Offences: Deception > bankrupcy; Deception > bankrupcy
Verdicts: Guilty > no_subcategory; Guilty > no_subcategory; Not Guilty > no evidence
Punishments: Imprisonment > no_subcategory
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127. DANIEL MITCHELL DAVIDSON and COSMO WILLIAM GORDON were again indicted (under 12 and 13 Vict. c. 106, sec. 253) for that they, under the false colour and pretence of carrying on business in the ordinary course of trade, unlawfully did obtain on credit divers goods and chattels, with intent to defraud various persons named in different Counts of the indictment.
MESSRS. BALLANTINE and POLAND conducted the Prosecution.
(Thomas Hamber, William Haggis, and John Checketts gave evidence to the same effect as upon the former trial. see page 172.)
WILLIAM HACKWOOD . I am a partner of Mr. Linklater's—the adjudications in this bankruptcy were made out originally partly by Mr. Hurniman, and I passed them, I made some alterations in them before they were signed—there were four.
Cross-examined by MR. MONTAGU CHAMBERS. Q. Was the paper made out in the presence of Mr. George, your clerk? A. Not to my knowledge—I cannot swear it was not—I cannot swear that a duplicate of the paper was not made out in Mr. George's presence, given to Mr. Hamber, and left at the counting house—I was not subpoenaed here as a witness on the first trial of Gordon's—I do not know why Mr. George has not been called—I am sure it has not been arranged that he should not be called—I have nothing to do with the conduct of this case, Mr. George and Mr. John Linklater conduct it—Mr. John Linklater had the conduct of the bankruptcy, and Mr. George partly so—since the adjudication Mr. George has bad the chief brunt, with Mr. John Linklater, of conducting the case
through the Bankruptcy Court—the petition was the commencement of the bankruptcy, the adjudication was the next day.
MR. BALLANTINE. Q. Then you have not heard that Mr. George is purposely kept back? A. I have not—his name is Francis.
FRANCIS GEORGE cross-examined by MR. CHAMBERS. Q. You were examined at Mr. Gordon's trial, were you not? A. I was—I then said, "I see the adjudication of bankruptcy here among the proceedings, a duplicate of this was made out in my presence"—I said, "That duplicate was given to Mr. Hamber, and was the duplicate which he left at the counting house of Gordon and Davidson"—I was with him when he left the duplicate—the adjudication is not in my handwriting—it is in the handwriting of Mr. Hurniman, and there is Mr. Hackwood's filling in—it was prepared by Mr. Hurniman on the previous day, the 20th—I stated before that I had something to do with seeing that the duplicate was a duplicate—I saw it in this way, I was examining one of the witnesses, and I had received directions to go with Mr. Hamber to the premises, and when the examinations were completed I went down, when Mr. Hackwood completed the documents and handed them to the Commissioner—I said on Gordon's trial, "I saw them both together before they were signed by the Commissioner, when they were altered for his signature"—that applied to the two that I was speaking of—to the best of my recollection I did see them altered for the Commissioner's signature, and placed before him to sign—one was delivered to Mr. Hamber, and I went with him and saw that one served on the premises—it is an incorrect expression to say that I went to serve it—I did not go to serve the adjudication, I went with Mr. Hamber when he served the adjudication—I went there for another purpose, to see what securities there were, and to get them—I stated, "I did not read one against the other, but I was present when Mr. Hackwood went through the two, compared them, and altered them, and they were signed by the Commissioner"—I swore that one was retained in the Court, and here it is—I also said that one was left at the bankrupts' counting house—that is quite correct.
MR. BALLANTINE. Q. Do you know whether there was more than one left at the bankrupts' counting house or not? A. I cannot say whether there was more than one left at the counting house; and perhaps I may be allowed to explain this, that when I was examined, my attention was directed to two documents, one of them the document on the file, and the other the document that was served—I was not speaking of all the documents that were prepared, because, of course, other documents of the same character were prepared; but I was speaking of the particular documents which were referred to upon that trial—I cannot now remember of my own knowledge the exact number that were prepared altogether—they were in Mr. Hurniman's band, and he produced them to me, and we had a conversation about the alterations—I went with Mr. Hamber, and the document that he produced, and I spoke to, was the one which he read out, or rather explained, in the office to the clerks, but, of course, he might have left two—I bad nothing to do with it, I merely remember that when he went into the office he read one of the documents, explained it to them, and left it on the desk—he might have left two, I cannot say.
CHARLES JOHN ROBINSON . I am a clerk to Messrs. Linklaters—I served a copy of this notice on the two prisoners, and upon Mr. Hemsley, Gordon's solicitor, on 5th of this month—it is a notice to produce the duplicate adjudications.
(This was put in and taken as read, together with the Gazette, as in the former case.)
NATHANIEL. DAVIS . I am clerk to Mr. Beddoe, of Huggin-lane, commission agent. In May, 1854, I went to the counting house of Davidson and Gordon, in Mincing-lane—we had received a note from Mr. Gorden—we have not got that note—I called in. consequence of that note—I saw the two defendants—I cannot give you the day, but it was before 25th May—I received an order for goods to be supplied by Mr. M'Millan, of Glasgow—they were returned they were returned barèges, drapery goods—the order was given by word of mouth, I took it upon the premises—Mr. Gordon said they were to be shipped for India, he did not say to whom—I communicated the order to Mr. Beddoe—Mr. Gordon had previously told me that when this gentleman was come from abroad he would give me the order for goods—the goods were delivered on or after 25th May to their packers—the amount was 426l.
Cross-examined by MR. SERJEANT BYLES. Q. Had you had dealings with the prisoners before? A. No—I had solicited orders before—I do not remember whether I had done so as far back as 1853—I should think I had solicited the order about a month before I got it or perhaps more—I solicited many times—Mr. Gordon told me the first time I called "Call again, and I will give you an order"—I do not think I called twenty times, or anything like it—I cannot swear I did not—I kept no memorandum of the times I called—he told me the first time I called that he wanted the goods to ship to India, and he told me so afterwards also—I cannot tell when the first time was—it was not six months before the order was given, nor I think three months, but I cannot give an answer to that—it might be three months, but I should think, to the best of my memory, it would be about a month, or perhaps six weeks.
Q. They were in a very extensive way of business, were they not) A. So Mr. Gordon told me—he also told me they were colonial broken—I did not know it until he bold me—barège is a thin material for ladies' dresses—he did not give me the name of the gentleman that was to come from India—I saw many gentlemen there, but I do not know what gentle-man he referred to, he never told me—Mr. Davidson was there—there was a gentleman there who examined the samples.
Cross-examined by MR. CHAMBERS. Q. You sent the goods to Davidson and Gordon's packers? A. Yes, I forget their name—that is the ordinary course when goods are going to a distance—instead of sending them to the house of business, we send them to the packers.
MR. BALLANTINE. Q. Are children's checks included in what you call barege? A. Yes—Mr. Gordon told me he was in a very extensive way of business—he told me something else—(Upon MR. BALLANTINE inquirity what else passed, MR. CHAMBERS objected, as not arising out of the cross-examination; it could only be founded upon an irregular answer which the witness, had made. MR. JUSTICE COLBRIDGE was of opinion that the answer was not an improper one, and therefore the right of re-examination existed)—when the order was taken, we wished Mr. Gordon to pay for the patrol upon delivery—he told us that he could not do that—the next proposition was whether he could pay half cash, and the remainder in bills, the same as he had proposed first of all, when we told him that we could not accept his bill—Mr. Gordon then took me into his counting house, showed me his bank book, and told me that they were in a very large way of business, and that he would comply with our wishes, he would give us half cash in a month, and the remainder in a bill of three months—I think this was
about two days before the first parcel was delivered, which was on 25th May—I was with Mr. Gordon several times about the cash—after seeing his banker's book, and hearing what he said about his large way of business, I consented to that arrangement.
MR. CHAMBERS. Q. What was the extent of the first parcel you delivered? A. 426l.—the order altogether would have amounted to nearly 3,000l., but Mr. Beddoe is a commission agent for three different firms, and I took orders for the three firms at the same time—Mr. M'Millan's goods amounted to 426l.—I know about the others being delivered, not all of them, some were not in time.
JOHN M'MILLAN . I am the petitioning creditor under this bankruptcy. I am a manufacturer, in Glasgow—Mr. Beddoe, off Huggin-lane, was my agent in May, 1854—he had goods in his warehouse belonging to me at that time—part of those goods were children's checks—we do not call them barège—they are technically called "skeletons "in the trade—they include children's checks—I have never received payment for any goods delivered to Davidson and Gordon.
Cross-examined by MR. PARRY. Q. Had you yourself solicited orders at all before? A. Not from these parties—I was advised of the sale before they went in, as they had not the full amount of the order lying there, I had to send them from Glasgow—my agents had not solicited orders from Davidson and Gordon by my direction—they had their own choice and discretion in the matter—I have heard of the house of Ogilvie, Galandar, and Co., of Liverpool—I believe they are great consignees of goods to India—the barège that I make is not suited for India at all—the goods I sold to Davidson and Gordon were not suited for India—I believe they would have been improper things to send to India—I do not believe they would give a good return—they were goods suited for an English summer, but not for an Indian summer—they were suited for warm weather in England—I have never been to India, nor ever consigned there.
MR. BALLANTINE. Q. Are you acquainted with the goods that are useful for the Indian market? A. Yes—in my opinion, these were not goods adapted for the Indian market at all—I did not authorise my. agents to send goods at all to Davidson and Gordon, unless they got prompt cash.
MR. CHAMBERS. Q. You never heard that they wanted them for India, did you? A. Yes, and I supplied them.
HENRY FOTHERBY . I am porter to Mr. Beddoe, of Huggin-lane. At the latter end of May, 1854, I delivered Rome goods to Messrs. Burke, Winter, and Mumford—they were loose goods—they were barèges, and what were called novelty checks, children's checks—they were the goods of Mr. M'Millan, of Glasgow.
ROBERT WILLIAM WOOD . I was clerk to Messrs. Burke, Winter, and Mumford, packers, of Eldon-street, Finsbury. In May, 1854, I received an order from Messrs. Davidson and Gordon, in consequence of which we sent our cart, and Smith, our carman, to Mr. Beddoe's, in Huggin-lane—the goods were brought to our house, and packed in four different bales, which were marked D in a diamond, with a D underneath, and numbered 1 to 4—I saw them placed in our cart, and sent to St. Katherine's Docks—I made out the order for them—we have no delivery note—we send a shipping note, which the Dock Company retain—we get no receipt from the Docks for any goods delivered—T think the shipping note that we received was from Davidson and Gordon—this (produced) is the shipping
note that was sent down with the four bales—this was sent to us by one of Davidson and Gordon's clerks—we were paid for the packing on 3rd June, by one of the clerks of Davidson and Gordon's counting house, by a cheque.
Cross-examined by MR. CHAMBERS. Q. Are your employers in an extensive way of business as packers? A. Yes—at that time we packed a great many goods for the Indian market; not to the extent of hundreds of thousands of pounds in a year—the ordinary course for a party who is going to ship to India is to send the goods to a packer's, and we pack them carefully for the Indian market—these were packed in bales; sometimes they are packed in canvas and tarpaulin, sometimes in canvas only, and sometimes in canvas and oil cloth, according to the merchant's order—these were packed so as to be quite safe for the Calcutta market—I could tell you what materials were used for the packing by referring to our books (referring to a book) —this is a book we keep for entering the orders—they were packed in double canvas and tarpaulin—a good many other houses sent goods to be packed for the Indian and other markets—these were children's checks and novelty checks—I cannot recollect whether we had packed articles of that kind for many other houses—I do not recollect whether they were thin or thick stuff, I only know that they were the goods we received from M'Millan, and we packed them as stated there—we received orders from Davidson and Gordon to mark them as we did.
MR. POLAND. Q. Do you remember whether you had ever packed children's checks before for India? A. I do not recollect that we had, we might have packed that description of goods under another name; the names vary very much—(The shipping note was here read: it was dated 30th May, 1854, and was for four bales, marked D in a diamond, D, numbered 1 to 4, by the ship Emperor—Young—for Calcutta; signed, for David-son and Gordon, C. Walker, 14, Mincing-lane.)—Young was the captain's name.
JOSEPH SMITH . I was porter to Messrs. Burke, Winter, and Mumford, packers. In May, 1854, I delivered with this order four bales of goods at St. Katherine's Docks, marked D in a diamond, D, Nos. 1 to 4.
WILLIAM THOMAS ARNETT . I am a clerk at the export office, St. Katherine's Docks. In May, 1854, I received four bales of goods according to this note—I cannot say who they were from—they were to be placed on board the Emperor—she sailed about 15th or 16th June for Calcutta.
WILLIAM BEDDOE . I am a commission agent in Huggin-lane. In May, 1854, I was agent for Mr. M'Millan—I never saw either of the defendants but once, that was on 14th June, and then I saw them both together at their office in Mincing-lane; very little took place between us—they made an appointment to see me again in two or three days, respecting the payment of money—I called several times after that, but was not able to see them afterwards—I remember M'Millan's goods being supplied to them in May—no doubt an invoice was delivered with then—this invoice (looking at it in the bankrupt's invoice book) is in the handwriting of one, of my clerks—these were the goods that were sold by Davis—I have never received payment for those goods—(the invoice was here read).
Cross-examined by MR. CHAMBERS. Q. Did you know they were for the Indian market? A. No, I understood from Davis that Davidson and Gordon had told him they were for India.
it may be—I know Gordon—I have seen him several times at Coles's office, I do not know when I first saw him; he made an application to me on 12th June, 1854—that was not the first time we had had business with him, we had business with him at Bombay before that—he had sent us goods, without any communication, to Bombay, and I had spoken to him about them, but this was the first communication I had about Calcutta—he asked me whether I could take consignments of goods for Calcutta—I said, "Yes"—he then asked me to go to his office to look at some goods that he had there for Calcutta—I went to his office, and saw some samples of check goods—I saw several invoices, one relating to some check goods—I made an advance on the goods mentioned in this invoice, and upon some other goods—I advanced 1,500l. upon the whole—I made that advance by the acceptance of Ogilvie, Galander, and Co.
Cross-examined by MR. CHAMBERS. Q. What are Ogilvie, Galander, and Co.? A. General merchants and commission agents; there are partners in India; they have one partner at Calcutta—Mr. Bessant, who is the senior partner, has also a house at Bombay, in which I am a partner—they make advances upon goods sent out to India to a considerable extent, in the course of a year—we do not always see the invoices before we make advances—they show us or send us the musters or patterns of the goods, and if satisfied of their fair value, and we think they are suitable, we make the advance—we exercise our judgment as to whether they are likely to answer in the Indian market—as soon as we have done that, and seen the quantity, we can judge as to the prudence of the amount of advance to make—that is the way we do it—I examined the patterns of all the goods upon which I was to advance the 1,500l.—I thought they were such goods as were likely to answer our purpose by making advances upon them for the Indian market—I thought them all suited for the Indian market—the advance varies according to the transaction, we have no particular rule—we make such an advance as we think will be covered in India—we do not always desire to see the invoices as well as the goods, but sometimes we do, if we do not know exactly, or are not quite certain of the value of the goods—I went through the prices here—the application made was to take some goods to consign to India, and then they showed me the quantity, and said the advance was about 1,500l.—I think there were thirty-seven packages—the invoices were not then pasted in the book, they were loose—I did not take copies of them, I took a memorandum of the amount—we do that sometimes—the bill of lading was handed over to me—generally the goods are shipped by ourselves, but in other cases the parties send us the bill of lading, and sometimes they send us a policy of insurance; at other times they give us instructions for insurance—if they send us the bill of lading, we transmit it to our correspondents in India, so that when the goods arrive there, they may have the sale of them, or help themselves to the first proceeds—I adopted the ordinary course of business in this transaction throughout, from the beginning to the end—it was one of the ordinary and common transactions that occur day after day.
MR. BALLANNINE. Q. Was as much advanced upon this occasion as the (roods would bear? A. It turned out that more was advanced than they would bear—the acceptance has been paid, I produce it.
CHARLES WALKER . I was for some time clerk to the bankrupts—they carried on business as metal and colonial brokers, in Mincing-lane, and also the business of a distillery at West Ham, in the county of Essex—it was my duty to keep the books—I saw the bankrupts on 17th June, 1854, and not
again until they came over to this country—I am not able to say what balance there was against them upon their books when they left—I did not make out a statement, I checked it—I ascertained its correctness as far as it was possible to check it at the time (looking at a paper)—there is no total here, but I think the total amount of liabilities, according to this statement, is about 500,000l., but there is no balance sheet attached to this—it includes the amount due to Over end and Gurneys, the amount here is 110,910l.; there is no promissory note to Mr. Chapman included in that amount—I have seen this bill of exchange before (looking at the one before produced)—I do not know on what day it was discounted, there is nothing here that will tell me; there would be an entry in the bill book (referring to it)—I think it was on 15th June.
Cross-examined by MR. SERJEANT BYLES. Q. Do the liabilities include such advances and acceptances as Ogilvie's? A. Yes; the dealings of the bankrupts were very large, many hundred thousand pounds in the course of a year—I should think not so much as a million and a half; judging by the cash book, I should say about a million—Mr. Davidson did not take an active part in the conduct of the business—I generally drew the cheques—I did not take my directions for drawing those cheques from Mr. Davidson—he would ask me if they were correct before he signed them, and then sign them, without inquiring, and so far as I was aware, without knowing the purpose for which those cheques were drawn—he would also sign warrants in the same way—he has been away from business for months together—he was not frequently away for long periods, but he was for short ones—I recollect his going to Spain in Nov., 1853; he returned in April, 1854, I think—he went to the East some years ago.
Q. Had you instructions to enter all these matters in the books, and were they all properly entered accordingly? A. I had no particular instructions respecting these—I had no instructions not to enter them—I believe the transactions are all regularly entered in the books in the ordinary course of business—I have heard of the transaction as to these bareges, skeletons, and novelty cheques which went to India—that transaction was in the ordinary course of business—Davidson and Gordon were in the habit, in the ordinary course of business, of sending to India in that way—we have consigned goods to Messrs. Kelsale, Hoare, and Co., of Calcutta, through the London house, and to Gisborne and Co., also through the London house—I was acquainted with such matters—Gisborne's would not appear in the books—I have seen letters from them—I have not corresponded with them directly, but the house has—we have done business with Stewardt, Capron, and Co., and with Henderson, Wallis, and Co., of Calcutta—the transaction Mr. Ewart has spoken of was the first with Ogilvie, Golander, and Co.—I do not remember the name of Burkett and Young—we had dealings with Arbuthnot and Co., of Bombay, Johnson and Co., of Singapore, Kirchoer and Co., of Sydney, Kirchner and Co., of Melbourne, and Bligh, Arbuthnot, and Co., of Melbourne—there may be some others—I do not recollect our having any joint accounts with other houses in Manchester goods—I know the house of Sissell and Co., of Manchester—we have joined them in shipments to Melbourne, I think—I really do not know whether the distillery was a profitable business or not.
Cross-examined by MR. CHAMBERS. Q. What do you call this paper, a balance sheet? A. No; a statement of liabilities—I did not make it out—the liabilities were taken from the books—it includes the creditors holding securities, creditors on bills receivable, creditors on bills payable, and the
general creditors; the total amount of liabilities, taking in secured and unsecured creditors, is about 500,000l.—here are some pencil figures which state the amount of the creditors unsecured to be 13,400l.—I should say that was about the sum—Mr. Henry Hoffman, a creditor, holding security, is put down here at 41,849l. 6s. 5d.—I do not know that he has been paid; I should say that there was not anything due to Mr. Hoffman.
Q. I see he is put down as holding acceptances, shipments to Calcutta, Sydney, Melbourne, and there are blanks as to those; the liability to him is put down at 41,849l., and no credit is given for the shipments? A. No; the credit was not calculated at the time—I have not heard that he has made any claim against the estate.
Q. Here is another; Corrie and Co., of Mincing-lane; they are put down at 15,330l., then credit is given for 2,000l., holding acceptances; then there is a quantity of Java sugar and other things; is no credit given for that? A. No; the balance sheet has not been made out at all—this contains simply the total liabilities of the firm, without deducting the goods or other things they have given as security—it does not show what was their liability when they were bankrupts—the 500,000l. is merely the figure of the total liability—they were great holders or dealers in sugar, in a very extensive way indeed.
Q. Supposing, instead of parting with the sugars, and realizing upon them immediately, they had been kept, would they not have covered, or more than covered every liability of the bankrupts, owing to the rise in sugar? A. I should think they would—I do not know whether it would have given them a handsome surplus—I think it would have paid all their liabilities—I do not think anything connected with the distillery is introduced into the 500,000l.—I know nothing about the profits that were being realized by the distillery at the time of the bankruptcy—Mr. Eves used to attend to the distillery—I do not know the quantity of sugar they held—I could not refer to the books to ascertain the quantity—the official assignee and the accountants have had a full opportunity of looking at the books, so as to ascertain the quantity of sugar on hand at the time of the bankruptcy—I should be able to see all that from an examination of the bankrupts' books—their transactions required them, as a matter of necessity, to obtain advances upon goods; and when they got advances by bills of exchange, they got those bills discounted, to put them in funds immediately—that was in their ordinary course of business—Mr. Gordon was an active and attentive man of business, as industrious and active as man could be—he has been in the firm for some years altogether—the bill book would show the amount of advances made on discounts in the course of the year.
MR. BALLANTINE. Q. When were these sugars that you have been asked about parted with? A. I do not know—they were holders of sugar to a considerable amount at the time of their bankruptcy—costs would be accruing upon it from day to day—I do not recollect when the rise in sugar began; some time this year. I think—there had been transactions with the East some few months before this of M'Millan's, nearly the whole of the year, I should think we were shipping to India and Melbourne—I cannot say exactly how recently before this transaction of M'Millan's there had been transactions with the East, but I should think in March and April, and upon which advances had been received—I am rather certain about that—Overend and Gurney are entered here for 110,000l., holding securities—I think the warrants in the hands of Overend and Gurney are stated there as securities—this (produced) is Davidson and Gordon's pass book—this commences
on 17th Sept, 1853, and goes of to the bankruptcy—(MR. BALLANTINE. stated that by this it appeared that on 24th May there was a balance their favour of 283l. 18s. 10d.)—I do not know the quantity of sugar they held—two or three parties held sugar—I do not recollect the amount they held
Q. My friend rather put it to you, whether it would not have made their fortune in the event of a rise? A. If the sugar had not been gold—it must depend upon the quantity they held—I do not remember what the quantity was—when I stated that it would have paid their liabilities, I meant the whole of their liabilities, the deficiency—if the sugars had been held they would have paid the deficiency.
COURT. Q. You mean they would have been solvent? A. Yes.
MR. BALLANTINE. Q. And you do not know how much they did hold? A. I do not recollect the quantity—it was more than 15,000lbs.—it must have been something like that in tons—I cannot say exactly the quantity—I should think at one time they did hold that quantity, somewhere in the beginning of 1854—I do not know what had been advanced upon it, not the amount, I should think not near the value—I should say it had not—I say so positively—at that time I should think within 5s. a cwt had been advanced—the advances were at different times—the period I fix is 1854—further advances were not afterwards made upon the sugar, to my knowledge—I do not know of any further advances—I meant that, if kept, it would have paid the money that was due to Overend and Gurney.
Q. What quantity of sugar do you fix upon for that purpose; you say 15,000 tons, and advances had been made to within 5s. a ton? A. 5s. A cwt., and the other securities mentioned.
Q. But I am speaking only of the sugar? A. I was speaking of the deficiency—Overend and Gurney's warrants are mentioned here—I suppose they are considered to be securities, by their being placed here—according to this statement, the debt due to Overend and Gurney is secured—when I gave the opinion that the sugar would pay everything that was unsecured, I certainly considered the debt due to Overend and Gurney to have been secured—(MR. CHAMBERS stated that the banker's book showed 870,000l passing through it in the last nine months.)
MR. CHAMBERS. Q. Where was this banker's book on 19th June; was it in the banker's hands? A. I believe it was—we used generally to have the banker's book every morning—I used to see it every morning—there was a balance in the banker's hands on the 17th.
HENRY JOHN TODD . I carry on business in Pancras-lane. In May, 1854, I was agent to Pickford, Johnson, and Co., of Manchester—some day in that month I went to the prisoners' counting house in Mincing-lane, I there saw Gordon, and solicited him for an order—I do not think he gave me an order on that day, but in the course of two or three days afterwards he did—I called again by his desire, he said he would give me an order—my clerk bad seen him previously about the order, and then I called, and took it—Richard Bateman is the name of the person who was my clerk at that time, he is not here—Gordon gave me an order for a certain quantity of goods—I do not remember exactly what he said—he said nothing in particular, but that he would take such and such goods—they were printed cotton goods, he saw the patterns and ordered from those patterns—he said he wanted them for India, he did not say where they were to be sent to in India, nor to. whom—I think we agreed to give him four months' credit on the parcel—I do not remember whether he or we proposed that, but we
agreed to give him four months' credit—I Agreed to supply him with from 1,500l. to 2,000/. worth of goods—I gave orders to our correspondent at Manchester for the supply of those goods—I think about 800l. worth were supplied, but I am not able to say with certainty—the whole were not supplied that were ordered, some portion was got back again—the house in Manchester heard something rather prejudicial to Davidson and Gordon, and they got the goods back before they were delivered, but I do not know the amount of them—it would be my duty to receive payment for these goods—I have not received any—I believe my correspondents are creditors for that amount.
Cross-examined by MR. SERJEANT BYLES.Q. What sort of goods were they? A. Printed cotton and printed muslins, of a light texture—I do not know whether they were fit for the Indian market—they were ordered for India, and such goods are sent out to India; it is no part of my business whether they are fit or not, my duty is to sell—I had solicited Gordon for an order before he gave one, he did not give me the order at first—I called upon him half a dozen times for orders—it was a day or two after I last called that he gave me this order—there was nothing in this transaction that I was aware of, out of the ordinary course of business.
SAMUEL WYATT . I am a carman to Chaplin and Horne, the carriers. On 2nd June I received eighteen cases of goods from Hambro' wharf, Thames-street, they were marked D, in a diamond, with a T at the right hand side, and the Nos. ran from 9 to 16 and from 18 to 27—I delivered them at St. Katherine's Docks.
Cross-examined by MR. SERJEANT BYLES. Q. In the ordinary course of business? A. Yes, as such things always are—Davidson and Gordon, I believe, gave the shipping order to our clerk.
WILLIAM THOMAS ARNETT . I am a clerk in St. Katherine's Docks. I received eighteen cases, marked D, in a diamond T, numbered 9 to 27—they were received on account of Davidson and Gordon—I also received the other two, marked 29 and 30—they were put on board the Emperor for Calcutta.
CHARLES WALKER re-examined. I recollect something about this transaction of Pickford, Johnson, and Co.—I think they were included in Mr. Ewart's bill—since I was examined I have been looking over the accounts—I have not ascertained the actual amount of advances upon the sugars at any one time—to the best of my knowledge this account was made out at the time: I made out this particular portion of it about the sugars, and general securities held by the creditors—there appears to be about 44,000l. due to creditors holding sugars only—I should think the advance to have been to within 5s. per cwt.
Q. That would be about 15l. per ton, would it not? A. I do not know what the sugars may have cost at the time, if they were low sugars perhaps they cost only 21s. a cwt.—the duty would have to be deducted from the amount, which I think was 12s. at that time; that would leave 9s.—I estimate the amount down in this paper at about 3,066 tons.
MR. CHAMBERS. Q. Besides the sugars introduced into that account, were there any other cargoes of sugar belonging to them coming home? A. I do not know that there were any.
Q. Will not the books disclose that the extent of sugar transactions were
much beyond those upon which advances had been made,-and which are introduced into that account? A. The books would not show that—I understood your question about the sugar if retained making the bankrupts solvent, as a general one—it would not have made them solvent if sold at that time—if it had been kept till the present time it would have paid off the deficit—their sugar dealings extended over a long period—Mr. Hoffman is alive and Mr. Corrie also, and could come and tell their own story—we had sugar transactions with Rucker and Co. to a very large amount—they are still in existence and could tell what balance was due, what they advanced and upon what footing—orders have gone out to the Havanna through Ruckers, to purchase sugars.
MR. BALLANTINE. Q. You have been asked about the rise in sugar, what do you calculate the rise at 1 A. I think about 22s. a cwt., about 20l. a ton—you would multiply the 3,000 tons by that 20, and all the charges and interest of money in the interval would have to be deducted.
STEPHEN ADOLPHUS JOHNSON . I was a member of the firm of Pickford, Johnson, and Co., of Manchester, in May, 1854. From communications made to us by our agent, we supplied some goods to Messrs. Davidson and Gordon—we sent altogether to the amount of about 750l., and between 1,100l. and 1,200l. we stopped in the hands of the carriers—we have not received any money for the 750l. worth, that were delivered.
RICHARD SIMPKIN . I am agent to Robert Alexander and Co., of Glasgow. They are Turkey red dyers and calico printers—in Feb., 1854, I saw Gordon at his office in Mincing-lane, and received an order from him for Turkey red goods to the amount of about 3,500l.—(MR. SERJEANT BYLES submitted that this transaction was not admissible, it being beyond the three months prior to the bankruptcy. MR. POLAND was prepared to prove that part of the goods were delivered within the three months. MR. SERJEANT BYLES contended that that would not be sufficient; the words of the statute were, "obtain on credit" which must mean causing to be delivered, or giving the order. MR. POLAND referred to the case of Regina v Lands, Sessions Paper, Vol. 42, page 556, where a similar question arose, and was reserved. MR. JUSTICE COLERIDGE decided upon hearing the evidence.)—do not know the number of the cases that were sent—a portion of the goods were supplied and paid for—the remaining portion of the order was delivered in April—they were Turkey red and cambric goods—the terms of the purchase were arranged between us—the first portion of the goods were to be paid for in cash, and were paid for in cash—the remaining portion was to be one third cash, and for the remaining two thirds we were to draw at four months—the second arrangement was made in the first weak in May, after the delivery of the second portion—I may mention that upon the order being taken the prisoners reserved the right of either paying cash for the last half; with a deduction of 2 1/2 per cent., or making any terms they chose at the time, that we might accede to, as to the second portion of goods—the second portion was left open—I believe the second portion of goods were delivered through Pickfords, the carriers—the amount of the goods was about 1,486l.—I am now a creditor for 974l.—that is on the last delivery.
Cross-examined by MR. SERJEANT BYLES. Q. Did you solicit this order? A. I did not—it was given at the premises in Mincing-lane—I went there—500l. was paid in cash for the first portion, or rather 200l. was paid by a cheque, and 300l. by a bill at three days' sight, which was paid—the whole of the 500l. was paid—the arrangement as to the payment for the second
portion was made in the first week in May, after the goods were delivered—part of the second portion was paid for in cash—the whole of the first portion was paid for in cash—that was 1,800l., and then 500l. of the second portion was also paid for in cash—that is the 500l. I have spoken of before—altogether about 2,300l. was paid in cash—I observed nothing in the transaction out of the ordinary course of business—the goods supplied were of a light texture, for the Indian market—they were quite fit for the Indian market, expressly for it.
HENRY HOFFMAN . I am a merchant, carrying on business in Old Broad-street, London, On 15th April, 1854, I made an advance of 1,200l. to Davidson and Gordon, upon thirty-seven cases of Turkey red cambric goods—I paid them by a cheque upon my bankers, the London Joint Stock Bank—it has been returned to me as paid.
Cross-examined by MR. CHAMBERS. Q. Are you the Hoffman whose name is entered here for 41,849l. 6s. 5d.? A. Yes—I am not aware of holding any acceptances—I had securities in my hands upon shipments to Calcutta, Sydney, and Melbourne—I have not proved any debt under the estate—I hope there is no debt due to me.
Cross-examined by MR. SERJEANT BYLES. Q. you have known the bankrupts for some time, I believe; they have been in a large way of business? A. I have known them for a few years, a couple of years—I knew the old firm of Sergeant and Co.—I have known the firm of Davidson and Gordon ever since they have been trading under that name, not personally—so far as I know, they have been extensively in the habit of shipping goods to India—their shipments through myself and my correspondents have been large—I know that, during all the two years.
MR. BALLANTINE. Q. I think you stated that you hold securities for your advances? A. I may state that my correspondents hold them now—they were shipments to the East Indies and shipments to Australia—I hold some warrants too—I have them in my possession—one is for 2,400l., and another 1,613l. 16s.—those are the two amounts—these (produced) are the warrants—they are warrants for spelter—there are six of them altogether.
JOHN BENNETT . In 1854 I was agent to Mr. Samuel Hess, of ManChester. In June, 1854, I saw both the defendants—I saw them at the first onset about the middle of May—I took an order from them on the 22nd May; it was for white drills, fancy drills, and grey jaconets, to the amount of about 2,000l.—a part of those goods were supplied, about 1,400l. worth—I sent the order down to Manchester for the whole—the rest was not supplied, because I was told the ship was on the move, and there was not time to execute the order—I understood they were for the Indian market, Mr. Gordon said so; he told me that he was shipping to India, and he wanted a certain class of goods of that description—he did not say to whom he was shipping, he mentioned no names; he gave me no description of the persons to whom he was shipping.
Cross-examined by MR. SERJEANT BYLES. Q. Did you solicit an order in this case? A. I did.
SAMUEL HESS . I live at Manchester. Mr. Bennett was an agent of mine in 1854—in consequence of an order I received from him, I supplied some goods to Davidson and Gordon to the amount of about 1,500l.—I had never supplied goods to them before, I have never been paid any portion of it—I saw Mr. Gordon on 17th June, about 1 o'clock in the afternoon—he made an appointment with me, because his agreement was to pay half cash
—Mr. Gordon ordered me to come at 3 o'clock in the afternoon to arrange with his partner for payment—I went at 5 o'clock and saw Mr. Davidson—Mr. Gordon was out, but Mr. Davidson said I should come again in half an hour, and Mr. Gordon would be in—I went again at half past 3 o'clock, and Mr. Walker, their clerk, said that Mr. Gordon had told him to tell me that the cheque would be forwarded on Monday—I did not see the prisoners again until they were in custody—when I saw Mr. Gordon at 1 o'clock, I asked him for the account, because we had arranged upon cash terms—I said so to him, Mr. Bennett was with me at the time—Gordon said he must see his partner about it; that was all that passed between us—when I saw Mr. Davidson, he merely asked if I had made an appointment with Mr. Gordon—I said I had, and he said as he was not in at that time I should call again in half an hour to see him then.
CHARLES WALKER . re-examined. I cannot tell without the book, how much money was advanced upon Mr. Hess's goods, but I think these goods were delivered up to the assignees; some of them were—I know of no amount of 4,600l. received of Charles Goodwin Norman—1 cannot tell without referring to the books whether any money at all was obtained upon Mr. Hess's goods;—(MR. BALLANTINE stated that Mr. Norman wasat present serving upon a Jury in the Queen's Bench.)
JOHN GURNEY HOARE . I am a partner in the banking house of Barnett, Hoare, and Co. The prisoners Davidson and Gordon banked with as—by reference to this book I may probably be able to tell what the state of their balance was, but I would have brought my own books had I had any notice to do so.
Cross-examined by MR. CHAMBERS. Q. That book is not in your handwriting? A. No—I do not suppose Out clerk would be likely to tell you at what time of the day it was written off, very likely not till the next day—no doubt the book was made up on the 19th, or 20th, probably—I see here is a date of the 19th, therefore most likely the book was made up on the 20th—that is the usual custom, but I cannot answer for it, not having made up the book myself.
WILLIAM BRYAN . I am a merchant, carrying on business at Manchester. In May, 1854, I received from my agent Mr. Morrison an order for 6,000 pieces of grey shirting—Mr. Morrison is not now in my employment—I have lost sight of him—I think the order was executed to the extent of 5,600 or 5,800 pieces, amounting to about 1,748l.—there was a correspondence with Davidson and Gordon—I could not execute the order upon the terms offered—I sent them a telegraphic message, and received this letter of 1st May, 1854, in reply I had corresponded with them before, this letter was in the same handwriting—(Read: "We received your telegraphic message this morning, and in reply send word for the greys to be packed as before, the marks to be No. I and upwards, if not already commenced")—the agreement was half cash in a month—at the expiration of the month, I had this letter from them (Read: "Herewith we beg to hand you your draft upon ourselves for 872l. 19 at three months from 8th April, duly excepted")—that has not been paid—it was agreed to be paid in cash, but at the end of the month I was informed that they had met with a disappointment, and they requested me to take a note at three days' sight—I cannot find that letter—that note was paid, it was for half of the 1,700l. which would be about 850l.—the balance is my claim upon the bankrupt's estate.
Cross-examined by MR. SERJEANT BYLES. Q. I believe I may collect
from your statement that you had had prior dealings with them? A. I had, to some extent; not more than 3,000l. or 4,000l. at the outside—this order was originally taken on 24th April by John Morrison, my then representtative—the original agreement was that half should be paid in cash in a month—the goods were thirty-nine inch grey shirtings.
THOMAS RYDER . I carry on business as a merchant, in Old Broad-street Some time in May, 1854, Gordon applied to me to advance him some money upon goods called grey shirtings—I do not know on what day it was—I cannot say it was Gordon who applied, I think it was—I advanced him altogether l,644l. 10s. 9d.
NATHANIEL DAVIS re-examined. Among the goods I supplied to the bankrupts, there were some of Russell, Douglas, and Co., to the amount of nearly 1,500l., at all events, it was more than 1,400l.—they have not been paid for—they were supplied in June, I think—I see the invoice is made out on 7th June—the order was given at the same time as M'Millan's, a few days before 25th May—nothing further took place upon the subject than I have mentioned.
Cross-examined by MR. CHAMBERS. Q. How do you know they have not been paid for; is it from the information of Russell and Co.? A. I am Mr. Beddoe's assistant, and he was agent for Russell, Douglas, and Co.—I know about it as well as Mr. Beddoe, because I have access to the books of Russell Douglas—we have our own books connected with their transactions.
WILLIAM BEDDOE re-examined. I was agent to Russell, Douglas, and Co.—upon referring to this invoice, I observe that goods to the amount of 1,337l. 19s. 3d., were supplied to the bankrupts on 7th June—I applied to them for payment, as I stated before, on 14th June, and saw both Davidson and Gordon—I was pressing them for payment of the money, and they said they would no doubt arrange with me for payment in the course of three or four days—that was on the 14th—I am sorry to say they did not arrange with me in the course of three or four days, I never saw them afterwards—I went by appointment on Monday 19th, and found they were all gone.
Cross-examined by MR. CHAMBERS. Q. When was the last time you saw either of them? A. About 14th—the appointment to go on the Monday was made by them with my clerk, Davis—I know nothing about it except that—I know they were not there on the 19th.
MR. BALLANTINE. Q. You went on the 14th, did you on that occasion refer to the business you came about? A. I did; I asked for the money.
DAVID BARCLAY CHAPMAN . I am a partner in the firm of Overend, Gurney, and Co., of 65, Lombard-street, money dealers. I have known the prisoner Gordon for many years—I knew him in 1847—I have known him and had business with him since he and Davidson have been in partnership together—the nature of our business with him was not altogether that of making advances to him upon such securities as he brought to us—I should say it was chiefly the discounting of his bills, occasionally advances.
Q. Among the securities deposited by him, do you hold fifty-three warrants?—(MR. SERJEANT BYLES objected to this question as irrelevant; the defendant's transactions with Mr. Chapman having no relation to the obtaining of the goods charged in the indictment. MR. BALLANTINE tendered this evidence as showing that at the time the goods in question were obtained, the prisoners were in desperate circumstances to their own knowledge, which would be an important ingredient for the consideration of the Jury, who had to decide whether or no the goods were obtained bonafide, or fraudulently, and merely with a view of raising money to enable them to leave the country.
MR. CHAMBERS took the same objection on the part of Gordon, contending that it was quite a collateral issue, not at all touching the present inquiry. MR. JUSTICE COLERIDGE was of opinion that the evidence was receivable to show general insolvency, as the attempt had been made on the part of the prisoners to set them up as solvent persons.)—A. Our dealings with the prisoners were prior to 1852, I think; I think from 1851 down to about Oct. 1853.
Q. Were you a holder at that time of a considerable number of warrants representing spelter; you have them here I believe? A. We have, I believe there are fifty-one or fifty-three altogether, I do not exactly know—these form part of other securities, and really I cannot distinctly say what amount they purport to secure—I should say about 80,000l. is the sum that is just now owing to us—not on these warrants, the deficiency at this time is about 80,000l—the amount owing to us is 80,000l.—we likewise hold a note of Davidson and Gordon's, received from another party, not from them, received from Mr. Cole—it is a promissory note of Davidson and Gordon, payable to Cole Brothers, endorsed in blank; we are the holders of it—this was given to me by Cole.
Q. But for what? A. That is not my affair—it is a promissory note of Davidson and Gordon, in favour of Cole, held by us, delivered to me by Cole, it is for 120,000l.—I think that promissory note was sent to us, as far as I remember the date, in Nov. 1853—I rather think so—I believe I have got the document—I am sorry to say the amount is still owing to us, the 120,000l., and also the 80,000l.
MR. CHAMBERS. Q. Also the 80,000l., what do you mean? not 200,000l? A. I should be very glad if the learned counsel would make it less; I think that is correct.
MR. BALLANTINE. Q. You have told us that these warrants represent spelter? A. Spelter and copper I believe: we have not been able to obtain anything whatever for them.
Q. I presume you have taken all the means in your power to do so? A. I cannot say that we have done much in that way; we satisfied ourselves there was not anything, and did not trouble ourselves about it—in Oct., 1853, from a communication made to us by Mr. Cole, we sent to Mr. Gordon and saw him—(MR. CHAMBERS objected to the admissibility of the conversation which passed between the witness and Gordon on this occasion; it could only tend to prejudice the prisoners, and had no bearing upon the question now under discussion. MR. JUSTICE COLERIDGE considered that he could not reject the evidence.)—I had seen Cole previously, and that same evening Gordon came to our counting house—I can give you the substance of what passed between myself and Gordon, but it is extremely difficult—I wish you would ask me the questions, rather than I should attempt to narrate an interlocutory conversation which took place two years ago—the substance I can tell you directly Gordon was chiefly occupied in satisfying me of the power of the distillery, which I took down from his lips at the time; I have the particulars of it, taken down from his lips at the time—we referred to the securities that we held—my chief object was to see the depth of our involvement with him and Cole together—I cannot remember anything falling from Gordon about the warrants—two hours before I saw Gordon I had received information from Cole to the effect that those warrants were valueless—we had an impression that they were valueless.
Q. Then what I want to know is, what you said to Gordon on the subject? A. As near as I can remember, when Gordon and Cole came into
the room, we approached the subject as an admitted fact, that these Hagan wharf warrants were without value—it has been said that I indulged in some personality—I do not remember it, but, nevertheless, we proceeded then, to examine what proportion of these different securities were of this character—that is to say, we had these securities as well from Cole as from Gordon—we proceeded to examine what proportion of the securities were of the character I have described, because we had various other perfectly good securities.
Q. Was the result what you have stated, that there were fifty-three of those warrants that had been deposited by Gordon, that turned out to be of this character? A. I believe they were, but I know nothing about the detail of it—I ascertained that fact in company with Gordon, certainly; it was an admitted thing in our conversation—we never received any deeds of the distillery from Gordon—on the following day Cole sent us the lease, or some paper of that sort, of the distillery for our perusal, to satisfy us of a fact, namely, that the money he had abstracted from us he had lent to Gordon for the purposes of the distillery; and to satisfy us of that fact he sent us this lease, or something purporting to be a lease, wherein this sum of money was referred to—that was handed over to our solicitors, to report what sort of an instrument it was, and when Cole became a bankrupt it was returned to Cole's assignees.
Q. The promissory note for 120,000l. was also deposited with you, as a further security against the deficiency, was it not? A. I do not know what you mean by "also"—I know your point—"also" had nothing to do with it—the lease was not deposited with us as a security, it was only sent for, our perusal—it was not delivered to us—we still hold the promissory note for 120,000l., and also a great quantity of other warrants of this same description delivered to us by Cole.
Cross-examined by MR. CHAMBERS. Q. You have been examined here before; I think it was Cole who made a communication to you in the first instance with reference to these warrants? A. He did—Gordon afterwards came in company with Cole—our object was to understand the quantity of these warrants we held on both accounts.
Q. First you ascertained what warrants you held on Cole's account, and then what you held on Gordon's account? A. And what had became of the property.
Q. You have mentioned that you had a conversation with Gordon; finding you were in advance to such a considerable amount, I suppose You were desirous of knowing what means there were to meet it, ultimately? A. Decidedly—we had no separate conversation with Gordon—Gordon referred to the distillery business—I do not remember his placing papers before me, but we had a very long dissertation upon it, and it ended in my taking down from his own lips the paper I hold in my hand.
Q. Do not you recollect saying here before, "He showed us papers as to the capability of the distillery making 40,000l. a year, or 850l. a week"? A. I think it was my papers I probably referred to—I do not remember his showing us papers, he might have done, for anything I know—it is a very long time ago, but the point is correct—my papers result in that, that the distillery was capable of making from 650l. to 800l. per week, and with the probability of very great extension, in consequence of his coming to some arrangement with the other distillers who had admitted him into their vend.
Q. Or upwards of 40,000l. a year? A. I think it makes somewhere about that—he entered into a very fall detail with me as to how it could be produced, I hold it in my hand.
Q. And upon that statement and representation with reference to the distillery business, were you satisfied not then to press for the payment of the debt? A. We took no steps whatever—we remained perfectly passive—the fact is, that our involvement in this affair was so great that we had to consider the subject in all its bearings, and we determined to remain perfectly passive, without coming to any understanding of any sort, kind, or description, with either Cole or Gordon—we did remain perfectly passive until the bankruptcy—we had dealings with Cole of a similar character that we had with Gordon—he deposited warrants with us, and got advances upon them—we began by discounting bills of Mr. Ewart's and others, of a very first rate mercantile character—that was in the ordinary course of our business—Cole told me that it was ha who had withdrawn the spelter.
MR. POLAND. Q. I may take it that you have not received a single farthing of this 200,000l? A. No—it still remains the same—at stands in round numbers about 80,000l. and 120,000l
WILLIAM NICHOLSON . I am a rectifier. I have had dealings with the bankrupts—I hold securities of theirs—the balance they owe us is 19,000l—we hold some warrants—I do not know how many—I know the amount they represent—they were deposited by Davidson and Gordon, at different times, in 1853—the 19,000l. debt is secured by the warrants, and we hold a mortgage of the lease of the distillery,
Cross-examined by MR. SERJEANT BYLES. Q. You say they were deposited by Davidson and Gordon; by which of them? A. We received some of them through Mr. Gordon, and others-in an inclosure signed Davidson and Gordon—it was in Gordon's handwriting—I never saw Mr. Davidson in the matter at all.
Cross-examined by MR. CHAMBERS, Q . I believe the personal transactions were with your father, and not with you, were they not? A. No, with my uncle—I was present—the first time was on 30th July—all these transactions appear in our books, in the ordinary and regular course of our trade—the warrants are in the possession of Mr. Linklater.
(James Prehn, Simon Van Der Willigan, and John Mark Bull repeated their former evidence, as at page 180.)
(MR. SERJEANT BYLES submitted, that none of the cases charged against the defendants came within the words of the Act of Parliament; the statute required that there should be a false colour and pretence of carrying on business and dealing in the ordinary course of trade; it was not sufficient unless some active false pretence was made, as in Reg. v. Boyd, 6 Cocks' Criminal Cases, p. 502; in each of the present cases, the goods appeared to have been ordered and disposed of, in the ordinary course of business, it would not do to wove that the defendants were insolvent, or knew themselves to be so; for if that was held to be sufficient, any trader, who gave an order after he was in a state of insolvency, would be brought within this Act of Parliament, which was not intended to meet a case like the present, MR. CHAMBERS urged the same objection; the offence, if any, committed by the defendants, was met by the 256the section of the Act, which enabled the Commissioner to grant a certificate of a second class or withhold one; he, however, contended, that the evidence disclosed no offence at all, and that the allegation of the defendants being in a state of hopeless insolvency had entirely failed. MR. JUSTICE COLERIDGE was of opinion that the case must go to the
Jury, according to his notion of the Act of Parliament, it was not enough to take a person out of it, that he should be apparently to the world carrying on business and dealing in the ordinary course of trade in the particular transaction in question, because the statute supposed that to be an ingredient in every one of the cases that were to come under it; but then it also supposed, that that apparent carrying on business, and in the particular transaction dealing in the ordinary course of trade, was merely a false colour and pretence; it would be, therefore, for the Jury to consider whether transactions, however apparently regular, were really so or not; and if not, whether by the false colour and pretence of their being regular they obtained the goods on credit, and with intent to defraud the owners; it was, in fact, for the Jury to determine upon the real character of the transaction)
GORDON— GUILTY . Aged 41.
DAVIDSON— GUILTY . Aged 34.
(There was another indictment against the prisoner Daniel Mitchell Davidson for neglecting to surrender, upon which MR. BALLANTINE offered no evidence, and a verdict of Not Guilty was taken. There was also a further indictment against the prisoners, together with Joseph Windle Cole, which wos postponed until the next Session.)