SUPREME COURT—IN BANCO.

Tuapeka Times, Volume III, Issue 147, 1 December 1870, Page 6

SUPREME COURT— IN BANCO.

(From the " Daily Times.") Thursday, 24th November. (Before His Honour Mr. Justice Chapman.) Ha.tirop v. Croker and Another.

This was a suit brought by plaintiff, as trustea of the bankrupt estate of Major Croker, to set aside as fraudulent certain purchases of land made by Major Croker on behalf of his infant son. The case went to the jury, and all the issues were found in favour of the plaintiff. Subsequently, in June last, a decree was nude that the purchases effected by Major Croker, as for the infant defendant, should enure for the trustee on behalf of the creditors ; but the question of the infant's costs was referred. Thj^ amount realised from the estate is £317, and the costs incurred up to the present time £250, leaving about £97 to meet creditors' claims to the extent of £1800.

Mr. Macassey, on behalf of plaintiff, now asked that the infant defendant should be treated as an ordinary defendant, since he had taken an active part in resisting the plaintiff's claim ; that the trustee should be allowed costs as between solicitor and client ; and that the residue of the fund, after payment of costs, should be at once handed over to plaintiff for distribution amongst the creditors. The learned counsel relied on Elsie v. Cox, 26, Bevan, 95.

Mr. Harris, who had previously appeared for defendant, said be now attended in order to hear the Court's decision on the question of costs. He argued that Mr. Stamper, the guardian of the infant defendant, was entitled to protection against costs ; since it was only by the appointment of a guardian that plaintiff was enabled to proceed in this suit ; that Mr. Stamper had undertaken the office, which was one of great responsibility, without indemnity, and had felt it to be his duty to test the right of his ward, beyond he had not gone. Mr. Harris cited Goldsmith v. Russell, 5, De Gex. Mac, and G., and other cases.

His Honor : lam afraid that I cannot help you. Mr Stamper should have been more cautious in involving himself in liability of this sort without indemnity. It seems to me that the case of Elsie v. Cox, and two or three other cases which Mr Macassey might have cited, are analogous in principle to the present one; and as to the other point, I think the rule is clear that where a trustee is acting on behalf or other creditors, and is sgek. ing a fuud which he ultimately succeeds in rendering available for the estate, he would be entitled to charge his costs as between solicitor and client, and not merely as between party and party ; otherwise the creditor so suinj, tor the benefit, no doubt, of himself in a small degree, but in a much greater degree for the benefit of others, would be amerced without the p':Bjijilit/ of rcm pin himself. As t.j the application for the Balance of the fund, I think I can grant that also. The order- will be made as prayed — it being, of nmrse, uuJei'stood.'.thafc the decree will be without costs as against t'.ie infant defendant.

Trustee to be without costs as against the infant defendant ; plaintiff to be fl lowed to tax his easts' as be. fween a.uijror an i i-lient $ bfi'tauee^>f f.ie fund to be paM to plaintiff for ma* tributio,n amongst the creditore.