16th June 1856
Reference Numbert18560616-647
VerdictNot Guilty > unknown

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647. CHARLES AVERY was indicted for unlawfully obtaining money by false pretences.

MR. SERJEANT BALLANTINE and MR. METCALFE conducted the Prosecution,

EDWARD HART . I am chief clerk to Mr. Nicholson, the official assignee, I have attended to the matter of Avery's bankruptcy—I hare taken charge of the books, and examined the accounts—I have here a duplicate original of the bankrupt's balance sheet; it is from Jan., 1854, to 30th June, 1855—the deficiency at that time was 4419l.—the bankrupt petitioned for an arrangement, but it was not carried out—the adjudication is dated 30th June, 1855—the balance sheet does not show when he stopped payment—he appears by this to have been deficient on 1st Jan., 1854, to the extent of 2,5861. 15s. 4d.—I saw the bankrupt either immediately after or before filing this duplicate balance sheet, and asked him several questions as to the purport of the figures in it, and he made a statement—I made a memorandum on the back, of the answers that he gave.

MR. GIFFARD. Q. You were examining him in the office of the Bankruptcy Court? A. Yes; it was my duty to report to the Commissioner; the examination was not on oath—(MR. GIFFARD objected to the admission of the statement. MR. JUSTICE CROWDER would receive it, and reserve it if necessary.)

MR. METCALFE. Q. What statement did he make? A. These are the words which I took down: "Commenced business about '45 or '46, in partnership with John Hooper; had no capital of his own, but borrowed, in conjunction with Hooper, 300l. of Hooper's father, which 300l. was afterwards repaid; this partnership was dissolved about '47 or '48; a rough statement was taken then, showing a large deficiency; this statement was not preserved; the deficiency was nearly 2,000l.; Mr. Avery took this deficiency upon himself, and continued the business, but he has never taken stock since the dissolution, or made a statement of account showing how he stood"—My object in putting that question was to see whether he had made a balance sheet—those are the exact words he said—I took them down from his lips—I do not know what other questions I may have asked, I took no more down—I have examined the defendant's cash book—there were a number of books, ledger, trade book, journal, &c.—I have examined those books (produced,) to see whether the figures in the balance, sheet were supported by them—the ledger was not written up for nearly two years—this is it—it commences in January, 1854, the time his balance sheet commences, and has been written up since the bankruptcy from subsidiary books—the cash book was written up—I believe only the journal, besides the ledger, has been written up since—the contract book appears to be an original book, with daily entries, and is written up fully to the time of the bankruptcy, also the bills of parcels book, and cash book—there are a number of other subsidiary books, of no importance—the cash book appears to have been balanced daily, I think, without exception—it sometimes shows a balance in hand, at other times overpaid—in the month of April, 1855, I should think there were more balances in hand than overpaid—there are a number of entries of exchanged cheques at that time—here is one on 23rd April, "G. Clark; exchange 51l. 8s. 1d. and then, on the other side of the cash book, showing the repayment of it on 24th April, is, "G. Clark; exchange; returned 51l. 8s. 1d.—I find such entries frequently during the month of April—I have extracted on a sheet of paper the items for the months of April and May (reading some)—there appears to have been frequent borrowings and repayments in April and May, the repayments being most frequently the next day, sometimes the same day—I have no doubt that both the borrowing and repayment was by exchange of

cheques, for I have in some cases found the cheque entered in the banker's I book—I asked the bankrupt about the word "exchange," and he told me that it meant the exchange of cheques—the total amount of such entries in April is 1,840l. odd, and in May about 2,070l.—I have not included loans in that—there are entries of loans to the bankrupt—I have not taken out the amount of loans during April and May—on 2nd June the amount in the cash book balances, by bringing to the debit of the cash book the amount overdrawn from the banker's, 405l. 3s. 1d.—the entry is on 31st May—there are other entries on 2nd June, which do not interfere with the balance—on the same day (30th June) there is a previous balance struck of 390l. 12s. 1d. overpaid, and on the same day again another balance is struck of 544l. 5s. 3d. overpaid—that represents a deficiency in cash to that extent—there is a balance on 29th May of 250l. 10s. 4d.—I find from the books that he sometimes sold goods at a profit, and sometimes at an amount less than the cost—during the three months before his bankruptcy he sold about 200 or 220 parcels of goods, some at a profit, others at a loss—I have here a detail of the goods account, filed by order of the court—the gross profit during the three months is 22l. 11s. 2d.—that is upon transactions amounting to 19,363l. 0s. 5d.—there is no statement showing what the expenses were during that time—the balance sheet is for a year and six months, not for the three months only—about forty parcels of goods out of 220 were sold under the cost price—I cannot tell how soon after the purchase those sales were effected, not without tracing them through all the books—he appears in some cases to have bought on credit, and sold for ready money, but I have not traced sufficiently to give instances—the assets returned in the balance sheet as unencumbered, amount to 707l. 12s. 6d.—they have produced up to the present time 365l. 11s. 5d.—those are the net assets, including the sale of the furniture—there are some debts yet outstanding; we may make more.

Cross-examined by MR. GIFFARD. Q. Turn to the cash book, and tell me his cash balances in April? A. On 2nd April he appears to have overpaid 190l. 12s. 9d., that is against him; it differs in the morning and evening; that is the evening balance; in the morning it was 89l. 2s. 9d.£ against him—on 3rd April in the evening it is 265l. 11s. 1d. against him; on the 4th, 256l. 6s. 11d. against him; on the 5th, 173l. 19s. 9d. against him; on the 7th, 36l. 14s. 4d. against him; on the 9th, 119l. 12s. 5d.£ in his favour; on the 10th, 158l. 13s. 4d. in his favour; on the 11th, 95l. 1s. 5d. in his favour; on the 12th, 84l. 18s. in his favour; on the 13th, 123l. 15s. 1d. in his favour; on the 14th, 120l. 15s. 6d.; on the 16th, 35l. 13s. 2d. in his favour; the balance is in his favour up to the 21st, it is then 337l. 19s. against him; on the 23rd, 249l., 1s. 6d.; on the 24th, 181l., 12s. 10d.; on the 25th, 214l. 5s. 1d. against him; on the 26th, it is in his favour, 203l. 13s. 2d.; on the 27th, 260l. 4s. 3d. on the 28th, 91l. 3s.; and on the 30th, 38l. 4s. 11d. in his favour—although the journal and ledger have not been made up for two years, there are the materials in the other books, from which they have been properly made up since the bankruptcy—I have not come across any transactions that have been omitted.

MR. SERJEANT BALLANTINE. Q. On 26th April, when you find the cash balance alter again, do you find a bill discounted at Spooner and Co.'s for 480l. odd? A. Yes, for 488l. 17s. 6d.—on 1st May it is 109l. in his favour—there is 130l. down as the day's payments, and that is deducted from the receipts on the other side; on the 2nd it is 111l. 16s. 7d.; on the 3rd, 108l. 8s. 4d.; and on the 4th, 34l. 12s. 8d. in his favour; on the 5th,

it is against him, 3l. 8s. 3d.; and on the 7th, 9l. 11s. 3d. against him; on the 8th, 24l. 4s. 9d. in his favour; on the 9th, 65l. 18s. 3d.; on the 10th, 99l. 10s. 2d.; on the 11th, 67l. 18s. 3d.; and on the 12th, 22l. 16s. 8d. in his favour; on the 12th there is entered on the debit side, "Barber and Son; loan, 100l."; and on the same date, "Barber; loan, 60l."; on the 14th, the balance is against him, 171l. 8s. 3d.; on the 15th, 119l. 1s. 10d.; and on the 16th, 56l. 6s. 11d. against him; there are two exchange cheques on the 15th, "G. Clark; exchange, 100l.,"and, "Whitehead; exchange, 50l.;" on the 16th, the balance is against him, 57l. 6s. 11d.; on that day then are two loans of 50l. each, from J. E. Graney, and Barber and Son; on the 17th, the balance is 96l. against him; on the 18th, 190l. 10s. 8d.; and on the 19th, 139l. 10s. 4d.; there is an entry on the 19th of "Barber and Son; loan, 100l.;" on the 21st, the balance against him is 97l. 15s. 7d.; there are these two entries on that day, "T. Whitehead; exchange, 50l.; and, "G. Clark: exchange, 100l.;"on the 22nd, it is 65l. 15s. against him; on the 23rd, 58l. 3s. 9d. against him; on the 24th, it is in his favour, 69l. 5s. 9d.; here is an entry that day of "J. Stevenson; loan, 49l. 11s.;" and, "G. Clark; exchange, 98l. 0s. 10d. he also appears to have received 100l. that day for three hogsheads of sugar; on the 27th, the balance is against him, 7l. 6s. 1d.; on the 26th, 293l. 0s. 7d.; and on the 28th, 256l. 5s. 5d. against him; on that day there is, "J. Granger; exchange, 541. 17s. 11d.;"on the 29th, it is 250l. 10s. 4d. against him; there is an entry of "J. Granger; exchange returned, 54l. 17s. 11d. on the 30th, it is 544l. 5s. 3d. against him; it appears to have been made up to that time before the bankruptcy; that is my impression; I have no evidence to the contrary—it was made up when I had the book, directly after the bankruptcy—on the 7th April, when the account turned in his favour, there is an entry of a loan of 100l. from J. Pringle, 50l. from Barber and Son the same day, and "Spooner and Co.; bills discounted, 659l. 14s.;"but the balance is still against him, 36l. 14s. 4d.

WILLIAM THOMAS UPTON . I am warrant clerk to Messrs. Mayhew and Mann, colonial brokers, in Mincing-lane. We have public sales of sugars, and other goods, that are consigned to us—persons purchasing at those sales apply to us for warrants which enable them to take out the goods; they cannot be obtained without—previous to the 1st June, the defendant applied to me about some sugars that had been bought at a public sale—I saw him or his clerk, I cannot say that I saw him; I saw Challis or one of the clerks—I communicated to Challis the terms upon which we should let the sugars go—I should not have allowed them to be delivered without the money—I received a cheque on 1st June from the defendant—I know his signature, this is it (this was a cheque for 60l., drawn by the prisoner, dated 1st June, 1855, on spooner, Attwood, and Co.)—on receiving that cheque I handed over these two warrants (produced)—if I had known at that time that Mr. Avery had overdrawn his balance, I should not have parted with those warrants—I considered the cheque a good security for the money; it was crossed at the time I received it—I cannot say at what time in the day I received it; the effect of its being crossed would be that we should pay it into our bankers, and it would be passed at the clearing house—I paid it in on 1st June, and it was returned through our bankers next day as dishonoured.

Cross-examined. Q. You did not receive the cheque personally from the prisoner? A. I cannot say; I gave the warrants either to him or his clerk—we have not had transactions with the prisoner to the extent of many

thousands; I cannot say to what extent, some hundreds perhaps—the amount of this cheque is our only claim against his estate—in all the other transactions I have received a cheque, and it has been honoured; we have not given him credit.

HENRY YOUNG . I am a foreman in one of the warehouses of the East and West India Dock. I delivered thirty bags of Mauritius sugar on this warrant to Barber's van.

CHARLES RICHARD ARNOLD . I am a clerk in the Cargo Ledger office, at St Katherine's Dock. Two bags of Mauritius sugar was delivered on this warrant by the foreman at the warehouse, I was not there—there were two bags of Mauritius sugar in the warehouse, which this warrant represents; I know that they are gone—they could not have been delivered except upon a warrant of that kind; this warrant was attached to two others; the delivery was endorsed upon the last one.

MR. GIFFARD. Q. Have you any knowledge at all on the subject, except what has been told you? A. Not the slightest.

MR. SERJEANT BALLANTINE. Q. Is it usual to deliver sugars upon warrants of that kind? A. Yes; and not without.

CHARLES BARBER . I am a grocer, in Rufford's-buildings, Islington. About March or April, I purchased thirty bags of Mauritius sugar from the defendant—they were delivered on 1st June—I sent my carman to Mr. Avery far the warrant; he told me I should have it—I sent for it on two occasions, first on 30th May—I cannot say when I had seen Avery previously, it was some time previous—I had had large dealings with him—he does not owe me any money—I paid him for these sugars before I had the warrant—I have the cheque here by which I paid him; the carman took the cheque at the same time he went for the warrant—the cheque has been paid—21l. had been paid, and the balance, 36l. 3s., was paid when I had the warrant.

Cross-examined. Q. Do you say that you sent in consequence of something that you learned from Avery? A. No; it is the usual course of business to send for the warrant when you require the goods, and give notice to get the duty paid—there was no personal interview between Avery and myself on the subject—the sugars were purchased on 30th March.

JOSHUA CHALLIS . I was clerk to the prisoner between three and four years—I had a sort of general management of the business—I sent this cheque of Messrs. Mayhew and Mann's by one of the clerks—Mr. Avery signed it and I filled it up—I filled it up after he signed it—he did not see it afterwards—he did not know what it was for—I got the warrants upon it—they were two warrants for Mauritius sugar; I handed one of them to the carman of Mr. Charles Barber; not by any person's direction, it was in the usual course of business—Mr. Avery did not know of it—the other warrant I sent by one of our clerks to Messrs. Rickett and Co.—the prisoner did not know of that to my knowledge—there was a cheque for 36l. received from Mr. Barber; I handed that to Mr. Hewitt, Mr. Avery's solicitor, on the following morning, by Mr. Avery's direction, because he found, I believe, on taking the advice of his solicitor, that it would be advisable to stop payment; that was on 2nd June—I handed this cheque over to the solicitor in the morning of 2nd June (referring to the cash book)—on 21st April, I received another cheque from Barber and Son for 21l.—that was brought in to the account, it was paid in to Messrs. Spooner and Attwood—I paid Mr. Hewitt several accounts on the Saturday, in addition to the 36l. cheque; I cannot exactly recollect how much, I should think nearly 100l.—I know

that Mr. Avery had given Mr. Wagner a cheque dated 2nd June, and one to Messrs. Godby, I do not recollect any further at the moment—this is a cheque (produced) for 50l. 5s. signed Chas. Avery, payable to Messrs. Trindle and Bingham; it says, "Refer to the drawer"—I recollect this cheque being returned, and its being taken up at the Royal British Bank, that bank not having the privilege of the clearing house—when I sent one of the clerks in the afternoon to pay in some cash at Messrs. Spooners', they told him they had paid in that cheque, I therefore sent the cash to the British Bank, and took up the cheque, as I might a bill—that was on 28th May—these two cheques (produced by Mr. Clark) are for 143l. 7s. 10d., dated 26th May, and 187l. 6s. 2d., dated 28th May—they say "Refer to the drawer"—that means dishonoured; it means that the bankers decline paying—the prisoner has not told me what amount of cheques were dishonoured—he did not tell me that cheques to the amount of 1,000l. had been dishonoured between 28th May and the morning of 2nd June—he did not tell me any amount, nor mention any cheques—I knew before today that these two cheques were dishonoured—I knew it from Mr. Clark, not from Mr. Avery, Mr. Clark came to the counting-house the day they were returned, and told me they had been dishonoured—of course I told Mr. Avery of it, as soon as I saw him—I should say Mr. Clark brought them both at the same time, but I cannot positively recollect—I told Mr. Avery of it at the time, and Mr. Clark saw him—I cannot recollect whether these are the only cheques that I mentioned to Mr. Avery as dishonoured in the course of that week; it is more than twelve months ago—if a cheque was returned, I immediately informed Mr. Avery—I told him of all the cheques that had been returned, as soon as they were returned—I cannot exactly recollect what amount I told him was returned before the 2nd June—I recollect there were two cheques, one to Cook and one to Scott, which I told Mr. Avery of; I think one was for 80l., and the other 68l. 17s. 4d.—I drew bank notes for those two amounts, and went and took up the cheques, by permission of Messrs. Spooner, on the morning after we were informed of it; I got the bank notes by an open cheque, that is, an uncrossed cheque, on Messrs. Spooners, which was honoured, and I got the cash—I knew what the state of the banking account was at Messrs. Spooners' at that time—Mr. Avery knew it—the cheque to Scott is dated 28th May, and that to Cook 29th—these are them (produced)—I cannot say for certain whether I had paid any money in to Messrs. Spooner between the dishonour of these cheques, and the drawing of the open one; I paid some money in to the bankers that day, 200l.—I got 60l. from Chapman and Son, from Whitehead 50l., Granger, 55l., G. Clark, 143l. and 187l.—I have only four amounts down as paid in, making 200l.; that 200l. was not obtained by loans, it was for goods—not goods bought on credit and sold for ready money; it was money arising from sales—the sale to Chapman and Son was fifty-three bags of sugar on the 17th, and this payment was made on the 29th—the other sums were on goods bought previously, and the warrants obtained on the day the cheques were taken up—there were other amounts paid that day, besides those—on 28th May, we bought of Fairey and Co., goods amounting to 278l. 2s. 1d.—they were bought at two months' credit—they were sold the same day for 276l.—I cannot say what was done with the money—the money was not received the same day; that parcel of goods was sold to nine different persons—some of the money was received afterwards, and paid in to the official assignee; some of it was paid in to Messrs. Spooners—there was more than 100l. paid to Mr. Hewitt—I do not know what Mr. Hewitt paid to the official assignee.

Cross-examined. Q. I believe you had the general management of the prisoner's business with reference to the cash account? A. I had—to the best of my belief every cheque that was returned dishonoured prior to the 1st June, was taken up, and the money for it paid—it was the ordinary course of business for the prisoner to sign cheques which I filled up as business required—the cheques were signed first, and I filled them up without his looking at them; he was out a good deal in the market in Mincing-lane, and at the sugar refiners'—before he went out he would sign me perhaps two or three cheques for what might be required—it was in the ordinary course of business that I filled up the cheque for 60l. with reference to the sugar—I expected that cheque to be honoured—when it was presented, the balance against us at the bankers, which had been very considerable on 30th May, was diminished by upwards of 100l., paid in by me on the 31st—the bankers had permitted the overdrawing of the account.

COURT. Q. That cheque for 60l. was filled up in the ordinary way of business, as you had filled up others? A. Yes; I expected it to be paid, or else I would not have written it.

MR. GIFFARD. Q. Was the cheque to Wagner filled up by you or the defendant? A. By the defendant, and Godby's cheque also—he was a good deal out watching the state of the market, while I managed the business in the establishment itself—for the last two or three years there has been great depression in the Colonial market—the money that was paid over to Mr. Hewitt was for the purpose of paying into the Bankruptcy Court.

MR. SERJEANT BALLANTINE. Q. You kept the books, I believe? A. The greater part of them, not all—if I had had time I should have kept the ledger, but I posted it at my leisure—it was my duty to keep it if I had time, and the journal and cash book the same—I was intimately acquainted with the cash balances, because we balanced the cash book every day—I knew that we had overdrawn at the time these cheques were drawn.

Q. You have been examined in the Bankruptcy Court; did you anticipate that there was any possibility of the defendant's going on for long? A. I did; I mean of his recovering—I say that, with a toll knowledge of these accounts—I have not said that I knew him to be hopelessly insolvent; nothing of the kind to my knowledge—I do not recollect it—I cannot say that I have not.

MR. GIFFARD. Q. On the Saturday before 2nd June had you not paid out for goods 1,100l. in money? A. On the 26th May 1,189l. 2s. 2d. was paid in cheques.

MR. SERJEANT BALLANTINE. Q. Was there a 50l. exchange cheque that day? A. Yes, from Granger, and a cheque for 230l. from Clark, for which we gave our cheques payable on the Monday—they were both dishonoured.

MR. GIFFARD. Q. And taken up afterwards? A. They were. JOHN WAGNER. I am a sugar refiner in Wellclose-square. I know the defendant—in May, 1855, I sold some goods to him.

MR. GIFFARD. Q. That was by a contract in writing, I believe? A. Yes.

MR. METCALFE. Q. Did he afterwards apply to you for the delivery of those goods? A. Yes—I at first refused to deliver them—I saw him—I refused because he owed me money upon former parcels—I do not exactly recollect the amount—it was somewhere about 150l.—I said he should pay me for the others, and then he might have some more—he gave me a cheque for 100l. on account on 31st May—I have not got the money for it—when

it was dishonoured we had delivered part of the goods on the Saturday, and part on the Monday—I tore the cheque in pieces—it was dated 2nd June, but given to me on 31st May—after receiving the cheque some goods were delivered—I did not see them delivered—they were delivered before I came to town—this is the order (produced)—it is not my writing—the defendant sent for the goods several times, and we denied him, wanting to see whether the cheque was good before we sent them—we at last let him have a small lot on Saturday evening, 2nd June—that was before I had ascertained that I could not get the money; and he had some more on the Mon-day morning before 10 o'clock, and when I came to town at a little past 10 o'clock, I found the banker's clerk walking behind me to the counting house with the cheque in his hand—I did not see the prisoner at all on Saturday or Monday—T do not recollect that I saw him after he gave me the cheque—my warehouseman, Conrad Ofleman, delivered the goods—he is not here—this order was produced to me at my counting house.

JOSHUA CHALLIS re-examined. This order has my signature—I had a general authority from Mr. Avery to sign orders—I gave that order to Mr. Whitehead's clerk, the purchaser—on this order being presented to Mr. Wagner it would entitle him to receive the goods.

MR. GIFFARD. Q. Did Mr. A very know anything about that specific order? A. No, not at the time I wrote it—I wrote it in the course of business—he would know of it afterwards, by looking at the order book—this is the order book—the goods were bought on 8th May, and sold to Whitehead on 16th—the money has been paid to the official assignee.

MR. WAGNER re-examined I saw this order at my counting house on the Monday—it is for fifty litters of sugar—that is a certain size of refined sugar.

Cross-examined. I believe you have trusted the defendant to the amount of as much as 500l. in the course of business? A. I cannot recollect what amount I did trust him with—it may have been 500l.—the entire amount of his debt to me, at present, is somewhere about 207l.

MR. SERJEANT BALLANTINE. Q. Would you have parted with these goods without a cheque? A. Not without his giving me a cheque for the former account—I should not have delivered them unless I had thought the cheque would be paid—we did refuse several times.

GEORGE ALFRED MARTIN . I am clerk to Messrs. Godby and Boyd, sugar refiners, of Denmark-street, St. George's-in-the-East—I know the defendant—he bought at a sale five puncheons of treacle, amounting to about 46l. 7s.—there were no warrants in this case—we delivered the goods.

MR. GIFFARD. Q. This was under a written contract I believe? A. Yes.

MR. SEBJEANT BALANTINE . Q. Have you got it? A. No; on 31st May he applied personally for the delivery of the goods—we told him he could have the goods upon payment of the amount—he said he would give us a cheque on the Saturday following—this was on the Thursday—we told him we should prefer a cheque at that time—he gave us one, dated for the following Saturday, 2nd June—this is it (produced)—it is for 46l. 3s. 7d.—it was presented on 2nd June, and returned—I did not see the goods delivered—I should not have allowed them to leave the warehouse unless I had received that cheque—we considered at the time that the cheque was worth the amount of money that it represented, and that it would be paid—the carman who took the goods away had applied several times for them.

Cross-examined. Q. I believe the prisoner offered to give you an order

upon the vendees for the payment of the money in respect of this treacle, did he not? A. He did—we refused that—we have before this trusted him to a considerable amount; he has owed us as much as 600l.—the only debt now due to us is this very transaction of 46l.

MR. SERJEANT BALLANTINE. Q. Was that 600l. all at one time? A. On different parcels, but outstanding at one time, on bills—we had had a deal of trouble with him on previous occasions, and determined not to trust him again—this cheque was never paid.

HANKEY PECKSEM . I am warehouseman to Godby and Boyd. I delivered two puncheons of treacle on 31st May, and three on 2nd June to this order. (This was an order to deliver the five puncheons to Attcock and Co.)

THOMAS HILTON . I am a member of the firm of Allcock, Hilton, and Co., oil merchants and drysaltery in Thames-street. On 4th May I purchased five puncheons of treacle from the prisoner, purporting to be of Godby's make—there was a contract—after a great number of applications, I received the order about 8th May—I sent our carman for the treacle several times, but did not succeed until 31st May, when we got two puncheons, and three on 2nd June—I paid A very on 31st May 18l. on account, the balance is not yet paid—there is a disputed account between us which requires explanation; we were not asked to pay.

Cross-examined. Q. Have you the five puncheons now? A. We have them in stock—the amount is now due to some one.

WILLIAM FORBES MARSHALL . I am a commission agent at the Commercial Sale Rooms, Mincing-lane. On 30th May, 1856, the defendant followed me out of the public sale room, and asked me if I could give him any money, any assistance—I told him I had got a country cheque on the Clonmel bank for 37l. 18s. 9d.—he asked me to give it to him, and be would give me one on his own bank in exchange, explaining that his bank would pass it to his credit as immediate cash—I gave him the cheque—I have not seen it again—I took his cheque for 37l. 18s. 9d.—(Mr. Henderson, solicitor for the prosecution, proved the service of a notice to produce this cheque; it was not produced)—I expected the cheque would be paid—I thought it was good for the amount—he told me it would be all right; he sent his clerk with it—it was dishonoured—I have never got my money since—I had had a good many dealings with him before.

Cross-examined. Q. You had no reason to complain of him? A. Some little time before I had one of his cheques returned—that was taken up—it is not an unusual thing for persons in that line of business to exchange cheques for each other—he wanted the cheque to pay duties—he could not get his money without paying the duty, and he could use my cheque and get his own money, and return it later in the day—the person he was dealing with was at the west end of the town, and would not pay him until he delivered the warrants.

WILLIAM DAVENPORT . I am clerk to Messrs. Spooner, Attwood, and Co. The defendant has had a banking account with our firm for some years—it is my duty to enter in a book the cheques that are dishonoured—on 28th May last three cheques of the defendant's for 187l. 6s. 2d., 143l. 7s. 10d., and 50l. 5s. were dishonoured; on 29th May two other cheques of his for 63l. 17s. 6d. and 80l. were dishonoured; on 1st June four for 65l. 1s. 9d., 50l. 7s. 6d., 50l. 2s. 6d., and 69l., for Mayhew and Mann; and on 2nd June four for 46l. 3s. 7d., for Godby and Boyd 57l. 12s. 10d., 37l. 18s. 9d., for Marshall, and 100l. for Wagner; and on 5th there is one for 25l. 2s. 6d.—they are marked, "Refer to the drawer"

—on 28th May the balance was in his favour 41l.—that was at the end of the day after all the transactions were over—on 29th it was 67l. against him; on 30th, 553l.; on 31st 401l.; and on 1st June the same—we did not honour any cheques after 31st May—he had overdrawn 401l. when the cheques of 2nd June were presented.

Cross-examined. Q. Just go back a little and tell us what the balances were, beginning with the 26th? A. On the 26th, it was against him 304l.; on 25th, 15l. against him; on 24th, 29l. in his favour; on 23rd, 88l. against him; on 22nd, 18l. in his favour; on 21st, 32l. in his favour; on 19th, 130l. against him; on 16th, 3l. against him; on 15th, 20l., on 14th, 34l., on 12th, 11l. against him; on 11th, 11l. in his favour; on 10th, 121l. in his favour; on 9th, 70l. in his favour; on 8th, 149l. in his favour; on 7th, 28l. against him; on 5th, the same; on 4th, 31l. in his favour; on 3rd, 54l., on 2nd, 95l., and on 1st, 179l. in his favour—I cannot say whether we hare at all times given him credit for the west-end cheques—I have looked through the account for April—the balance is occasionally against him, and occasionally in his favour; it has been very considerably against him at one time; and then he has reduced it by payments in—the largest amount that he owed the bank in April was 743l.—that was on the 7th—that was afterwards reduced into a balance in his favour; it was gradually reduced up to the 16th.

JOHN TWELLS . I am managing partner in the firm of Spooner, Attwood, and Co. The prisoner was a customer of ours—he had no authority to overdraw his account without a specific application—743l. was tin largest amount overdrawn in April—he had frequently applied for a loan for some temporary purpose, which we generally granted him; it was mostly for a fortnight—we never took security, but he sometimes brought it, and proposed it—I do not recollect anything particular connected with that 743l.,—when he did overdraw to any amount, he always applied for our authority first—at the latter end of May he had overdrawn to the amount of 550l.; that arose in this way: on 17th April we had granted him a loan of 200l. for a fortnight, and as we then found him getting very troublesome, we told him we could not make him any advance after that—I most likely saw him myself; I think there is little doubt of it—I cannot say that I have any distinct recollection of this particular transaction—I am quite sore that I saw him after 17th April; I bad spoken to him about his account—I am quite positive that I told him personally on 17th April that we should not grant him another loan—after that he came to us two or three times, very late in the day, saying that he was very much disappointed, and would we let him have sufficient to meet his cheques, he would pay it in next day certainly—I perceive that on 26th May we let him have 304l., and he paid it in next day, and with regard to this 550l. on 30th May, Mr. Davenport, my clerk, who kept his account, had several cheques lying by him that day which he was about to return; Mr. Avery came very late in the evening, quite at the close of the day, saying that the same thing had occurred to him that day; he was again disappointed; that he could rely on money being paid in the next day, if we would pay his cheques: I was then just on the point of leaving the office, and I told the clerk he might pass his cheques, for he would pay in in the morning—I should certainly not have paid to that amount, but the clerk tells me that I told him to pay them, and did not say to what amount; I did not know the amount at the moment; finding he did not pay it in next day, but only reduced it to 400l., we immediately wrote to him to provide for his cheques—this is the letter—

(Read: "Messrs. Spooner and Co. inform Mr. Avery his account is now 401l. overdrawn; he will take care that no cheques are presented whilst the account is in this state. 1st June, 1855.")—we did not pay any cheques after that—I never saw the prisoner afterwards.

GEORGE CLARK . I am a grocer, in Chapel-street, Westminster. These two cheques for 143l. 7s. 10d. and 187l. 2d., dated 26th and 28th May, were given to me, one by the prisoner, and one by his clerk, in exchange for others that I had lent him; they were not paid—I called on him on the Tuesday, 29th, and showed him the cheques—he said he would arrange it—they were ultimately taken up—I have not lost anything by the matter.

Cross-examined. Q. I believe, so far as you have known, he has always conducted himself respectably and honestly? A. Quite so.

MR. GIFFARD to JOSHUA CHALLIS. Q. Was that 60l., cheque of Mayhew and Mann given before or after the letter came from the bankers? A. Before it came.

MR. SERJEANT BALLANTINE. Q. Did you tell Mr. Twells, or one of his clerks, that the defendant was a highly respectable and solvent young man, and might very fairly be trusted? A. Not to my knowledge, certainly; I have not the slightest recollection of saying so.

EDWARD HART re-examined. 100l. was paid in to the estate, I believe, by Mr. Hewitt, on 20th June, the day of the petition—there is a balance of 37l. outstanding against Mr. Hewitt, for him to pay in—the defendant came into the Bankruptcy Court upon a petition for an arrangement; it is necessary, according to the statute, that the petitioner should be possessed of 200l.—if he shows, to the satisfaction of the Court, that he has assets to meet that sum, that is sufficient—the 100l. was paid in to show that; it if not paid in a bankruptcy, this man was not a bankrupt; it was paid in by his attorney before the adjudication—the assignees have a claim against Allcock and Co, of 28l. 8s. 2d.

COURT. Q. How came the petition not to take effect? A. One of the creditors objected to its proceeding under that form, and there was a summons to show cause why he should not be adjudged a bankrupt, and he was adjudged a bankrupt.


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