RESIDENT MAGISTRATE’S COURT

Poverty Bay Standard, Volume II, Issue 184, 4 July 1874, Page 2

RESIDENT MAGISTRATE’S COURT

Gisborne, Friday, 3rd July. [Before W. K. Nesbitt, Esq., R.M.; and G. R. Johnson, Esq., J.P.] SKEET V. PARK. Judgment was given for the defendant under 35th clause of the Highways Act which says that the rate must be levied upon either the occupier or owiier. SKEET V. Wl PARAONE. Adjourned from Monday last, Mr. Cuff for plaintiff, Mr. Wilson for defendant'; Mr. Cuff read the 56th clause of the Highways Act aud contended that obstruction to the road had been made under that section, and called J. Drummond, who, being sworn, states: I was Engineer to the Road Board when a discussion arose relative to the road in question. I was instructed to lay off a road from King’s Mill to Brown’s Point. I made the plan produced and surveyed the road as shown thereotf." ——■ By Mr. Wilson: The proposed road would have gone through a line of fence, it would take of about an acre of the native cultivation. There are some whares close to the stream, one of which is on the road. Mr. Cuff read and put in the notice given by the Boad Board relative to the taking ofrthe proposed road, from the Proninnal Government Gazette dated 9th April 1873, also Gazettes containing notices from the Road Board, and a proclamation of His Honor the Superintendent confirming the action of the Road Board, aud notices in the Auckland Daily Southern Cross and Poverty Bay Standard, in terms of the Highways Act. B. M. Sheet, sworn, deposed: I am Engineer • aud Secretary to the Poverty Bay District Highway Board. I received instructions from the Board relative to opening lhe road in question. I removed a fence erected across the Road. No one opposed me at that time. I wroteqo defendant on the subject. I saw a native putting the fence up again, it was neither of the defendants. Mr, Cuff here put in a Provincia Government Gazette containing the boundaries of the Poverty Bay Highway District. Robert Turnbull, sworn, deposed: I was in the Mill Bush on the 15th of June last. I saw Mr. Skeet there. Wi Paraone was not there. Mr. Skeet told me to pull down a certain fence on the disputed road. I did so according to his orders. The natives put up the fence again. I had no conversation with them. By Mr. Wilson : Wi Paraone was not there when I pulled the fence down. Henry Probert, deposed : I saw Turnbull pull the fence down. I know defendant. I saw him putting the fence up again. By the Court: There is but one fence on the road. R. M. Skeet, re-called: The letter I sent to the natives (copy produced) was sent to them through Captain Porter. This closed the ease for the prosecution. Mr. Wilson raised a preliminary objection and referred to the 3rd section of the Empowering Act. He argued that it was necessary to prove that all the sections of the Act have been complied with, and that there was no evidence to shew that this district had been proclaimed under the 3rd section of the Empowering Act, in short that the terms of such 3rd section had been complied with at all. Again, under clause 30 there was ho evidence to shew that the Board had advertized twice in some newspaper; aud none that the Road Board had appointed a paper for that purpose. By clause 29 there was also no evidence to shew that plans aud specifications were prepared and deposited in terms thereof. A notice certainly appeared from the Secretary, in the newspaper, to that effect, but he (Mr. Wilson) contended that that was no proof that they were so made, deposited, and open to inspection for forty days, at all reasonable hours. By clause 34 there was no proof of payment or tendering of compensation being made to defendants for the land sought to be taken. By section 106 Native Lands Act, 1873 (read) he contended that there was no evidence to show proportion of land taken. J. Drummond, re-called, stated that the proposed road would take about 4 acres of the land. Mr. Wilson alsoobjocted that there was no evidence to shew that defendants were aware of their fence having been razed, and that, primarily, there was no offence within the meaning of the 56th clause of the Highways Act. Mr. Cuff contended that under the 56th clauses of the Highway Act the onus of proof lies with the defendant, (clauseread.) He did not consider it necessary for him to prove; he had already proved more than was necessary, but merely to lead up to the subject of the Superintendent’s

proclamation. It was a well known maxim in law that all things are taken to be done correctly until proved to be to the con. i riiry ; and he contended that his learned friend was bound to prove that such was the case if he could. Mr. Wilson, in reply, said that his client’s mouth was shut; he could give no evidence, and it was not necessary for him to prove anything. The Court adjourned for one hour. At the re-assembling Mr. Wilson accepted the suggestion of the Court that his preliminary objections be waived, and that judgment be given on the whole case, whereupon Counsel, on either side, addressed the Court at some length. Judgment was given for defendant with costs, chiefly on the grounds that sections 34 and 35 of the Empowering Act have n«t been complied with; but the Bench was >f opinion that it should go to a higher Court. Mr. Cuff gave notice of appeal. BEAD V. DEMPSEY. Mr. Cuff for plaintiff; Mr. Wilson for defendant. Claim £’s 16s lOd, cash advanced, and Ils Id loss sustained on two casks of tallow bought from defendant, and which turned out to be unmarketable. Judgment deferred until this morning, for the purposg of considering the various pointy of law raised by Coupsei. [Left Sitting.]