COURT OF APPEAL

New Zealand Mail, Issue 1285, 15 October 1896, Page 30

COURT OF APPEAL

The Court of Appeal met od Monday, Sir James Prendergast and the four other Judges being present. NELSON BROS. V. SOUTHLAND MEAT FREEZING COMPANY. Judge Denniston delivered the judgment of the Court in this case. The motion before the Court was on behalf of Nelson Bros, (appellants) to enter a nonsuit or grant a new trial, and the main question for the Judges was whether the provisional direction of Mr Justice Williams in the Court beloiv Avas right as to the alleged breaches of the agreements between Nelson Bros, and the Southland Meat Freezing Company. The ruling of Judge Williams was that the agreement of Nelson Brothers to take the output of the Avorks established by Mr J. G. Ward, and afterwards to purchase the works, was a breach of the contract with the Southland Company. The Court of Appeal held that there was nothing to prohibit the appellants buying any existing works, so long as they did not use or assist iu using them during the currency of the agreement. The main reliance of the respondents Avas that their output of business was interfered with, and that the purchase benefited Mr Ward financially, and thus enabled him to compete more actively with the respondents. The Court could not accept this, either as a measure of damages Linder the first paragraph of the agreement or giving a cause of damages under the second. The suggested injury seemed much too fanciful and remote. There Avas no evidence that Mr Ward was iu financial difficulties, or that he was in a better position by having parted with part of his business. The Court was of opinion that the respondents had failed to show that the entering into and acting on either of the agreements Avith Mr Ward constituted any breach by the appellants of their agreement Avith the respondents, and that judgment should be entered for them, Avith costs in the Supreme Court to be settled in the Supreme Court, and costs in the Appeal Court on the highest scale. Sir Robert Stout asked leave to appeal to the Privy Council, and this was granted. THE SENTENCE PASSED UPON ANNIE BROWN.

Mr Jellicoe moved for leave to suspend the execution of the sentence of two years passed upon the prisoner Annie Brown, pending the final appeal to the Privy Council, and that she be admitted to bail in the meantime.

The Chief Justice said that Mr Jellicoe Avould have to satisfy the Court that they had authority to grant this application. Mr Jellicoe replied that the Court had authority under the Criminal Code Act and the Order-in-Council. The present position Avas that unless the appeal to the Privy Council Avas passed the term of sentence might have expired. He did not know of any similar criminal appeal to the Privy Council, and he admitted that he could not quote any precedent for the case. Judge Denniston thought the Privy Council would he the proper tribunal to grant the application. In answer to the Chief Justice, Mr Jellicoe said Ins application was for leave to move for the suspension of the execution of sentence. The Chief Justice said the Court had no objection to grant leave to move. THE DILAVORTH INSTITUTE. In the case the Commissioner of Taxes (appellant) v. Isabella Dilworth and others (respondents), Mr Chapman appeared for the appellant, and Sir Robert Stout for the respondents. This was an appeal against the exempting of the land of the Dilworth Institute from taxation.

Mr Chapman argued that the clause in the will of the late Mr James Dilworth, of Auckland, providing that the inmates of the Dilworth Institute should be taken only Horn either Auckland or Ulster, and the other limitation providing that they should be members of the Church of England, prevented the Institute from being a public charity, and therefore exempt from taxation. The conditions were so restricted that the Institute could not be said to be open to the public. He held, moreover, that under subsection 2 of section 16 of the Act of 1891, this being a private charity, its mortgages and income were not exempt from taxation, nor was it exempt under the Act of 1892, which still required au exempted charity to be a public one. The Chief Justice pointed out that under the Act of 1893 friendly societies, which were private institutions, were exempted. Mr Chapman maintained that an argument that some private societies were exempted could not be taken to apply to all private societies. He also claimed that if it were held that the land was exempted under the Act, it could not be so until it was actually in use for the purposes of the Institute.

Sir Robert Stout argued that the word “charity ” in the Act must; be taken in its popular sense, and that a school for poor children was therefore a public charity. He quoted a number of cases in supjiort of this claim. As to the point that the

lands had not been used yet, the reason for this Avas that last year over <£12,000 was paid under the assessment, and this took aivay all the ready money. Judge Denniston remarked that the institution appeared to be for the benefit more of Dungannon than of Auckland. Judgment was reserved, and the Court was then adjourned till 10.30 o’clock next morning.

The case of the Commissioner of Taxes v. Dilwortb and others lias been removed into the Court of Appeal by consent. In Chambers on Friday, Judge EdAvards dismissed the appeal of Mrs Sowerby, of Auckland, and the Public Trustee against the ruling of the Commissioner of Stamps assessing a duty of <£s on a leaso which Mrs SoAverby obtained from the Public Trustee. The contention of the appellants was that the land formed part of the Auckland Hospital reserves, and was therefore free of duty. In the Court of Appeal on Tuesday, before Judges Williams, Denniston and Oonolly, the case the Queen v. the Mayor, Corporation and citizens of Wellington was heard. This is another phase of the Avell-known shelter sheds case, and comes up in the present instance as an appeal on the part of the Crown from the decision of the Chief Justice, who ruled that the sheds Avere public conveniences, and that the Corporation had the right to erect them, and was entitled to receive a Crown grant for the site on the payment of <£996. Mr The n Cooper (of Auckland) appeared for the Crown, and Mr T. F. Martin (Wellington City Solicitor) for the respondents. Argument was heard at great length, and judgment Avas reserved.