516. THOMAS TYLER proceedingsdefend , was indicted for wilfully, fraudulently, and feloniously concealing great part of his personal estate (to more than the value of 20 l.) to which he was intitled before the time of the issuing of a commission of bankrupt against him, to wit, the sum of 61 l. 10 s. which at the time of issuing the commission was due and owing to him, from Richard Dowding < no role > , William Bishop < no role > , and Fairfax Bedlington < no role > , with intent to defraud his creditors , against the form of the statute.

(Mr. Richard Dowding < no role > , Noah Mordicai < no role > , and James Hughes < no role > , were called to prove the prisoner a trader, in that he was a watchmaker, and dealt in hard-ware .)

(A debt of 283 l. was clearly proved to be due to the petitioning creditor.)

Mr. SAMUEL WADESON < no role > This name instance is in set 255. sworn.

I am an attorney. On the 8th of December, 1778, I sued out a writ against the prisoner at the suit of Tyler, Rickets, and Johnson; on the 10th, the prisoner not having been then arrested, Mr. Rickets called on me and told me he had appointed to meet Mr. Tylor at nine o'clock the next morning, and he asked me to go with him, as he wished to settle it without arresting the defendant. I went with Mr. Rickets on the next morning, the 11th, to Mr. Tylor's house; his sister told me he was not at home, but if I returned in half an hour I might find him at home; I had gone but a little way down the street before I was informed that the sheriff's-officer had seen the prisoner in the house. Mr. Rickets and I went to the house, the officer searched and found him in the cellar; I saw him come out at the door-way that led to the cellar; I then went into the parlour with him with Mr. Rickets; I asked him what could induce him to conceal himself, since it was so notorious that he was at home; he said he suspected a writ was out at the suit of Mr. Rickets, and he was afraid of being arrested, as he knew there were more writs against him, that if he got into the hands of the officers, he knew they were imposing, and it would cost him a good deal of money; he said he expected to receive a sum of money soon, and would settle for his debts. He offered me different securities.

From the prisoner. Whether any person in my house acquainted you that it was my desire that I should be denied?

Wadeson. You told me yourself that you had ordered yourself to be denied, and that you had secreted yourself.

Prisoner. I was shaving myself, and it was my usual mode to do so between ten and eleven o'clock, that I might go to Change.

PATRICK CAWDRON < no role > sworn.

You are a Sheriff's officer? - I am.

Do you remember going to the house of the bankrupt with Mr. Wadeson? - I did not go with him; I saw him there; I was at a publick-house directly opposite the prisoner's house. When Mr. Wadeson knocked at the door I saw Mr. Tylor look out at the two-pair-of-stairs window; upon the answer they gave Mr. Wadeson, he was going away, he went down the street; I sent my servant after him, to desire he would come back, for I had seen Mr. Tylor at the window; he came back, and I went into the house and did my business.

Where did you see Mr. Tylor when you went into the house? - When I went into the house, I went up stairs immediately, expecting I should have found him there, but I did not; then I searched the yard, it was a very rainy morning; I looked on the pavement, but saw no footsteps of any one having gone away, upon which I judged he was in the house.

Where did you find him? - In the cellar.

What was he doing there? - I do not know, it was quite dark. I said I was surprised he should deny himself to me.

Prisoner. I should be glad to know how far a creditor under the commission is to be an evidence in this prosecution. This gentleman is a creditor.

Are you a creditor? - Yes; he gave me a bill of one Bricksworth in Worcestershire, for 47 l. I never could get any money from that party, and I have arrested him.

(The affidavit of the petitioning creditor read.)

(The bond given, as usual, by the petitioning creditor, read.)

(The oath of the commissioners previous to their proceeding under the commission, read.)

THOMAS BRIGGS < no role > sworn.

What are you? - A messenger to the commissioners of bankrupts.

Did you go to the house of the bankrupt in December last? - I did.

Is this a copy of the notice you left with the prisoner's servant? - I left a copy of this notice with Thomas Ridge < no role > , a lodger there.

Did you see the bankrupt any time afterwards? - Yes, he came home on the Sunday evening following, I believe.

Was he apprised of the notice you left? - No, he knew of it before, I apprehend; I was in possession of his effects.

(The notice read. It was dated December the 24th 1778. It acquainted him that a commission of bankrupt was issued against him, and required him to appear before the commissioners on the days therein specified.)

(A like notice was read from the Gazette, dated from Tuesday December 22, to Saturday December 26, 1779.)

Mr. JAMES RUMBALL QUILTE < no role > sworn.

In consequence of the notices which have just been read, did the prisoner appear before the commissioners at Guild-hall, at any time, and when? - He appeared on the 6th of January, being the second meeting, and presented a petition, stating, that he was not then prepared, and praying for further time He appeared before the commissioners on the 6th of February. I was present.

Was he sworn to give an account of his estate and effects? - He was.

You will give the court an account of the questions that were asked him, and the answers he gave to them.

Counsel for the prisoner. There is, I presume an examination taken in writing? - There is.

(The examination, dated February 6, 1779, and signed by three of the commissioners, and by the prisoner, read.)

Court. I take it for granted that in no part of this examination there is any notice taken of this debt.

Counsel for the crown. There is not.

Mr. WILLIAM KEATING < no role > sworn.

You are in partnership with Mr. Quilter? - I am.

You will please to produce the book of account, marked B which is mentioned in that examination by the prisoner? - This is it (producing the book) there is the entry of the debt in question.

" Sept. 4th

"Messrs. Dowding, Bishop, and Burrington.

"To three plain gold second watches, twenty pounds ten shillings each

61 10

Just under Sept. 4th in the margin is

"pd".

WILLIAM BISHOP < no role > sworn.

Do you know the prisoner? - I do; he sold us three gold watches at twenty-one pounds ten shillings each, on the 4th of Sept. 1778, as it appears by our invoice book.

What were the watches for? - They were part of an adventure to Petersburgh.

Do you remember the prisoner calling upon you any time in December? - Yes, on Monday morning, the 28th of December, the prisoner came to our counting-house and requested payment for three watches; I sent for Mr. Dowding into the counting-house; there was some conversation between them, as the time for payment for these watches was not expired; at last Mr. Dowding agreed to the prisoner's drawing upon him at a certain time; I drew up the bill and gave it to the prisoner to sign; I had occasion at that time to step out of the counting-house, on my return I found the prisoner had drawn up a bill of his own, which was antedated, it was dated the 18th; whereas the one I drew was dated the 28th; I remember there was something started by Mr. Dowding. When the prisoner wanted his bill antedated; but I do not remember the conversation upon the subject, but however I took the bill he drew up, and copied it into our bill book.

Who was the note signed by? - Mr. Tyler drew it up; it was accepted by Mr. Dowding immediately.

How long had the note to run? - I do not remember the tenor of the bill.

Has that bill ever been paid? - The amount of it has been paid to the assignees, but the bill has never yet been paid.

(The bill produced by Mr. Dobson.)

Is that the bill? - It is.

(It is read.)

London, Dec. 18, 1778.

Sir, seven months after date please to pay Mr. Thomas Rich < no role > , or order, sixty one pounds ten shillings.

T. Tyler.

61 10

To Mr. Dowding, Shadwell.

When did it become due? - The 21st of July.

To Mr. Bishop. Had you been apprised that morning of a commission having issued against the prisoner? - Certainly not.

What time in the morning did he come to you? - Between seven and eight, as near as I can recollect.

At What part of the town do you transact your business? - No. 58, Wapping-wall, at Mr. Dowding's house.

Cross Examination.

What business are you? - I deal in porter and wine.

What business may Mr. Dowding be? - A cooper; and he deals in porter and wine too.

What business is Mr. Bedlington? - The master of the ship that we sent this adventure in to Petersburgh.

In fact Bedlington is the man that is called Captain Bedlington < no role > ? - He is.

Do you recollect the prisoner or Mr. Rich calling upon you before, with respect to that money? - I do not.

You do not recollect one of them being with you a week or ten days before that time? - No, I remember nothing of it.

Counsel for the crown. When was you first apprised that a commission had been issued against the prisoner? - Immediately after this transaction. We went in to breakfast, while I was at breakfast, I saw in the Morning Chronicle, that Mr. Tyler was declared a bankrupt.

Court. Then what step did you take? - It subsided; we thought no more of the matter.

Court. Did you think you could be justified in paying a man against whom there was a commission of bankruptcy? - We did not think much about the matter, through the multiplicity of business we forgot it.

Court. Forgot it! - We did not think there was any fraud intended.

Court. Did not you think you was in danger of losing the money? - No.

Court. How long have you been in business? - Three years for myself.

Court. Did you never prove any debt under a commission? - Never; my partner might.

Counsel for the prisoner. Who is your partner? - Mr. Richard Dowding < no role > .

Have you any other partner? - Captain Fairfax Bedlington < no role > was concerned with Mr. Richard Dowding < no role > and me in this adventure only.

RICHARL DOWDING sworn.

Do you remember the prisoner coming to you at your counting-house or house? - I do.

What time was it? - On the 28th of December, he came very early in the morning.

What passed between you and him respecting payment for these watches? - It was customary for me to pay Captain Bedlington's bills; we had had some transactions with him; he is master of a ship in the Peters-burgh trade, which was under my direction. At buying these watches, Tyler understood I was to be paymaster; I believe, I told him I should pay him for them; and I think they were bought at nine months credit; he applied to me, I believe, on the Friday or Saturday, prior to his coming on the Monday morning; he pleaded the distress he was in for want of money and begged I would accept a bill for the amount; I said it was not customary for me to accept bills, but I could assure him the money would be paid when the time came round. Your Lordship asked what steps we took after hearing of his being a bankrupt; that matter did not lie with Mr. Bishop, because he seldom settled any bills without my being present. Tyler pleaded so much the necessity he was in for want of money, that I acquiesced with his request. I said if he would call upon me on Monday morning I would endeavour to settle the business for him; he called on me early on the Monday morning, the 28th; he asked if I had considered the business.

When did he come before that? - The Friday or Saturday the 25th or 26th. I bid him call on Monday morning; he came and asked me if I had considered it; I consented to it, and desired Mr. Bishop to draw the bill; after Mr. Bishop had drawn the bill, Mr. Tyler hesitated for some time, then he requested to know if it would make any difference to me to permit him to antedate the bill back to the 18th? and he said, if I had no objection I might date it at seven months, I think those were his words. I told him a month was no consequence to me; I asked him why the bill he had in his hand would not do? I think he told me it would answer a better purpose to him if I would permit him to antedate it, because he might be more able to negociate it, or something of that kind? I do not recollect the particulars; I said you may draw the bill and date it the 18th. I had not an idea of what had happened at the time; he then drew the bill, and I think the bill was payable to Thomas Rich < no role > , a person I do not know; I accepted the bill, and Mr. Bishop entered it in our bill-book. This is the bill (producing it)

At the time you accepted that bill, were you apprised, or had you any intimation of a commission having been issued? - No, upon my oath I had not.

When did you first know of it? - Immediately after the transaction, we went in to breakfast; I took the Morning Chronicle? and in the list of bankrupts, I saw Tyler's name; then I observed to Mr. Bishop it was an extraordinary transaction; it did not strike me then, as to the consequence, nor did I enter much into it, he said it has an odd appearance.

Did you at any time, and when, make mention of this to any body? - Some few days afterwards I happened upon 'Change to meet Mr. Keating, the gentleman who was attorney for the bankruptcy, he was telling me what a villainous man Tyler had turned out, or something of that kind; I mentioned to him I accepted a bill for Tyler < no role > a few days ago; I immediately told him the transaction; in consequence of this the next morning the assignees came down to me and begged I would permit them to look into my bill-book, to see what time that bill was accepted; I then referred them to Mr. Bishop, and he told them the bill was antedated.

Cross Examination.

Did you or Captain Bedlington buy these watches? - I did not buy them of him, the Captain bought them, I was in the compting house when the captain was looking at them, it is mentioned in the bill (bought by Captain Bedlington.)

Mr. KEATING, again.

You was present when this examination was taken before the commissioner? - I was; and examined the bankrupt for several hours.

Do you remember this book being produced? - Yes; I held it in my hand and examined the bankrupt to the particular sums in it.

There is particularly that entry of Bishop Dowding and Bedlington of three gold watches? did you put any questions to him about that? - Towards the conclusion of the examination, seeing the name Dowding, and knowing him perfectly well, I said, I see that Mr. Dowding's debt is paid too. He said yes. I said, pray how is that paid? he either said in cash or bank notes. It struck me that all the men in the list of debts due to him who were known to be responsible men, their debts were made paid.

Had he signed his examination before you asked these questions? - He had not, he might have signed it but did not deliver it up at his examination.

You asked him questions about this item, in what manner it had been paid? - He told me it was paid some time before; I believe he mentioned the day, either in cash or bank notes, he swore it had been paid.

Court. Swore? - Yes, he was upon oath.

Court. Then I cannot receive parol evidence of that, it is the duty of the commissioners to reduce into writing every thing he said upon oath.

Counsel for the Crown. Were you present before the magistrate when he was examined there? - I was.

Who was the magistrate before whom he was examined? - Justice Addington.

Was his examination reduced into writing there or not? - Not into writing.

What day was that? - Wednesday the 7th of July last.

What was the account he gave there? - On Wednesday the 7th of July he was apprehended and carried before Mr. Addington; he was asked what he had done with this note, he then said that he had paid it to one Henry Noah < no role > , of which Noah was to pay him 47 l. and to procure bail to be put in to two actions against him.

Was he at any other time before any other magistrate, and when? - On the 12th of July he was examined before Sir John Fielding < no role > ; he told Sir John that he had paid the bill to one Rich who lived; I think, with him in the capacity of a servant, towards satisfaction of a debt he owed him.

Do you happen to know anything of that Rich? - Rich lived in the house.

Does there appear to be any demand from Rich to him, or any debt due from Rich to the estate? - No, in the account made up by the assignees it appears the contrary.

PRISONER's DEFENCE.

I will beg permission to read a few remarks I have made. My Lord and blun the men of the Jury, The idea I have formed of the solemnity of this day hath not a little filled my mind with that which is cruely aweful as knowing it to be a day pregnant with life or death! yes, from your determination, to be a day of deliverance and salvation to me, or to be a day of misery and great affliction. Under these ideas of the last importance, my heart feels the strongest satisfaction that as I stand at this bar, I stand out of the reach of envy; before you, my Lord and Gentlemen of the Jury, who I am persuaded possess a real knowledge of that statute upon which I am indicted, and those concomitants which must be proved before I can be found guilty. The laws of Britain are laws of mercy, and I trust, this honourable court will be indifferent between me and the king. When a man is indicted at the king's suit, the king intends nothing but justice with favour; therefore, my king is content that his justice should help the offenders according to truth; and as far as reason and justice may require, I beg my Lord, and particularly sollicit that you see that my indictment be good and sufficient in point of law, that the proceedings are regular, and that the evidence be legal, and such as fully proves the point in issue. Lord Chief Justice Coke says, in case of life the evidence he convict the prisoner, should be so manifest that it could not be contradicted. And Lord Nottingham informed the house of Peers, when sitting as Lord High Steward on Lord Cornwallis's trial for murder, that the evidence upon which a prisoner is condemned, ought to be so very evident and so plain; that all the counsel in the world should not be able to contradict it. Amongst, the requisites for supporting the present prosecution for felony, under the bankrupt laws, one the commission and the act of bankruptcy. When the act of bankruptcy is charged to have taken place, I knew not of the committing any such act of bankruptcy, or, I had not been guilty of any such by my orders. According to Lord Chief Justice Lee's opinions the act of bankruptcy must be committed with an intent to defraud creditors, or whereby creditors may be defrauded or defeated of, or delayed, from the recovery of their just debts. The denial of the party must be with, intent to delay, the creditors, and therefore to be denied when sick in bed or engaged in company; or, upon particular business, cannot be said to be an act of bankruptcy. Lord Chief Justice Camden said it must be proved that the person to whom the party was denied was a creditor; and that being denied to one who came on behalf of a creditor is not sufficient; that was said by Lord Chief Justice Camden upon a trial at Norwich assizes in an action of Trover brought by the assignee of a bankrupt.

The person who came was no creditor, therefore if I was denied to him, it was not with an intent to delay or defraud him of his debt, because I was not indebted to him; it is true I surrendered and submitted from time to time to be examined, &c. by the commissioners as a bankrupt, finding the acts of parliament were very perilous to bankrupts. It was reasonable for a man, though he believed himself no bankrupt, said Lord Chief Justice Hardewick to go before the commissioners, surrender, and submit to be examined by them, still protesting himself to be no bankrupt; and after passing through all such process, his Lordship agreed the bankrupt might bring an action. The bankrupt must indeed surrender within the limited time and he must submit within the limited time to be examined from time to time; and he must upon his examination disclose, discover, and deliver up his estate and effects. And I did surrender within the limited time, and I did submit within the limited time to be examined from time to time. But as for that particular circumstance in which I am now charged, there it stood as goods that I had sold, and there it stands in the same book as discharged; and I was asked upon my examination no particular questions concerning it. I surrendered within the time, and upon examination, disclosed, discovered; and delivered up my estate and effects. But the act doth not require it to be full, perfect, and complete within the limited time; for how would it be proper, my Lord, if it was so, when a man's memory may fall him at one time, and be fresh at another; or his first answer may be something imperfect; and why should he not be called upon to explain and complete it; if the assignees had not sufficient knowledge of the nature of any part of my estate and effects, it was my business to give them all that information which they required. I do not remember having any questions asked me concerning the present debt or bill; but if I had, and they had not a clear understanding concerning it, and the several other particulars, it is the business of the bankrupt from time to time to inform, instruct, and give every intelligence to the assignees, who are chosen by the creditors for that very purpose, when the bankrupt's person is made secure; for the power of the commissioner is general, and not limited to the compass of time given the bankrupt to come in; the last examination within the limited time is material as to the bankrupt himself, because he cannot contradict it himself afterwards, but I presume a bankrupt may be compelled by the commissioners to make further answers after that time. The bill I am charged with, I drew at the time the evidence says it was; I drew it to the order of Thomas Rich < no role > , and the moment it was accepted it was the property of that man, who received it that very morning. This being two days after I was declared a bankrupt, but it was forty days afterwards before I surrendered; and now I am indicted in this court for concealing property after my last examination.

Court. You are mistaken in that, you are not indicted for concealing property after your last examination.

Prisoner. I was indebted to this Rich to the amount of 109 l. by his acceptance by which he became a security for me; when I found myself incapable to make that payment good, and knowing that he would be distressed by law, if he did not pay that bill which he accepted for me, I, on the 18th of December, wrote a letter and enclosed a draught, at four months after date, payable to Rich, and sent it by him to Mr. Dowding, and requested the favour of him to accept it; but he saw him not that day. He went again two or three days after and saw Mr. Dowding; and he said, Mr. Dowding would not accept that bill, but that he would accept one for six months. On the Sunday morning the 27th of December as I was coming from Bromley, I met Mr. Dowding on horseback, he said, Mr. Tyler, I will accept your bill at six months for your friend, if it will be any service to you. Mr. Dowding, as a witness this afternoon, signified he did not know why it was antedated, he thought it must be that I might get it discounted. Your Lordship sees it already made to the property of another man, and not therefore my property; another man must indorce it ere I could make any use of it.

Court. Have you any thing out of your paper, for that is evidently prepared for you by some person who I suppose, may not be acquainted with the true facts of the cause. Have you any thing to say to the Jury respecting the mannea in which that debt arose, or was discharged so as to satisfy them that you are guilty of no fraud in making that entry in your book in the manner you did? the thing that presses you is this, you became a bankrupt, on the 24th had notice you was a bankrupt; after that you went and got from Dowden and company; a bill as if it was a bill in payment of that debt. Being a bankrupt you could not discharge that debt, and yet you treated it in your book as a debt discharged; and you received the bill and applied it to your own use after you became a bankrupt.

Prisoner. It was applied to the use of Rich who was a creditor, the commission was taken out against me, but there were no assignees; nor were my books in possession; and till assignees are chosen, I believe the bankrupt is master of the estate.

Court. That is, the estate may not be actually taken out of his corporal possession, but he is master of it at his peril, not to waste it or to dispose of it; and more especially when he is to give an account, not to conceal what he has done.

NOT GUILTY .