MAGISTRATE’S COURT

Hokitika Guardian, 22 December 1927, Page 1

MAGISTRATE’S COURT

THURSDAY, DECEMBER 22nd. (Before AA'. Meldrum, Esq., S.M.) DEFENCE ACT. L. R. Shuttlcworth (Defence Officer) v. S. H. Breeze, a charge of failure to deliver up a military great coat and with damaging a rifle barrel. Convicted and fined ss, and easts 10s, cost of great coat ill 9s 2d, and fined 5s and costs 10s, and cost of rifle barrel £1 11s Gd. AVANDERIXG BULL Alfred John Slows (Mr Park) v. S. Cunningham, a charge of allowing a hull t:> wander at large on KumaraOtira road. Fined 20s and costs £2 8s Bd. DEBT CASES'. A. R. MeConnon (Mr Murdoch) v. F. C. Porter, claim £25. Judgment for plaintiff with costs £4 7s (i<i. AA". Jeffries and Co (Air Elcock) v. J. Thistleton, claim £1 4s -4cl. Judgment for plaintiff with costs 12s. On- Bros (Mr Elcock) v S. Godfrey, claim £3 9s 3d. Judgment for plaintiff with costs 33s (id. Amos Dowell (Mr Elcock) v. C. Buchanan, claim £l. Judgment for plaintiff with costs 19s. AA’iu. O’Brien (Mr Murdoch) v. J. Fluety, claim £29 14. Judgment for plaintiff with costs £5 Is 6dG. TI. AA'ilton and Co (Mr Elcock) v. J. Robinson, judgment summons £2 13s. Order made for payment forthwith, in default seven days imprisonment in Grey mouth gaol. RESERVED JUDGMENT.

Mulvihill and Murdoch v. J. D. Lynch and others heard at last sitting, Mr Park for plaintiff and Mr Hannan for defendant. In this case plaintiffs claim from.defendants the sum of £52 Os Od as interest. due by defendants to plaintiffs. The facts are that in 191 G a joint and several promissory note payable on demand was given l>y defendants to plaintiff ns security for a- loan of £GOO. The p/n was presented for payment and dishonoured on 24th. Nov. 1921 ; and notice of dishonour was sent to each of the defendants in due course. No action appears to Jiavc been taken to enforce payment of the note held. After it was given, the parties appear to have come to an arrangement under which defendants were to pay plaintiff interest at 7 per cent, per annum. Interest has been paid up to 17tli. May

1925. but none has been paid hv defendant, .T. D. Lynch, since 1920. The action is defended by J. D. Lynch, but not by the other defendants. There are several interesting points to be considered. in the first place if the action Is based on the promissory note then it should have licon one for damages for (1) the amount of the bill and (2) interest and the claim would then exceed the magisterial jurisdiction. Nor could the c-ause of action he divided so as to bring separate actions for principal and interest (M.O. Act 1908, Sec. 311. If. however, it is based on a now contract arising out of the original Act, in other words, a novation, that now contract .should have boon set out in the statement of claim and definitely

proved in evidence. Qn either of these points it seems to me the plaintiff’s claim must fail, as against- the defendant J. D. Lynch. There is a further defence raised by

Mr Hannan, viz. the statute of limilat ions. The last payment made by J. D. Lynch was in November 1920. He ha,s given no acknowledgement of any kind since that date, nor has he authorised anyone to make- any payment on his behalf. He does not therefore, lose the benefit of the statute of limitations by reason only of the payment of any principal, interest on any money. l>y any other of his co-debtors (Judicature Act. 1908, See. 82). Had the action been based on the promissory note, the statute would begin to run from the notice of dishonour to him as 2-ltli. November 1921, and would therefore not have been available as a defence. But- if the action is to ho considered as based on a novation under which the defendants were to- pay interest from year to year, then the statute would begin to run in Lynch’s favor, as from Nov. 1920, the date in which ho made his last payment. Plaintiffs are non-suited as against Lynch, hut are given judgment against the three other defendants by default.