COURT OF APPEAL.

New Zealand Times, Volume XXX, Issue 4420, 20 May 1875, Page 3

COURT OF APPEAL.

Wednesday, May 19.

(Before bis Honor the Chief Justice, Mr, Justice Johnston, and Mr. Justice Gillies.)

RE JOHN STUART, BX PARTE CROWTHER.

This was an argument in the matter of a deed of arrangement made between John Stuart of the one part ; A. P. Stuart and J. B. Harcourt, trustees, of the second part ; and the creditors of John Stuart, of the third part. Mr. 'Wilson, on behalf of Mr. E. Crowther, had obtained leave to appeal against an order of the Supreme Court, whereby the • abovenamed deed was declared to be completely executed. The grounds of the appeal were : 1. That the deed of arrangement was not at the date of the order executed by the requisite majority of the creditors ; and, 2, that the deed was not a good deed within the meaning of the provisions of the Bankruptcy Acts, , inasmuch as it did not contain a conveyance and assignment of the estate of the said John Stuart to trustees, for the benefit of his creditors. Mr. Travers appeared for Mr. John Stuart, and Messrs; Stuart and Harcourt, to oppdse the motion for setting aside the deed. • The case having been argued at length, the appeal was allowed, and an. orjler made dlscharging the order appealed from'; the respondents—Mr. John Stuart and Messrs. Stuart and Harcourt—to pay the costs of the appeal. , , HAWKE V. FBETHEY. This was an action brought by the Greytown Local Board to recover the sum of £6, being the amount of rates alleged to be due to the Board by the defendant. It will be remembered that ! at the hearing in the Resident Magistrate’s Court, Greytown, the defence set up was that the Board had not been properly elected ; that the ballot-box had been opened an hour after the time fixed by law; that the Returning Officer appointed to preside at the election was not present to count the votes at the close of the poll; and that the election was void. _ It was, therefore, argued that, the election being void, the members of the Board had no power to make a rate, and that the rate struck was a nullity, and not recoverable either in the Resident Magistrate’s Court or the Supreme Court. In opposition to this view, the Resident Magistrate gave a verdict for the plaintiff, with leave to the defendant to appeal. The case was argued in the Supreme Court, where it was contended on behalf of the Board that the invalidity of the election could not be taken advantage of in an action to recover rates; and further, that the case should have been taken ’by appeal to the Supreme Court, in terms of the Provincial Rating Act, 1871 within a month after the rate was made. In default of appeal within the prescribed limit of time, it was contended that the question was at an end, and that the Board was entitled to recover the amount claimed. At the hearing in the Court below, Mr. Justice Johnston took the same view of the matter, and the decision of the magistrate was upheld. '. , . . Mr Gordon Allan, basing his argument upon the contention in the lower Court, pointed out that the power of appeal given by the Provincial Rating Act referred only to cases in which the rate was bad from. 11 mi* observance of the proper formalities striking it. That interpretation he did not intend to controvert. His contention struck at the constitution of the Board itself, and not at the badness or goodness of the rate. He contended that there was no local Board ; that the election was invalid j and that as there was no body having power to make such a rate as that for which the defendant was sued, the rate must be a nullity. That was the whole point of the case. He could call upon the plaintiff

to prove the legal existence of the Board, or it was open to him to prove that there was no Board at all. The goodness or badness of the debt which was called a rate was quite immaterial. In support of his contention, Mr. Allan quoted the Provincial Bating Act 1871 ; the English Public Health Act, 11 and 12 Victoria, 18X8 ; Millward v. Coffin, 2 William Blackstone’s Keports ; and Moffitt v. Maufull, 25 L.J.Q.B.

The Court then adjourned till half-past ten o’clock next morning.