LAW REPORTS.

Dominion, Volume 4, Issue 1102, 15 April 1911, Page 15

LAW REPORTS.

SUPREME COURT. SIR WALTER BULLER'S WILL. PAPAITONGA 'MUST. A matter arising out of the will of tlic late Sir Walter L. Duller was dealt with at a sitting in Chambers of the Supremo Court on Thursday afternoon. The Chief Justice (Sir Robert Stout) presided, and the parties wore AValter Leo Duller, of Hall Court, Hampshire, and Laura Jladdox (plaintiffs), and Gilbert Mair, of Waiotapu, farmer, trustee in the estate (defendant). It was set out in an affidavit that Sir Walter Buller, who died in London on July 19, 190G, had appointed his sons, Arthur and Walter, with the defendant, his trustees and executors. Arthur Duller had died in France last year, and under his will A. L. Herdman and H. E. Anderson were appointed his executors. As directed by the father's will, a sum of £2],000 had been set aside as a special trust, directed to bo called the Papaitonga Trust, for the benefit of his three children. Tile plaintiffs claimed that under the- will they and the executors of their brother Arthur were entitled to the whole interest in the sum immediately. The Court was asked to determine whether, under the will in question, the two plaintiffs and the executors of Arthur Percy Duller were entitled to be paid forthwith their shares in the £21,000. Mr Martin Chapman, K.C., with him iur. H. F. O'Loary, appeared for the plaintiffs, and Mr. H. "Buddie for the defendant. After argument by Mr. Chapman, Mr. Buddie stated that he did not intend to Opose the. application as he had-look-ed into the Question and had ground for believing that opposition would bo useless. His Honour said that ho would order that the trustees were entitled to nay the money (oi* transfer tho securities), to the persons entitled to benefit. An order was made that the costs should come out of tho estate. PRESS PROPRIETOR AND LESSEE. , THE PALMERSTON CASE. Reserved decision was given by the Chief Justice' (Sir Robert Stout) on ihursday morning in the case William Henry Smith, owner of the "Manawatu Times" newspaper, and Ernest Denis Hobon ; lessee of the paper. An interpretation, of the agreement between the parties was tho basis of the action. 1 The issues as to income tax, donations,, and subscriptions having been eliminated by agreement, his Honour said that the points raised, therefore, were:—(l) What was meant by "net realised profits," and (2) whether interest could be claimed (if the defendant Hobon is to pay such), on the ground that the cash receipts arc not sufficient to pay the outgoings. Another point ivas whether'the advance of £10 per week to the defendant Hoben was such an outgoing on which interest could be claimed. : _Tlie agreement,, said hh Honour, provided for six-monthly accounts." and a payment of rent every six months, the rent being one-half of the net realised profits. If there were no realised profits then no rent could be payable. After quoting authority on the meaning of "realised profits," his Honoui) said that it was clear that a mere book debt was not a realised profit, and he had thought ,that it was clear from the agreeitself (without reference ~to,-,thc parties , ! ''interpretation'of tho agreement 1 as shown in their letters) that-it was contemplated that the moneys or cash received ■by way of-income'would-be sufficient to pay tho outgoings, and leave the net realised profit for division every six months. It had been said that .the outgoings would pay all rents for buildings, wages, salaries, etc. If the receipts were insufficient to pay the outgoings, then, in his Honour's opinion, the payment of interest on moneys necessary to meet those outgoings would he a proper chargo as- an expwiso of the business. '

The next question was: What was the moaning of the clause which provided for an advance or £10 per week to Hoben? If the net realised profits were sufficient to pay ilio outgoings and to pay this £10 a week, then, in his Honour's opinion, those piymentc must be made prior to any payment of rent. If more than sufficient money was received to pay the. outgoings then the division took place, bnt the £10 a week was a preferential payment, and, if there was not sufficient to do more than pay tho £10, the plaintiff must wait until the funds accumulated, even if it should not be until the end of tho term of six years' lease His Honour was of opinion that the defendant Hoben could claim interest for any moneys that ho might borrow to pay the £10. The £10 was only to bo paid out of any realised profits, so far as the plaintiff Smith was concerned. The first question, said bis Honour, was answered thus: That ho is not entitled to claim the half profits as if there was no clause in the agreement providing for the advance of £10 per week. The alternative is that Hoben is entitled to anticipate tho period of the bailment at the rate of £10 per week, end tho sum will bo charged against his dra.vvi.iT Recounts in the books on account of the profits. As to the second question, bis Honour said that he was also of opinion that, until any realised profits had met all the outgoings, there could not he any division. Each party was ordered to pay his own costs. At tho hearing, Mr. C. B Collins appeared for phintiif, and Mr. C. A. 1 oughn.in for defendant.

MAGISTRATE'S COURT. CIVIL BUSINESS. (Bsfore Dr. A. M'Arthur, S.M.) ■ UNDEFENDED CASES. Judgment by default was given for plaintiffs in the following undefended cases:— • • Nciv Zealand Express Co., Ltd., v. J. Maginnity, £2 125., costs 11s.; Sophia Towersloy v. Arthur Howcll, £4 19s. 3d., costs 10s.; "New Zealand Times" Co., Ltd., v. P. L. Harnett, £13 195., costs £L 10s. 6d.; J. A. Smyth v. George Dunkinson £1 Is., costs os.; The Atlas Biscuit and Confectionery Co., v. George Dunkinson, £<19 !)s. 2<L, costs £3 7s. 6(1.; TClviss Po'inton v. J. de Cniircy Brady, £7, costs £1 ss. Gd.; Palmer Engineering Co., Ltd., v. C. L. Zimmerman, £10 14s. 9d. costs £1- 10s 6d. CLAD! AND COUNTER-CLAIM. "W. 11. Edwards and Son, builders and contractors, Wellington, sued James Maher, settler, Olnngaili, to recover the sum of £38 us. (id., alleged to be due; for work done and material supplied on a building contract. Defendant entered a counter-claim for £27 17s. 9d., alleged to be owing on account of goods supplied to the plaintiff. Mr. ]>;. J. Fitzgibbon appeared for the plaintiff, and Mr. H. K. Evans for defendant. According to the evidence of plaintiff, the original amount of the account for the work done for defendant was £38 os. (id., but, in order to obtain a prompt, settlement, plaintiff had agreed to waive the sum of £17 10s., for supervision of the work, and had received a cheque from defendant for £20 los. Gd., which was to be in full settlement. Payment of the cheque was stopped, | and, as plaintiff had since beeu unable,

lo obtain a settlement, ho lioiv sued for the full amount. For the defence it- was contended that the charge for the work jvns excessive, hut defendant admitted that he had not disputed tlie account at the time of paying over the cheque, while he liad written to say that the cheque lva.s stopped for want of funds. . The magistrate gave judgment for plaintiff on the claim ior £20 los. Gd., and costs £4 17s. Judgment was also given for plaiutilf on the counter-claim with costs £1 Is. POLICE CASES. (Before Mr. W. 0. Eiddell, 5.31.) Edward Reynolds, appearing on remand from Rotoruii, was charged with .supplying an instrument knowing that tho same was intended for an unlawful purpose. The offence is alleged to have taken place at Lower Hutt on February 23. On the application of Chief-Detective Broberg, accused was remanded till April 20. Bail was allowed in .CIOO. and one surety of £100. Jlr. T. 11. 'Wilforil appeared for the accused. Gilbert Albert Craig pleaded guilty to a charge of drunkenness, and to a further charge of procuring liquor during tho currency of a prohibition order. On the charge of drunkenness ho was convicted and discharger), and, for breach of the order, he was fined -10s., with tlie alternative of seven days' imprisonment. A first-offending inebriate, who did not appear, was ordered to forfeit his bail of 10s.. or undergo twenty-four hours' imprisonment. ■