LAW REPORTS.

Dominion, Volume 1, Issue 185, 30 April 1908, Page 4

LAW REPORTS.

COURT OF APPEAL. ALLGCED BREAKING AND ENTERINC APPLICATION FOR A NEW TRIAL. The sittings of the Court, of Appeal v.'ci resumed yestorday, when, first of all, furtlu argument was hoard relative to the applic: tion of Frank Sales for a new trial on tli ground that tho verdict in his caso w.i against tho weight of evidence. Sak and one 'James M'lntyro wero indict-e jointly. for breaking • and entering tli house of tho Rev. John Mackoimo i Christchurch and stealing therefrom jewe lery and money to tho value of £57 10s and were both convicted and sentenced.. MivNoave,. who appeared in support of th motion, had submitted on the previous da that thero'was 110 direct evidence to connec prisoner with tlio robbery. . Mr. Myers, who represented tho, Crowi contended that tho evidence, which was cii cumstant-ial, was amply sufficient to. justif tho jury in bringing in a verdict, of guilt;) i'ho Court decided to tako timo. to coi sider its judgment. A WANCAMU! CASE, , CONVICTIONS QUASHED. 'The next case taken was that of,the.Kin v. Edwai'd Richard Black, alias Wilson, alia Mayman; Omrigis Tolley, alias Freeman, an Elizabeth Black, alias .Freeman, a matte reserved, for-.the opinion of tho Court. 'Tho prisoners were tried jointly at. Wan gaimi by Mr. Justico Cooper on' February li 1908, 011 a charge of having broken ail entered the dwclling-houso'.of. William Henr Andrews 011 New dear's Day,, and bavin stolen therefrom certain articles' of jeweller j Evidence was tendered to" the . efiect ~tha " ollcy_ and the female prisoner wero seen i: tho vicinity of Andrews's residence about p.m. on the date in que-stion. The prisoner left Wanganui on the morning of January by tho T o'clock train south. On tho follow ing morning a platelayer picked up on th railway lino between Feilding and Palmersto; a silver watch, which had been identified a part of tho stolen property, and 011 Januar ■I a boy named King picked up a glovo (be lievod to bo tho'property of Andrews) stuffa with jewellery, part of which had been iden tified. as jewellery stolen from Andrew's' residence, and the rest as the' propert; of Mr. Bullock, who also resides at Waii ganui. The prisoners called 110 pvidonco, am did not give evidence 011' their own behalf but Black'addressed'tho''jury' 011 behalf 0 all the prisoners, stating that they knc\ nothing of 1 tho offence,' aiid wore hot guilty Having a doubt .whether there was any. evj denco to go to tho jury upon which the could properly' convict tho prisoners, Hi' Honour reserved tho.question for,the Cour °f Appeal, ■ and loft tho case to the jury which, after a long retirement, found th prisoners guilty, whereupon senteiico: wa postponed until the decision of the Court 0 Appeal upon the questions reserved, and ii tho meantimo tlio prisoners'' were comuiittci to prison. '■ The questions for the opinion of tho Cour were:— . (1) Was there any evidence upon which tli jury could properly convict tho prisoners? ; (2) Ought His Honour to havo directed th jury to acquit tlio prisoners P The. Court inquired of Mr. Myers -whet-he ho thought ho could' support the conviction Mr, Justico Cooper:- I told tlio jury tacquit the- prisoners, but I did not direc thora to.do.co. : Mr. Myers: It- is certainly a very weal case, therefore I don't proposo to arguo it. Mr.. Justico- Cooper: I was so dissatisfies with t-ho/vordict, .that :I .decided to stato ; case.'. , - ' Tho Court quashed- the convictions, -an< ord.ered tho prisoners: to-be released. f 'PURCHASE OF AN' HOTEL 1 ." CLAIM FOR 'SPECIFIC PERFORMANCE ■ . r AN IMPORTANT POINT. ■' Argument was then heard in "resnect 0 tho 'ca.se - between ! Margaret ".Quill (plaintiff and Archibald Hall (defendant), which hat boon jemoved- from tlio Supremo"''Court to Mr. Justice Cooler. . .Mr.' Skerrett, *K.C. (with him Mr. Ostler appeared on behalf of tho ; nlaintiff, and Mr Chapman, K.C; (with him Mr. Atkinson) fo the defendant. • : : The caso as stated by agreement of th< parties was .briefly as follows:—Plaintiff upon tho death of her husband, Denis Quill on March 4, 1907, booame licensee in h n own name of tho 'Railway Hotel, Otaki Shortly afterwards, through an ' agent ' shi 'offered, tho promises as 'a'- going' concern' t< defendant, who was a gentleman of substan tial and independent means, for £10,000. 1 was to bo assumed (although denied by plain tiff) that the agent informed tho de'fendan that .the plaintiff had the power to deal witl .the property as proposed, and. that overy thing wag left to iter by her husband's 'will On January 30, 1903, an agreement wa; draivn up and signed wherebv defendant wa: to become the owner of tho buildings of tin hotel,- togethor with the. land, hconso,''"oo'd will, 'business, and effects (not' includiiii the stock of liquors and tobacco), on thi following terms Payment of £500 as i deposit, £4500 on March 2, 190S, and tin execution of a mortgage for three years fo £5000 to secure the" balance of the amoun agroed on. .Tho purchase monev-was deem ed ;to bo apportioned as follows For thi nniL 8 ' bnilt " n 2s,' an( l other improvements £2o00; for the license, goodwill, and busi uoss, £7000; for tho offects, "£SOO. Tin hour at which tlio agreement, was signed wa: late,, and as defendant could not "obtain i solicitor ho instructed plaintiff's solicitor, ti act also for him, and to apply to.tho Licens ing Bench for a transfer of the license. Oi February 29 dofendant-for tho first tim< learned the-contents of. tlio-will of plain tiff's husband, and on the same date hi solicitor at Otalii saw plaintiff's-: solicitor and raised tho point that tho contract o snlo was not authorised by the will; thi .plaintiff) not. having oower to .tako such ■ mortgago as that provided for. Defendant'' solicitor on February 29 also asked plaintiff' solicitor to rescind the contract, urging' tlia tho Magistrate had attached. conditions i tho grant of the, license which defendant wa unable or unwilling to perform, and wrofr -requesting that, plaintiff would' oxtend tin agreement so that the completion would b postponed until the licensing meeting ii Juiio. Plaintiff agreed to postpono com plotion uutiF March (j. • , The following' reasons wero submitted lv defendant''in support of his contention "tha" .tho contract was an improper contract "fo trusteos to 'enter into:— ; (1) That it constituted i the investment, o part of tho trust moneys on an improper am inadequate security, the land value formim an insufficient security in amount, owinn- ti a mateiial part of its value to t-ho circum stanco of its being a licensed bouse am thoreforo'.: being" of a -fluctuating'■ an< hazardous nature. (2) lhat the security was also . imprope foi; trustees, because part thereof consists of chattels and the stock-in-trade of a public house being of a wasting nature, and bcin< tlio private.property of : the plaintiff. '' (3| That the purchase was of- property be longing in part to the trust estate, and ii part to the plaintiff, absolutely, and then was no moans of separating the values am 'that the samo objection applied to the mono' to bo left on mortgage. (4) That the defendant' could not he coin polled specifically to perform the contract having :\ctual knowledge and notice of tb< will, aiid the trusts, and for the foregoin; reasons, r.nd also because the contract wa; not nmhr.'.l. On tho other hand, tho plaintiff's submis sions wero r.s follows: — \ (.1) That the plaintiff hai 1 . power to onto: into the contract, and that plaintiff, -being tlio registered proprietor, of "the land coin prised in the sale, could have <;ivon a goo< and valid title to the defendant, and thai tlio act of the defendant in accepting title would not he fraudulent, ' (2) That the dofondant ought to be com polled to specifically perform the contract. (I!) That the plaintiff could make u gooc t title to the defendant upon tho terms of thi

contract, she tho tenant for life of tho lands, beiii£ settled lands, and tho contract being one which the Court would approve of under tho Settled Lands Act, 18S6. The questions for the Court were:— (1) Had the plaintiff power under tho trusts of tho will, or as owner in feo of the 'land under tho Land Transfer\ Act, to sell tho; land and goods on tho terms of the contract, and in particular to leave on mortgage of the property the sum of £5000? (2) Was tho defendant under all tho circumstances bound to complete the contract? (3)' Ought tho -pkintilf 'under all the circumstances to bo permitted to make 1 title by appropriate proceedings under tho Settled Lands Act, 1886, authorising tho carrying out nf the s?.!e? ' " (4) If the Court decides that specific performance not to bo decreed, it is ngroed by tho plaintiff and defendant that tho defendant should have back his £500 deposit without deduction, and that the Court do - so order. (o) If tho Court is of opinion that specific performance to -be decreed, it should mako a decreo in such 1 form as niay be just. . , Argument had not concluded when tho Court adjourned until 10.30 this morning.