RESIDENT MAGISTRATE'S COURT.

Evening Star, Issue 4048, 16 February 1876, Page 2

RESIDENT MAGISTRATE'S COURT.

Wednetday, February 16. (Before Ji Bftth«ate, Esq., R.M.)

M'Xeil v. Logan.—ln this case his Worship del vered judgment as follow-!: The facts in this cade a*e as follow i-Capatiok, Duthie, udCapstick.made a draft oM .«• i&sssieura, the shareholderß of the Hftvelddk Hill Company Manuka Crßel, B Jor value received, draft was accepted by the plaintiff and nine other persons, including the defendant ; It was dishonored at taSf the Jr&Wjfrsi/fiWellpon ™ action against the accepters m the SUBWm« Cdttt. The defendant, sad Another obtained liberty to m&i. they hadTgood defence. Eight of the defendants" S th&t dctum, including the plaintiff in this action, fafledf to appear and plead, and judgment was signed against rffi* ln * d^f^^lt • *£? declaration was filed on beh&lf of Messrs Capstick, Duthie, and Capstick, tod foi? that ifeason Irtem And his co-defendant Have! §dt • bSel afcW td file their IT Pa &?£ C , a P stlct . duthie, afldl&pWck Selected M'Neill and issued execution against him, whereby they recovered from him L 452, the amount of the bill bßftfte' tttentioned, and costs. M'Neill now seeks to recover from Logan iliC Bum of 145 4s 6d, being one-tenth part of the amount in th<! j«dg» ment which he claims to be dae by him as one of * b .» original debtors jointly liable with himself. The •n222«*alttf ,wßrt J W&MaS 'liability, and he alleges that the Subject matter <rf Ma action, in so m the Supreme Court at the instance orCap. stick, putble, and Capstick, in which he w r f a ?s[to file his plea, being still open. The Fij?"? 8 in * ■ tha * Mtion having recovered their demand frolfl Orie of the defendants, have for proceeding furthef against Logan, and the action has been tacitly discontinued flgjamst him. The question now arises: ißthe defendant Jogan bound in the circumstances to pay his contribution toward* the amomat the plaintiff has paid? There is no doubt in regard to the general principle °\ law, that if A has Wen compelled to pay money which B is liable to pay, A nuly maintain an action for money paid for B's use, without proof of 'special authority. (Kemp v. Fender, IS, 1.. J., 12x187.) The C6urß has disregarded the form of the instrument and looked fit the foots established in evidence to ascertain whether the parties did stand to one another in the relationship of <Jo.Bltreties. (Beynolds v, Wheeler, 30, L. J., C. P. 350.) The present action has been raised to compel a contribution by the defendant towards the amount of the judgment in the Supreme Court satisfied by the plaintiff. If the defendant had been one Of the eight Co-defendants against whom judgment was signed in default, there could have been no question as to the right of the plaintiff to recover. But. judgment has not been sighed against the defendant, and, in the face of his existing right to defend, he cannot be said to be jointly liable with the plaintiff for the amount of the judgment and costs. It may be that the plaintiff has a right to recover something from the defendant as an original ■joint debtor with him. In that case the plaintiff mny raise action upon the ground that Logan was originally jointly liable in the debt to Capstick, Duthie, and Capstick, and was accordingly one of the joint acceptors of the bill which the plaintiff has now paid. Under that action Logan may be entitled to Bhow that he was not truly a joint acceptor with the plaintiff, and to establish, by evidence any other defence he may have, and which he intended to plead in the Supreme Court. As the case now stands the plaintiff must in my opinion be nonsuited, leaving iuß remedy otherwise open to hun, ■•...■■

In the following cases judgment went by de-fault:-Thomas v. Boss, L 3 9a 6d; Wilson Bros v. John Donoghue, 9s; Same v. K&vanagh, L 3 15s 6d j tame v. Dawson, LI 8s : Guardian Go. v. Hunter, L2lss 7d_: R. Watson v. De Montalk, L2 10s Id; Trustees <f John Asher v* Laurel* L 47 9a B<L (In this c*seMr M'Lean, one of the trustees, for whom Mr Harris appeared, stated that defendant had offered to pay 6s 8d in the £, which the trustees had refused to accept.