SUPREME COURT.

Dominion, Volume 7, Issue 1932, 15 December 1913, Page 3

SUPREME COURT.

END OF THE HARDING CASE;

STRANGE RECITAL.

HOW FARE THE CREDITORS?

The interesting case which lias arisen out of tho application by the Official Assignee in bankruptcy to set aside tho settlement of property made by John White Harding upon his wife, Violet S. Harding, was concluded in tho Supremo Court late on Saturday after?<??n'n > His Hollo « r tho Chief Justice(.Sir Kobcrt Stout) has reserved his decision. rho addresses of counsel revealed tho very interesting legal position. Mr -.C- .I'. Skerrett, K.C., with whom was Mr. U. D. Welsh, of Hawera, appeared for the Official Assignee; and tho defence; was conducted by Sir John i'r m y \ $ - C -> Wlth wnom appeared Air.. J. Allison (Wangamii) and 1 Mr. W. J. Sim.

. Iho proceedings on the three previous days had indicated that the Hardnigs -were married in Wanganui on -November 4, 1911. Harding was then in business :n Hawcra as a farmer and stock-dealer. He is now a wharf worker in; Wellington. Just prior to the marriage ho settled two properties upon his wife. Tho Assignee alleges that tin's settlement was made with no other object than that of defeating tho creditors, and he therefore wishes the Court to invalidate tho transfer. The Hardings declare that the settlement was made purely to protect the wife against various possibilities, and that at tho time he made it Harding believed that he was solvent.

Tho only witness called for the plaintift on Saturday was Charles Alfred Buil'gc, Deputy Official Assignee, Hawera. He said that ho had repeat•<'d!y applied to Harding for his papers, but had never got them. Harch'ng had told him that there had boon a great accumulation of papers, which had been taken away and destroyed. Ho had received no letter book, although he noticed that some of the letters in Mrs. Harding's handwriting appeared to havo been earboned. What the exact position was in. tho Queensland business witness could not say, but everything indicated a loss. - •

Sir John Findlay on Legal Aspect. Sir John Findlay then addressed tho Court. He said that Mr. Skerrett had laid great stress. un:m the financial embarrassments of Harding prior to and immediately following the settlement of bis properties upon "his wife, and had striven to show that the wife had had knowledge of this financial difficulty. But ovoiii if these two things wei-o proved they would not invalidate the present settlement. Counsel quoted an authority to tho effect that a settlement made before and in consideration of marriage was protected, but whero there was evidence of intent by both parties to defeat the 'creditors, and the marriage was part of a scheme to that end, the settlement would be void; but not void if tho wife was innocent of the intention. x His Honour! Of course, the root of the cn.w is fraud in both.

Sir John Findlay: I submit that tho wife sought protection for heisolf in the disastrous situation into which Harding had brought her. She was a young girl, living with highly respectable parents, and contributing towards her support bv ■shorthand work and tyning. She had been in ono or two offices, and finally in tho office of tho Mayor of Auckland .(Mr. Bagnall).'- It had not been suggested that before her meeting with Harding there had bron any blemish on lier character. Her brother and Harding stayed at Brent's, in ltotorua, together, and the brother afterwards introduced Harding to her. Hireling's early efforts as a suitor badfailed. Ho had wished to marry her, aiul she was determined not to accept him. Then came the unhappy incident at Hamilton. History of the Hardlngs.

"I am not hero to defend Harding," continued Sir John Findlay. "I am as free to condemn him as my learned friend ''s. I consider that Harding; acted the part of a blackguard, and I consider that liis object in getting her to leave tho train at Hamilton was to seduce her, and after having seduced her to force licr into marriage." After tho incident at Hamilton the plunge was taken'. She had thrown away a woman's dearest jewel—her chastity. From then on the path grew easier; the first false step made casior the way for others. Tho path became easier as the grade grew steeper, and so tho onceinnocent, the "green" young girl, went on until the Nemesis.. The o,uestion of marriage then assumed a different aspect. _ In Brisbane she found from an old Now Plymouth newspaper that Harding had been a callous brute to his first wife—had broken her nose—and that he had children and property. Thus situated she might have done 'better to have faced her trouble by going her way alone: She decided, however, on the course of getting a. settlement for her protection, and for that of her child which was to bo born. Harding at first refused to give a settlement. His attitude was clearly, "I want to get the woman, hit I don't want to make any settlement." However a crisis' came; she loft him and went home with lie- brother, and Harding then, wroto saying, "Come and I will settle the property upon you." He admitted with almost* a brutal frankness that he did not want to make a settlement which should nave been a matter of the first honour in the circumstances. They went to Hawora together, and there tlu's woman ho had ruined found that tho position was even worse, inasmuch as in addition to Harding's two. legitimate children he had ono other cl-.ild. She then put her request to him point blank —eitlior they would be married and a settlement on her made, or she would go home and face disgrace. They went to Wanganui and were married. And tho case against her must fail if it could bo shown that she merely insisted upon a settlement for the protection of herself and her ■child, Moving to another point, Sir .John Findlay maintained that Harding had honestly doubted Wcddcll's cabled advice as to losses on meat shipments in October, 1!)11, and still believed that he was folvent. To decide the case against the woman, tho Court would have to hold that, even if the settlement was entered into with knowledge on the part of both parties that Harding was insolvent, she also knowingly joined her husband for the sole purpose of defeating t'l'.o creditors. A picture of the defeating of the creditors 'had been drawn, but there could also be framed the picture of this young woman, with a consumptive husband, turned penniless into tho world, _ haying several sickly children to maintain upon nothing. Mrs, Harding in the Box. Violet S. Harding was then called. She gave her ago as 2o years, and said that when she first met Harding in Auckland (11)10) she was 22, and was employed by Mr. L. J. Bagnall, who was Mayor of Auckland at the time. Her work was typing and .shorthand writing, and she knew nothing of bookkeeping. She met Harding through his bringing a letter of introduction from her brother, and she went to dinner with him at the Star Hotel On that occasion he asked her to marry him, saying that she would ho butler off than working for licr living, and that ho was uu-

happy. A couple of mouths Inter ho. returned to Auckland, and (she thought) made further proposals of marriage, which she did not accede to. She .<mi not at that time know what Harding's business was, nor that ho had b:?en married previously, nor that lie hail two children. In May she again mot Harding in Auckland, and niiuitioiiecl that s'h'o was going to Wellington to spend a holiday with a friend. She went to the Aueidand railway station with her mother, who was seeing her off, and found to her surprise that Harding was there. After the train hud gone a little way Harding went to lier carriage and sat with her. He induced her to leave tho train at Hamilton, and she then took the stop for which she 'had since felt moro regret than she could express in words. Two days later they came-on to Wellington, and Harding suggested a trip to Brisbane, Ho gave her glowing accounts of tho tour, and she consented -y> go. In Brisbane she found a New Pl.v/.iouth paper giving an'account of proceedings in which it transpired that Harding "had been married, had two children, and that he had broken his wife's nose, blacked her eyes, and generally assaulted her very anciently. She saw in the paper, too, that half the Norfolk Road property was to go to the children. She then asked for tho other half. Her brother went to Brisbane and wanted to bring her back to New Zealand. Hardina begged her to stay, and she said thatlf lie settled his properties upon her she would get married and stav. Harding refused, and she returned 'to Auckland. Harding wrote promising to make the. settlement, and after a month's stay ia Auckland she went hack to Brisbane. In October, 1011, they were both back in Now Zealand again; he had preceded her across from Australia. Ho met her on the wharf and nt once asked: "Are you going to •make the settlement, or are you not?" She added that she had had enough excuses from him, and that he must cither make the settlement, marry her, or she would go home. Ho again promised the settlement, and they went to Hawera to live. There she "unearthed another mystery," and after giving him a final chance they were married in Wanganui. Prior to the marriage they went to Mr. Allison, solicitor, in Wangnnui, and she asked Mr. Allison to draw up tho settlement. Mr; Allison asked Harding if, after making the settlement, he had enough left to pay his debts with, and Harding said that lie had. Harding refused to make over all his properties, and she then said that she would have the two best, and she worked out that this Would leave hor barely enough to live economically upon. Her first child was born on March 26, 1912, and her second on March 25, 1913, and these children, as well as Harding's two children, were living with her. When tho settlement was made she did not know that Harding had any creditors, and he had never at any time told her what tho effect of the transaction would bo on those to whom ho owed money. He concealed his position to the end. Almost up to the day ho filed she thought that he was flourishing in business. Finally, herwhole motive in getting the settlement was to provide li living for herself and her children.

Tlie Cross-fira Begins. In cross-examination Mr. Skerrett asked, Mrs. Harding if she inserted a marriage notice in tlio, Auckland "Herald" of October 11, 1911 (a date prior to her marriage). The wording of the notico was: "Marriage: Harding—Hunt.—On September 28, at Brisbane, Australia, James AVhite Harding, son of tho lato James Harding, of Burton-on-Troiit, England, to Violet Stanislaus, elder daughter of Alfred C. Hunt, 'Hinomoa,' Onohunga," Witness replied that she did not insert the notice. Mr. Skerrett then produced the manuscript of tho notice. • Mr. Skorrett: Now, J may tfufc it to yon that that is riot in your hand-, writing? Witness: Yes. Mr. Skerrett read the advertisement over, while Airs. Harding wrote, and tho original and her transcript were then handed to the Court. Mr. Skerrett: Will you swear that that original notice was not written by 'you? ' Witness: I will not say that that is my handwriting. His Honour: Will you say it is not? Witness: I will not say that it is, and will not say that it is not, because 1 don't remember anything about it. Mr. Skerrett took the copy of the advertisement and the witness's writing done in Court, and after a glance at them handed them to His Honour, remarking: "Exactly what I thought has hnpnened. This is not in her usual free style." "That is very unfair," interjected Sir John Findlay, rising quickly. .-• Mr. Skorrett: Why is it? There aro the pancrs. Sir John Findlay: Because you dictated far too fast for her. His Honour observed that the advertisement was written on paper stamped "Central Hotel, Hawcra." Mr. Skerrett: Oh. I had not noticed that. Witness: Quito likely. . . . But it has nothing whatever to do with me, Mr. Skerrett: Has it not? That advertisement is a lie—isn't it?—" Yes," Was there any talk of marriage in Hamilton, or in Wellington immediately afterwards ? —"None." If you really regretted what you had done in Hamilton, couldn't you linve easily asked him while you were in Wellington to marry you?—"I bad very littlo opportunity, reallv no opportunity. The two weeks in Wellington were two whole weeks of enjoyment." Did you ever ask him about his position or his prospects?—"No, they had nothing to do with me." What do you mean ? —' 'I mean what I say." Well, explain it? —"I say what 1 moan." How did you explain to your parents your absence in Australia from May to July?—"l didn't give much explanation. I was too frightened to. I let my brother explain. It never occurred to you when you saw your brother in Wellington on your return to tell him that you were going to Hawora to bo married?—"No;,: I suppose he thought that wo wore married. He would soon have asked us if he didn't." Did you not, in your statement to the Assignee, say that there- was no talk about marriage on your second visit to Brisbane?—"My statement, so far as I knew at the time, was true." Witness said, also, that Harding and his two children wore consumptive, and, so. perhaps, were her own two babies. Thomas Alison, solicitor, Wsnganui, gave evidence to the effect that wh<>n he drew up tho deed of settlement, Harding assured him that he was solvent, and produced a statement of affaiis showing a surplus of £1000.

"lilts.} toa of a Cood Client." Edward John Arlow was recalled by Mr. Skcrrett, to ask him about a statement made in evidence, by Mrs. Harding, that Arlow had told her in Hamilton that Harding was a wealthy mar,. Arlow denied this statement. Witness also said that at the time ho had not offered Mrs. Harding; any advice respecting what lie- looked upon as an unauthorised expedition bv Hardiiifr and herself. Sir John Findlay asked the witness if it was a practice of his to speak to women unintrodneed. Witness (warmly): I do not wish to be insulted. Sir Joint Findlay also reintroduced the-question'.is to'whether Arlow offered her advice at Hamilton.

Witness: Slio was the mistress of ; -a' good client of ours, ami it was ' iisincss uolicy ' >t to do so. -"■ -.- • i- ■ *■■-■«■'

■ ■;■>.Sir Joliii/ : l;'ihdlay':H^see?*;"She- ; waS' ■ . ln .'fe .!'W ! Sof thistmaivaiid .'for! b'usi- , ; .»ess'.'rt-as'ons''yoii-'docinediit \inaelvisable, l, 10-olVer a word ; ;of.-adyceito;Ui!siyonng' *' '.giiT. -. I : thank-you\;«E > "Creditors of a Debtor Wii3ihas;"a"|: " J'Vfe:'. '..■ -.I-.. istre ss."oJ^|;iSsi6Sfl| : ' j' ,: ' 'I'ho; addresses^of^TOiinseli.ivS^itheh ' .Sir John an'car-! I J. 1 , 0 . I '-.: s tage ■ set. his.;i-'views jj'before.jthe. Cou'rt,-was chieily:()ce'iijn'edon;:thisV(icca-' [ siou with the* quotation.'oknuthorities... I Hi-, repeated !iis : contention J; : -tliatNthV _. other : sido could not'succeed ;'. because ; there was not a;tittlc;pf;cvkieiice..to;tlio. ; effect that,there".w'h'siVa'conspirncy.'.bcT. ' i.vveen Harding .and hislwiio,..to.-,defeat the creditors. ..." J„'?#^'::'!'"."L----1 MiYSl!orrett-'srud.T-';-<vi'amriiountUto' : submit that if this.transfer of. property ; is to bo upheld theirth'c creditors of a debtor who possesses a-.'inistrcss. arc at' . .the mercy of that- debtor if' he chooses secretly to marry that, mistress.-' There | is evidence of fraud in almost every , circumstance of this .affair.- ■'■ There is ' absolutely no evidence of an honest con- ( tract, of marriage."■■; There was every ; characteristic of" fraud, ; and there exist;ed that degree v.: of ■ vagueness ; which" one. expected to'" find . in. such cases. There were, also,, evidences of ; untruthfulness., - Then, .tho settlement was ' followed by. circumstances', which again pointed to fraud—concealment of tho marriage, and tho representations of Harding after the-transfer that he-was still the owner ot" the property. ' Tho general outline of-the ..case pointed to the fact that the story' of tho Hardings was merely tho cloak -'of» a device to defeat tho creditors. Thore'was the hur- , rictl return from Brisbane after Harding s receipt of the advice which worried his book-keeper, and tho subsequent marriage and settlement. Marriage was no more.' than- a •■ ""valuable 'consideration," and in question was, Would this marriage" have'taken place but for the desiro to keep tho property away from the creditors? "It was clear that this transfer made the property available to Harding, . and ■ the plaintiff s suggestion was' that the woman was under his domination, and if in the future he wished the properties back sue would obey him. 'This was one of that class of case in'which it was.impossible to expect direct cridenco ..of fraud. There was amide evidence that before Harding made the. settlement he was being pressed bv'his'banker - to reduce his overdraft. Comiim to the allegation of the wife's privity to the fraud Mr. Skorrott said in all tho cases quoted by Sir John Findlay there was a clean honest contract" of marriage. The position was that in this case the ■ woman went aw-ty with this man to Hamilton, Wellington,.'and Brisbane, and after being brought h'jck from Australia by her brother roturnel to her paramour. She was as clay in Harding's hands. Mr. Skorrott concluded by saying that tho matter was one of inference from tho facts. Ho did not hesitate to admit that if there was any doiibt on this phase the decision must £0 to the defendant. Counsel declared that tho Hardingnhad given the Court a tissue of falsehoods, and that the right reading of tho case was _ that the woman was under the domination of a man whom she would have married at any time, but who was not the man to marry her until he found that he was in O.ueor Street- financially, and wished to save his property from his creditors. *<>,- '" His Honour announced that he would talre timo to consider the case.... .-