RESIDENT MAGISTRATE'S COURT.

New Zealand Times, Volume XXXII, Issue 4925, 5 January 1877, Page 3

RESIDENT MAGISTRATE'S COURT.

Thursday, January 4. (Before Captain Holt and Mr. J. H. "Wallace, J.Fs.) There was only one case on the criminal sheet at this Court yesterday, being one of drunkenness, and the defender was dealt with iii the usual manner. Thtre were eleven civil cases set down for hearing. Son>e of thern were adjourned. The following vns the only ease of public interest, namely : CITY COtVCIL V. ROBERT ADAII3. This was a claim for part payment of the cost of forming The work had been done by order of th« Council, and an advertisement had been inserted in the papers, claiming from the residents, between whom the whole cost of the work had oeen allocated, their proportions of the amount to be paid within one month. Mr. Travers appeared for the Corporation ; Mr. Stafford for the defence. It was explained by Mr. Travers that, owing to the names of the residents and the amounte due by them individually not having been stated in the advertisement, it would be neces-

sary for him to prove otherwise the facts / necessary for his.case. He mentioned the circumstance because the Court would observe that had the last part of the clause been observed strictly the advertisement alone produced in Court would have been sufficient and conclusive evidence. He then called Robt. Adams.

Mr. Stafford objected to Adams being called, contending that the defendant could not be called to give evidence until a,prima, facie case had been- made out by plaintiff. He quoted Chief Justice Pollock in support.

Mr. Travers said the objection was invalid, that the case was entirely different to that mentioned by his friend, aud his authority was not applicable to the pre-eut case, as the defendant had been subpoenaed as a witness. The Bench held, with Mr. Travers, who then called Robert Adams, who, being sworn, deposed that the letter produced was not in his handwriting. The signature pointed to in the second document was his handwriting. Was present when the first letter was written, and had authorised some one else to put his name to it. Was the owner of a piece of land in Haining-street. Mr. Marchant, City Surveyor, deposed to the formation of Haining-street, which had not previously been formed as a street, as it ran through private property. It was accessible from Tory and Tarnuaki streets. Could not say of his own knowledge whether the street had been used by carts before it was formed. It might have been used, though not as a thoroughfare. The street was formed under contract for the City Couucil. The cost was £153 10s. Witness ascertained the names of all the owners and occupiers in the street in proportion to their frontages. The, document produeed represented the proportions. Adams' name appeared as the owner of 66ft. frontage the apportionment in his case being £7 13s. lOd.

By Mr. Stafford : I believe the Council had not the power to accede to the petition. Ido not think that the proceedings were taken in consequence of this petition. I was spoken to on several occasions by the residents of Haining-street. I may have advised them to petition the Council, but only in reference to working the street. The Council had not power to deal with the street, but obtained power under an amended Act. The Act of 1875 was in operation when the contract was eutered into, under clause 11, which specially met the case. Some alterations were made in the street to the order of the Council.

Mr Hester, the Town Clerk, gave evidence as to the insertion of the advertisement calling upon the residents of Haiuing-street to pay their apportionment,-*. Mr. Adams had since been asked to pay, but had refused. Mr. Marchant, recalled by Mr. Stafford, said some of the residents (Adams among them) had objected to the alterations. He believed that a deputation of residents waited upon the Council, objecting to the change being made. Knew that Mr. Adams had strongly objected. By Mr. Travers : The change in the plan was for the purpose of reducing the expense and the danger to properties at the Tory-street end. Robert Adams was then called for the defence, and deposed that he had signed the petition produced, which was the result of a suggestion from Mr. George, one of the Councillors, who either drew up the petition himself or got some one else to do it. He said the Corporation w,ould pay one-third of the cost, if the ratepayers paid the remainder. then referred to the original plan, which he said he had been unable to see as it was not t« be found in the Surveyor's office. Mr. Marchant told him that Major Paul and Mr. George objected to the street being made on the original plan. Witness and others protested against the change; the result of which was a b3d street, for which they had to pay. The change was made against the express desire of the majority of the residents. Witness understood from Mr. George that the payment by the residents would be made by means of a special rate, to be paid annually until the amount was wiped off. By Mr. Travers : The conversations with Mr. George related took place before the work of forming the street was commenced. Defendant stated that the gradient on which the street was formed was so steep that he had to pay dearer for firewood and coals, as during the winter carts would not come that way for the consideration paid under ordinary circumstances. He considered that to pay the money, therefore, would be literally to throw it away.

Mr. Travere submitted that there was no defence ; that in fact the wording of the Act was such as almost to make a defence impossible, the matter resting entirely with the Council, to whose satisfaction the formation of the street had been made, as was shown by the evidence of he City Surveyor.

Mr. Stafford contended that there was no direct evidence of the approval of the Council, who had seemed to agree to the change in the plans at the suggestion of two gentlemen, Major Paul and Councillor George. The evidence before the Court established that the City Surveyor had laid off his plan so as to make the street available and useful to the residents ; yet notwithstanding this and a protest on the part of tw>enty-five out of thirty owners of contiguous land, and merely upon the request of Mr. George and another proprietor, a change had been made in the plans > which made the street of little or no use. He considered that there was no evidence before the Court that the alteration had been made to the satisfaction of the Council, and clearly not to the satisfaction of the ratepayers. He considered that direct evidence had been given that the change had been made in direct opposition to the wish of ratepayers and of the City Surveyor, and that, in the absence of evidence that the Council had expressed its satisfaction at the change, the Court should nonsuit the plaintiffs. In reply to the Bench, Mr. Hester stated that some payments had been made by residents of Haining-street. The Bench gave judgment for plaintiffs for amount and costs.