APPEAL COURT.

Press, Volume LVIII, Issue 11012, 9 July 1901, Page 2

APPEAL COURT.

v . A CHRISTGHUROH CASE, . '' {FBESS* ASSOCIATION TeLeGBA»£) ,WEWuIN<S.TON, July 8.. The case off Rex' v Kirk was argued in. the Court of "Appeal this morning.' "This" is the Orouro case reserved for consideration o! the Court, of Appeal by Mr Justice j Cooper. Accused was employed by Beath and Company. Chrirtohwrch,' drapers and outfitters, under a written agreement, as canvasser and agent. Under the agreement in question, B?ath and Company were to supply goods to customers introduced and recommended by accused, and agreed to pay the accused a commission of ten par cent. on alt moneys collected by him on Ins depositing such moneys with them. Accused agreed to pay to them at least once a w«ek all cash collected by him. Atl sales made and-all cosh received were to be nominally in the name of the accused, but it was expressly agreed that no proprietary right in. Amy goods, cash or business, should vest in accused, but that they should be the sole property of Beath and Company. Accused absolutely guaranteed Beath and Company against afa loss by bad debts incurred in any trensactiotas with customers introduced by him. Accused, during the period from January to November, 1900, failed to pay over the amounts collected to the extent m all of £295. The books were' properly and the materials in the way of .accounts and books furnished to Beath and Company appear to have been sufficient to l*ave enabled them to ascertain the fact of the deficiency*. They were, in fact, unaware, however, of what was taking place. The jury found the accused 'had fraudulently omitted to pay and account to Beath and Co. for the money received by him. At the request of counsel for the accused, three questions were reserved for consideration of the Court of Appeal, namely: —First, was the accused a servant of Beath and Co. within the meaning of the Criminal Code Act; secondly, did he receive moneys on terms requiring him to pay or , to account for the same to Beath and Co.; and thirdly, was, the true relation between the accused and Beath and Co. that of debtor and creditor only. Mr G. Harper appeared for the accused, and Mr Bell for the Crown. The*}uestion argued turned mainly on the provision of section 220 of the Criminal Code Act, 1893, After argument the Court unanimously held the accused was not a servant of Beath and Co., bub that he came within the first clause of section 220? and had not brought himself within the exemption contained in the second clause of that section. The Court therefore unanimously decided that the conviction must be sustained. The Court was occupied this afternoon with the consideration of a case in re a lease by Watchorn and another to Preece. This • is an appeal from the decision of the Chief Justice, and involved a question of the jurisdiction of the Supreme Court under section 25 of.the Supreme Court Act, 1882, to grant relief where an option to purchase under a purchasing clause in a lease has been lost through the non-performance of the conyenante of the 'lease. The appellants in 1898 granted' a lease to the respondent of certain premises in Palmereton North. The lease provided that if all the rent should be punctually ■ paid, and all the covenants and .provisions of the lease should be performed and observed then the lessee should be at liberty at any time before the 4th of April, 1893, to purchase the freehold for £1250 cash. The lease contained a clause of reentry, or failure to pay rent within twentyone days ifrom due date, or on a breach of any covenant. The rent was never paid on due date, but always, except in one case, within twenty-one days. The lessee alleges that she considered she had twentyone days' grace in each case, and that a payment within twenty-one days would be a punctual payment. The lessors claim that owing to unpunctual payment the lessee never became entitled to exercise the option of purchase. The lessee, however, gave notice exercising the option, and sought relief from the Supreme Court under the above section. The Chief Justice granted the relief aa asked, and the lessors now appeal'!

from this decision, Mr Skerrett is appearing for the appellants and Mr M. Chapman for the respondent. The case is being argued before Judges Williams, Denniston, Conolly, Edwards, and Cooper. For the appellants it is argued-that, the words of section 25 of the Supreme Court Act, 1882, do no* apply to a case of mere option to purchase, but only, to a case where the option has been exercised before a breach, and a right has accrued which is forfeited by a sub-sequent-breach. On the contention of tlie appellant, which was upheld in the Court below, the section applies to the case of mere optipii to purchase, and «nables relief to be granted where, there has been a breach of the condition precedent to the exercise of the option. Argument was not concluded when the Court rose for the day. ,