AKAROA RESIDENT MAGISTRATE'S COURT.

Akaroa Mail and Banks Peninsula Advertiser, Volume 4, Issue 404, 18 June 1880, Page 2

AKAROA RESIDENT MAGISTRATE'S COURT.

Tuesday, June 15. (Before Justin Ayluior, Esq., R.M., and W. B. Tosswili, Esq., J.P.) BREACH OF MUNICIPAL CORPORATIONS ACT. A.. G. Wiggins appeared to answer four informations, laid by W. H. Henning, charging him with offences under the ahove Act. The offences alleged in the summonses ran as follows :—" For that he, on the 31st day of March, 18 0, at Akuroa, in the Colony aforesaid, did unlawfully hold office as a Councillor in the Borough of Akaroa, and, while holding such office, participate in work done for the Council, contrary to clause 61, sub-soction 4, of the Municipal Corporutions Act, 1867." And further that he,"on the 31st day of March, 1880, at Akaroa, in the Colony aforesaid, did unlawfully, while holding office as a Councillor in the Borough of Akaroa, vote or take part in the discussion of matters before the Council in which he was directly interested, contrary to clause 75 Municipal Corporations Act, 187 G." The other two informations were identical with the foregoing, except that the date charged was the sth of April. Mr H. N. Nalder appeared for the informant, and Dr Foster for the defendant. Mr Nalder applied to have the first two informations amended by the insertion of section 63 in place of 61. Dr Foster said he might as well save time by stating that he contended that all four informations were bad on the face of them. With regard to those laid under section 61, he urged :—l. That the penalties were recoverable by civil suit, not by criminal proceedings. 2. No offence was charged. Holding office was not an offence. 3. The information spoke of " work done." whereas the words of the act were " work to fredone." Ihe two things were certailny not identical. If the work was done the disability, if any, was at an end. With regard to the informations under section 75 he would object: 1. That the alleged offences were not stated with sufficient definiteness. The information stated that defendant " voted or took part, &c." The question was, did he vote or did he take part? Counsel referred to a case in which he had himself been engaged— "Eegina v. Earnshaw." Defendant was there charged with altering "a certain book, paper writing or document." He was convicted, but on appeal the Supreme Court quashed the conviction on the ground of want of certainty. 2. To constitute the offence, the act charged must be done " knowingly," and this was not alleged in the information. There was, therefore, absolutely no charge before the Bench. The information was therefore incurably bad. He would iead their Worships what Judge Johnston, in his Justice of the Peace, said on this point: "Everything necessary to constitute the offence according to its

statutory definition . . . ought to be stated. For instance, if it be necessary in order to make the defendant responsible that he should have known something, his knowledge, or, as it is called the Scienter, ought to be stated, and the absence of that allegation will not be cured by alleging that the act was done unlawfully, fraudulently, aud against the form of the statute."

Mr Nalder would admit that the informations under section 61 were.bad. With regard to those under section 75, he would ask the Bench to amend them by inserting the word " knowingly." He argued that they had full power to do so, and quoted Judge Johnston to that effect. Defendant could not allege that he was taken by surprise. Dr Foster admitted the general power to amend, but here there could be no power of amendment because there was no power to hear. The offence charged was no offence at all. It might as well be alleged that a man was walking along the street. The Bench decided to amend the informations by inseiting the word "knowingly." Mr Nalder then proceeded to open his case, and called the following evidence :— James Morris Wood, being sworn, stated that he was the Town Clerk, he produced the Minute-book.

In reply to Dr Foster, he stated that he wis not Clerk on the 31st March, that he did not enter the minutes of that date in the book, that he could not swear that the names of Councillors either entered as-being preeont or as having voted were correct. Dr Foster then quoted authority to show that the Minute-book alone could not be received as evidence, that it was necessary to substantiate them, that the Clerk or some other party be ,able to swear to their correctness. Mr Nalder read the clause of the Act, referring- to the mode of recording the minutes, and contended that nothing had been shewn to prove that the minutes had not been so kfept. Dr Foster submitted that it was the duty of the prosecution to prove their correctness and not his client's place to prove them incorrect. • The Bench asked if Mr Nalder had (other evidence to speak to the minutes.

Mr Nalder contended that none was neceaaary. The Bench decided to receive the minutes. Dγ Foster objected, and the Bench made a note of it. The minutes: of March 31 were then read. * Patrick O'Reiliy was then sworr.. He stated that he was a Councillor on March 31. That to the best of his belief defendant was present in the Council Chamber as a Councillor at a meeting.held that date. That he (witness) had moved " That tenders be called for clearing side channels, &c." That the motion had been seconded and carried, but that he could not tell whether Cr Wiggins had voted on it. He further stated that he (witness) Was present | ; at the whole meeting, but could not say who proposed or who seconded the motion " That tenders te called for gravelling the footpaths at per load including spreading the number of loads required to be left to the Works Committee," nor could he remember whether defendant had voted on it or not. K. M. Barry was Town Clerk at.the time. Mr Nalder produced a copy oi the Aharoa Mail dated April 9, and drew witness , attention to an advertisement appearing in it, calling for tenders for gravelling, and asked witness whether that advertisement was not caused by the resolution alluded to. Witness replied that it'might or might not be, he could not say. He supposed it I was.

- In reply to Dr Foster, witness stated defendant was generally present at the Council '-meetings. That he took part in most discussions, except when money matters were concerned. That when payments of accounts were brought on he always left the chamber if there was any account to be passed for the Mail. There was a previous motion made by Cr Bridge re the metalling of the footpaths, and the motion in question may have really been an amended one. He could not say, but he believed that such was the case, and that the amendment seconded by the defendant was merely to leave the depth the gravel should be spread to the Works Committee. That had the amendment not been put, Cr Bridge's motion that "Tenders be called for gravelling the footpaths in the Borough a depth of not less than two inches" would have most likely been carried, and that an advertisemeut would have had to have been inserted in the Mail all the same. The resolution was a dead letter, nothing had been done in the matter from that day to this; not a grain of gravel had been carted. William Penlington, being sworn, said he was a member of the Akaroa Borough Council. Defendant was also a member. He was present at a meeting held on April sth He remembered the matter of Hahn's bridge being brought forward, and the motion made by Cr Cullen relative to the same. Could not remember whether defendant voted on the motion ; in fact, was not sure whether he was present or not. The motion was subsequently carried, and he had seen an advertisement calling for the tenders in the Mail In reply to Dr Foster, witness repeated his former statement that he did not know whether defendant was present at the time the motion was put or not. To the Bench : Witness could not say whether defendant was present at the following meeting when the minutes of the meeting in question were confirmed. This closed the case for the prosecution. Dr Foster, on rising to defend the case, said there were several different modes he might adopt which would be sufficient todefend the whole charge, but thac for the present lie would merely call the attention of the Bench to the fact that no evidence had been adduced to show that his client had any interest whatever in the Akaroa Mail. In the absence of any suali proof, he called upon the Bench to dismiss the. cases without going any further. Mr Nalder contended that the imprint on the paper was sufficient. Dr Foster pointed out that the imprint merely showed who was the printer and publisher, not who was the proprietor ; that possibly the Bench might use certain discretions on this point were the case merely a civil one, but that as it was a penal one, they could only accept such evidence as was brought forward, neither more nor less. Mr Nalder asked to be allowed to call evidence as to the proprietorship. Dr Foster submitted that it was too late as the case was closed.

The Bench said they would make a note of the objection. Dγ Foster, on concluding his case, said he trusted the Bench would give judgment in his client's favor, but he might state, were the Bench, to do otherwise, he should apply for a prohibition from a higher Court. He considered that the Kesiderit Magistrates were vested with great powers, and it behoved them to use them with discretion. He considered the Bengh had, during the present case, in several instances overleapt their bounds and gone diametrically against that freedom which is the right of every English man. fie would respectfully warn the Bench against going-too far. He would ' contend that the Akaroa Mail produced proved nothing ; that the minutes could not be accepted as evidence, and Patrick O'Reilly and William Penlington had both sworn that they could not remember his client to have voted upon any of the motions brought before that Bench ; that the Bench would have to use great discernment to know who has an interest in Borough contracts and who has not. He would contend that if the question were gone into it could be proved that everyone had an interest in the payment of money from the Council ; that not a footpath could be made, 01 street formed, or lamp erected, or a sign-post put up, but what it might be shown to be of direct interest-to someone holding propelty in the Borough ; that it had been shown, if his client had not seconded the motion, it would have made no difference directly to himself as connected with the paper, inasmuch as an advertisement would have been inserted in any case. He contended the Bench would be most seriously straining a point if they convicted his client.

A. Q. Wiggins, at his own request, was next sworn. He stated that he was a Councillor. He had heard the case. He remembered the circumstances connected witli the motion which he was alleged to heve seconded. Cr Bridge had moved that tenders be called for gravelling the Borough footpaths, specifying the depth the gravel .should be laid. He (witness) had pointed out that it would not be practicable to spread the gravel the same thickness throughout the Borough, and

suggested that the depth of spreading it should be left to the Works Committee. Cr Bridge had accepted the suggestion, and had amended his motion accordingly, and then he (witness) had seconded it. What lie had actually seconded was not 80 much that tenders be called for the gravelling as that the depth of spreading be left to the Works Committee. The whole Council were unanimous in their desire to have the work done, and done by tender. By Mr Nalder: With regard to Cr Cul ten's motion, before alluded to, he had not voted on it. The motion had not been put to the vote. He had not even taken part in the discussion. He could only swear to his being present at it by his receiving the minutes as correct. Hβ could not state whether he was present od the 14th or not; did not remember it. He had been charged with offences alleged to have been committed o,n March 31 and April s,Jand had referred to the proceed- ' ings of those two days, and had come prepared to answer the charges set down against those days. He could not tax his memory with any other days. Dr Foster contended that Mr Nalder had no right to put the question as being irrelevant to the charge. Thn Bench ruled Mr Nalder in the right. In further reply to Mr Nalder, witness" stated that he remembered a tender from Mr Burns for carting gravel being received. It might have been on the 14th April. He believed the minutes of the meeting held on March 31st were read confirmed, but could not say whether he ' was present at. the reading or not. He might have seconded Cr Bridge's motion re calling tenders tor gravelling, &c. but could not say positively whether he seconded them, or only spoke to them. He * had an interest in the paper and in moneys received from it. He charged the Borough Council for the advertisements, but could not say whether those in question were paid for or not. He remembered a meeting on April 6th, and that the subject of Hahn's bridge had been brought up at that meeting; likewise, the motion put and carried for calling for tenders, but lie ' had neither voted on it nor taken any part in the discussion. That on Cr Bridge's motion he had referred only to the depth being left to the Works Committee. * To the Bench : I seconded only when the amendment re depth cf spreading was put. The Bench adjourned for consideration for fifteen minutes and on resuming passed judgment to the effect that on the first charge a fine of £10 and costs be inflicted, or in default fourteen days' imprisonment; and on the second charge a fine of £10 and costs, or fourteen days' imprisonment. The Bench declined to allow solicitors' fees. . ** Civil Cases. KODRIGUKB V. o'IIErLLY. Claim £20 on a dishonored promissory* , note.

Mr G. W. Nalder appeared for defendant, and pleaded not indebted.

Plaintiff deposed that defendant came to him with a promissory note made by H. T. Woraleyin favor of him (defendant) and asked him to advance him the money on it, which ho did. When the bill came " due it was not met. and defendant asked. him to accept a renewal. He did ho, and this whs dishonored. On receiving notice of dishonor from the Bank he allowed it defendant wb«> asked him not to push the matter at the time, and he would see that he was paid. Mr Nalder contended that due notice had not been given within the proper time. * It whs incumbent on defendant to prove tlmt tagal notice lim! been given. The Boiich considered that no evidence had been adduced of due notice having been given, and plaintiff was non-suited with costs. J. THOMAS V. WILLIAM KEARNEY. Claim i' 6 10*. Defendant pleaded not indebted. Plaintiff stated that the amount claimed was for labor performed in drawing grass* seed at £1 per day as per agreement; that he had worked six and a-half days. Defendant stated that he was overcharged. He appeared to be labouring* under an ideu that he was being hardly dealt wMi. He acknowledged that he had agreed to pay 20* per day and he believed that the amount of labor charged forbad been performed. On the Bench inquiring what reason defendant had for disputing the account or what deduction he required, defendant stated he did not know, but he thought he ought to have something. He endeavoured to recall to plaintiff's memory either a real or nn imaginary conversation which he alleged he held with defendant outside the Madeira Hotel, but to no avail. He then asked plaintiff how it was he had charged *" £6 10h instead of £6 ? Plaintiff replitd that be bad worked six and a half days, and that he had charged it so on the hill. v The defendant denied this. The Bench stated that on the bill held by them it was so shown Defendant .stated that if the one plaintiff held was worded differently, it was in error. Plaintiff urgpd that that error should be allowed in his favor. The Bench ruled that it was merely a clerical error, but notwithstanding this, only gave judgment for the sum of £6 and costs. "•

Hie Court then adjourned.