SUPREME COURT.-Wednesday. SITTINGS IN BANCO.

Daily Southern Cross, Volume XXI, Issue 2607, 25 November 1865, Page 5

SUPREME COURT. -Wednesday. SITTINGS IN BANCO.

[Before hti Honor Chief Juitio«SirO. A. 'AnWtV.J DOKALD MCFHEB Y. WILLIAM MILLS, COLLECTOR OF CUSTOMS. , ' Mr. Wynn, instructed by MVmsm. Whitaker and and Russell, appeared for the 1 plaintiff; Mr. Gillie* for the defeudant. ' ' The declaration in Ihis case »tated that the aefendaut, on or about the 6th d*y of September, 1865, seized and took plaintiff a goodi, consiiting of brandy, bacon, beef, groceries, aud other Merchandise, and carried them away, whereby the plaintiff was deprived of the nso of the laid good*, and incurred expense respecting the same, and was also prevented from soiling the good* a» he otherwise would have dime } also that the defeudant converted to his own use or wrongfully deprived the plaintiff of the use and possession of the aforesaid goodi, wherefore thn plaintiff claimed to recover two hundred *nd fifty pleaded that' the' goodi mentioned in the' declaration were, without the permiinon of the defendaut, ihipped on board a vessel called the •Wanderer,' to be carried coastwise, and were not •hipped in the presence or with the' authority of the proper officers of Customs, and thereby becatne forfeited to her Majesty the Queen, and 1 were seized by the defendant as «o forfeited, which if the wrong in the declaration alleged. '' ' " To this plea the plaintiff demurred, on'the ground! —Ist. That the permission of the defendant was not ! necesiary to chip the said good*. 2nd. ' That it was not necetsary that the said goods should be shipped in the presence or with the authority of tht proper officer of Cuttomi. Defendant joined in demurrer. ' ' Mr. Wynu, in support of the demurrer, submitted that it entirely depended on the construction wnioli the Court would place on the 126 th olause of, the Customs Regulation* Act, 1858; whether or not the plea was a sufficient answer to the action. • He then read the clause, which is as follows 1 :—" If any good* shall, without the permission of the Colleotori ' be unshipped from any ship arriving cowtwise, or bo shipped or water-borne to be shipped; to be earned constwiie on Sundays or 'holidays, or' any Saturday after the hour of 12 o'clock at noon, or except in the presence'or'with the authorily of the proper officer of the Customs, or' except at' such times Und places as shall be duly appointed or approved 'for that piir* pose, the same >ball be forfeited/and 'tin master of the Phip ihftll forfeit JESO." He"contend»d l 'that the defendant* plea was'defeotive, in not' denying that the goods were sh'tyried' at' a Jejjal - lime and place ; that, 'two exceptions were mentioned in the ''clause, the complying with any.one of VfWW«B't^» was required, < J h J - -' J<ll "< u L '" *'*

Mr.pillies argued that* according to the grammatical, contraction of the clause,, ngtjonly m nub goons lift shipped it certain' times and places; but also iv ( the. presence, and with", the, .authority of the proper , officer;,, *h<J , although the bhippor , should, comply, .witty one, but fail to observe th«> other „of, ,the*e" n>qiuremen,tt, the goods mint be forfeited. , tie then, referred the Court to ojkuies 3) Mid'&9,of Jhe same Act, which' .refer to the landing of imported ffQoda nnd.the shipping qf goods for exportation. , These, clauses placed, almptfc iiloujbicsl rpstrjctious on the landing and shipping of ■uoli gooils, and in language* much more explicit than that employed in thu 126 th clausg. , , Mr, Wyuu replied, ' , His Honor overruled the demurrer, with costs, and gave judgment for the defendant. , ,

PITA TAUBtTA (V» ( V» HILLS. , The tame counsel appeared in this qase, and the poiu^s involved being identical, Mr. Wynn agreed to abide by the judgment, given in the former case. i LADNCKLOTBFATXY Y. J\Ws L. LYEIiL.' Mr. Gillies, instructed by Messi*. .Whitsiker and Enssell, appenied for plniu tiff; ]siir. Wynn, instructed by Mr. Beveridgo) for' defendant. The declaration discloses the, following facts : — On the 3rd day of March, 1853, plaintiff deposited 1,000 dollars in the hauili of defendant;, who was u banker in Dotioit, id the United (States of America, and who held that sum subject to the plaintiff's order, and was . to pay the plaintiff interesb at the rate of 7 per cent per annum, as loug as ho held the money« Plaintiff, had fiequontly made application for the amount and lutoresit, and the defendant ha>l not yet paid him. On the ath September, 1855, 200 dollars were received by the defendant to the use of the plaintiff, -which he hail not been able to recover. The defendaut pleaded tli.it the alleged cause oi action did not accrue within sis yeais before this auit. The plaintiff replied that ' the action was ooni' menced within six ypai s from the time of the plaintiff's coming from 'beyond tbo seas. To this i there was t demurrer ainlrejoiu4er. , , .' Defendant argued that, the camp, of actioujhaviu" occurred ' beyond seas, the Statute of Limitations die nob apply. The Mercantile Law Amendment Ac I was a complete answer to the whole plea. The .case arose, in 1853, and thpiefote'as far as tune was con oei;ued. there was 1( uo,, question at ; ajl. t^e then referred to 21 J.imes^ 1 c, 16' sec', in support of his argument, but he entirely lelied in this ense on tin Mercantile Lair Ameiidme'nt Act/ Mr. Gillies argued that although the cause o: action accrued in a foreign country, yet the parties had six: yeais fioin.the time of ( thejr return to Eug laud, and quoted Williams v. ' Jones, 13 East, The right Was not extinguished, the remedy wa! merely suspended, fie submitted that in the pre sent case the Mercantile Law A inond men t Act die not touch the case at all, for this reason and nc other, that the statute would not be presumed to have a retrospective effect. Judgment reserved.' '