RESIDENT MAGISTRATE’S COURT.

Evening Star, Volume IX, Issue 2677, 15 September 1871, Page 2

RESIDENT MAGISTRATE’S COURT.

Tins Day. (Before A. C. Strode, Esq., R.M.) Civil Cases. Cutten v. Macdonald. —1 SSBs 9d balance due for passage money for defendant |and family. Mr Barton for the plaintiff and Mr Stewart for the defence. Mr Stewart raised an objection to the jurisdiction of tho Court, on the ground that the necessary affidavit was not made before the summons was served. On enquiry, it appeared that the summons was dated the 26th August, and served on 6th September, and that the affidavit was made the 28tb August. Mr Stewart held that the making of tho affidavit was a condition .precedent to issuing the summons.

Wm. Somerville gave evidence that the on issuing tho summons were paid on Saturday, August 26th. . Charles E. Bunny, clerk to Mr Bathgate, took the particulars to the office of the Resident Magistrates on the Saturday, paid for the summons, which was not issiud until the Monday, when the affidavit was presented to be attached to it. The reason of the delay was that Mr Cutten could not be found, and the Provincial Solicitor only received instructions about 12 o’clock on Saturday. Mr Somerville being recalled, said the summons was applied for at one o’clock on Saturday, and paid for, but it did not leave the office until Monday, when the affidavit was attached to it. His Worship bad no doubt whatever that the Court had jurisdiction, under the circumstances. Colin Allen, labor agent, was in the employ of the Government 28th Ausust, 1860, as Immigration Agent and Collector of Immigrants Bills. He sent notice to the defendant when tho [bills become due. He called on defendant in August 1865, wh_ acknowledged owing the money and paid LIO on account. He had none of the bills with him. There was au endorsement on one of the bills in the handwriting of Mr Wood. He received the bill on behalf of the Provincial Government in his capacity as Immigration Agent, Alexander Bathgate, clerk to the Provincial Solicitor, proved the endorsement of the bills by Mrs Logie, relict of the late Charles L °Wm. Wood, cashier in the Provincial

Treasury, said Charles Logie, collector of Customs, was Provincial Treasurer in 1565. The plaintiff, Mr Cutten, is acting Previncial Treasurer. For the defence, Mr f tewart held that by the Act of 1858, the Superintendent was the person who should have sued, as he alone, by the provisions of that Act could lay claim to property in those Bills. The Provincial Treasurer ceased to have any claim founded on those Bills when he ceased to hold office. Mr Barton replied that if that view were correct, the Bills were bad, for then there was a wrong definition of one r»f the contracting parties Such an interpretation would be productive of the greatest inconvenience, and would invalidate any contract made by officers of the Provinces in their official capacity, and by the terms of the Act it was only provided that provincial property should be considered the property of the Superintendent where necessary. Mr Stewart further objected that although payment to a previous holder of a bill of exchange did not take the bill out of the

statute of limitations as regarded a subsequent holder. Mr Cutten was not the person in whose favor the bills wore drawn, and that the statute of limitations was a bar to the action. Mr Barton replied that a note payable on demand was not to be considered as overdue until evidence was given that payment had been demanded and not paid. It was to be treated as a continued security, and the statute of limitations only took effect from the date of the first demand. That demand was made within six years. Mr Stewart quoted from Roscoe, showing that the statute begins to run from the date of the bill, though interest would not commence until tlie date of demand. Judgment reserved.