RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume IX, Issue 2584, 30 May 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

This Day. (Before I. N. Watt, Esq., R. M., and the Hon. Captain Fraser, J. P.) THE ANDERSON BAY ROAD. Regina v. Cardwell and Cairns.—The defendants were asked if they had anything to say why judgment should not be recorded against them, when they answered they left it in the bands of their counsel. Mr Haggitt then addressed the Court on their behalf. He pointed out first, that the defendants were not liable to prosecution on the grounds charged against them, for they were not princi. als in the work, but were merely acting under orders of the Superintendent, He cited authorities for this opinion, which he contended specifically excluded them as they employed no capital nor derived advantage from the making of the road. He pointed out the consequences of a conviction should one be obtained, and should a jury subsequently convict, as the punishment was fine or imprisonment, and if the latter was awarded, the personal consequences to Mr Cardwell would be disqualification for the office lie held. It had been contended that the Superintendent had nob authority to prosecute those works except as holder of a Crorvn grant of the reclaimed land, but that power was conceded by the Public Reserves Act, 18(54 ; or even if that Act did not give authority, he was authorised by the Marine Act, which gave him full authority over ports and harbors, and all vessels plying within them, for whatever purpose. And this Act provided that no works executed with the approval of the Superintendent should render any person liable to be prosecuted for a nuisance. Yet, notwithstanding those powers, it had been threatened to place bis Honor the Superintendent on his trial for authorising a work that would benefit a la’ge section of the community, and the only damage which would accrue from it would be to shut out a very small portion of the view from Mr Holmes’s windows. Mr Macassey denied that there was a tittle of evidence to that effect, and contended it would benefit the Superintendent more than it would damage Mr Holmes. Mr Haggitt: It may be so ; but if so, it is a pity these proceedings have taken place, Mr Macassey: It has been expressly stated that this action was instituted solely to try the rLht to construct the works. Mr Haggitt concluded by stating that he had shewn—First, there was no proof of a nuisance ; secondly, that the defendants were not connected with the work so as to render them liable to be prosecuted, but were ouly acting under authority ; and, thirdly, that the work having been carried on by the defendants under sanction of the Superintendent, they were not liable to be prosecuted for a nuisance, Mr Macassey claimed the right of reply, on the ground that the defence was not upon the merits, but upon the law of the case. Mr Haggitt objected, as if it were allowed, the defendants would have been placed in a worse position than if in the Supreme Court, before a jury, Mr Macassey, after some argument, withdrew his claim to reply. Their Worships deferred judgment until three o’clock. 'At three o’clock the Bench gave judg : meut, and said that,”after careful consideration of the evidence, they had agreed as to the construction of the Act on one point—namely, as to the provisions q? the 33rd section—and tire decision airived at was, that Janjes Caldwell fio discharged, and that Alexander Cairns stand gommitted of the offence charged. Mr Macassey said that the further conduct of the prosecution would be left in the hands of the Crown Prosecutor. He was about to make some remarks on the fact that the Crown Prosecutor, as Provincial Solicitor, appeared on behalf of the defendants, when Mr Haggitt said it was intimated to the General Government that it was a most extraordinary state of things that the Provincial Government should he made to pay for the criminal prosecution of officers acting under their authority. Their Worships would know that the cost of criminal prosecutions was chargeable to the Province, and therefore he had b en allowed to appear as Provincial Solicitor. Mr. Macassey In order to meet this case.” He had received a telegram this morning stating that the regulations had Repp allpoygd. How far it was consistent with puotic policy j;o do so remained to be seen, and it would ho for ti»a Government to satisfy the Supreme Court ou that point. It had been done not only in that but other CcISCS. The Bench did not think Mr. Macassey should he allowed to comment on the proceedings. Mr Macassey, in deference to the Court would not say what he might otherwise have said. The defendant Cairns was ordered to find recognisances for his appearance to answer the charge in the Supreme Court. Dfr Macassey only asked him to give his word to appeap. ' The Court did not think tide sufficient, and required that he ami that other witnesses should be bound over. REHEARING. Mr Haggitt applied for a rehearing of the case of the Trustees of Scott and J osling v. Josling, which was dismissed a few days ago, as falling within the jurisdiction of the Court of Bankruptcy. Mr Haggitt maintained that as in fact it was an action of trover, the Court had jurisdiction, and that the Bankruptcy Act presented no impediment to dealiug with it, and its provisions only extended to compelling the fulfilment of duty by trustees in regard to estates when in their hands. Had not the circumstances been peculiar, the trustees would not have sought to take the watch or its value from the defendant Josling, bat it had been received n satisfaction of a debt which stood open in the books of the firm—no credit having been given for the amount at which tho watch was valued. The trustees therefore claimed it as part of the assets of tffe estate.

Mr Howorth opposed the rehearing, and, in explanation, said the transaction took place long before the bankruptcy, which really was an arrangement for facilitating a dissolution for partnership, and that it was by arrangement between the partners tint Josling had taken the watch. |

The Magistrate said he bad never doubted the juris liction of the Court, but on the first hearing it was thought better to remit dealing with the matter to the Court of Bankruptcy. In view of whit Mr Haggitt had stated, however, ho would appoint a rehearing for Friday next.