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COURT OF APPEAL.

Thursday, November 30.

(Before their Honors the Chief Justice, Mr. Justice Johnston, Mr. Justice Williams, and Mr. Justice Gillies.) .; The Court of Appeal sat at 11 o’clock, and proceeded to consider the case BROGDEN AND SONS V. THE QUEEN. Mr. Allan appeared for the Crown, and Mr. Travers tor the Messrs, Brogden. Mr. Allan siad that he appeared for the Solicitor-General, and stated that there had been a demurrer by the petitioners to , the pleadings, and the Chief Justice had ordered that so , far as the second plea was concerned, the demurrer was allowed, leave being granted to the petitioners to reply, on payment of costs. Mr. Travers had subsequently obtained a rule nisi, that the Crown should show cause why the order of the Chief Justice should not be so amended that the petitioners might enter up judgment on their demurrer. He was there to show cause. Mr. Travers, in reply to the Court, explained that the first plea had been abandoned, and he claimed for judgment to be entered for the Messrs. Brogden on the second plea. The third plea on the record remained undisposed of. He had obtained leave, and had replied to the second plea. Mr. Allan said that the decision of the Court on the demurrer was for the Crown on the second plea. Leave was then given to the petitioners to amend on payment of costs. He had thought that nothing would have been done until the costs were paid. His Honor Mr. Justice Johnston said that he understood Mr. Allan’s position was simply to show cause against the rule. His Honor the Chief Justice asked would Mr. Allan withdraw the other plea ? Mr. Allan said that the demurrer must stand over until, the issues of facts on the second plea were determined. He had no objection to the Court certifying for the petitioner on the third plea. j .

His Honor the Chief Justice asked why judgment should not be signed en the third plea? His Honor Mr. Justice Gillies said that the result would be judgment on the demurrer as to the second plea for the Crown, and on the third plea tor the petitioner. His Honor the Chief Justice thought that justice would be done by amending the certificate.

.The rule was made absolute, the certificate being, amended, giving judgment on the de.

ranrrer as to the second plea against the petitioners, and as to the third plea in their favor.

HARRISON (EXECUTOR, &0.) V. REID (SOLICITOR' GENERAL) AND (OTHERS.

This was a suit for a decree for administration of the estate of George Bees, deceased, the point at issue being the trusts of a bequest contained in the will of the deceased, for. the benefit of a school at Wanganui. i ! ' Mr. Chapman appeared for the heir at law, John Balpb Bees ; Mr. Hart for the trustee and executor of the will, Henry Shafto Harrison ; Mr. Allan for the Solicitor-General, and Mr. Brandon for the Wellington Education .Board, who claimed to be the body entitled by law to administer the bequest. Mr. Chapman , stated that this was a case removed by order of the Chief Justice to the Court of Appeal. The heir at law had not originally been a party to the suit, but had since been joined, and to all intents and purposes it was an original suit. The plaintiff was executor and trustee under the will, and asked for administration. He apprehended that the Court would deal with the suit as the Court of Chancery would with an administration bill. He then read the printed statement of the ease at length, and: said that he would first call the attention of, the Court to the dates of the various events, as showing whether the legacy vested in the old school committee under the Education Act of 1855. The will provided for payment to such educational body as should then— ie., on the death of the tenant for life—be capable of applying it in Wanganui. The tenant for life died in October, 1871. On the 3rd May, 1870, a meeting of electors was duly called, and a committee of 12 • elected. The committee should have been elected for the ensuing year, and a meeting of ratepayers should have been summoned by the committee on the 3rd of May following. This, however, was not the case, which would prevent the legacy from vesting in anybody under the Act, and it did not appear from the case that there was any other educational body within the meaning of the devise.

His Honor Mr. Justice Johnston pointed out that the school existed, and although there was no corporation yet there was the object of the charity.Mr. Chapman then proceeded, and said that it was not to be presumed that because the school was subsidised by the Government it was therefore a public school. During the first year the committee would have taken the legacy if it had fallen in, but after that the school ceased to be a school within the meaning of the Ordinance, and on the death of the tenant for .life had no right or title to the legacy. ' His Honor Mr. Justice Gillies pointed out that the institution existed de facto, although not de jure. Mr. Chapman thought that as a body it had ceased to exist. The Superintendent, under section 3 of the Act of 1871, had power to keep'the committee alive in case of neglect by them in this behalf, but it required some overt act on his part, and he had power even to appoint a new school committee. TTia Honor Mr. Justice Williams thought that this power vested in the Superintendent shewed clearly that the school was a public institution.

Mr. Chapman said that the committee had to take the school under their control to make it a school under the Act. At the time of the falling in,of the legacy there was no properly elected committee, and consequently there was no body to take the benefit of the gift. The Education Board had power to aid schools not established under the Act, which appeared to contemplate the subsidising of private schools, so the fact of such support being accorded to the school in question would not make it a public school. The Act of 1871 provided for the creation of a Board which should be a corporation, with certain powers and duties, and when the old committee ceased to exist under that Act, the schools came under the control of this Board. It could be no more said that the schools’were under the authority and sanction of the Provincial Government than that a bank clerk was under the General Government. The Board was a close corporation, entirely independent of,the Provincial Government. The Education Board could not be termed a trustee, director, governor, manager, or commitee of the school, so as to come within the- terms of the devise. The Board was created for the whole Province of Wellington, and it was only on an application of the cy pres doctrine that the legacy could be handed over to them, not that he would admit that the cy pres doctrine was applicable. His Honor, Mr. Justice Williams pointed out that the trustees were merely a conduit pipe, and it was more to the object of the trust the Court would look.

Mr. Chapman submitted that the heir-at-law was entitled, as there was no body capable of taking the benefit of the trust. If their Honors considered that there was no such body he would then have to deal -with the question of 'ey pres. He would first call attention to the defect in the proclamation. He had only been able to find one case, which he hoped the. Court would allow him to mention later on in the case. The division into districts was a condition precedent to the proclamation that the Act should come into force in particular districts. As to cypres, the rule established was that if there was a gift to a particular charitable institution which bad ceased to exist without any apparent intention that the gift should be extended, or showing, any general charitable intention, the doctrine did not apply. , Hayter r. Trewell showed that a simple gift without any further words did not justify the application of the doctrine. Marsh v. Attorney-General, 30 L.J.,' Chan. 233,' appeared to apply to the present case. As there was .no institution existing at the time of the bequest falling in, and no general charitable intention could be gathered from the will, he w mld submit that the heir would become entitled.

His Honor Mr. Justice Johnston pointed out that in the Attorney-General v. Bunny the whole principle of charitable funds and bequests was considered by the Courts. The cases cited by Mr.. Chapman referred to private institutions only. Mr. Brandon said that all schools of learning came within the equity of the ’ statute of Elizabeth. ,

His Honor Mr. Justice Johnston said that in the Attorney-General v. Heelis, it was laid down that the origin of the trust was the important matter for consideration. Mr. Chapman then said that as to costs he would like to point out that the heir had been made a party to the suit, and even if he did not succeed he would be entitled to costs. The case was practically a motion for decree, and the Court could at once make a final decree as to whether or not he was entitled. It was admitted that John Ralph Rees was the heir-at-law, and he was entitled to move for . a decree with costs, as between attorney and client. Harlow v. Harlow, L.- Rep. 20 Eq., 780, and Miles v. Harrison, L. Rep., 9 Chan. App. 316, bore upon this subject. In charity oases the heir will be allowed costs as between solicitor and client, to which principle the following cases applied : —Currie v. Pye 17 Vesey 468 ; James v. James 11 Bevan 397 ; and the Attorney-General v. Bevan 4 Bevan 299. The question was, has the heir been vexatious, which was illustrated by Blenkhorn v. Eeist, Dickinson 143. A question had arisen as to whether the devise was void under the Mortmain Act, but the cases seemed clear that the statute did not apply to the colonies. Mr. Hart, for the executor and trustee, referred to the particular terms of the bequest, and said that the Education Board was constitrfted for the whole province of "Wellington, and, although Wanganui was in the province, he thought that the Board was not such a body as that contemplated by the testator for the management of the bequest. He weuld submit that in any case there should be a special direction as : to the administration of the fund. ' <

Mr. Allan, for the Solicitor-General, said that in his opinion the Board would take the bequest without the application of the cy pres doctrine. The intention of the testator was to benefit a school at Wanganui, and the question of the particular body which should administer the trust was immaterial. It was a mere question of carrying the benefit from the donor to the receivers. His position'was simply to state

an opinion as to whether cy pres should be applied or not. He was simply there to protect the public interest, and as to the suggestion of a scheme, he would only say that the view previously expressed as to a direction in the decree as to the administration of the fund in Wanganui was quite satisfactory to him; The testator did not contemplate. that the money should be applied to the education of a few European children and a large number of Maoris, and this matter should be seen to. . Mr. Chapman said that the Board was not empowered to educate native children living with their tribes.

Mr. Brandon pointed out that the capitation rates for children were not abolished, and the terms of the bequest could easily be complied with, so far as European children were concerned.

Mr. Allan, in reply to the Court, said that if the Court applied cy pres, and found that the Board was carrying on such an institution at Wanganui as was contemplated by the will, there would bo no necessity for a scheme. Mr. Brandon said that the Board had full power to appoint a committee to carry out the trust.

Mr. Allan said that the case—the Society for the Propagation of the Gospel v. the Attorney-General—dealt with the question of a scheme. He would apply for costs as between solicitor and client.

A similar application was made by Mr. Brandon and Mr. Hart.

The Court intimated that they would find a decree in favor of the Board. . Minutes of the decree to be prepared by Mr. Brandon and submitted to the other counsel, and then to the Court.

Some discussion took place as to the form which the decree should take, and the Court adjourned until next day, at half-past three o’clock.

Permanent link to this item
Hononga pūmau ki tēnei tūemi

https://paperspast.natlib.govt.nz/newspapers/NZTIM18761201.2.14

Bibliographic details
Ngā taipitopito pukapuka

New Zealand Times, Volume XXXI, Issue 4897, 1 December 1876, Page 2

Word count
Tapeke kupu
2,172

COURT OF APPEAL. New Zealand Times, Volume XXXI, Issue 4897, 1 December 1876, Page 2

COURT OF APPEAL. New Zealand Times, Volume XXXI, Issue 4897, 1 December 1876, Page 2

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