R v Drage [1918] HCA 65; (1918) 25 CLR 490 (17 October 1918)

HIGH COURT OF AUSTRALIA

The Crown Respondent, Appellant; and Drage Petitioner, Respondent.

H C of A

On appeal from the Supreme Court of Western Australia.

17 October 1918

Barton, Gavan Duffy and Rich JJ.

Stow, for the appellant.

Pilkington K.C. (with him Boultbee), for the respondent.

Stow, in reply.

The judgment of the Court, which was delivered by Barton J., was as follows:—

Oct. 17

Barton, Gavan Duffy and Rich JJ.

We are all of opinion, after considering the arguments and the relevant enactments, that the facts in evidence do not make the wheat in question the property of the appellant, unless indeed it has become so by purchase, and that there is not any charge upon the lands, crops, &c., under the enactments referred to, nor any equitable charge affecting the same.

If it happened that we felt ourselves impelled to send the case down for another trial, it could only be on the terms, first, that the respondent should be at liberty to amend his petition so as to let in a claim for money had and received, and further that the appellant must pay the costs of the trial and of this appeal. The case may be mentioned again.

Subsequently counsel for the appellant stated that an agreement had been made by the parties that the judgment be varied so as to adjudge that the respondent recover £1,348 10s. with costs, such judgment to carry interest from 17th October 1918, and that appellant pay the respondent's costs of the appeal.

Appeal allowed. Judgment appealed from discharged except as to costs, and judgment varied as agreed. Appellant to pay respondent's costs of appeal.

Solicitor for the appellant, F. L. Stow, Crown Solicitor for Western Australia.

Solicitor for the respondent, G. F. Boultbee, for H. W. Morrisby, Geraldton.