COURT OF APPEAL

Dominion, Volume 10, Issue 3038, 27 March 1917, Page 9

COURT OF APPEAL

OPENING OF SESSIONS A NAPIER MATTER The Court of Appeal commenced its sessions in Wellington yesterday morning. The .Chief Justico (Sir Robert Stout) presided,, and with him Their Honours Sir John Denniston, Mr. Justice Cooper, and Mr. Justice Chapman occupied tho Bench. The Attorney-General appealed against a decision of His Honour Mr. Justico Hosking- in a caso in which the Borough of Napier [proceeded against the Australian Mutual Provident Society on an application for a declaratory judgment determining certain questions."

In the originating summons, the following questions were asked: —(l) The Napier Borough Council, having in 1912 Taised a special loan under Section 16 of the Municipal Corporations Act, 1910, and having thereby paid off its overdraft as it existed on March 31, 1910, and the Borough of Napier and the Napier - South Town District ' having, on April 13, 1915, been constituted one united borough of the namo of tho Borough .of Napier, did it become legally competent to 'the plaintiff corporation as the corporation of the same united borough to overdraw its bank account after the said -union to tho full extent permitted bv Section 96 of the Municipal Corporations Act, 1908, without, regard to the amount imposed by the proviso of Section 97 of tho same Act? (2) Can the amount of tho overdraft of £55.00 herein bo legally raised under a poll of ratepayers taken under the Local Bodies' Loans Act, 1913? (8) Having regard to the provisions of Section 252 of tho Municipal Corporations Act, 1908, cjn the item of £4000 for the purchase of two motor fire-engines ... be raised by means of a special loan under tho Local Bodies' Loans Aot, 1913? (4) If both or either of the said items

. . _. cannot be legally raised, can the sinking fund aiid 1 special rate proposed td.be. pledged for the whole loan of £27,500 ,be lawfully pledged for so much of the said loan as may be lawfully raised? (5) Or, can portions of the 6aid sinking fund and special rate proportionable to tho legalpart of the Baid loan be raised? (6) Having regard to the points raised in the preceding questions-; . . . can the defendant society safely, advance to the plaintiff corporation the amount of the proposed loan of £27,500 or any parts of such loan?. In his judgment Mr. Justico Hosk;ing. decided that■■ the: borough could raise a special loan under the Local Bodies' Loans Act, for tho purpose of paying off the existing overdraft. It was in conncction .with tho affirmatlvo answers to questions (2). and (6) that the Attorney-General appealed. Mr. J.. W. . Salmond, SolicitorGeneral, appeared' for the appellant, Mr. T. F. Martin for the Borough of Napier, and Mr. R. Kennedy for tho Mutual Provident Society. Mr. Martin stated that the society desired to submit, to the judgment of the Court. - Legal argument by Messrs. Sajmond : and Martin was. heard, and decision was reserved. '. Tho, Court of Appeal adjourned till Monday, A session of tho Supreme Court will bo held to-day. FIXTURES. Dates of hearing were fixed by tho Court as under:— Supreme Court—ln Banco. Thursday, -. March 29—Manawatu Gorgo Road and Bridges Commission. Friday, March 80.—Doyle v. AVlfet«head. Before Court of Appeal. , Monday, April 2.—Harry Edward Good v. William J. R. Bruce. Tuesday, April 3.—Thomas E. Fletcher v. Wainono Drainage Board. Monday, April 15.—John Duncan and others v; Annio . Rhodes, Rylo, and others. . ' ' ■ ' Wednesday, April 18.—John Fred-erick-Parker v. Joseph Wachner; Waihi Paeroa Gold Extracting Co., Ltd., v. Attorney-General. .