R.M. COURT.

Wairarapa Daily Times, Volume 5, Issue 1399, 8 June 1883, Page 2

R.M. COURT.

MASIERTON—THURSDAY. ~ (Before H. S. Wardell, R.M.) Donald v. Maxton, continued. Oit the; Court resuming, James Bentley deposed lie was secretary and tr(#surer of the Volunteer Band in 1881. He remembered a soiree being got up to purchase' instruments for the Masterton Yolunteer Band.; There was a surplus of £l2 placed in the Bank to tlie Volunteer Bancl account. Cheques were to be signed by Captain Ruck and the secretary, ' Captain Ruck was treasurer of the corps.- They purchased a circular euphonium and an E flat tenor saxehorn, The witness paid for these instruments by cheque sighed by Captain Ruck; " Purchased the tenor horn from Mr Gattscha for ,£l, ss, and the euphonium'from Mr Corbett, The tenor horn was left in charge of the band: master—Mr .Pearson. > The instrument was afterwards issued •to Thomas Roydhouse, who was a member of the Band. Had seen it since in possession of Maxton, who joined the corps. Had also seen it since Maxton left the corps. •" :

To.Mr Bunny ; I belonged to the town band before joining the corps, The instruments used then were Trust instruments, belonging to the town. The tenor horn was not one of those. I was not a member of the band when it joined the Volunteers, The band did not join in a body. The present Volunteer band started in 1879.' The money the band earned was distinct and separate from the funds of the company. AH the money was divided amongst the members of the band. I never lodged any money in the Bank—we divided it at once. The funds did not belong! in any way to the company. The band paid for uniforms, music, &0,, but no instruments, The soiree and concert in 1881 was got up by the officers of the Volunteers, and others interested. The ■ credit entry in the cash book on June Ist of £l2 10s 4d was the amount realised by that soiree. No part of . it was used for the purchase of instruments, but paid for uniforms. The sum was used by the band alone. The instruments used at this time were the Town (trust) instruments. I purchased the. instrument from Gattschafromraoneyoutofbandaccount. The money for instruments was paid in by Captain Ruck in our joint names specially. . I do not know when the concert for instruments was held/ I cannot swear that the concert in June or July was solely for the purpose of purchasing instruments. I feel positive it was though. The, balance I handed over was' £1 12s. I don't think Captain Buck could have placed the £l2 to a separate account, We used to divide all the money we received, The £l2 formed part of the- Company's money, not the band. Mr Gattscba (presented certain instruments to the band. I consider they then became the property of the Company. Out of the £l2 the band presented a locket and address to him for his kiudness. I do not remember any' instruments being signed for ; they were supposed to have been, but never were, ido not remember stating when I purchased the. saxehorn that'if we went on in this manner we Should be altogether: independent of the Volunteers. Mr Bunnypbmted.bufcat this stage that the defendant had not the slightest interest in the issue of this matter.

■ His Worship :i;6f course we recognise that. .•

: To Mr Beard: I only remember two concerts in aid of the band.

V Mr Beard read an\dvoifci?emejit inthe Wily of a grand concert .and ball on Whit-Monday, 1881, iii aid of the baifd.' Mr Bunny i Who is the a 4 went signed by I Mr Beard: By God £|avo The Queen ["-(Laughter), ■' • Witness in answer.? to Mr Beard: Tbe.iValue of the Saxehom was about 15,: That was. its value when nejy. The Saxehorn was not purchased for the Masterton Town Band. Donald Donald, Captain commanding the Masterton Rifles, awn, de-

==. posed that he served ..defendant with • - formal notice to deliver up the tenon 's horn. , ' "'

To Mr Bunny: 'Remembered J 'imeeting of the Band of which he was chairman, ; at which it was resolved - :h' that Bandsman McKenzie's instrument be brought by the Bflnd for £5. -Did not recollect spying that the Company would have nothing to do with McKenzie's instrument ,as it v 7 would belong to the Band. •' To Mr Beard: I took the chair at the. invitation of the members of tho members of the Band present. I was ; present by accident. I took the ;• - chair in my capacity as captain of the ~>• corps,

To Mr. Bunny: I had never re-, ceived any noticed meetings of the Band.

To the Court: There'are-a number of instruments belonging to the Com- • pany which are used by the Band, They, were handed ovfir to tho Band- !• master who gives' ine a receipt for them, and gets receipts from the' << Bandsmen. Do not know personally rwhether the tenor-horn now sued for was ever in possession; of the Corps. The Band-master was paid by the Corps. I cannot swear tlmtthe instru- ' ment has eveivbeen used oh parade. H. Bentley produced a liook shewing the property of . the corps, which included the tenor-horn sued for, It was the property of tlie corps.

To Mr Bunny:. The entries wore • made some timeago—this year—within the last two. months—before it was decided rto sue. - I. entered; it by instruction of James- Bentley,.'who; was former secretary of the band; He was not secretary, to.the band when he told me to enter the lam secretary of the corps, hot the band. The original instruments were given by the volunteers. The other instruments belonged to the company because the • at entertainments, kis. "' 3 ' " This was thf^ !v foi«,the plaintiff. Mr the plaintiff must fail on grounds. First, they had failed tojjrove the identity of the instrument, Fad,not,even had it--* produced in Court. Second, that the instruments had never in any case become the property of the commanding officer as mentioned in the : Act. They must - ; be showii to. bei the, propertyof the company either by purchase or gift. There had never been a shilling of tho company's money spent for- 'an/instru-: went. -■ Capt. Donald j admitted that the bulk of tlie instruments belonged . to the town and not to the, corps. It was only in tlie last two months that the secretary of the corps had thought • * it right to make out a list of the ■ instruments as baM property. Plaintiff had . also, failed:: to show that the present volunteer corps had been accepted by the Governor. - '

His Worship held the identity was sufficiently shown,'as it was 'admitted by defendant that it was the one used by him. With regard to the instruments not being purchased by the Corps, he held the proceeds of playing must go to the funds of the Corps band, which: really had no separate' existence,'and instruments .purchased by it must, become, the property of tho ,(iorps,' If spent otherwise it would really have been consumed by members of the Corps, With regard to the contention that the services of the Corps must have been proved to havij beon accepted by the Governor, he ruled against Mr Bunny, as the Corps existed and held public parades. Thomas Warner deposed■. was a member of the band previous to a Yolunteer Corps being formed. We were induced to join the volunteers as a band, to,act as a volunteer band and a town band. The arrangement was come to at a meeting between the band and the officers of the Corps, viz, Captain Ruck and Lieuts/Wyllie and Donald. The band was to bp. allowed to manage its own affairs, and do what it liked with the money it earned. The instrument we used were the town instruments, subscribed, fot by the public and vested in Trustees, The Corps borrowed them,

The R,M, could not see that the band could be both a volunteer < and a town band; 7

Mr Bunny said if the Court intended torule- whatever he showed—that the band had not a separate existence, he might as well throw up the case. Witness continued:; We held the same instruments after joining the Company we had before. ■ Several of the instruments now on the book were not entered at the time J signed it. Signed for an instrumfc..branded M.8.8. • Remember euphonium and a saxehorn being purchased by the band fund, Held position as treasurer for a time, but did not remember purchasing : any, instruments for the band, ; Remember Mr Gattscba presenting an instrument to the band. I; still, belong to the town band, and do not consider the instruments we have belong to the Volunteers. Remember concerts being held for the benefit ,pf tlie band, arid thenett proceeds were-placed to the credit of the bantK fund. Never "remembered any concert given for the specific purpose of purchasing instruments. Bad-been a member of the- band since 1879 to January last.; The euphonium ,and saxehorn were used by the band.up to the time I left it. To Mr Beard: The twoinstrumente were used up to the time I left, and the the same man7-yiz.7 Mr Maxton. Her member tlie late Captain Ruck making arrangements'.with.' tho old town bans for them to become a Volunteer ..-Baud.' They were alj sworn in as members of the corps, fjiftbandruled themselves, ■■aiid^bad^chargOfof'their/own funds, Never t from the Captain. gefcrthe jttpmbeni' of thg band tcj sign ; property JJu| not talce fltjiaefjye part in arranging bgncerta, ijut kjiew they wpre foy tjjg Witt"'''' i' ' ' By Mp.Bpny! 'Waaasked for ajid I returned the. instrument I.signed for op leaving the-Band. The Court then adjourned for an hour!; On 'resumingiThom'as, /Tierney deposed he waa' a- member' pf "the y olunteer for tjiree .years pj) to January last, when he refus'ed to join it under the new-regulation. . Was still a member of the Corps. Was aware that the Band had-a separate

! fund at their own disposal. Was not aware of the tonus under, which the • : , T6wn Bam! joined the Volunteers, The ; ; .liSaxohorn'held by Miixtbn l iyas pur- ' tion of the members] After it was purchased itwas given to T.'Roydhouse, Did not know whether ho was a „Uv member, of the' Corps!- kemember a . meeting being hold in August at which - Captain. Donald was 1 present. The Captain did not tako part in the dis- > "'! cuasion as he said lm I mil, nothing to V 'do with the private alFaii b- of the Hand. 'Tit'/..'.The discussion was in • reference to

purchasing a baritone from Air ; McKenzie. Remembered Sergei tit Dalrymple bringing a book with a lit t (!<>: of the instruments of the Band (list , ; produced). The instrument in dispute ■ is not in the list. The Sergeant Bsiid " I believe the list is correct," I said "Yes" .. The Court; There are two horns in the list. ~ > Witness: Those two bear thebrand, the other does not. Remembered , signing a book for a B flat Cornet, i: which was purchased by the Band from one of their funds. Thero was two / \ funds one being a. private fund. Two ' cornets were purchased, but did not know to whom they were handed. In .-..February, last received notice to deliver . up my instrument, but got permission from the Captain to retain it being a : member, of the Corps. Eemembered a conversation with Sergeant , ' • Dalrymple, who suggested that a joint dtock company should be formed, and • each membet' should reoieve as many i shares as their interest in the Band 1 warrant. 1 By Mr Beard: Was not a member of the volunteer band, in fact, did not , . . believe there was a recognised band, i-Was not turned out by a resolution of "• • tho band. Did not know much about the working of band committee. Knew - that concerts were held in aid of the band fund. Knew instruments were purchased by band funds. As I did -jX -■ not'sign cheques could not say what W fund it came out of, Captaiu Donald deposed that the . company was sworn in under the new regulations in January last, and he made a .claim for the instruments about the 12th of April. Did not think it necessary to claim them before as ho thought they would bo given up without, Did "" ' not press the claim, as the Government .. . oxtended the time to March 31st. Was aware there were two band funds. Did not know whether the accounts were open now. In one fund the ' ' - whole of the volunteers subscribed 10s oatih out of their capitation for the purchase of instruments, Two cornets • were paid for out of the fund, and these were tho only instruments paid for out of the fund. Remember W. McKenzie asking for a cheque for an amount that he had paid into the band account in mistake. I gave him a cheque to square the two accpunts. •; - By'Mr Beard: There were two accounts opened, one being a temporary one. There was a ( balance of about a shilling at present. Did not know , .who opened the accounts. Remember a meeting being held at which the discussion took place in reference to pur- ,•. chasing certain instruments. Whenever he attended at meetings he presided, " and always had the power to speak. By Mr Bunny: Did not exercise his power with reference to expending the money of (he band. Thought he had the power if he chose to exercise it. Was present at the band meetings, being anxious to see the band started, i By the Court: Did not consider it his duty to be present at the band meetings, ' By Mr Bunny: Did not know anything about the band funds, Had no control over them. W. McKenzie said he was a member of the old Volunteer band Joined . - 30th June, 1880, and continued up to December, 1882, During the latter part of 1882 was secretary of the band. The band fund was under the solo control of the members of; the band, The book produced was handed over to me by James Bentley, the late secretary, The money relating to one entry was expended in purchasing uniforms • .- f6r the members of. the band. They have still the uniforms, The company had a band ,account at the bank of Australasia. There, was another : aocount at the bank of New Zealand. Had paid monies in 'mistake to one hank arid so found out that there were . two bank accounts. : It was always understood that the company had no ' control over any property acquired by •'' them as a baud, but.it belonged to the , members of the band.- As a member ' of the band [ had an'instrument and • ■ have it now. It was purchased from ' me out of the private account; of the band fund,, When I left tho band the -•■ i; instrument was not demanded from - me. Was not asked to sign the coin- ■ ;' ! pany's property book by Sergt." Dalrymple as the Sergt.. did not think it ' was necessary as it did not belong to ■'■ the company. " Did not know who paid for the saxehorn, The reason the receipt to Signed by Captain JRnck; was because'he was appointed treasurer to the band fund instead of ono of the ordinary members, On his death Mr . Warner was appointed, .The band fund in the Bank, of Australasia was subscribed to by the members from ... their capitation—but only on ce. This fund was tinder the control of the ; , officers. We spent ,the money from ■ our own fund as we liked. ,;.. ..'By Mr Beard The! Soirete wero '.•always, .under the patronage of the Corps.' The funds of the band, were not subscribed' to by the' Corps,,, The, Corps only paid a bandmaster. Hail .. still an instrument, which belongs to the old Volunteer Batfd. Was not a • YQlljntcer jiow, so it belonged to the fqwti. bpd. * \V{\s time; left ih'e'ban'dr not Say bow jnany inptnmjenta were at present tjje tqwn band that were used in 'the Yoiiinteer Band, ; ' Was, not acquainted with the Yoluuteer Act with • respect to properties/4c. " Coiild-not say -whether; Captain Ruck was tieas'.urer of the band ;"'if it was not , an; unusual thing, as the band' could ap••point whom they' liked.lt : tya« not ' necessary he should be a j; mpniber ojf the band. . " ~ ! By .Mr Bunny: Did not know til) to-night ; that' the proceeds of tjie concerts'were; for'the pur6h'aS6 of instruments, although it had been sworn to

by some of the witnesses. The band had never been 'broken, up, but still continued ond, although they 'hud separated froni',the ; Company,' and'retain and '.'ckim -tlie instruments they? had. in the Volunteer Band.' ; This concluded the case for the defence.

His Worship said that the instruments had been purchased by monies from the band fund, and belonged to such members of the band who were a portion of the Volunteer Corps. He could not separate the two bodies, they wore part and parcel of each other. If tlioy spent the money in any other way, they were quite justified in so doing, - If they bought clothes, or made presents to any of their members, there was nothing to prevent them, but having bought instruments for the purposes of a Volunteer band, they be-, long to the commanding officer, and cannot be retained by any individual member of the band, The instrument having been acquired by the band for such purposes, it belongs to the Corps. His Worship therefore made ari order for the return of the instrument, or pay the value according to the amoiint claimed, Judgment was then; given for plaintiff with costs £2 12s. C. Dixon v O'Malley k Pepperell— Breach of contract. This case wus adjourned, for a fortnight by consent of both parties, : ■