RESIDENT MAGISTRATE'S COURT.

Southland Times, Volume I, Issue 32, 13 August 1864, Page 3

RESIDENT MAGISTRATE'S COURT.

Tj!ubsda.t, iITH August, 1864. ] (Before H. M'Culloch, Esq., R.M.) DRUNK AITD DISOBDERLY. Niehok^ O'Erisn, for the above offence, -was fined 2ua.. or in default, forty-eight hours im- i prisonmenfc. i Cith. Cases. j HALL AND M'DONALD V. TOWN BOAED. | This case, which was remanded from the previous tiay, was again heard. Mr. B'.tvton for plaintiffs; Mr. South for de- [ fendaut. | Mr. Hail, one of the plaintiffs, deposed that he i and his partner entered into a contract "with the Town Board for the formation of Spey-street foot-path (contract in -writing produced). Under the conditions of the contract ire gave a deposit of £70. Mr. Kenneth M'lvor was chairman of the Board then. Mr. Gr. M. K. Clarke is chairman now. The Board otherwise consisted of the following members : — Messrs, Scandvett, Calder, Beaven, Jaggers, Eeynolds, Garthwaite, Liveseyand Grieve. The°said cheque for £70 was paid, and the contract completed, and a certificate given to that effect. The £70 should have been refunded to us three months afterwards. The money has not been repaid, the chairman stating that the Board could not pay as it had not got money, and likewise, as a public body they were not bound to pay. if. C. Huntev deposed that when the deposit was mid t h~> members of the Board were — Messrs. Grieve, 3<v:&r<, Scandre-tt, Beavcn, Calder, Reynolds. Garihv.-aite, Livesey, with Mr. M'lvor as chairman. This witness' evidence was chiefly corroborniivo. ,T. P. .Joyce, clerk to the Town Board. — Knowa plain lW=-—' iht'y have repeatedly applied for the £70. It hssnot been paid. There were not sufficient i». ii:inds for that purpose. That was the only reason. Grcss-ess mined. — I cannot say of my own knowledge how many members there were on 25th February l»?fc- There were not twelve^ G. M.' K. Clarke deposed — Am chairman of the Board. Was not co on 25th February. Cross-examined. — Know nothing of this affair personally or individually. Know of it in connection with the Board! The amount was properly passed and minuted. By the Bench — The twelve members were made up when I was re-elected. This was the case for the plaintiffs. Mr. South then addressed the Court for the defence, and regretted that it had become necesBary to conduct his case on legal grounds, but he was now bound to do so. He deplored the course adopted by Messrs. Hall and M'Donald ; but now that the Board was placed on its legal defence he would show that it was not liable on several grounds. He referred to the 4th clause and section of the Town Board Ordinance, wherein it Btipulated, and he would call particular attention to this fact, that that is a mandatory section of the Act, and provides that there shall be twelve members to constitute a Board. He maintained, therefore, that if, on the 25th of February last, there were not twelve members, then there was no Town Board at all then ; and if it were not in existence, then it cannot be sued. The Magistrates. — They are sued as members individually. Mr. South. — I wish again to say that the Board, had no wish to pursue this line of defence, but on the plea of personal liability he would refer to the 65th clause of the Act, wherein it will be seen that here a gam the members are not liable. The ' Magistrate. — That clause refers to money borrowed, and not for money held in trust. Mr. South. — Precisely. The principle is the same, and whether the money was borrowed or not, it did net matter. He then quoted from Smith's Leading Cases, last edition, 1862, p. 336, on the duties of public bodies, and also made references to the Board of Land and Works in Victoria, which, although it was incorporated by Act of Parliament, was not a corporation, inasmuch as it had had not a seal; and another statute was introduced providing this and to give it fuller powers. The Town Board was not a corporate body, but merely an association of individuals and they could not be sued ; also, there not being twelve members on the 25th February, there was no Board, and there could not be in that case a Town Board in existance at all. The learned counsel then pointed out that the proper course for the plaintiffs would have been to bind the rates of the Town Board, and quoted the case of Fried v. Dennet m support of this course. It was clear that they must be non-suited, and he, Mr. South, accordingly made this appeal. Mr. Button replied that all the points of defence his learned friend had raised had been anticipated. Great care had been taken in the preparation of the summons, from which it would be observed that the members were sued as individuals, and not as members of the Board ; although, parenthetically, it was mentioned _£hat they were " now or lately members of the Town Board." He offered no objection to strikiflg out those names of members who were not in the Board on 25th February. According to his j learned friend's own -showing, however, if there was no Town Board at that time, J the individuals who acted in its name must be j clearly responsible for their actions as individuals. They cannot claim any protection under the Ordinance, and it provides none. They had acte d i Bhnply a3 a committee or association of mdi- J riduais, and were sued as such. Had they been a corporate body, they would have been sued in that form. He clearly thought the case of the. plaintiffs proved. ' - j The Magistrate.— They are clearly liable as. individuals. : Mr. South.— lf your worship has made up your mind, I won't Bay a trord more. , | The Magistrate.— My mhid is quite clear that the members are personally liable. There is not. a word in the Act which, provides that they are nob. ■ ■ ■■. ...-■ ... ;- v ■■■ ■ : -. :■ '- ■:■' ■•. >- ...■ ;; " ;:l Mr. South contended; that they were only liable I through the Act. ■-, , ; - The Magistrate. — I refer fo clauses 64 v and6s, j which cannot apply in - this, fcase. There is no j further mention of hability.v.:-,/: •_* . j Mr. South agreed that there might be a doubt on that point, but stated .that the only course left i him wouldbe to appeaL .-: V; . The names of , those -members who were not in the ßo^'6a.tli«'\^ihTe¥ru^-wei»lKenßteuoK , . ... - -- r- : ~ ~~' ~ f *

out, as not responsible in the action. These -were Messrs. Webster, Clarke, Moffatt, Broad, and Smithy -:•-•■" ■-•■-'■'■' - —^" ■■---■- '■■■•■■•■"• ■ v<: - : ■^--^•^■•••■■■: !t The Court then ruled that he would not take into account the legal objections that had been ur^ed on behalf of the Board; he would confine himself to, the moral merits of the case alpne. He did not 'see that 'there' could be aiiy defence raised : .. to. the effect that the' defendants .were : not personally liable; It "appeared that tEe plaintiffs' had deposited the sum of £70 with them on undertaking a certain contract. .This .contract: had bean completed, and they now came to recover their deposit. This the members could not do, as from what he considered gross negligence on their part, the £70 had been paid into their current bank account, and hot into a contingent or separate account, as should hare properly been done. ;If this course had been observed, there: would ■have been no occasion for the present action. He would accordingly give judgment for the amount, with £6 6s. of expenses. , . Mr. South. — I stall appeal against this decision!' ' The Magistrate. — There is no appeal, Mr. South. The decision is not given on legal grounds, but on the moral merits of the' case alone. He cited the 13th section of the Resident Magistrates' Act, in support of the validity of such a verdict, which was strengthened by the ruling of Mr. Justice Richmond, of Dunedin, on the point. Mr. South. — It was on legal points, your Worship, that I based my appeal ; and I apprehend that I shall be able to show ■ The Magistrate now said he may give notice of appeal. Mr. South. — I shall do so. CAHIKL T. QUARTER. Claim for goods supplied. No defence. The Magistrate struck off £2 14s. of a " grog score," and gave judgment for balance due, £14 45., with costs. DEVIWI V. CT7ITMIN&, Claim for wages as general sei'vant, for three weeks, four days, at 10s. per week. Defendant said plaintiff was engaged as a monthly servant, and had left her situation for one where she got higher wages, before the month was up. He had allowed the case to come into court as he had had so much annoyance in this way before. Plaintiff said there was no ter_m of agreement fixed, although she confessed that a month's notice by either party was mentioned by Mrs. Cumming when the engagement was made. Verdict for defendant, with costs. GKAHA3X V. LETT. Claim for sundry repairs done lo boats belonging to defendant. Mi 1 . Harvey for plaintiff; Mr. Button for defendant. The plea was not " indebted " beyond the sum of 305.. paid into Court. The plaintiff, R. Graham, a ship-carpenter and boat-builder, deposed to defendant's having employed and paid men for the recovery of the boat belonging to the "John," and that ho (defendant) had requested him to have it put into proper repair. The repairs were executed, and the expense was £12. The account was rendered, and called for. Defendant said he would speak to Mr. Button on the matter. The boat of the " United Brothers " was likewise repaired at Ms request. £2 Bs. is a fair and reasonable charge for the work. Two sculls were made, and the charge is 30s. A bowsprit for the " Mary Anne" was supplied. The cost of that is 20s. Levy wished mo to siiinmons him. Cross-examined. — I got the boat from Levy on the regatta clay, in January last, as one of the committee. He did not teU me I must return the boat in good order. He moored it along with myself, and it got adrift. I did not say the Regatta Committee would pay for the repairs. Mr. Levy deposed to Graham's mooring the boat himself. After it was lost, I asked him when he was going to return it. He said, "When it is found." I gave no instructions to repair it. He told me the Regatta Committee would pay for the repairs. As to the £2 Bs., I made a bargain limiting the expense to 20s. I admit 10s. of the 30s. for the sculls. Had nothing to do with the bowsprit of the " Mary Anne," beyond giving him the timber and giving directions. The Court dismissed the charge for th 6 £12, ' and gave a verdict for 303. more on the other sums than had been paid into Court ; each party paying his own costs. The Court then rose Fbidat, 12th August, 1864. (Before H. M'Culloch, Esq., KM.) There were no cases on the police charge-sheet to-day. ; Crvix cases. HALE V. CASSELS. Claim for £1 4s. 4d. No defence. Terdict for amount, with costs. LAHBEET Y. iIES. EAIKSFOED. Claim for horse hire — amount £2. Defendant pleaded "not indebted" as the horses had not been used ; and that plaintiff had been told not to engage again the horses that had been ridden the previous day, as defendant would not use the " grey " mare, which was the one chiefly objected to. Judgment for 20s. HEWITT V. BEOWX (t.) Claim for £3 ISs. 2d., for goods delivered. Wo defence. Verdict for amount, with costs. The Court then rose.