SUPREME COURT

Nelson Evening Mail, Volume XLVII, Issue XLVII, 7 November 1912, Page 3

SUPREME COURT

J (WEDNESDAY, NOV. 6th, 1912.) | (Before his Honor Mr Justice Chapman.) j The Supreme Court concluded .its i sittings in Nelson yesterday. j CIVIL BUSINESS. J MOTUEKA SCHOOL TRUST. ' This was an originating summons to ] determine certain questions in connection with an acre of land in High street, Motueka, which was given in trust in 1853 by John Sanfo'rth Greenwood for the purposes of a site for a school for educating 1114 the principles of the Church of England children of residents in the district of Motueka, and for such other purposes of a religious, public, or useful- ] nature as the trustees should from time to time direct. The plaintiff was the Rev. John Vosper, of Motueka, and the defendants Henry Ernest Gilbert, of Waitara, postmaster; John Broughton Jordan, of Motueka, saddler; Francis Holder,? of Ngatimoti, farmer; John Stewart Wratt, of Motueka, farmer; and John Heath, of Motueka, farmer (the present trustees). Air Maginnity appeared for the plaintiff, and Mr C. J. Harley for the defendants. The evidence was given by affidavits I filed. j Mr Maginnity submitted that the proj cedure by originating summons was the proper procedure to' elicit the informa-. ! tion in regard to the administration of the trust. He conrended that the procedure was comparatively a new procedure, with full power to the Court to I vary or add to the parties on either side, j This being so', he urged that the joinder t of the Attorney-General was not necesI sary. Mr Harley,- for the defendants, con- , tended that the joinder of the AttorneyGeneral was imperative, and therefore that the present proceedings could not be maintained. Counsel on both sides dealt at length on the legal interpretation of the trust, and its administration by the trustees, Mr Maginnity contending that it must be held to be a Church of England trust, but this Mr Harley refused to admit, and claimed that alter tha trustees had set apart some part of the land as a site for a school, they weie at liberty to the remaining land, and the in- j "come therefrom, for any public purposes they thought proper. It \Vas shown that j the land was now vei'y valuable, and that the greater part of it was leased at £l6 per year for 21 years. I His Honor, in giving judgment, said I that the plaintiff in the present proceedings did not occupy any of the positions j enabling him to bring an action. He was, | however, more than an ordinary member of the Church of England, in that he was incumbent of the Church at Motueka; but in regard'to this trust he was simply a member of the Church. In '■ His Honor's opinion, to enable the Court to give a judgment, it would be i necessary to' make the Attovney-General a party. He did not think that any of I the questions raised ill the action could be determined on an originating summons, and an order to afford complete .. relief must be obtained by fresh proceedings in another form. His Honor further said that in the first place the donor settled who should .be the trustees under the deed of trust", and\his determination, in his Honor's opinion, could only be set aside by Act of Parliament. If the trustees misconducteu themselves then the Co'urt cculd ap-

I point others. His Honor then remark- ( cd in detail on the claims sat forth on behalf of the plaintiff in the summons, and in regard to the apparent vagueness of a provision under the deed of trust, he expressed the opinion that the discretion afforded to the trustees was limited to public uses connected with the Church of England. He could not say one way or the other what way the trust had been administered. He held that the present proceedings must fail, but what he had stated was entirely without prejudice to any proceedings which might be brought in another form. If there was a serious charge against the j trustees it was for those persons who were interested in the matter to ask the Attorney-General to proceed in the ordinary way. The summons would be dismissed, but only £7 7s cos-is would be allowed to the defendants. PROBATE. On the motion of Mr Maginnity, His ,)-iionor-Mr Justice Chapman yesterday granted pro'jate of the will of Elizabeth Hornig, late of Takaka, widow, deceased, to Percy Charles 'Hornig, of Melbourne, the sole executor named in the will: WELLINGTON SESSIONS. WELLINGTON, Nov. 6. At the Supreme Court to-day, William Knox, a tailpr, was charged with performing an illegal operation. He-plead-ed not guilty, and was defended by Mr T. M. Wilford, with him Mr W. Perry. Mr H. H. Ostler was Crown Prosecutor. His Honor the Chief Justice ordered the Court to be cleared during the hearing, r.nd forbade publication- of the evidence. The jury failed, to agree, and a new trial will take place next Monday.