SUPREME COURT—IN BANCO.

New Zealand Times, Volume XXXIII, Issue 5524, 10 December 1878, Page 3

SUPREME COURT—IN BANCO.

Mondat, December 9. (Before hia Honor the Chief J ustice.) BROWN V. BRENNAN. In this caae the Court refused a rule nisi for a new trial. BARLOW V. NICHOLSON. Hia Honor delivered judgment in the following terms: — The plaintiff sued the defendant on a special contract of deposit with the defendant of a stun of £IBO aa a guarantee of the honesty of one McLean. There ia also a count for money had and received and for money lent, and for interest on money lent. The case, as opened to the jury and aa alleged in the pleadings, was a contract made between the plaintiff and defendant. There -is no indication ia the pleadings, nor was there in the opening, that the transaction was an unauthorised contract made by McLean on behalf of Barlow without his authority, but subsequently ratified and adopted by Barlow. The plaintiff and McLean and one Waters were examined on behalf of the plaintiff. At the trial the plaintiff was non-suited, on the ground that the evidence showed no contract between Barlow and the defendant, bnt only a loan from Barlow to McLean, and a deposit by McLean with defendant of the same money so borrowed. Mr. Ollivier, in moving for the rule, contended, as I understood him, that though the money was lent by the plaintiff to McLean, yet he McLean, in the name of Barlow, contracted with the defendant fer tile deposit, and that Barlow afterwards ratified this contract. To support this contention it is necessary that there should be some substantial evidence upon which the jury could' reasonably conclude (Ist) that there was a contract of deposit in which McLean did not profess to act for himself, but did profess to act as agent for Barlow ; (2nd) that there was a ratification and adoption of the contract by Barlow. Now, though after again considering the evidence, I find myself unable to come to any different conclusion than that I entertained at the trial, I think the case sufficiently peculiar as to make me disinclined to refuse the rule. I think the plaintiff may taka the rule to show cause. VALENTINE V. DESMOND. His Honor, in delivering judgment, saidj— As to the preliminary objection, assuming that the respondent could raise the objection at the hearing, which I doubt, then he has not shown that any condition precedent to the right of appeal has not been performed,—the only condition precedent is the giving the security within the time limited. - There is no pretence that that has not been performed. There had heen great delay in stating the case, but it does not appear that that is attributable to the appellant. I think that whore the respondent has any objection to the hearing of the appeal on the ground of default of the appellant in proceeding with it, he should make a substantive motion, founded on affidavits, to strike the case out of the list. •• The appellant would then have to show cause : and be prepared with affidavits in reply. In this caae it does not appear that the appellant had notice of 'any such motion ; indeed no such motion has been made. After some discussion between Messrs. 01Uvier and Buckley, it was decided to refer the matter back to the Resident Magistrate, for a re-hearing, in terms agreed upon. WEBBER V. WRIGHT. His Honor : Since hearing the argument X have had an opportunity of looking into the authorities mentioned, but I have found nothing to alter the view I took, and which also appears to have been the view taken by Mr. Justice Richmond when the question was before him in a somewhat different aspect in chambers, viz,, that notwithstanding there is a power to be exercised by the trustees at the request and by the direction of tho tenant for life, nevertheless the exercise of that power is within their discretion. Tho authorities also show that where tho trustees have a discretion that discretion is not to be used solely in tho interests of tbe tenant for life, but that tho trustees' must take an impartial view of the interests of all. At the same time I am bound to say a Court of Equity will hot interfere with the discretion of trustees unless it is shown that they have committed or are about to commit a breach of trust. Tho question is whether this declaration shows that the trustees are about to commit what is equivalent to a breach of trust, whether they are about to exercise the power they have in a manner which will be so detrimental to the interests of those who come after.the tenant for life as:t show they are. not fairly and Impartially exercising their discretion, The first fact which seems to he of considerable importance is the fact that a very short time ago, at tho end of last year, the trua-' tees and the tenant .for life granted a lease under tbe powers of leasing, which I case, accordtc to dsolotatloß, creates the ivijol* difficulty

here. The declaration alleges that to sell this land subject to tho lease must be very detrimental to the interest of tho other cestui fine trust than the tenant for life. This statement, which no doubt to a great extent involves matter of opinion, though at the same time involving matter of fact, is admitted by the demurrer. Paragraph 15 says, “That the sale of the said property, subject to tho said lease, would be in the highest degree detrimental to the interests of all parties interested therein, except the said John Fortescue Evelyn Wright, who would obtain therefrom an immediate income exceeding the rent now reserved under the said lease.” Paragraph 16 says, “That tho existence of tho said lease renders it impossible to dispose of the aaid property for any price at all adequate to its actual value, and the plaintiff avers that the price obtainable will increase year by year as the unoxpired term of the said lease becomes shorter.” Clause 17 avers that great advantage would accrue to plaintiff and other grandchildren if the sale were postponed, because of tho rapid increase going on in the value of property year by year. These aro matters of fact which must be inquired into bona fide in tho interests of all parties. I have therefore come to the conclusion that there is something to be answered, although I do not say that the relief which tho plaintiff asks is the relief which the Court would give. The demurrer therefore cannot be supported. HAWORTH V. MALFROT. This was a demurrer to plaintiff’s declaration. The declaration set forth that plaintiff, defendant, and others, being sawmillers on the West Coast, had entered into an agreement by which they had agreed to fix the producing price of certain timbers for exportation from. Hokitika at a certain sum, and tho selling price at another sum, and further bound themselves that all moneys received by each or any of them in excess of tho said selling price should bo thrown into hotch-potch and divided amongst all. Plaintiff complained that defendants bad received certain moneys in excess of the selling price agreed upon, but that they had failed to produce accounts. Plaintiff prayed for relief as against the other members of the partnership. This was demurred to by defendant on the ground that as such partnerships were illegal plaintiff had no right of action, and after argument upon the law bearing on the subject had been heard the Court took time to consider its judgment. His Honor held first that the contract had not such a general bearing as would bring it within the bid English laws passed to prevent trade being restrained, and further expressed the opinion that tho law defendant sought to be applied to this case had no existence in the colony at any rate. The Court then rose.