RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume VIII, Issue 2397, 7 December 1870, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A. C. Strode, Estp, R.M.) JUDO Mi: N'T. Reid and another v. Harvey—His Worship gave judgment in this case as follows : In this case Mr Haggitt. as counsel for the defendant, applied that the plaintiffs should be nonsuited on the following grounds : 1. That no proof had been offered that payment had not been made of the amount claimed to one of the plaintiffs (Burton). 2. That there was no power of assignment of the trusts contained in the first deed, and, therefore, that the second deed (the deed of assignment) was bad in law. .1 That there was no proof that the William J’redli. Dickson, named in the first deed, was the same person who had signed tin; deed of asdgnment as \V. F. Dixon. As to the first ground, I am of opinion that it is unnecessary for the plaintiffs to prove that payment had not been made to Burton, it being incumbent on the defendant to prove that payment has been made upon a priind facie case being ses up. As to the second ground. I ajn of opinion, after due cp isideratiim, that the position of the plaintiffs as assignees of the covenants contained in the first deed, cannot be sustained. It appears

to me, on reading the two deeds, that in the first there are a number of provisions in which the exercise of discretion is involved, and that the second deed (that of assignment) is not confined solely to the debt contained in the plaint, but it refers to all the provisions set ror hin the first decl. Such being the nature of the deed of assignment, I consider that it cannot be upheld. In “Lewin on Trusts,” page 192, it is laid down that the '‘office of trustee, being one of personal confidence, cannot bo delegated and “if the trust be of a discretionary character, not only is the trustee answerable for all the mischievous consecpicnees of the delegation, but the exercise of the discretion by the substitute will be actually void.” 1 cannot consider the assignment to be that of a chose in action, as a chose in action, I apprehend, must be something certain, not something in which a discretion is involved, but I must regard it as an instrument by which certain persons in the position of trustees seek to delegate their trust, which I hold cannot be done ; the maxim of law being that a delegated authority cannot be redelegated. Having said thus much with regard to the second point raised, it will be unnecessary for rne to cuter upo ■ the third objection. Upon the second point, therefore, for the reasons stated, I consider that the plaintiffs must be nonsuited. Plaintiffs nonsuited. Civil Cases. Pride v. Taggart—A claim for 1.5 Ids fid, for goods supplied. Judgment by default for the, plaintiff, with costs. Harris v. Rutherford—Ll Is, for goods. Judgment by default for the plaintiff, with costs.