LAW REPORTS.

Dominion, Volume 4, Issue 1113, 28 April 1911, Page 3

LAW REPORTS.

COURT OF APPEAL. THE AUCKLAND GAS COMPANY. FOOTING IN DEVONPORT, .Ai\D WHAT THE BOROUGH WANTS. "This Act shall extend to and include the Cily of Auckland and Mich parts of Ilio suburbs and vicinity thereof as lie within a radius of ten miles from a centre at theiVt Ofß'ie, ShorUand Street, Auckland," So runs a clause in the Auckland Gas Company Act of IS7I. Shortly after rlie passing of the .Act the Gas Company erected works, in Auckland, and set about supplying consumers in the city. At this stage of the northern city's history tho now nourishing Uorough "of Devonport was not in being. Wivli the growth of the townships across the harbour, however, tho Gas Company decided that it could advantageously extend its field of operations, and in, ISSa gas works were established at Devonport. These works, which are still being carried on, were erected without reference to the local authority which then had jurisdiction over the area. It is impossible for the company to get n land route for.pipes from Auckland to Devonport within a ten-rnile radius, and the nearest. point on tho Devonport side of the harbour is 81 chains from the Tost Office in a direct lino across-the harbour, and some -10 or SO miles by land. It was the above circumstances which made the Gas Company resolve to put up the separate, works at Devonport. The Devonport Borough Council is now asking tho opinion of the Court as to whether or not the operations of the company in Devonport are legal, and the nuesfion camo before tho Chief Justice (Sir Robert Stout), Mr. , Justice Denniston, Mr. Justice Edwards, Jfr. Justice Chapman, and Mr. Justice Sim yesterday, in the form of rn originating summons under the Declaratory Judgments Act. The Questions the Court is asked to determine are:— Whetiu-r tho Auckland Gas Company : Act, 1871, extends to',' includes, and is ■in force within (he Borough of Devon- . port? If so, is the magistrate bound, when determining tho plans under Section 7, to so take into consideration the permanent levels (fixed by the persons having control of tho street), that he, must require the company to lay their ' pipes at such a depth below the existing surface level as ' will ensure Ihei" remaining below the surface when the road is cut down to its permanent level? Tho trouble has arisen over tho laying cf pipes in a certain street in Devouport, the corporation wishing them' laid according to a "permanent level" (at which, however, some of the streets are not yet laid). The Gas Company wish to Jay the pipes according to the present, level. Argument occupied the' whole of yesterday, and the Court reserved its decision. Mr. Martin Chapman, ICC, with him Mr. Preridergast, appeared for the plaintiffs (tho Devonport Borough Council), and Mr. 11. D. Bell, K.C., with him Mr. T. Cotter and Mr. Richmond, for defendants (the Auckland Gas Company). THE RIGHT AND WRONG WAY. IN AUCKLAND WILL CASE. An interim judgment was given by the Court of Appeal yesterday, in the matter of the will of the 'late Mrs.' Eachel Collins, of ParnclJ, Auckland. Tho appellants were Win.. Samuel Collins and David Alexander Hay, trustees, and the respondent was Harold Alfred Collins,' a grandson of the testator. Certain of deceased's children were dead ct tho time of the making of the will, and the point involved was whether the will provided for the offspring of these. This, said the Court, was an appeal from tho judgment of. the, Chief Justice upon an originating summons taken out by the appellants' as executors of the will of Kachel Collins against the respondent, a grandchild of tho testatrix, who claims to ..bo interested under tho trusts of the will. The proceeding has been begun and carried on in ah irregular manner. . . . The appellants obtained from the Chief Justice an order that tha summons was to be served upon the defendant alone. It appears to be plain that his Honour was deceived by tho form of tho summons, and that he assumed that tho defendant alone was interested in the fjuestion upon which the opinion of tho Court was sought. An affidavit has, without leave of the Court, but without, objection on the part of the respondent', been filed and used in this Court. From (his affidavit it appears (for (he first time) that, tho defendant is one of three children of Arthur Edwin Collins, dpceased, all being equally interested in the proceeding. It further appears that another child of tho testatrix, Isabel Rachel Hewin, also died before the testatrix, leaving one child, who is now living. The affidavit is silent as to the name, age, or condition of this person, who is also interested in the proceeding, hut it was stated at tho Bar that she is of full age, and is a married woman. Ivo explanation has been offered for the nonjoinder in the proceedings of all the persons interested. It is plain that all of them blight'to have been so joined. In conclusion the judgment says:— "We cannot determine this appeal until all the necessary parties, are brought before tho Court. Wo therefore make the following order under Rule 3 of the Rules of this Court:—Order notice of the appeal (together with full copies of the original summons, of all affidavits filed in support thereof, and of the judgment in-tho Court below, and of the written reasons therefor) to be served upon the other grandchildren of the testatrix, who are children of her children who had predeceased her; order further that the persons so served shall have liberty to file in this Court such affidavits as they or any of .them may'be. advised; adjourn the hearing of the appeal sine die to be brought on upon due notice by the appellants to the respondent, and to the persons now ordered to be- served; reserve the costs of 'the appeal; liberty, to any of the persons interested to move to dismiss the anpeal in the event of- the appellants failing duly to'prosecute the same.". At the hearing Mr. T. Cotter, instructed by Mr. G. Mahoney, appeared for appellants, and Mr. E. W. Burton for respondents.