RESIDENT MAGISTRATE’S COURT CROMWELL.

Dunstan Times, Issue 668, 5 February 1875, Page 2

RESIDENT MAGISTRATE’S COURT CROMWELL.

Friday, Jam. 29. (Before W. L. Simpson, Esq., 8.M.) Nuisance.—Wi liara Bennett, of Quartzvilie, was charged with keeping a piggery contrary to the provisions of the Town and Country Police Ordinance. The Magistrate commended the action of the Police, hut held that the information was improperly laid. He commented strongly upon the fact of offal being allowed to remain alongside dwelling-houses, and suggested, that if it was not removed another information should he framed.—Case dismissed. Hawkers’ Licenses.—Licenses were issued to Chas. Seymour and Samuel Campfield. Corporation of Cromwell v. Marsh.— This was an action instituted hy the Corporation of Cromwell against John Marsh, of the Bridge Hotel, to recover the sum of L 8 8s 9d, being the rate alleged to be due upon section 8, of block XXVII, and of which the defendant was the proprietor. Mr Johnston (Corporation Solicitor) for the plaintiffs ; and Mr F. J. Wilson, of Clyde, for the defendant, who pleaded a general denial.

John S. Burrbwcs, being sworn, deposed: Mr Jonour and himself were appointed assessors. They valued section 8, block XXVII., of the Town of Cromwell. He served a notice of the assessment upon an inmate of the house. The property was valued at L 135, and the rate was Is 3d in the £. Mr Jenour had the written appointment.

By Mr Wilson : Could not say that the hotel covered the whole of section S, bat believed it did.

Charles Colclough, sworn, deposed ; He was Ton n Clerk. The rate was struck on nth December, 1574, at Is 3d in the £ ; and by the minute in the book it appeared “that a rate of Is 3d in the £ on assessed value of property be declared on the 31st December.” The notice now produced, and served upon defendant, makes the rate payab'e on the Ist Jannary, 1575. The assessed value of proper’y is L 6708. When I asked Marsh for payment he said, “If that’s all you want, clear ont of this.” He is not rated for any other property in section 8, block XXVII., except the one sued for.

By Mr Wilson : Was at home the whole of the day—that was, the Ist January. Had no doubt upon that point. It was a public holiday. His office formed part of his dwelling-house, which ho used as the Town Clerk’s office. He was appointed as collector. The appointment should he dated. (Document produced.) It is not dated, although it is in my handwriting. It was written during the past fortmght. It was not in existence on the Ist day of January. There was no minute as to his appointment as collector, but he had collected the rates during the past two years. By the Court: The minute calling for applications was for office of Town Clerk and Collector, but the motion confirming the appointment was simply “that Mr Charles Colclongh act as Town Clerk. There is another minute on the 22nd January, 1575, to the effect “That the Town Clerk take steps to collect the rate.”

H. A. Jolly: Was Mayor of Cromwell. In his official capacity had appointed Mr Co’.olough collector. Hehad always known him to act in that capacity. He was formerly paid U5, hut he now receives 1/25 in addition to the per centage on the rates. A number of documents were then handed in, and the plaintiff's case closed. Mr Wilson said : That a lawyer, like others, was bound to obey his instructions, and as ho would have to urge five non-suit points he would not occupy tho time of tho Court at any length, as he felt certain that one of the objections would prove unanswerable. He submitted—That tho Town Clerk could not in that capacity, sue for rates ; secondly—That tho appointment of Collector was made after the rate was made payable, and was, therefore, too late j thirdly --That tho rate proved was not tho rate sue 1 for ; fourthly—That the rate was promaturely declared ; and, fifthly—The notice of rate was bad, as it did not specify tho time allowed for payment. He did not rely upon tho second ground, but mentioned it incidentally, but the third point seemed to him to settle the matter. Tho Oidinance gave a joint power for Town Clerk to

act as Collector, but tho Act made tho rate payable to the Collector alone, and seeing that it was a much later enactment ha thought it should bo takon ns repealing the other. It would ho scon by reference to tho particulars of demand that no mention was made of tho Collector but merely tho Town Clerk, and in tho present case they had produced a special appointment as collector, dearly evidencing that by tbo Council the two offices of Town Clerk and Collector were two distinct appointments. Tbo action was wrongly brought, as the A' t to which be allude 1 omitted all mention of Hio Town Clerk, and merely named tho Collector. Ills Worship would see that by tho notice served upon the defendant it appeared that the rate was payable on the Ist January (New Year’s Day), and it did, at first sight. scorn strange that that day above all others should have been aupnin’o! for payment, especially when the minute passed by the Council, inserted in their bonk and confirmed by the Mayor distinctly and expressly stated that it 'ran ravable on the 31st December. Could it then be said that a notice in conformity with the Ordinance had hem served ? Clearly there was < a varanco between tho two, and such a variance that ha respectfully submitted must prove fatal, ft. was never done, but the Corporation could strike any number of rates, provided that the same did not exceed 2s fid in the whole, and of which they were compelled to give notice. The Cor. poration dee.larod a ratepayahleon the 31st December, and of which no notice had been served ; and of the rate pavah’o on the Ist .1 armary no such rata was made by tho Council. ITe inferred that the rate was prematurely declared, as the appeals under were only settled on last Court dav. and therefore the Assessment Book could not ho considered complete until they were heard, and in all probability the Council might have struck another rate exceeding 2s fid in the £, which would have hern i'local. ITe would refer the Court to Sections fit) and 91, in which the difference between Town Clerk and Collector was distinctly specified. The time allowed for pavrnent should he expressly stated in the Assessment Bonk as well as the consequent result of “default in payment." For the reasons stated he thought plaintiffs should be nonsuited. Ho would also refer the Court to. the Empowering Act, Mr Johnston replied, contending that the words, the 31st December, was surplusage, and the Town Clerk could name any time he chose for payment.

Mr Wilson would submit that the words “ time to time ” clearly showed clearly showed that a date must he fixed, and the importance thereof was manifested hy Section 85, which provided that any person may within ten days after che puhlication of the notice appeal, &o. If no time was particularised, when would the ten days commence. He must say that when the Notice was put hit his hands he imagined the Council had been playing a practical joke. The non suit points had not been answered, and as their offer on the last Court Day to have Hie case settled on its merits had been refused, he was instructed to press the prints he had raised.

His Worship—As this was avery important case he would reEervejudgment till next Court day. Hallenstein and Co. v. Horigan.—Withdrawn.

Oeo Evans v. .Tas. M'Nalty. Claim 15/. Xo appearance of defendant.—Judgment for amount, and costs. Perri.amv. .Tohlin.—Withdrawn. The Court then rose.