SYDNEY LAW INTELLIGENCE. SUPREME COURT—Wednesday, July 24. Insolvent Court. Before their Honors the three Judges. IN THE ESTATE OF ROBERT APPLEYARD FITZGERALD.

New Zealander, Volume 6, Issue 451, 21 August 1850, Page 4

SYDNEY LAW INTELLIGENCE.

SUPREME COURT— W ednesday, July 24. Insolvent Court. Before their Honors the three Judges. IN THE ESTATE OF ROBERT APPLEYARD FITZGERALD.

The Cuiif Commissionfii iepoittd that he had refußed the above insolvent bis certificate, on the %\owt\ that he iiad unlawfully expended or nppropritted to his own use fund> or property of the Messis liymes, he at the time having the disposition of the said property as an ageut only. The Mu«srs. Byrneß, it apj eaiod, bail made consignments to ihe insolvent to dispose of amongst the South Sea Islands, upon the untleistunding that he was to sell the same for cash and remit the proceeds ; for l.is trouble be was (o receive a commission. He, in accordance vii h this understanding, or agreement, (which was by parol only), did remit tl c p.o eedsofsome of these cotiMgnmen's but «f tinlast he failed to do so ; he speculated with the pro ceeds, and unfoitunately lost the whole of them, The Liet remittance he ought to have nrude was in anii unt about £ J 4OO. The insolvent had been a merchant in New Zealand and traded fiom thence to the islands. He commenced business in 1847, with a borrowed (apitali and two years aftirwauls his debts were £'20( 0. The insolvent against his deiyts, however, said one Williams owed him £ J 16,0 ; but fjr which he had no thins; in writing to show. Mr. Smyth appeared for the insolvent, who had appealed against this decision. It was contended that there was no evidence given in the Court below th.it would wa-rant the very severe punishment that h.id been passed uion him, but that on the contiary, it would appear that it the inso'vent ought to he punished at all, a much milder one, viz., a suspension of lub certificate for some shoit period would fully meet the justice of tlie case. It was denied, that throughout any part o the dealings the insolvent had with the Me sis. Byrnes, the foimer had been guil y of any fraud. '1 hat there was no fraud nor wilful appropri ition of the principal's money, the fact was reliction, th.it when the insolvent found that the consignments expected from the Messrs, Byrnes would not pay, he wrote to them, saying not to send any moie, as there was not a profitable market. H,id he, it was said, wished wilfully to appropriate these expected consignments, he unight easily have done t,o. It might be that the niholvent was to sell Byrnes' goods for cash, but t< was denied that it appeared in evidence that he was to remi' in cash. The learned counsel said his client was extremely anxious that the charge made against him by the Commi-stoner, that he had been guilty of wunt ot good iauh or fraud should be iamoved. The whole tiausactions, when minutely obseived, would only show that he had been unfortunate, but certainly no' that he had acted fraudulently. If the dealings of this insolvent were to be held to come within the very s'ringent portion of the 18th clause of the Insolvent Act, tew or none of the merchants of this colony, did they happen to get into difficulties, and being con- ! signees of parties at home, would ever get then certificates. No one appeared for the respondents. His Honor the Chief Justice delivered the judgment of the Court. After having commented upon the able manner in which the case for the appellant hail ben conducted, his Honor said, they (rhtii Houois) had talked over the numerous arguments offeied mi behalf of the insolvent, and hid come to the unanimous opinion that the insolvent in the transactions re lied on against him had not been guilty of any iuteutional fraud or recklessness, certainly there was no cvi dence to lupport the opinion of recklessness; he may have been induced to enter deeper into speculation than he was warranted under the circumstances, perhaps with a view to suppoit his fami y, and perhaps final yto pay off his creditois in full. Howevei, making th;se concessions, the Court was ot opinion t .at the decision of the Couit be'ow ought to be conlnrced. The case came within the liist portion of the 18th mtionoftbc Act iehed on; that being so, ttie Couit cud nal altci tie punishment, as the Commissioner in thai case had no discretion. It might have been d ILreut with the Court had the case come undrr .1 1> second or thud portion of the s mie clause. The rase was, in effect one of agency, and wheie the ageiu had misappropriated the funds of his employer. The Ls-

Uisl.iUM' clem ly jnM-ndt-d n |.eisnn po stinted, if ho mi.sapi'lii'd his principal's money, should be seveiely putiKlieil It rould not he too often laid down fiom tl'c B-neh, ti-at an apent hilling for Ins piinri,ml, under inctiuetions as Id i emitting- pi oc cvd*, &.(• , could not km faithfully or too citcuiiTspoetly follow up his ni!>t i actions to the \oiy letter. If lit: .should nadeor deal with the piociods, lie hliould at, any rale do so under aui It < iiCimi ,t.i ire* that lie can oVy, at a monil n.'s nonet , tin' oil of Ins pnncip .1 to pi y. Tincontrary position cold no' l>c Mipportid on any le^;il fTiounds nm 1 waiDuitcd bv any Ui,ae;p. Us Ilcncr •v»:un hjivinjT nlludud to home of tin 1 insolvent's speculuioiib winch he could not but call injudicious, suul the Court wcie cloariy .if opinion, cm the evideiue, thnt the insolvent hud iiulanfn'ly appiopriateil U\u money of tl-e Mc^sis. Hyrpcs, and for this reason, and that the Court hsul no cli ere ion in the matter, for the lenson aiotciaid, ihe jiul^nii ut ol the Court below uuyhl tv be conftimed — Sydney Herald, July 25.

The Pori/anJ Guardian states that Cnpfam Stanley C.irr, wlio had just paid a vW\t to Portl uid eouteonplites the establishment of a Gfrm-n village m that viniiUy. The same authority luentioni th.it Captain Cair had purchased the station ot Messrs, lUmes and Lang in tlic l'lirtlnnd District. 'Ihe Hoba.it Tann Adoci liver reports the arnval of the fust caigo ol Schouten Island ccoatl t which is said to be lutle interior in quality to that of Sydney. An '' Illustrated Magazine" n aboui to be publiglied at Melbourne.