DRAINAGE BOARD v. HOPKINS.

Lyttelton Times, Volume LXI, Issue 7246, 21 May 1884, Page 3

DRAINAGE BOARD v. HOPKINS.

A fight against the Drainage Board rate was made in the R.M. Court yesterday morn* ing. The defendant in the case was Mr J. H. Hopkins, of Woolston, a district, which it will be remembered, has never home kindly feelings towards the Drainage Board or its rates. There was a deal of argument between the legal gentlemen engaged, a brief note of which is given below. The bone of contention appeared to be whether the “ Christchurch District Drainage Board” was in existence or not. This seems absurd to an ordinary mind, but the contention of the learned counsel for the defence is really an important one, as he showed that the ’Board had been acting and taking proceedings under a name other than its corporate name given it by the Act, and which should be the only name recognised in law. The claim was for £2 Is Bd, an amount too small to appeal upon. Mr Fisher appeared for plaintiffs, and Mr Kippenberger for defendant. Mr Fisher called— A. R. Pavitt, Collector for the Drainage Board, who produced the rate-book for 1883 for the district of Woolston, Defendant’s name appeared there as liable for the amount claimed. Demand had been made for the rate, but it had not been paid. Cross-examined: The rate had been struck at id in the £ estimate. _ This was the case for the plaintiffs. Mr Kippenberger took a technical objection. The rate was struck in the name of “ The Christchurch District Drainage Board,” and there was no such body in existence. The Act of 1880 incorporated the " Christchurch Drainage Board.” The Board was a legal entity, and could only sue ■ and recover in its corporated name. He quoted in support of this, "Dicey’s Parties to Actions,” p. 163. Therefore he submitted the case must fail, and a nonsuit be entered up. Mr Fisher replied that if the identity of the parties was proved, it was competent for the Bench to deal with the case. The term " Christchurch District Drainage Board ” had been used by the Legislature in reference to the Board in giving them power to issue debentures. He asked the Bench to amend the plaint by striking out the word " district.”

Mr Kippenberger did not object to that, but he meant the objection he had taken to go to the root of the whole question of the validity of the rate, which was alleged to be made on the face of it by the " Christchurch District Drainage Board.” Mr Fisher replied that the heading of the rate book was as his learned friend had stated, the rate roll was signed by two members (Messrs Parker and Vincent) as members of the " Christchurch Drainage Board,” in conformity with "The Eating Act, 1882.” Further, in answer to the general objection to the 1 rate, he referred to Section 27 of the Eating Act, which stated that the point of the invalidity of any rate as a whole could not be taken in the Eesident Magistrate’s Court unless the local body had levied more in the & than it was entitled to. He quoted Alexander v. Wellington Education Board, Now Zealand Jurist, vol. i., p. 124 5 Hawke v. Frethey, New Zealand Jurist, vol. ii., p. 130, to show that such a point could only be taken on appeal. Mr Kippenberger urged that the body purporting to levy the rate was nonexistent, and by the last ease cited by Mr Fisher this enabled him to take the point here. The fact of two members of the «Christchurch Drainage Board” signing the roll only showed, that two members 01 one body had signed the roll of another body. Ho quoted from the Queen v, Bradley, 8.L.8. Q. 8., p. 306, and ew parte the Overseer of the Poor

of Birmingham, 18 L.J, Mag. cases, p. 89, to snow that the voidability of the whole rate could be urged as a defence to an action in tb* Resident Magistrate’s Court if tho rato was levied in excess of the jurisdiction of tho body, and he contended that there could be no jurisdiction if the body suing had no corporate existence. A short rejoinder by Mr Fisher concluded tho argument as to the nonsuit. Mr Kippenberger was proceeding to contend that tho Board had not complied with tho Act in 1877, section 2, which provides that tho rate shall be proportionate to the expenditure in each sub-district, when _ His Worship thought it best to take time to consider the nonsuit points, and said ho would give judgment on Thursday next.