SUPREME COURT

Otago Daily Times, Issue 11684, 17 March 1900, Page 2

SUPREME COURT

IN" CHAMBERS. Fbiday, March 16.

(Before His Honor Mr Justice "Williams ) »mWJ°m C£ m? ( bell (deceases-Motion for in,^ ' S> soli«™r).-Order «ccord-

ConneU and Co. (Limited) v. the Colonial Bank of i\ew Zealand (in liquidation)— Summons for directions as to printing evidence for tne Court of Appeal (Mr Brent).—Order for printing such documents as the parties aaree upon. If any dispute, to bo referred to the judge. Material common to both parties may be printed.scpari'.telv. .

Brooks and others v. the Colonial Bank of Aew Zealand (in liquidation).—Summons as to printing evidence (Mr Brent).—Same order as Jibovc.

Re Charles Banwell.-An appeal from a conviction by C. C. Graham, Esq., S.M., Dunedin. ii■ t i-i 1"!?" a PPe»re(l f°i- the appellant, and Mr J. P. M. Fra-ser for the Crown". This was an appeal from a decision of tho Stipendiary Magistrate at Dunedin, convicting the appellant, Charles Banwell, of receiving certain property, well knowing it to have been Stolen, and sentencing him (the appellant) lo three months imprisonment. Mr Fraser stated that in the face of the fact i-lint the accused had been acquitted by wo juries upon similar charges, and upon the "same evidence, he felt that the conviction could'not bo sustained, 'and therefore purposed to offer no evidence.

Mr Hanlon then moved that the conviction lie quashea.

His Honor siiid'hc thought Mr Fraser had adopted v proper course, and an order would be made quashing the conviction. Mr Hanlon asked for costs for appellant. His Honor remarked that the rule v.ts thai casts were not allowed against the Crown. Sir Hanlon submitted that at any rate disbursements sliould be allowed, because the Crown were really getting fees from the appclanl, who had been wrongfully convicted, and the ,ces were paid in order that justice might bo flone to him.

His Honor said he did not think he ought to depart from the general rule, although it mi»l-,t '■fflilly be a hardship on the appellant.—Conviction quashed; no costs allowed.

Dallas (appellant) v. Smart' (respondent) .- J Ins case," in which judgment was recently given for the appellant, was mentioned, in ordar that the form of the judgment might be noted.

Mr T. K. Sidc-y appeared for appellant, and Mr A. S. Adams for the respondent. Sir Adams said that he preferred that a nonsuit should-be .entered, as a now trial would not be of any value.

Mr Sidey aabed that the costs iv the court below should he granted to the appellant. His Honor said the court had iurisdiclion to order judgment to he entered foe'tho defendant (the appellant in (his case), but it was open to the plaintiff (the respondent) to say that he preferred to be non-suited, and the court had .jurisdiction so to order. The direction would be that judgment of. nonsuit be entored, and that the costs be fixed by the magistrate. Sitl'-.-an (appellant) v. Tnit (respondent).— An :;(♦ oal from the decision of the Magistrate's Court at Oamaru.

Mr \V. A. Sim (instructed by Mr A. A^ Fincl^ appeared for the appellant, and Mr Lee (o.' Oamuni) for the respondent. The action in the Magistrate's Court was to recover tile sum of £15 as the price of a building agreed to be sold to the appellant. The building had been creeled on « piece of land belonging: to the Oamaru Harbour Board, which was occupied by the Rctvigeralins; Company. The appellant, in agreeing to purchase the building, stipulated that the respondent war, to give him (lie right of removal, hut when the appellant communicated with the liefriirerating Company in connection wi'li the nuildim;. tlio company claimed thai, it was a fixture, and thai the respondent, therefore, hail no right to sell it. The appellant thereupon refused to pay the price until (ho respondent, had obtained for him the right to remove the building with the consent of tho .Kpfrigorsitiiig Company, but he weut into posscisiou ot the Intililin" nud eontinned to use it. At tin- hi-ariii:: b.-foie (lie mnpistrate, the appellant, lieini? l!ie defendant in the court 1-elow. Iliero was'a disnnle as to whether the bnil(lii)« was ji-.it aflixod lo [he land at the dale of tin- sale. b,il fbe in, V yislrnt.e. found, as a fact, that it was no', then a 11-lure, and he tj.n-c, hutment for (he respon.ieisl. l"vom this decision the appellant brought, his appeal. After argument,

His Honor, in giving judgment, snicl Hi.- question was dependent upon whether tlio bnildim; wns :i chattel or not. 'Tlic contract wan for ih'o silo of a. clmttrl. At tile Hnie of the contract the cli-il.lol, or supposed chattel, was on tlio hind oF ;, third person. Immediately after Hie contract the purchaser, by lenve of such third person, tool; possession of the elinttel. or alleged chattel, an.] )ni<] retninod possession of' it

since. If the shed wus >i chattel, nßhoußh it was on the, land of a llmd person, if tlio purchaser was on the land and in possession of the chattel with the consent of the third person.

| then he could walk away with it. The'question, therefore, was. Was the magistrate justified in finding that TT was a chattel ? It had been suggested that the burden of proof was on the seller to show that it was a chattel at the date .of the sale. Now, the burden of proof might' shift from one party to another during i,he course of v trial. If a purchaser choose, to take possession of what he bought ab a chattel, and does not there and then complain thai, 'i was not a chattel, it would be quite right tor the court to call upon the purchaser so taking possession to show that what he bought -ml what he took possession of was not a-chattel. The magistrate was justified in finding that at tho time of the contract-this'building *» _. chattel, and that as that was so the purchaser who took possession of it and retained it ~» « chattel must pay for it, and therefore that the appeal must be dismissed.—Appeal disrniassdd

This concluded the business.