Kebabian v. Adams Express Company ( 1906 )

It does not appear that the goods in question, whether they were included in terms in the lease to Dieter or not, were ever delivered to him prior to the service of the writ. The plaintiff, having proved his ownership and right to possession, has made aprima facie case. The burden of proving the liens set up by the pleas is on the defendant. The nonsuit was therefore improperly granted. While the court and practice act gives the Superior Court jurisdiction of motions for a new trial in certain cases, it does not prescribe that such a motion must be made where exception has been taken to a nonsuit before a bill of exceptions can be taken to this court. The prayer for a new trial appended to the bill of exceptions does not vitiate the proceeding.

The exceptions are sustained, and the case is remanded to the Superior Court for a new trial.