LAW REPORTS.

Dominion, Volume 1, Issue 263, 30 July 1908, Page 4

LAW REPORTS.

SUPREME COURT. BRETT BENEFIT FUND. BLUNDELL AND. OTHERS v. " NEW ZEALAND TIMES" CO., LTD. • ATTACHMENT OF PART OF THE PROCEEDS. ' The case between Walter Blundell and others, trustees pf the Brett Benefit Fund (appellants), v. the '-New Zealand Times". Co., Ltd. (respondents), was heard before the Chief Justice (Sir Robert Stout) yesterday. Mr. Young.(with him Mr. Neave) appeared on behalf of tho appellants, and tho AttorneyCjenpral, Dr. Fin'dlny, -K.P. (with him Mr. Fitzgibbon), for tho respondents. FACTS OF THE CASE. Tho facts in case were, briefly, as follow One Brett, who is dress circle usher at the_ Opera House, was hurled down the stone stair entranco by an miscreant and rendered unfit to fallow his occupation. For the purpose' of financially assisting him a committee' was set up, and an appeaf'mado to tho public. The net proceeds from a monster Jjenefit performance, together with donations, jjmountpd to £2q3 16s. lOd. It was decided at a meeting of the committee that the money should be vested in three trustees, Messrs. Blundell, Fuller, and Beck, to. dispose of in, the best interests of Brett, subject to certain conditions. Brett desired that'the whole of thp fund should be handed over to hjm, but the trustees ''resolved that thifmoiiey should pot bo handed over to him in a jump' supi.' On Septehiber 10, 1 19Q7>' tho : '■ New Zealand Time's C 0.," Ltd,', pbfSine'd judgment in the Magistrate's Court against Brett' fpr the sum pf £156 3s. 3d. for goods supplipd,.and, thereafter, issued en attachment'order (interlocutory)' against the 'trustees of the fund to attach.tho amount owing to them. Subsequently tile trifstees announced their intention'to dispute the jlgbt, and Mr. Riddell, S.&£. ; heard the niatteK" His' Worship, S? course pf jiis judgment, said that it seemed te him that thp money was-held'.unconditionally by tho trustees for ; cpuld : npt' frame conditions which "w'pukl be binding upon thp 'beneficiary without 'the copsent of the other donors of the fund. Tl|o trustees admitted ti'at ,tlie money was "held on Brett's account, but they considered it>'should not bo, haiidpd to him as it-might bp mis-spent, 'It Vas apparent that's 9 sblg,o|)jpet of the committed in taking' such ail ac|ive. pjirt in arranging tl]p benefit was to mako'some provision for tho future maintenance'of Brett and those dependent pn niip, and if they had known that nearly two-thirds; of the money raised would be attached by. a creditor tp satisfy a debt which was, before the date of. the benefit, pf doubtful worth, there would probably have been some sort of attempt to,prevent .such an occurrence. Although they were actuated by the best of mo? lives',' hp-could not seo under what principle i of'lawHiiey could (succeed, No trust had ever been declared with respect £o the funds held by them, and .the debt was olio the meaning of the Statute due to the beneficiary. His Worship made thp attachment order absolute.

CASE FOR THE APPELLANTS,

■ Mr. Young, in opening tta case for the appellants, said.the circular issued ill connection with the fund stated that tho money Was being"raised '■ fpr.the purppgo of financially assisting tho unfortunate'yomig man," and that it wns stated oil the ticket that the performance was being given "in aid of James Brett, who, ptc.' His Honour: Tlio question is: Who owns the money?

Mr. Young: We say ..that no comploto gift ijas yet bepn made. ' .. ■ After' discussion on this point His Honour said: : I do not question tho ■bona fides of the committee. What I have to do is to look at the legal position. 1 Porhaps it would be best for Brott to receive, say, £1 per week. But liavo the committee power to make.that stipulation? . ;'. Mr. 1 Young: Under the first branch of our argument we say that tbo trustees wero tho donors tp, Brett; that they 'hayo not yet made the gift; 1 !jpd therefore that they were in p, position to put a-gift in any form they choko. "Tlio second branch is that if tho proceeds were n'ot' tho jirppprty of the promoters trustees.' wer.e Brett's dpbtors, nor his trustees.' , : " * :His Hpnpiir; What,were, they? ■ Mr. .Young:' Thoy held tho money for the donors. '. ' . • -.

■ His-Honour: : That cap't bo so. - / : -' Mr. Young:There'is absoluto authority for that.'-I.can find no case exactly similar to. the present, one! ' That ef' O'Brien y. M'Neill "(Irisii 'Chancery Reports,; 1898).,i5, however, particularlyin iioiut because tho money wap, donated. In this* case', it was ]|p]d that tho siibscnbers'had tho'right to settle the form of theigift." ' • _. . - Mr. Young theii quotecj authorities with reference to .the' pubject of resulting trust? and subsequently cited tho Charitable Funds Appropriation Act,,,1871, Which, ho' said,; specially covered cases of tho kind. It had, lie continued, been found inexpedient to dia-' pqsp pf" t)io fund iii thp nifiunor originally intended. Under tho statute in question,, thp promoters were, in that event, entitled to call a meeting of contributors for tho purpose of determining how the monoy ought now to -bp donated. Ho' submitted that the money was not att'aehable. .

Mr. Nea!ve, who 1 followed ,on the sjinio side, submitted that any, one of tho subscribers bad a ; right to rnoyo as tp the-framing of the terms with reference to tho disposal of the fund. His next point was that 'the Magistrate had'-no jurisdiction to make the attaphment prdo'r absolute when thp 'subdebtor disputed tho debt. Tho ground for this contention was that tho only jurisdiction which tho Magistrate had was tp give tho judgment creditor leavo to sue. Counsel for the respondents wero not called upon to a.ddrcss thp Cpurt, JUDGMENT FOR THE RESPONDENTS. His Hphpur, in dolivering judgment, said that 'after reading tli'o casp 'lie tjid hot pep, how tho'appeal,Was to bo'.sustained; and; after listening"t'6 itho argument' liis opinion: had _nofc r Jjeen" plitfnged, . Thq-proceeds '.wore' received by'tho trustees-on behalf''of Bi ; ot£ •'l'Jio trusUes Kad -'poj 'power to jmp'oso conditions with reforon.ee'to'tho'payment, Ho nad iio doubt- that'i tlio committee wero actuated by tho highest and best of motives, and possibly if the law would allow it to bo done lit would', bo better if the fund woro disbursed as thoy suggested. It was clear howevor that they had no power now to. make' lii tho caso of O'Brien v. M'Neill something had to bp done beforo the donation was.'mado, and until the subscribers _ had dotermiiied what . form the .testimonial should tdkp O'Brien was not ontitled to get tbo gift. Tliht was not th'e position in tho prcsont easo. Tho point raised 'by Mr. Noavp with regard t'o 'the jurisdiction of the Magistrate was both interesting and important, and it could have been raised by way of' prohibition. Hp was not clear whether or not the Magistrate had jurisdiction to inako the order in the present case absoluto. It had, hp continued been tho practice for magistrates to do so in cases of tho kind, and ho did not feel disposed to disturb thp practice unless proceedings wero taken by way of prohibition. No doubt thero wero many cases in which'it was the proper tiling for a magistrate to order a separate suit. Tho caso was ,ono of doubt, and hp would "not say that tho magistrate had not the power to make tho order. His decision in tho present suit would not prevent proceedings by way of prohibition. Tho point was ono which, pi his opinion, ought to ho tested. Ho thought tlio appeal should bo dismissed, and, if ho had tho pouyer, ho would resorvo thd question of leavo to bring a suit by way of prohibition. Tho ppint raised was not a frivolous ono; and counsel might bo in tho right. If counsel wero in the right, tlio Act ought to be altered, because "it lyould mean . the introduction of now procedure. Respondent would bo allowed six guineas costs, and an order would be made to enable'the appellants, to take tho amount out, of the fund-

The Attorney-General mentioned that ho was instructed by Brett to appear for him also, so far as ho had any' status.; He would like to sa.v that thero was no justification for any reflection on Brett's character. •

His Honour:'l have not assumed that his character is bad.

Dr. Findlay: As a matter of fact, Brett lias always assisted his widowed mother to the'licst of his ability. I ought to mention also that lie is in accord with the respondents in this action.

Mr. Young stated that the subscribers intended to hold a meeting shortly. Perhaps they would dccide to appeal. Would his Honour grant the necessary leave? 'His Honour: I never grant leave to appeal where I concur witli the decision of the magistrate. Yon have got enough litigation on it already 1' Dr. Findlay; At our expense. (Laughter.) A WANGANUI CASE. QUESTION OF RIGHT-OF-WAY. Mr. Justico Cooper yesterday heard cvidenco with respect to the case of Wm. Jlitchell, of Wanganui, v. Frederick Alexander Harkness, of Wanganui. Mr. Geo. Hutchison appeared on behalf of the pjaintiff, and Mr. Myers for the defendr an?.' *• The facts were, briefly, as follow:—Defendant' is t)io owner of a piece of land situ-, ated in 'Victoria Avenue in Wanganui. Ho leasee} part of the lafkl to the plaintiff, and granted him a right-of-way over another portion of it, The memorandum of lease contained a proviso that the defendant should have the right to build over the right-; ofrway, so long as lie gave plaintiff another right-of-way from Victoria Avenue, which' would bo-equally convenient. The plaintiff alleged that," before tho leaso was registered, the defendant exercised his right of building over the rightrof-way and of substituting another right-ofrWjiy, and that tho leaso-was altered before' registration, so as to show a, new 'arrangement'.' The defendant is proposing to build", "upon tho aljeged substituted right-ofTway, and' to "givo 'tho plaintiff tho right-pfrway 'wliich was originally 'intended; to he given. Tho present action is brought for an injunction against the defendant to pre? vent him from buijding on the present rights of-way.' Tho defendant contends that tho plaintiff is .bound by tlie lease ps registered, arid' that lie (the defendant) 'has the power under that lease to build over the existing rightrofrway, provided that he gives another right-of-way'tp the plaintiff which is equally cqhyonien*. " . ' Tho hearing had not concluded ivhen the Court adjourned until 10.15 this morning. IN BANCO. LEGALITY OF SLAUGHTERING LICENSE. The casp of Howell Bros., Paraparaumu (appellants) v; the Hutt County Council (respondents) was heard by Mr. Justice Wilr liamn yesterday. • Mr. Hadfield appeared for tho appellants, and Mr. Johnston'for the respondents. This was an appeal from a decision- of Dr. M'Arthur, S,M.,' with respect to an informar tjon charging appellants with having sjaughfcbred' at an unregistered slaughterrh'puse. "Appellant? had authority from the Stock Inspe'cr tor to ' slaughter more" than the number, 'stipulated by -statute. Tho .Magistrate held that this authority was general, whereas it ought to have been special, and it was therefore ultra vires.

His Honour, in giving judgment, said that it would be contrary to the languago of the section and to tho whole tenor of the .Act to hold that it was competent for tho Inspector to give perpetual authorisation to tlio appellants ,to slaughter a number ■of stock ill excess of fixed .by-statute. On that, ground, therefore, the conviction ought to bp affirmed.' Tljip appeal was (dismissed, • with seven guineas costs. •'•« / ;