SUPREME COURT.

Sun (Christchurch), Volume I, Issue 174, 28 August 1914, Page 8

SUPREME COURT.

SEIZURE OF CHATTELS. * AN APPEAL DISALLOWED. His Honour Mr Justice Denniston gave judgment this morning in the case of Marion Howe and Edward John Eowe (Mr Wright) v. Turnbull and Jones (Mr Cassidy), an appeal from the decision of a Stipendiary Magistrate who had found for the plaintiff firm (the respondent in the appeal) on a claim for pound-breach by the defendants (now the appellants). In this case the firm of Turnbull and Jones was the landlord of premises consisting of three rooms, occupied by a dentist named Potton, who also shared with another tenant the occupation of an entrance hall opening from the landing of a common staircase. In August, 1912, Potton assigned certain dental implements anil furniture to Marion. Rowe, who is the wife of Edward John Eowe, a police constable. The document assigning these things contained no power of entry on the premises. Potton was indebted to Turnbull and Jones for overdue reut, £4O 16/-. On March 3, 19155, one E. E. Shadbolt, acting on a warrant from the respondent's local manager, Mr , Seager, went to Potton's premises to distrain the chattels. The outer doors were locked, and so /Shadbolt padlocked them and put up a notice that he had entered on the premises and distrained. On the next day Seager saw Potton and asked him for an inventory. Potton replied that he had not the keys, but entrance could..be obtained through the window. This was done by Potton and Seager. Ou this point his Honour considered that in so acting Potton was acknowledging the distraint by Shadbolt, and giving possession of the chattels inconsequence of the warrant. His Honour added that | if the distress were good, this was clearly ' a seizure and impounding on the prej mises with the consent anil assistance ox | the.tenant. On March .".—that was before the handing over , of the chattels by Potton—he had signed a letter to one Thomson (who. was the person who had made and attested the bill of sale, and who apparently acted as the agent of the appellant Marion Eowe), authorising him to wind up Potton's business, and, inter alia, to sell privately or by auction,, or with the business as a going concern, the chattels, the subject of the bill of sale —which were in the document described as belonging to E. J. Eowe. On the 4th, Marion Eowe authorised Thomson to distrain on tine premises the chattels in the bill of sale. On that day one Boardman, with five men, entered the premises. Boardman swore/that he did not see or break the padlocks. Eegarding this, his Honour said: 'f His denial must have been disbelieved by the magistrate, as it is by me." Shadbolt, who appeared on the scene shortly after the entry, attempted to prevent the removal, but was forcibly restrained. Boardman and his men then removed the chattels.

"This entry," continued his Honour, "was.clearly not justified or authorised by Potton, whose action on the 4th, in company with Seager, was clearly a revocation of any authority to interfere with the chattels, even Af such authority could be gathered from the document given to Thomson. Boardman claimed to have acted under the warrant from Mrs Howe, which, of course, could not justify it. It is claimed for the appellants that there was no valid distraint, and therefore no impounding —and, of course, no pound breach. I am not satisfied that in the circumstances the appellants, obtaining possession in this illegal man-

ner, could be heard to set up this defence."

His Honour then discussed the legal argument put forward by counsel for appellants on the question of the illegality of the impounding. It had been argued that Seager, the local .manager of the company, had not power to sign the warrant of distress to Shadbolt. His Honour held that this conclusion was not justified. He had no doubt that Seager had, by his position, implied authority on behalf of the company to sign the warrant to Shadbolt. If that were so, 'then, in his Honour's opinion, all that was subsequently done as to the seizure and impounding was fairly referable to the warrant held by Shadbolt. Once impounded, it was unnecessary that anyone on the landlord's behalf should be left in possession of the goods. "From that point of view," added his Honour, "it becomes unnecessary for the actual decision of the appeal to consider the question of waiver by Polton of any irregularity on tiie seizure. That Pol ton by his action did, as effectively as he could, confirm and rectify the' action .of the respondent firm, "ami its agents in seizing and impounding is clear. It was contended that the seizure and impounding were bad because part, at least, of the chattels were tools of trade. It is unnecessary' to decide if they were tools of trade, as the exemption of such is from sale and disposal, and not from seizure and impounding. For those reasons 1 see no ground for disturbing the derision of the magistrate. The appeal will be dismissed with £>.lo 10/- costs.' The amount of the claim was for £SO 10/-, the value of the chattels, the respondents having abandoned any claim to treble damages. His Honour remarked that the appeal had been most strenuously ami pertinaciously fought. More than a score of cases and authorities had been quoted, and he had more than once adjourned giving judgment, on the ground of the discovery of fsvsh authorities and fresh arguments. AN APPEAL ALLOWED. In the case of Percy Stafford Brookes (Mr Johnston) v. Margaret Sterrett. (Mr A. Donnelly), an appeal from a Stipendiary Magistrate's decision ad-

judging the appellant to be the putative father of a child, his Honour held that there was insufficient corroboration of the respondent's storv, and he allowed the appeal, with £5 5/- costs. IN CHAMBERS. Several matters were dealt with by his Honour Mr Justice Denuiston, in chambers this morning. Re George Arthur Piercy (Mr Beswick), a petition for directions, it was ordered that the income for education of a child be made up to £9O a year for three years. Costs £~> ;*>/- and disbursements are to be paid out of the fund. In the case of Burke (Mr- George Harper) v. Derrett (Mr Goodman), defendant moved for leave to file an amended defence under the Mortgages Extension Act, 19.14, His Honour granted leave to renew the application at the hearing of the case. In the divorce matter of Charles William Anderson (Mr Leathern) v. Annie May Anderson (Mr Beswick), a motion by respondent for an order decreeing to her the custody of a child, the motion was dismissed with costs and disbursements.

September 8, at 10.30 a.m., was fixed for the further hearing of the case of Mary Walter (Mr Malley) v. Charles Henry Lee Walter, a petition for divorce.

His Honour granted probate of the wills of Hugh McNeale Gordon Macfarlane (Mr Tait) and John Watkins (Mr Tripp). Letters of administration were granted in re James Ryan (Mr Hunter). Yesterday his Honour granted probate of the wills of Robert Shanks (Mr T. D. Harman), Ellen Gibb (Mr Helmore), James Guild (Mr Walton), and James O'Bryen Dott Richard Hoare (Mr Weston).