APPEAL COURT.

New Zealand Times, Volume LXVII, Issue 3443, 26 May 1898, Page 4

APPEAL COURT.

SOME IMPORTANT JUDGMENTS. Judgment was given in the Court of Appeal yesterday morning m the following oases:— A LEASING DISPUTE. Mayor of Timaru and others v. H. A. and C. Hoare. In this case the Timaru Borough Council claimed from tho defendants, A. and C. Hoare, payment of rent under the lease of a reserve from the corporation to H. Hoare, which the latter is alleged to have assigned to A. and C. Hoare. The Court held that no sum was recoverable by the plaintiff corporation from the defendants A. and C. Hoare. liability on bank shakes.

Assignee in Banlruptoy (Auckland district) appellant v. Allan William O’Neill and Lewis O’Neill (respondents). It appeared from tho judgment under appeal- that the plaintiff, as Official Assignee of the estate of Allan William O’Neil], a bankrupt, sued the latter and Lewis O’Neill, as trustees and executors under the will of James O'Neill, praying that they be ordered to pay out of the estate of the testator the amount of a judgment for calls, and a further liability for calls in respect of certain shares in the Bank of New Zealand, held in the name of the bankrupt, and to indemnify the plaintiff in respect of any further calls in respect of the, said shares. It had been agreed between the parties that for the purposes of the case it might bo taken as if tho defendant Lewis O’Neill was also bankrupt, and the . Official Assignee was suing as assignee of his estate, as well as that of Allan William O’Neill. James O’Neill died in 3882, and probate of his will was granted to the defendants. With the exception of an absolute bequest to his wife of certain chattels, he devised and bequeathed all his estate to the defendants upon certain trusts. The estate included 1181 shares in the Bank of New Zealand. Of these shares 474 were to be held in trust for five daughters in unequal proportions; 400 to four eons, being 100 each; 100 for defendant Allan William O’Neill; and 100 for defendant Lewis O’Neill; 57 shares were not specifically bequeathed, and therefore fell into the residue of the personal estate. On the 22nd September, 1897, Mr Justice Conolly held that the 200 shares hr the Bank of New Zealand, which the bankrupts held in trust for themselves, passed to the Official Assignee by their bankruptcy. As to the rest of that which was the estate of James O’Neill, since it was held by the bankrupts in trust for others, he held that the Official Assignee could make no claim upon it. His Honor accordingly gave judgment for the defendants with coats. The appellant now moved that this judgment might be reversed and judgment entered for him, or that the judgment might be varied into one of nonsuit, on the ground that the judgment was bad in law. The Court summed up as follows :—Mr Button (for the appellant) does not claim more than a right to indemnity against each devisee in respect of the bank shares devised to such devisee ; and to the extent of such devisee’s interest in other property under the will. To that we think be is entitled, and tho appeal shonld therefore be allowed with costs on the highest scale and as from a distance. Any application in respect of or for other proceedings necessary for working out the liability of the various parties can be made in the Court below.

APPEAL IN A RENT CASE. John C. Ellis (appellant) v. John Batger and William Menzies (respondents). This was an appeal against a decision of Mr Justice Williams in connection with a grazing dispute between the parties at Invercargill in . which an award of JOBO was made against the present appellant, for whom the New Zealand Loan and Mercantile Agency Company had acted as agents and financiers. The appellant therefore threw the onus of the transactions upon the company by virtue of an agreement with them by which he paid 15 par cent, of the amount of the bills as they became due, and gave promissory notes for the balance.

Looking at the evidence, and taking into consideration his own statement, although contradicted, the Court Could not see any reason why Elbs should in a transaction intended to settle all his debts voluntarily take over a liability lor a debt which was part of the general debt he was paying to be released from. Tho appeal was allowed with costs on the lowest scale as from a distance (J3lO 10s), and in the Court below as fixed by the Magistrate.

A QUESTION OF COSTA The Court ruled as to the question of costs in the administration suit Euddenklau v. Euddenklan that the widow was not to pay costs or have her costs out of the estate. It was decided that the costa of the trustees and executors should be fixed on the lowest scale and those of the beneficiaries on the highest scale, to be paid out of the estate.

The Court, on rising, adjourned till Monday, 25th July.