COURT OF APPEAL.

Dominion, Volume 2, Issue 496, 1 May 1909, Page 15

COURT OF APPEAL.

.YESTERDAY'S PROCEEDINGS. A CONVICTION QUASHED. ''.'When the sittings of the Court of Appeal ;.-: 1 were resumed yesterday: consideration wa« .'. first of all given to a question reserved by Mr.. Juitica Williaas in ■ connection with th* ; oaso of the King versus Wm. Luby. . Tho accused was connoted at Dunedin on ani'.jndictment laid under Section 51, Sub- ■> seobion (a), of tho Police Ofenem' Act, 1908. •. Ho was. originally brought befors Mr. ,M«®l- - J.P., on .a'olmrge of .being a .reguvand- ■ vagabond in that ho. had insufficient liwful, : moans of support. Aftor tearing- accused's 'st«tenient,-;Mr, Moeller said t&at k« ws»:n»t' satisfied as tb,tke7>ccused'B.'Ke&nV H» therefore: decided that accused should g* ■ ' before the Magistrate. 'Whm the cs» cam« ■ on for hearing in tho Magistrate's Court ac- , cuscd elected to bo tried by a jury. : Upon , being, tried; before his Honour, accused was > convicted 'on charging him ■ .with being a' rogue and vagabond, .in that •>.he had failed to give a good-account, of his ■ moans of support when brought before Mr. ■■■'■ Mooller, : andhaving boon previously convicted as an idle and disorderly person on August 1,3905. His Honour doubted, whether the conviction ooilld bo sustained) and, pending tho decision of tho Court of Appeal, admitted prisoner to bail. vv . ... '.v. It was .admitted-,by Mr.'Myers, who ap- •■■■ poared on behalf of 'tho Crown: that the conviefcion could cot bo sustained.- 1 i i .Ihe conviction was quashed. i . MOTION FOR STAY OF EXECUTION. !i;. ; : - Application was then made for a.stay 'of. . execution in the caso of To Maire versus • Lysoar,. in -'connection ;with, which judgment ;;. was 'recently given afeainst "defendant; who • , had decided .to appeal. l ■■ . V. .'", Mr v Myers appeared in,support'of.the application, and Mr. Hislop to opposo. ' i ... Their Honours adjourned the hearing of tho X... application . until Wednesday, .intimating at'. , the samo time that'.unless strofig grounds ': were ehown in oppdsition tfioy thought that' tho party appealing was entitled almost 'as of . right to, a. stay of execution upon giving proper security to the Registrar of tho Court : from which ;tho appeal was brought. ' PROPOSED. SALE UNDER MORTGAGE. ' SOLICITOR VERSUS FARMER. Further argument was then beard with .re- : spect; to tho caso between John H. Miles: : solicitor,: Marton (appellant),: versus Edward V. Hussey, farmer, Marten (r«spond«*t). • ;Mr. Skerrett, &.C. . (with him Mr. Cook), appeared on behalf of . appellant, and Mr. Collins: (with him' Mr. Fitzgibbon) for the respondent. This was an appeal from a judgment delivered byiMr. Justice. Chapman. Hussey .claimed tho intervention> V;or■; tie-; Supreme I . Court to restrain/Miles frdta 'exercising with-. • .'.oat,:notice ..a power of silo: contained in a : ./mortgage ■ over a property in tho Tutakina ■.district. Milos's mortgage, which was to - secure. £1638 .Gs; 40., was subject to a mort-' ■ gage. to .the'.Crown for £1500. It was ex- ;: ■ pressed ■: in the mortgage to; Miles that , th'» power.,of sale should bo exercisable imm«di- ; ately- on default in/.paymont of, anr instalment of inter«»t without'notice to the mort- , gagor. . According to :Hussoy, he was' not I formed .by Miles of ,a provision: to that" .- effect in the' mortgage; , ; .which. : he. understood v was in tho ordinary form: Payment of tho , amount, due had been. made;, but Miles hadrefused to withdraw tho. land'fromsalo taxless ,tho interest up to . April- next was first : paid.,:.On behalf.of Miles, it was conteildod that'; the iorm . of' tho'morfgage-iwas similar , . -to tho; original. mbrtgago over tho property., ..was. given r- to-Hussoy to read tho memorandtlm .of : mortgage before h» ■i'si^S(3-- , aoo*ptod : expressly on,the condition that its acceptanco teHoiildofe ;prstidide : to his right to -.exercise his power- of . sale.. His Honour granted .an'?in junction/- with costs totalling£22 9s. 6d,j against Miles; who now appealed. Judgmont was reserved.