COURT OF APPEAL.

Wellington Independent, Volume XXI, Issue 2433, 27 October 1866, Page 5

COURT OF APPEAL.

This Oottrfe of Appeal aafc again pui'suatlfc to adjournment, on Thursday last at eleven o'clock, at tho Supremo Court Houso, Lambton Quay. Present — Mr. Justice Johnston, Mr. Justice Gresson, Mr. Justice Richmond, Mr. Justico Moore, and Mr. Justico Chapman. THK LONG- VACATION. Mr. Justice Johnston, before proceeding with the business before the Court said : — I am requested by the Court to inform the profession that memorials have been roeoivod from members of the profession in Hokitika and Dunedin, euggesting the propriety and desirability of changing the season of the year at which the long vacation should take place. It has been suggested that, both for the convenience of the profession and the public generally, it -would bo more desirable that tho long vacation should take place from the 20th December to 31st January, both inclusive, than from tho 20th March, to tho 30th April, both inclusive, and the judges being most anxious to consult in this matter the interests, not only of the profession, but of the litigant community, take this opportunity of publicly informing the members of tho profession and the public generally, through the press, that they will be prepared to take the matter into consideration, of changing the time of the long vacation, when they shall hare received the opinions of members of the profession in other parts of the colony than those from which the memorials have como. SINCI/AIE V. BAGGE. His Honor Mr. Justice Johnston said, that the Court would not give judgment in this case that day. KBYNOLDB T. SYMONS. His Honor Mr. Justico Johnston, in giving judgment in this case, said — In this case, the Court are unanimously of opinion, that plaintiff failed to make out his case. It is not necessary that I should read over tho«case. The claim is made by plaintiff, that he had a certain quantity of greenstone belonging to him and defendant detained it from him, the defondant relying on having found this stono and converted it to use by putting his own labor to it. Tho plaintiff, in reply to defendant's plea, admits the facts, but says that, aftor dofendnnt had got this interest in the stone in question, ho abandoned it. That was a material allegation to make good the replication to the plea, and the jury havo found to the contrary that he did not abandon it. Tho opinion of tho Court, therefore is that a verdict should bo entered, for the defendant. QTJEEN V. EESTIEATJX, His Honor Mr. Justico Johnston, in giving judgment, said— the only question in this case was whether there'was evidence to go to the jury for embezzlement, and wo arc unanimously of opinion that there was such evidence. It may be that there was evidence for both embezzlement and larceny, but it is not necessary to go further than that. There was some evidence that tho prisoner embezzled the noto at all events. It is only necessary to point out with regard to the contention which has been made that embezzlement does 'not consist in failing to account, but in appropriating to hia own use by a servant of that received on account of his master ; and the discovery of the note between the two casks along with tho subsequent account by prisoner of his conduct, amply justified the jury, in concluding that ho appropriated and converted it to his own use, before it came into the actual possession of his master. Conviction confirmed. Be Tornxa, a bankrupt. Mr. Justice Q-rosson, after stating shortly the facts of tho case, which have already appeared in our columns said— Wo are of opinion that the creditor has failed to make out against tho trustee such a case as would justify the Court in making a summary order ; tho application must be refused. BULLS V. BUCK AND OTHERS. Mr. Ilart appeared for Mr. E. W. Mills, the plaintiff in the action ; Mr. Brandon for Messrs. George Buck and Jauaos B. Cruicksbank, executors of the late Charleß Maboy, of tho Upper Hutt, farmer ; Mr. Borlase for tho children of the testator ; and Mr. Izard for Messrs. Cleland, judgment creditors. The facts of the case were these — Chas. Mabey died in June, 18G'i, being possessed of real and personal property,. and having made a' will, dated 2nd August, 1838, which was proved by tho executors, bequeathing to his four sons and daughter his houses and live and dead stock in equal shares ; no landed property or stock to be disposed of without consent of execufcorß until the eldest son should be of age. The dobts as proved amounted to £1,356 12s 2d, while tho personal estate realized and. realizable only amounted to £700. In May, 1865, Messrs. Clelund commenced an action against the executors for £771 ; and on tho 18th August, 18G5, Edward W. Mills, on behalf of himself and other creditors of the deceased who should come in and contribute rateably towards the expenses of tho suit, commenced an action against the executors for the sum of £21 19s Bd, in default claiming to have the personal estate administered in the Court. The executors pleaded among other pleas in effect that they had no knowledge of tho amount being due, tnafc another action was pending ; that the personal estate was insufficient to cover the dobts ; and that the testator had real estate, but that they were advised that they could not safely execute the trusts without direction of the Court. On tho 7th October, 1865, the defendants were ordered to sell the real and personal estate before tho 6th of December of tho same year, Messrs. Cleland having obtained a verdict on tho Bth Sept. previous. On the Bth January, 1866, it was ordered that the executors should pay into Court all sums in their hands belonging to the estate, less legal and other expensoa certified by the Registrar, and that the .Registrar should report to the Court tha amount of debts and the legal priorities affecting them; after which it appeared that the .proceeds of real estate paid into Court altogether amounted j to £G9i> 6s 6d ; that the executors had in hand £100 from tho personalty, and that Messrs. Cleland'B were entitled to priority. Subsequently, however, it was ordered among other things, that they should be paid out of tho funds rateably with tho other creditors. The questions for tho Court were — Whether tho Messrs. Cleland were entitled to any priority over the other creditors; whether the Messrs. Clelantl hayo a priority which entitles thorn to exhaust the realty ; if so, whether they are entitled as to theresiduo of their debt to any payment in priority to other creditors out of the personalty ; or whether they are entitled only as to the residue of their debt to tako payment thereof with tho other creditors out of the personalty ; whether they are bound to take payment out of the mixed fund part passu generally with the other creditors ; wh other having been paid a portion of their dobfc out of the proceeds of the realty they are entitled to any further payment till the other creditors have been paid out of tho personalty. Mr. Ilart was addressing the Court, when tho Judges expres3od thoir opinion that it was not shown on tho case that there was ft deficiency of assets, and that, therefore, the question of priority fell to the ground. Tho question of costs was deferred, as it was said that by saddling tho children with the costs, the assets might be made deficient. The Court then adjourned till Tuesday next, at 11 o'clock.