SUPREME COURT.

Evening Star, Issue 4161, 28 June 1876, Page 2

SUPREME COURT.

IN BANCO,

Wednesday, June 28. (Before His Honor Judge Williams.)

Retina v. Jones. —ln this case hia Honor gave judgment. He said the four grounds on which the rule nisi was granted were—--Ist, that that .the provisions of the Otago Municipal Corporations Ordinances, with respect to vote by ballot, had not been comSlied with; 2nd, that the provisions of those •refinances wuh respect to revisloa of the citizens’ list had not been observed; 3rd, that the election was held on a wrong day; and 4th, that proper of nomination had not been given, and the nomination paper had not been duly signed. The nomination paper was duly • signed, and the question of due notice may be considered as part of the third ground. The first ground could not be supported, as the provisionsbf section 5 of the Ordinances, regulating election by ballot, had been com plied with. Mr Dowell’s evidence that voting was not secret was contradicted by all the other witnesses. The voting itself was secret, and the means for obtaining such secrecy were substantially in accordance with the Act. The case of Woodward y. Sartur, L.R. 10, O.P. 713, was very similar to this case, and was a complete exposition of the law on tho subject. In thett case the returning officer for a ward in Birmingham marked on the face of the ballot-paper delivered to each voter the number of the voter on the Borough roll, by which the voters could have been identified. But, as a matter of fact, in counting the votes the numbeTs were not seen so as to identify them! The Court was not satisfied that this departure from the Bal’ot Act had affected the result, and a petition to set it aside was dismissed. In this case there was nothing in the affidavit filed to show that had the whole of the voters in Park Ward voted against Jones, the result of the election would have been different. As to the second ground, the Superintendent, acting under section 113 of the Otago Municipal Corporations Ordinance, appointed - William Eager to prepare a Citizens’ Roll and Peter Paxton to sign and revise it, and preside at the first election of Mayor and Councillors. It was prepared by j [Eager and signed by Paxton, but the latter, instead of giving ten days’ notice of the time and place of sitting as required, published the Roll one day and on the same day gave notice of his intention to revise it on the day following. This was clearly irregular, but as there was nothing to show that any name was on the roll that ought not to have been, or that any. were omitted from the roll, or that the irregularity in any way affected the election, there was no reason to make the rule absolute on that ground. The temporary nature of -the ( office has been considered a ground for noninterference by the Court, and in this case the office was for ~a few months only. The Court also considered the harm that would result from dissolution of thi Corporation, and in this country the mischief that would ensue by encouragement to individuals to molest Corporations, on technical grounds, for the formation of a Municipality or Road Beard was the first step towards giving a district the essentials of civilised existence. The Court would not, therefore, interfere with the development of those institutions unless absolutely necessary. It was therefore sufficient to induce the Court to exercise its discretion and refuse a rule where there was nothing to show that the result of the election would have been different bad no irregularity occurred. The absolute want of evidence on that point alone induced him to discharge the rule on the third ground. In ordinary cases there was no reason why the person who set the law in motion should not pay the costs, but as irregularities had accompanied the election which might have been avoided by careful perusal of the Ordinances, the rule would he discharged without costs. (The effect of the above judgment is that Mr Joues retains his seat as Mayor of St. Kilda.) . ■ Webb v. National Bank of New Zealand. —Argument: of.rule- nisi in arrest of judgment or for new trial. Mr -mith, with him Mr Stewart, made the application ; Mr Macassey, with him Mr, Mouat, showed cause.—Mr Macassey submitted that the power vested in the defendants under the bill of sale was improperly exercised, and therefore plaintiffs were entitled to a verdict. The damages/ under the circumstances as shown, were not excessive. The defendants acted most unjustifiably in seizing and selling the goods, and he (the learned counsel) submitted that the rule must be discharged with costs. [Left sitting.]