SUPREME COURT.

Evening Star, Volume VII, Issue 1987, 17 September 1869, Page 2

SUPREME COURT.

This Day.

CIVIL SITTINGS. (Before Mr Justice Ward and a Special Jury.) BATHGATE V. VERNON. This was an equity suit. Mr Smith, with whom was Mr W. D, Stewart, appeared for the plaintiff; and Mr Barton, with whom was Mr Ward, for the defendant. The declaration alleged that on or about the month of October, 1868, one Charles Anderson and the defendant carried on business as partners, and were jointly possessed of a certain mining claim, also a water-race and reservoir; that Anderson was possessed of and owned a dwelling-house, store, and certain fnmit <re, together with six head of cattle ; that, on or about the month of November, 1868, then being in insolvent circumstances, he fraudulently, with intent to defeat and de ay his creditors, granted a bill of sale to the defendant, transferring to him the property above-mentioned ; that the alleged consideration named in the bill of sale was a sum of L 35, a previously-existing debt, and a further sum of L9O, which was not owing at the time of the execution of the bill of sale ; that in February, 1869, Anderson was declared a bankrupt, and the plaintiff appointed trustee of his estate ; that the defendant had wrongfully taken possession of the property under the bill of sale, and refused to give it up although requested so to do. The plaintiff, therefore, prayed that the bill of sale might be declared void ; that the property might be declared to be the property of the trustee of the estate of the said Charles Anderson; that the defendant might be restrained in the meantime from selling the property, that accounts might be taken, and the defendant ordered to pay half the profits arising from the working of the clause, and pay the costs of the suit. The defendant, by bis pleas, denied all the material allegations contained in the plaintiff’s declaration. The facts of the case as stated were as follows : —Mr John Bathgate, the plaintiff, brought the present action in his official capacity of trustee in the estate of one Charles Anderson, who became bankrupt on the Slat January last, and the defendant is Mr Edward Vernon, a miner residing atTuapeka mouth. The action was brought as an equity suit for the purpose of asking the Court to set aside a bill of sale granted by Anderson to Vernon, and by which the whole of the former’s property, with a few trifling exceptions, was assigned

to the latter, when the other contemplated bankruptcy. Some five years ago, Anderson carried on the business of a storekeeper in a small ivay at Tuapeka. His debts at that time w ere small, and his credit good. About two y ears ago he went to Tuapeka mouth, where ihe carried on the same kind of business. From that time he entered into partnership with the defendant Vernon in certain mining undertakings, viz., a claim which was worked by a race and reservoir. Things went on i/i this way until November last, when Anderson, being indebted to the extent of Lt*oo or L7OO to Messrs Herbert and Co. of Lawrence, and others, who bad been supplying them with goods, executed the deed which the Court was now asked to set aside. Anderson was said to be indebted to Vernon in the sum of L 35, and the deed professed to give an assignment of the property comprised in it and enumerated above, for the purpose of securing that sum, and a further sum of L9O which Vernon had agreed to advance. There was reason to doubt whether this debt of L 35 ever existed, and there were grave doubts as to whether the advance of L9O, which the deed professed to secure, was actually made. The deed stipulated that payment of the money advanced should be on the sth January, 1870; but Vernon was enabled to require that it should be paid at an earlier date by giving six months’ notice. Without that notice, a few days before Anderson came to Dunedin, Vernon took possession of the store, but allowed Anderson’s wife to remain in it. On the 21st of January last, Anderson filed a declaration of insolvency, and shortly afterwards, at the instance of Messrs Herbert & Co., the principal creditors, he was adjudicated a bankrupt. Vernon remained in possession ; and from the statements made in the Insolvent Court when Anderson was finally examined, the trustee was induced to institute the present proceedings. Mr Stewart put in the documents relating to Anderson’s insolvency, and Mr Bathgate’s appointment as trustee. Mr Barton objected, he contending that strict proof must be given. The Judge remarked that it was scarcely necessary to waste public time in that way. Mr Barton said he must insist that everything should be strictly proved. If he was not acting properly, he should throw up his brief. The Judge said, if Mr Barton insisted upon it, proof would be given in the usual way The examination of the witnesses was then proceeded with, but it was occasionally in. terrupted by passages of arms between counsel. The defendant Vernon was eramined at considerable length, and his replies were of a very contradictory character. The case was proceeding at 4 o’clock, when our reporter left. DEFAULTING JUROR, Mr William Mason, who was not in attendance when the list of jurors was called over, was fined 40s, unless cause be shown.