SUPREME COURT.

Star (Christchurch), Issue 4098, 9 June 1881, Page 3

SUPREME COURT.

♦ WBDNBBBAT, JUNB 8. (Before-His Honor _1r Justice Johnston.) IN CHAMBERS. W. T. I. TBAVBBS, APPELLANT, T. E. W. MILLETT, EESPONDENT. Mr -ravers appeared for appellant, and Mr Izard for respondent. This was a case of appeal from the Resident Magistrate's Court, Christchurch. Mr Travers stated the facts to be that he was executor to a testator against whoso estate the espondent claimed a sum of money alleged to be due for the hire of horses, buggies, Ac. He( Li v Travors) had been sued, ao executor, in the Besioenfc Magistrate's Court, about a twelvemonth ago, and bad not appeared. Judgment had been givon against him. Tho respondent had taken out an execution against the testator's estate, but the bailiff had returned nulla hona. A second action had then been taken ugainst himself persons.l'y, at which ho had appeared, but the Resident Magistrate had decided that he was compelled by law to hold that the former judgment proved that there had 'been assets, and that tho return of nulla bona proved a devastavit against the executor; and gave judgment accordingly. At the second trial tho appellant had givon evidence that there were no assets. Mr Travers contended that, while in England the non-appearance of the executor was taken as an admission of assets, in the Resident Magistrate's Court in New Zealand the existence of assets must be proved by the plaintiff. He further' contended that the judgment should have beon one of those two — either for the amount de bonis testatoris si ?ion de bonis propriis, or from assets quando acciderint ,- neither of ■ which it had been. In support of his contentions Mr Travers quoted copiously from " Williams on Executors." Mr Izard contended that the judgment would uot have been given if .the existence of assets hf.d not been proved. He submitted that this was an attempt to get behind the first judgment which had been made against the executor, who could not now give evidence that there had been no assets. His Honor took time to consider his judgment. ______________—!___