TEMUKA ROAD BOARD V. MUTCH.

Temuka Leader, Volume 2, Issue 138, 19 April 1879, Page 2

TEMUKA ROAD BOARD V. MUTCH.

(to TUK Kl'i'i’OJl OK Til R TKMOKA LK.VOKIt.) Sir, —This case having occupied a considerable amount of time at (Ik; ileoidcnt Mavis'.rate's Court yesterday I think it <luo to a'l partin' e.i.mjcr.ucd that what occurred should receive some publicity. 1 shall therefore give a short rv.'tiuuc of the facts aiul what oci'iim'd. Oq the 2nd instant' t!io defendant was 6iioil in the Jlcsidcnt Magistrate's Court for £lO Ills, rates alleged to ho due for two sots of premises for the year 1877 to (ho Tenuika Hoad Board. On that occasion tin; defendant conducted his own case, and having produced from the Bank a crossed chetjiio for .Cl. 18s, portion of the rales sued for, and pleaded nonliability as to liio remainder on the grounds (amongst others) that lie had never been served with "a demand” for the remaining' ;C8 15s, as provided by the 48th sociion of (he. Mating Act. No attempt whatever was made to prove (he service of any such demand. iSTeveitheloss, his Worship gave judgment for the £3 15s and costs, notwithstanding strong; romonstiances nf the defendant. On the following day 1 was consul tod on behalf of the defendant as to whether an appeal would lie, and advised instead of an appeal an application fur a re-hearing, and being siibserjnendy instructed in writing to apply for a re-hearing, 1 did so m due form—the Clerk of the Board, who represented (he Board at the heaving, being served with the notice, and being present when (lie notice was moved ; and the application was granted in due form, the re-hoaring to take piacc on the Kith instant. When the case was called on yesterday, Mr J. W. White, of Tim am, appeared

for the Road Board, and was allowed to waste valuable time for about one hour and a half in arguing two points—lst. That the liesident Magistrate had no power under the circumstances to grant a rehearing, and that although he had, as a matter of fact, granted it on the application- of the defendant’s counsel, it was competent for the plaintiff’s counsel, when the case was called on for re-hearing, to object, and tell his Worship that his order was only a conditional one, subject to cause being shown against it. 2nd. That if the re-hearing was allowed to go on, the defendant was bound to begin and prove a negative. On this second point 1 may state that his Worship went entirely with the contention of the plaintiff’s counsel, notwithstanding very strong exertions on my part to convince him that it was a legal absurdity. The 48th section of the Bating Act, 1876, is in the followingwords :—“A demand for any rate must be made in writing under the hand of any collector or other person duly appointed by the local body to collect rates, and delivered to the person libale, either personally or by leaving the same at his last-known abode or place of business, or on the premises in respect of which such, rate is due.’’ Section 50 enacts that 14 days after demand thereof (as provided by section 4S), the local body may sue. The present Boad Board Collector was put into the witness box yesterday to prove that the 43th and 50th sections of the Rating Act had been complied whir. His evidence was that about a fortnight before the summons issued lie posted a peremptory notice, requesting payment of the £lO 13s, addressed to the defendant at Ashburton, and received no reply ; that he had not kept any copy or memo, whatever of this notice, and could not tell the precise date or the precise language of it. Upon this evidence on the part of the plaintiff his Worship ruled that the 48th and 50th sections of the Act had been complied with, and again gave judgment for the £8 15s, with costs. It is‘to be hoped that Mr J. W. White, who is a well known member of the legal profession, will furnish a full and correct note of the case to the ‘New Zealand Jurist.’ It would be a pity that such lucid and valuable contentions as were urged by him, and so astute and valuable a decision should not obtain the lastingpublicity which it so eminently deserves. Apologising for trespassing at such length ou your space —I am, Ac., Wat. Johnston, Defendant’s Counsel. Temuka, 17th April, 1879.