there had been a serious misunderstanding between her and Mr. Dudfield, within the last four months. At the time of this conversation, Mrs. Dudfield said, that her husband could pay 40s. in the pound; Clark was present, and heard it too.

By His Honor -- Witness saw some of the goods back in the house last Saturday; did not hear Dudfield give any orders to have the things brought back; more were brought back while witness was in the house; witness was not residing in the house last Saturday, was in the habit of going backwards and forwards to the house for three weeks after the things were removed, but not after that, till last Saturday; witness is quite positive that, during the three weeks she was in the house, she never saw any of the things brought back; when Dudfield said, he had lost the trial with Pollard, it was before the removal of the goods.

Mary Watson. -- Had resided at Dudfield’s seventeen months, and had left about five weeks; had heard of a trial, but did not know what it was about; recollected Dudfield coming to Hobart Town about this trial and his returning, but did not remember any conversation afterwards between Mr. and Mrs. Dudfield; was not employed in packing up any articles, except three beds, which were taken to the stores; did not see anything removed off the premises.

His Honor. -- Who asked you anything about premises? Let me caution you to speak the truth, as you are just as liable to be prosecuted for perjury, committed here, as in any other Court.

Examination continued. -- Has had no conversation with a stout man, outside the Court.

Mr. Dyne. -- Did not a stout man --

His Honor. -- You mean a man named Williams?

Mr. Dyne. -- I do, your Honor, (to witness.) Did not this man tell you that you need not attend here?

Witness. -- ‘Oh, yes! He said as my name was not in a paper I showed him.’ Witness went on to state, that she did not help to remove the pier glasses, as her work was up stairs, nor did she see who removed them; she saw them afterwards in one of the rooms, No. 3, she thinks; she missed them after they were taken down.*

Mr. Thomas Hayward deposed, that he knew of some things being removed from Dudfield’s to Davis’s; the latter had a sale on the 20th March of tea, sugar, pork, and cedar; he could not say whether any of these articles belonged to Dudfield, but considered them the property of Davis; did not know of any porter being removed; should judge that Dudfield had four or five horses in March last, but was not certain; has not seen any of these horses in Newman’s possession; after the sale at Davis’s the things were removed back to Dudfield’s.

In answer to an enquiry by His Honor, Mr. Hayward stated, that he was a creditor of Dudfield’s, but had not received any notice of his insolvency; neither was his name in the schedule. Dudfield had a set-off against witness’s claim, who had no security for Dudfield’s debt, only his word, that he would pay 20s in the pound unconditionally.

Mr. Joseph Salmon stated, that he believed Dudfield had eight horses, old and young, about five or six months ago; he had them at the time of the trial with Pollard; one named Sam, he has seen in the possession of Mr. D. Solomon, of Antill Ponds, since the trial; saw another, named Bob, in the team of Newman, the carrier. Knew of a grey mare and foal, running in a marsh, below his (witness’s) brother’s farm; did not know of any property being removed. The sum of £700, security for rent, put down as a debt to witness, is not owing to him. In March last, Dudfield was perfectly aware witness had no claim upon him for that rent, Dudfield is indebted to witness about £30 for carriage of goods &c. but this is not inserted in the schedule.

On further examination by His Honor, Mr. Salmon explained, that Dudfield had given security to him for the rent of a farm, which he had let to Pollard; but this transaction was annulled by Pollard giving up possession with standing crop, out of which the rent due was deducted, and the balance paid over to Pollard.

On his cross-examination, Mr. Stephen elicited, that Salmon had quarrelled with the Dudfield, but his testimony remained unshaken especially as regarded the horses, with the exception of the mare and foal Mr. Stephen contended did not belong to Dudfield, but to Mr. Anstey, and were in fact running on that gentleman’s land at the present moment.

John Pollard deposed, that, when he went up to Oatlands in March last, to serve the subpoenas upon the witnesses for his trial, he saw four horses working backwards and forwards in Dudfield’s drays and carts; he had not seen, since the insolvency, any of these horses in the possession of any other person, but had heard, that some of them had been seen in Newman’s team.

Mr. Dyne said, that he should not call any more witnesses at present, as to the removal of the property or the horses, but he had a material witness, to prove that Mr. Dudfield had inserted in the schedule of assets, names of persons, who never owed him any thing; he would call, therefore, John Vincent, who when called, proved, that it was his son, and not himself, whose name had been inserted.

A desultory conversation now took place, as to the intention, manifested by the insolvent, to give preference to any creditor, but His Honor disallowed any evidence to this effect.

Mr. A. Crombie examined. -- Is permanent assignee to the estate; recollects receiving information about two pier glasses, and other articles of furniture, not having been inserted in the schedule; had some conversation with the insolvent about the omission, and the impression on witness’s mind was, that he was told they had been removed for some particular purpose, as cleaning, or repairing, and that they were then in his (insolvent’s) house at Oatlands; from Mr. Dudfield’s explanation, it did not appear to witness, that they had been removed with any fraudulent intent; the glasses were not mentioned in the schedule, but one chimney glass in the parlour was. The insolvent did not tell witness where the glasses were moved to, not why they were so moved; witness was perfectly satisfied, from what he saw in the house, that everything that ought to be there was there; this was after the 25th of April, and the house was most amply furnished. On the day of witness’s appointment, as permanent assignee, recollects Mr. Dyne calling upon him, and telling him, that furniture had been removed. Dudfield stated to him, that he had paid a sum of money into the Derwent Bank on the day he was declared insolvent; £100 with interest; did not think Dudfield said, this was entered in the schedule; witness regarded the schedule of assets, as remarkably incorrect; and he here pointed out several items, corroborative of his opinion. The total amount of assets, in book debts and acceptances, was £3,133, but he (witness) did not think the estate would realize one-half. The Messrs. Solomon possess a mortgage claim of £2,428, (entered in the schedule at £1,900) and witness thought that the property available to the creditors would be very small.

Mr. Dyne proceeded to comment seriatem, upon the inaccuracies in the schedule; and in reply, Mr. Stephen contended, that as regarded the preference shewn to the Derwent bank, that was made under legal process, and was made in perfect accordance with the practices at home.

His Honor remarked, that this was a point in which the Colonial Act required amendment.

After some other incidental conversation, His Honor adjourned the further hearing of the case till a future day (Wednesday).

_________________

Wednesday, August 8.

IN RE. DUDFIELD.

Edward Desmond examined by Mr. Dyne. Knows Henry Clark, who was Mr. Dudfield’s managing man, recollects after the insolvency, the horse called ‘Sam,’ returning to Dudfield’s; this was about the middle of June; the Tuesday before the horse returned, a man came to take possession; Clark said to witness, ‘Ned, will you do me a favor?’ Witness answered, ‘certainly, if it is in my power.’ Clark replied, ‘here’s the horse Sam, he has strayed away from Davis’s, and it won’t do for him to be seen here, will you take him back again?’ Knows Kellow very well; he came to Dudfield’s repeatedly in June last; witness was called in by Dudfield one day, into the presence of Clark, Kellow, Mr. and Mrs. Dudfield; Dudfield shut the door, and handing witness a piece of paper, asked him to read it over to Kellow. He did so, and Dudfield then tore it in half and threw it into the fire. [The paper here referred to was the note of hand which Kellow gave Dudfield, as already stated.] After the paper was read over to Kellow Dudfield then asked him if he was satisfied? Kellow said he was. Dudfield then observed; ‘short reckonings make long friends; what you now owe me is £4; any time that you have any thing, I will take it of you; and should the balance be in your favor, I will give you cash for the difference.' Witness did not understand from Dudfield how this bill was settled, but mention was made of half a bullock, some hay, and a £5 note. The goods were not all brought back from Davis’s at one time; the last were brought back on the 9th and 10th of May; witness saw no plate amongst those goods? the plate in the back parlour was removed, but witness could not say whether to Davis’s or not, as the boxes he saw at Davis’s were closed; the plate had been brought back before Mr. Cleburne came up; recollects seeing at Dudfield’s some plated branches, which were kept in the back parlour; these were removed, but were returned in about three weeks.

On his cross-examination by Mr. Stephen, this witness was rather sharply handled. The learned advocate wished to prove, that his evidence was instigated by a bad feeling towards Dudfield, in consequence of some suspicion, having attached to the witness, respecting the loss of a handkerchief. This, however, the witness most satisfactorily explained, and nothing was elicited to shake his previous testimony.

Mr. Cleburne deposed, that, a short time after he was appointed assignee, he received intelligence that some of Dudfield’s property had been removed; but was not sure from whom he had received it. He went, in consequence, up to Oatlands, leaving Hobart Town on the 5th April, and reaching Oatlands the next day. Previously to the 5th April, he, witness had not given Henry Clark any authority to receive goods on his account. [A document was now produced purporting to be a receipt for certain goods, received by Clark, on the part of Mr. Cleburne.] Witness said, he never saw that receipt, till Mr. Crombie showed it to him the other day; nor did he recollect any thing of the goods mentioned in it.

On his cross-examination by Mr. Stephen, Mr. Cleburne stated, that he had commissioned Mr. D. C. Salmon to take charge of the property in Dudfield’s house, and to see that nothing was removed; while he employed Clark to keep a memorandum of all that might happen, in order to make him (witness) acquainted with the same. He was shewn an inventory by Davis, by which he examined the contents of several of the rooms and found the specification correct.

The examination of Mr. Cleburne closed the case on the part of the opposing creditor, and Mr. Stephen proceeded to call witnesses on behalf of the insolvent.

Henry Clark. -- Is clerk at Mr. Dudfield’s; has kept an account of business done at Dudfield’s, and sent it to Mr. Crombie; received some goods from Mr. Davis, and gave a receipt for them; they are now in the house at Oatlands. Mrs. Dudfield ordered the waiter to remove them about the latter end of March, or beginning of April; two chimney glasses were removed; they were taken away before the inventory was made out to Davis’s, but they were brought back some time in April -- after Mr. Cleburne had been to Oatlands; they are now in Mr. Dudfield’s house. This witness was closely examined by his Honor, as to his knowledge of the removal of various articles, and to the several bill transactions with Telford and Kellow, as well as respecting the horses, alleged to have been in Dudfield’s possession. He stated also that when Dudfield returned from Hobart Town, the race time, and found that some things had been removed, he was very angry with witness for removing them; and that he (Dudfield) ordered them to be brought back. There was considerable hesitation, in replying to several questions, evinced by the witness, which, we have ascertained, is caused by a paralytic affection, with which he was afflicted some short time since; we think it right to mention this as we have reason to know, that his manner created any thing but a favourable impression on the court and audience.*

The case being closed, His Honor appointed the following day, Thursday, at 12 o’clock, for delivering his judgment; and accordingly at the time appointed, the Chief Justice proceeded to do so.

His Honor recapitulated the evidence with great care and perspicuity, adverted to all the principal points with great clearance and precision. He divided the case, on the part of the opposing creditor into two points:-- First, the removal of the property; and secondly, the notes of hand given by Kellow and Telford. The view His Honor took of the whole case was extremely lucid and comprehensive, and the result was that the Insolvent's certificate was refused.*