SUPREME COURT.

Evening Star, Volume VIII, Issue 2142, 18 March 1870, Page 2

SUPREME COURT.

CIVIL SITTINGS. This Dai. (Before Mr Justice Ward and a Special Jury.) HARROP. A’, CROKER. Tills was a suit in equity. Mr Macassey and Mr Haggitt appeared for the plaintiff, and Mr Harris for one of the defendants, a minor. Mr Haggitt In opening the pleadings, stated that the plaintiff was Mr Jonne Harrop, who is trustee in the estate of Edward Croker, formerly Warden at Lawrence, lately adjudicated a bankrupt, and Mr Harrop sued on behalf of himself and other creditors in Croker's estate. The defendants were Major Croker himself, and his son, John Louis Croker. The suit was one in equity, and was brought for the purpose of setting aside a fraudulent transaction on the part of Major Croker : the fraudulent transaction being, that with his own monies ho purchased certain land in the name of his son, and afterwards erected upon it buildings of a considerable amount, whilst at the same time he was largely indebted to various parties, and was in hopelessly insolvent circumstances. The declaration stated that prior to and a long time before the 22nd March, 1865, and at all times since, the defendant, Major Croker, was and is embarrassed iu pecuniary affairs ; that a large portion of his debts were contracted before the date mentioned, and were unpaid; that while largely indebted, on the 12th April, 1866, he obtained the crown grant of certain land numbered section 32, block 1, Tuapoka, containing 12 acres 2 roods 16 perches, more or less, which land, previous to the issue of the grant, was kept and enjoyed by the defendant under an agricultural lease in the name of his son, and that the lease was obtained by him for his own benefit; that the defendant’s son, John Louis Croker, was at the time a child of tender years without means of support ; that the surrender of the lease, and the subsequent obtaining of the grant were solely made in order to defeat and defraud his creditors. A second paragraph in tho declaration contained the same averments in regard to another piece of laud in the Tuapeka district, for which defendant had applied for a Crown grant in the name of his own son. The delendants pleaded to the declaration in, similar terms, denying the material allegations therein contained. The case as stated by Mr Macassey was as follows The object of the suit was to avoid a transaction which the law regarded as a fraud upon the creditors. Under the bankruptcy laws, tho trustee can avoid a transaction, provided it had been completed within a given time prior to tho act of bankruptcy. Where that time had been exceeded, it was incumbent upon the trustee or creditor seeking to impeach tho transaction to show that it was a fraudulent one, and that tho person making tho transfer had done so to place the subject matter of the transaction out of legal roach. The present suit belonged to the latter class of cases. The defendant was charged in the first place with being hopelessly insolvent at the time when the transaction stated in tljo declaration occurred, and secondly, although not necessarily so expressed, that his object in making tho transfer was to defraud and defeat the claims of his creditors. There was a circumstance requiring attention and it was the position of persons claiming as creditors at the time the settlement was made. It might perhaps bo said on a first observation—and with some p’ausible reason—that a man at the time of making a settlement was under no pressing obligations, if he managed by subsequent ingenuity to pay off all claims' prior tq tt,o transaction. In this cuse two propositions might be safely affirmed—that at the time of the occurrence of the transaction defendant was hopelessly insolvent and unable to meet his engagements. It became a matter of no moment what his intent was, for the law inferred it was a fraudulent one, if he was go circumstanced. But it was not proposed to rert the plaintiff’s case there ; the existence of creditors would be shown at the time of the settlement being made. It had been laid clown recently by the Lord Chancellor that, although a man had no creditors at tho time of making the settlement, if bis intent was to place property out of the reach of creditors, the intent was fraudulent, and the transaction might be defeated. Such was the position of the present suit. The circumstances of this case dated so far back as 1865 ; but it would bg shown t H y the evidence of Major Croker in the Bankruptcy Court, that in 1861 he was in insolvent circumstances. In 1865, while he was goldfields Warden, he was indebted to almost every storekeeper jn tho neighborhood of Tuapeka. He waa indebted amongst others to Messrs Herbert and C«., in March, 1865, in tho sum of L 271 Is 9d, tho debt having increased to that sum from L 135 in September, 1861. Those liabilities had never been liquidated up to tho present time ; but ho had certainly been through tho whitewashing process of the Bankruptcy Court, Ou the 22nd March, 1865, Major Croker applied in the name of his son, a lad some six or seven years old, for an agricultural lease on tho Tuapeka goldfield. He obtained building materials from a Mr Donovan and built on the laud, and afterwards removed with his family to the home and lived there. He enjoyed to tho fullest extent the benefits of occupation in tho same way as if tho place had been his own. The liability to Donovan waa incurred in July, 1865, and subsequently ho incurred a debt of considerable amount, to a man named Kobinson, which was paid a long tjme after-

wards. The crown grant of one of the sections was made in the name of the son, but for the plaintiff it was contended that this was simply a device for the purpose of defeating creditors. Some time since defendant called a meeting of his creditors, and sent a letter to them, in which, in accounting for the disposal of the sum of L 550 received from Government as compensation for loss of office, he mentioned payment of L6l on account of one of the sections. In the second instance there was a direct application for a crown grant, also in the son’s name. It would be proved that for the last six years defendant was living in a constant straggle with pecuniary difficulties, At last it was absolutely necessary to meet his creditors. On the loth October, 1868, he filed a declaration of insolvency, which gave him 28 days’ delay, and on 4th December he registered a deed of composition, by which he offered payment of 2s in the £, by which he kept thorn at bay for four months more. His offer was not accepted. On the 22nd March, 1869, he was adjudicated a bankrapt, and recently he had his certificate suspended for six months. There was no defence to the action on the part of Major Croker, and the only defence offered was suggested on the part of his son, [Sot concluded when our reporter left.] DEFAULTING JURYMAN. William Mason was fined 40s, unless cause be shown.