THE COURT OF APPEAL.

Dominion, Volume 5, Issue 1252, 7 October 1911, Page 12

THE COURT OF APPEAL.

UNDER WHAT ACT? THE SALE OP A LEASE. The Court of Appeal was occupied jt* Icrday morning, and part of tho afternoon, in concluding the hearing regarding an originating summons brought iu tho Supremo Court, New Plymouth, and removed by consent to the Higher Court. The case was partly heard en Thursday, iuid reported in yesterday's issue. (3u tho Bench wore tlic Chief Justioo (Sir Robert Stout), Mr. Justice Dennistou, Mr. Justice Edwards, and Mr. Justice Chap, man. Tho parties to tho action were Arthur William Budge, farmer, of Stratford, plaintiff, and Thomas Bayly, grocer, or Hamilton, Lewis Bayly, stock-ouyer, of Wangnnui, and Horace Bayly, farmer, of Km Iwi (executors of the will of James Bayly, deceased), and Thomas Elliott, farmer, of Wnitara, defendants, Tho Commissioner of Crown Lauds, Auckland, and the Attorney-General wore nlso cited. Mr. Martin Chapman, K.C., with htm i . :.~ H - Qi'll'aiu. uppearod for tho plaintiff (Arthur M'iiliani Budge. Mr. n. D. Bell, K.C., with him Mr. G. 11. tell, appeared for the defendants (tho Bnylvs and Thomas Elliott). Tho Attor-ney-General and the Commissioner of Crown Lands were represented bv the Solicitor-General (Mr. J. W. Salmoud). The question for the Court was whether a certain lease (drawn up in 188S, and renewed in 1909) was governed !>v tlio Land Act, 1885, or by tho Land Act of 190 S.

Argument was conoluded yesterdav, and tho Court reserved decision, and adjourned till Monday morning.

SUPREME COURT.

AH ON'S APPEAL DISMISSED. "A oomedy of errors," was th© phrasa applied by the Chiof Justioo to tbo proceodings in an original action when giving reserved decision yesterday in tho cans of Ah On. In this suit Ah On appealed from tho decision of Mr. S. E. M'Carthy, S.M., who, on July 24, had convicted him of keeping a common gaming-house at Napier, and had fined him .£2O and costs £3 ss. 2d, in default one month's imprisonment, Mr. E. G. Jclllcoo appeared for tho appellant (Ah On), and Mr. H. H. Ostler, of tho Crown Law Office, for the respondent. When (in order to obtain a search warrant) tho information wa6 laid against Ah On, the chargo which was'then mentioned was the charge on which bo had ultimately been convicted. But when Ah On appeared ia Court no information was used, and the cliargo road to hira was: "That, being tho occupier of premises in Dickens Street, ho had used them as a common gami'ng-Tiousc." Tho magistrate had found no evidence in support of a suggestion that tho house bad been used as a lodging-house, and ho had drawn the inference that tho only purpose for which Ah On had used tho building was that for gambling, and that (with Ah On's knowledge) others had habitually resorted there for that purpose. Ah On gave notice of appeal from the decision, and lodged. £35. Tho grounds of appeal were that there was no evidoucfl of tno offence, and that tho magistrate had made a fatso inference from tho facts.

His Honour, after reviewing the case, decided that the ovidenco was quite sufficient to support ttio oonricHorii and the appeal was therefore dismissed, but m the "number of blunders made" probably gave rise to tho appeal, no costs were allowed.

Mr. Jellicoe then mored for b rule nisi to quash the conviction on the pround of no jurisdiction, but, on tho suggestion of his Honour, tho'matter was held over until this mornins;, when it will be mentioned in Chambers. , .CREAMERY AND A.CONTRACT. WAS IT 7011) ? Yesto-lay afternoon, t'ho Chief Justice (Sir Robert Stout) heard the caee 'if the Hawko's bay Dairy Company, Ltd., v. H. A. Kosenicldt. This was an appeal from the decision of Mr. L. G. E«id, S.M., delivered at Woodvillo on Novoruber 21, 1910, in an action for damages for alleged breach of contract. It appeared that, in July, 1006, the Hawko's Hay Dairy Co. Ltd., purchased a creamery on tho Mastcrtou Road, and also took over an agreement under which H. A. Kosenicldt was to supply the crenmory with all tho milk from 20 cows, other than tho quantity required for domestio purposes. In August, 1009, plaintiffs nlloped that Rosenfeldt made default in the Bupply, and, hence, they sued him t« recover'tho sum of .£2O as (lamaws. When the caso was hoard Rosonfcldt'fl counsel raifcrl sovoral non-suit points and succeeded on ono of these, viz., that the contract was void because CJauso 8 \rai 100 remote and contrary to the law of perpetuities. In nonsuiting plaintiffs, with costs, the Magistrate expressed _ re. gret that ho had to give puch a decision, and that ho was not at liborty to decide tho caso on the equity and pwid conscience rule. From this election tho Hawke's Bay Dairy Company, Ltd., appealed on the ground that it was crronoous in law. Mr. F. G. Dalr.iell atineivrM for the nowllaiit* (the HnwWs 13av Dniry Oimnany. Ltd.). and Mr. A. W. Blnir for th(> respondent (H. A. Ko«enWdt). The caw was descrilwl bv counsel for tho appellants as of very creat impnrtflnoo to proprietors of creameries and sup. pliers. . After hearins argument, his Honour r<* served docision. ■