S.M. COURT.

Taranaki Daily News, Volume XXXXIII, Issue 34, 12 February 1901, Page 2

S.M. COURT.

Mosday, February ll'.b.—Before Mr, R. L. Kkauford, S.M. JUDQMENr FOR PLAINTIFFS.

R. (Jock and Son v. 13., J. Reak.c. Olaim £5 di 6d, coats 10s; H. H. Ford v. Mrs. G. Ward, claim £2 ss, cos's 13s. Mr. F. Bsllringer for plaintiff. OMA.TA TOLL CLAIM Benjamin Morris v. Douglas H'oker, This was a daiw for le, arnoiut of till demanded of defendant on January 28th and refused to be r.aid by him,

Mr. Ray, with whom w;>s Mr. Spence, appeiied for pl»iutift'; Mr. «.)cwttconducted the defence, and Mr, Wss'.on watched the prccxd ngs on bslialf of sevnral of the eettl- rd in the Omata Rifling, Mr. Govefcfc asked thatbefo'e *h<casa proceeded he shiu d b<) allowed to inspect the decunvn' *ppoiri f iny the plaintiff' collector (f tf» ! U Hn st>ti<l what hsd taken place between himself and Mr. Roy on the matter and ro»d the correspondence which had passed. Mr, Roy replied, giving his teasous for not having uompk-.d wi'h &r. Govett's request for proiu'tion of the document. His Worship rulsd that Mr. Govit* had taken the rights and (should have accesj to tho derd, which was then handed to him for the purpose.

By cor.smt of the Court the clerical error in stating 9d as the amount of claim was amended ti Is.

Mr. Spence outlined the stating that the County Council by virtue if their powers were coll?c ( .irg tolls at. Omata and that B, Morris was \ha authorised collector. He called

C. T. Mills, County Clerk, - who produced the Gazettß of 1877 making the maim South Road a County road. He siid the Omata tell-gate ba,rj been established for many years, aid that B, Morris, tho plaintiff, was duly appointed collector from Ist April, 1900 (Deed of appointment put ia.) Morris had been in possession since and pa ; d in his money. The Daily News filu for 1898 (produced) contained t.i:n advertisement of the scale of charges as settled by the Council on 19th December, 1898, for the tolls.

To Mr. Govett: Thore were 14 conIsecutive insertions of the scale. [ The order fir the insertion of tho advertisement was in the Council's minutes (produced, and extracts read, including the resolution establishing ths toll for 3 yeors in December, 1889). That was the tariff now in operation, The term stated was three years. (The resolutions passed each year subsequently continuing the tolls were read ) Tenders had been called t ach year.f

Mr. Govett: Except so far as those resolutions c.lling for tenders ccli year, nothing further has breu d^nt?

Witnefs: Not that lam aware if. Nothing has been done since in relation tfl the scale of tolls. Could not say when the document between the Council and Morris and Brown and C. L, Smith was executed. The document was not ia tlip same state as when produced on a previous occasion in Kawlins' case, the sureties having since completed it, Morris had paid his 'rent regularly up to the time of the disturbance At Omata. During the ! last two months there] had been a fair amsunt less than should have been paid. Ths sureties had not ytt been (called on for any deficiency, and he was not aware of any arrangement thai; they should not r>e called on, nor Idid he know cf sny reason why ihrv had not been called on for the iieficiency. The Omata toll woud probably e'ear the Waiwakaiho and I Junction Road gates. The ncce; lane-1 of the sureties was under the Council's] direction by resolution of 11th Miroh, I 1900. I

[ Mr Govett: Why did the suretiis only eijin in January. Witness: They raised an objec'ion to do so on ground tbat though they had been sureties for Mori is in the Moa Riding they did not care to act as such in connection with ano'her

riding, I Mr Govett.: Why was tho deed com pleted after the bearing cf the 1; s' ca'e ?

Witness: For the protection of the lessee and the Council—Could not c»y 'the Council Iww Moni* was collecting iwithout his sureties signing.' The sureties were accepted but he did not bring their default to the notice of the Council,

To His Worship: The n -solution accepting Mueller's tend<r baned the Council fr,-m rc-opening the quest ion inAp-il, 1892. His Worship: it Beerr<s to mi a curious way of doing things. Benjamin Morris, till collector at Omata. swl that the defendant pafs'd, through the ga'e on Ja ! u> ry 21st and refused to pay tha toll of Is demanded, Witne 8 'et hira through and made a no'e in hisbjok (p oduced). To Mr Govett: Ho wati to pay £35 a monfh to tbo Council. Had done «> 'regularly up to December, Hadpatl

Ttu C,n-:i-ii »,:.;iri.ii;o.vi:iL' <li;ir.'iv ';li ; ::>", .->ut ).. v.-.\, U- ;•(.:«.'! '(. tliv.i-i hviJOlU' "0.; Ju KO .iS Vu:j :.!.'.<; ;:'.'■':":■' r.«'ti.>r! fni'ly wi'Ji Jiim. Ho otny w-vc ai'V'-il !'cv i/'cn. A ru.iiee b.'if.d va- 1 (!.'■ ti;t> toll inu>» .■ilio'.fing which g-it.t;'-oVarrvi by [■.■•ymtihli ufc the Cha~t:< guto, Wa.i titular '.. he iuivio.-wioa it 1 WiW th'-rz on S.itui'tlayMr vSove't; How do yru account fo.t':i.s, wli si I wemt o.a irnUuday I could rot fin-I i< ? Wi'' ncss: Perhaps you did not !;>o& for it. The uoku xva« ilxed by the side of the banrd containing tho

M.. Govetfc: Ido not want to get the witiiFsu into a mess, but His Worship : [ have sien ilio hoard there mj'Stlf. This cm eluded the plaintiffs cafe, Mr. CI >vett admitting tho defei.d.mt.'s refusd to piy. Par lli'' defence, Mr, Gove'.t called .Is. Hooker, expressman, who slid h-hid fcOi?u going for many yoars to Oaiata and was constantly passing through tho gate. Tl era to 1>« a moveable beard in Mace's time fastened o the fence, but for a year or more it had not been there. Had never teen it alongside the tell board nor on the toll house. i To Mr. Key : The last time ho saw the bea'd it was ou tho ground. He [always took a clearance ticket. Had not locked for tho birard lately. M. Mi'ls said he had nevar seen a ■ glearante notice board at the gate. To Mr. Spence: Had boon u.ing the i evasion road but sometimes went through the toll-gat". Would swear ih.j bond was nut tbn'fl now. B. Morris recalled! said the clo»inrjce notice board was jai'ed cr tcrewad to the toll board on the Omata sid.i. I)ou»ks Hooker, tbo defendant, said I there was to room to affix the board in t! e position stutod by the last witness. To.Mr. Sp?rce: The board was not theru last Patuiday. Mr. Govett told him t'j look and he did so on his way home.

His Wors' 1 ip: There have been pnch remarkable goings on in that district, it is p-'obable tha hoird might be there one day and away the next. I have seen the board there myssif and in some such position os Morris states. Mr. Govetfc said that was all the evidence he intendedrdlirg. Bo drew 'it-ention to section 154 of the Public W'uks Act, which provided that where any tol'gate clears anothtr gate, the words" c ! e*rs —gate " should bo painted on the toll board. He contand>id that the clearance notice must bo a part of the tollboard, so that aitpassinfrthrough should pee it'' 15 would pot suffice for the notice to be on a separate b?ard. According to tho evidenca the b?ard hud bean " kicking abaut " first; in one p-acp, and th«n in anofchsr. He urged that His Worship should go out and inspect the g=te. H s Warship: The board might; change its p'ace before I got tberu. ' Mr. Govetfc: Not if your Worship adopted the same course as I did and not sty you were going. His Worship: It's a little hte for that now. , proceeding, contended ; that the resolution of 1889 ooly esta,b- ---! lishod the toll for 3 years, and that no proper steps hid bfen taken to carry on the toll after the expiry of that period. It was absurd to siy that a fax could bn imposed by inference. Ha Hiibini ted thuuthe scahtof tol'sexpiVd after it was passed. Tim mere fact that tho Countil assumed the existence of tho scale and actrd on the assumption did not make it legal. A resolution should have bten passed continuing ths scalp, or, better still, its continuance should have been advertised. As a mattor of fact he scale was as dead as a red hening. Tho whole case bristled with irr-gularites, and ho was almost ashamed of having to call attention to so many of them. His Worship: There is one point en which I should like lo hear you and thai is: the resolution was for three years, but the gazatto notice is illimitable.

Mi'. Govett: The refolution governs the case. The Gazebto notice is irregular r it exceeds the resolution of the Counci'. Mr. in reply, said there were only tivo questions involved in the eise, and they related to (1) colic c-ti'-n of the toll and (2) the clearance board. Under the Act tho Board were empowered te'ls to be collected," huh were bound to advertise the fees payable before anyone could be asked to pay toll, At the time the Council estabi-hed this tr 11 in 1889 Mr. GoveU wes County Solicit! r Mr. Govett: I protest ng itst my narau being brought into that transaction. I had nothing so do with i'. Mr. Spence paid he vvas merely stating a f>ct. He contended that awiira 142 »cd 143 should be retd together, although ihey were quite distinct. The i-cale of toil- adopted in > 1899 wis, lie cm'endic, still in rxist'i'te, as thoie had hern no stoppage or br. ak in tvm'inujty. Hi* Worship: I\> you interpret " 'hey may anise tolls to be collects! " ns being for all time without a resolution authorising is continuance. Mr. Spence: I > ely on the i e oluf ion ia"; tho beginning of this yoar and on the leasH to Moris. If defendant's counsel's contention ia correct it would be tvcei-aary to roadvertise tho toll

earih year. Hit Worship: The point is: did the Council pass a resolution for continuously collecting toils, or oi.ly for 3 years ? M r. Spenco: The Council have been "causing toils to bis collected" from year to yrar. His Worship: I want to pin ycu down to a particular time when tbo Council definitely eausid tolls to be| collected, j Mr. Sconce: In 1889. There was; no limit; as to tho duration of the «cale—it was piyablo until furf or notice, Tie Council first tiied tho fxperimenfc for 3 years, ami then efoblish'-d it for all time. IJis Worship: T\w resolution was for 3 years. The Council could at any urn? alter tho>'r reso'ution. His Worchiy: Yes; b-it did tl.ov ? Mr Sppnce: They nave got e on collecting tol's, His Woral-ip • I am not sure that p,

i:i h'n'-tior. i : ubr>nl"! < w.r. 11»<- ?■■*■. ! 'til., i'.ti r i n!'. it, wits 1KT"'<•)•': lo ri> .!• ! /:'■:■ 'i-c •'• • '■..-. Us .-.-i-.il '<■-•■ »i. :,i»si,:(l.i "::•■ '.' •.!..•'.. ; ; Vv.-!;t «.i, (..jlir.-iii.jr t..)!, f f : - ! ".v Winm-it aiiv nwjhi-1 .i:,:. ! ~■ ;.:!!!■ !'-;r <;<")'.Wf for lo.'ii: of U>. Vil!.i I'uu t,h:;*-o bi-o-i si hrcik iji t l i:) ron'.i luity thero uiifjas havii 'own a <ju<>sti m Inn tiic.'V: b.-ul i.,i,.-ii ;u> htay. 3 orris hid duly i>;.,)',ir.i,tdiwl hf b..s confident on th.-it p,v'nt the JinJ-'ng should lo in in's favour. As lotnr e Lantnca board Urn uri hir:ft was conGictiug, but Mis Wo:viii|) Ind himself s :en the boird, and Wir;is bad swort; ji- was thorn. A» :o tha clearance notice forniins.; |id,t ol tho toll hoard, it jv.'-is evidoat lhat i.lse int-.-ntion wi's that tho public shouV. Ir.vu it in view, and it was of little. imi.oit'Uif*— His Worship: I do not a»reo with you t.»iat tb<=> question is of little importance. Tin.. L-gisiature hasdecidod hit tho ni.tico shall bo put on the charge bond and it is important that the provi-ion should he canicd out. Mr Spotica submitted that tho tmill hoard boing fixed to the larger one form, d pirt of it. Tim surely int nded a liberal construction to be p'sced on tho scc'ion of tho Act, dealing with this nutter. He asked that if there was any doubt in Hi> Worship's mind he would take time to considi r.

Mr Govett replied as to the con?truction placpd on the words " cause to be collected."

After some fuither argument His Worship intimated he would reserve his decision and if possible would give it on Mordiy next so as to illow of an appaal to the Supreme Court. Mr Govatt offered to a fiord all faciliti.s .-hould tbe plaintitf wish to appeal fiom His Worship's dec^sijn.