A TEST CASE.

Marlborough Daily Times, Volume X, Issue 314, 26 May 1888, Page 2

A TEST CASE.

At the R.M. Court before Mr J. Allen, an action was brought by the Borough Council against G. C. Carter, late occupier of the Criterion Hotel, for the recovery of L2B 14s for Mr MTntire appeared for plaintiff, and Mr Sinclair for defendant. Mr MTntire, in opening for the Main tiff, referred to the similarity of the case tq that of the Wairau River Board v Edward Augustus, which was heard at the R.M. Court last Friday, and in which judgment was reserved until the hearing of the case Borough Council v. Carter. Counsel said it was not clear as to whether the amount sued for was ou account, and lie did not know whether part of the account had been paid at some time. 1 le relied on Mr Nosworthy explaining that point. He argued that as Mr Carter’s name appeared ou the rate book as occupier of the property in question, he was liable for the rates. The debt had

been incurred to the Council, and he held that it could be recovered in the usual way. William Nosworthy, Town Clerk and authorised Collector for the Council, produced the rate book, showing that on the loth April, 1887, a general rate of 9|d in the £ and a special rate of 2£d in the £ were levied, being made payable on the 25th April. He had rated Mr Carter on a valuation of L 574. Both the rates were levied on tho same date and mada payable on the same date. Of the amount sued for, L 221 4s od was for the general rate, and L 5 19s 7d for the special rate. Witness served a demand for payment on defendant on the 25th April, 1887. No portion of that rate had been paid. When witness served the demand there some arrears due, and he demanded payment of them at the same time. The notice was sent by post, and it was under witness’s hand. The property was part of allotments 81 and 82, of 1 and 3, Ornaka. To Mr Sinclair: I could not tell what part of the rate was in respect of the building- The valuation does not show it. The two rates for the present year amount to Le, and there is 12s 6d for another rate. To the Bench: The L 5 rates are for 1888-89, and are for the land only. To Mr Sinclair : The valuer informs u« the value of tho building. Am aware that the Criterion Hotel was burned down on June 30th, 1887, and that Mr Carter has not been in occupation of it since. To Mr M'lutire : The valuer has made a new valuation, iirespective of the buildings, and the demand for 1888-89 is mada according to that valuation. To the Bench: The Hotel was burnt down a quarter of a year after the rata was struck. His Worship : Has Mr Carter at any time made application to the Council for an allowance, owing to the building having been burnt down ? Witness: Several persons jointly asked the Council to make an allowance, bnt I do not remember whether Mr Carter was one of them. I paid no attention to it at the time, as I did not think matters would come to the present crisis. The Council made no allowance, saying that they had no power to do so, except in cases of extreme poverty. Mr M‘ln tire said that this concluded tho plaintiff’s case. Mr Sinclair replied that that was his case also. Mr M'lntiro then proceeded to address the Bench on behalf of the plaintiffs. He relied on section 41 of tho Rating Act, 1886, and on the fact that the rate hook had been put in as evidence. He said that his friend had not adduced any evidence to show that defendant was not an occupier of the property when the rate was struck. There was no dispute on that point, nor did he think there could be any dispute as to the defendant being the occupier of the property. He held that a person who appeared on the rate book as occupier of a property was liable for the rates, provided he was in occupation when the rate was levied. In the present instance the debt had been accrued, and it would havo to be legally pleaded to. He held that the Court could not grant anew valuation, which, he took it, his friend would apply for. The debt had been accrued, and as it had not been satisfied, it would have to be paid. In reply to the Bench, Mr Nosworthy stated that the valuation for the Borough of Blenheim was made yearly under <• The Rating Act,_lSS6.” Mr M‘lntire said that lie understood the second claim, amounting to L 5, was made on the new valuation, and of course was minus the building altogether. Mr Sinclar pointed out that iu reading section 50 of the Act, his friend had read “ was” liable instead of “is” liable. Mr MMutire : A small distinction. Mr Sinclair: But a very important one.

Mr Sinclair said the whole question lay in the rateable value of the property, He thought that section 37 of the Act met the ease, when it stated that “ all land with buildings shall be rateable property.” It stood to reason that if some part of that property had been removed, then defendant could not be held liable. Counsel thought the ease was the most rascally one he had heard of. Because plaintiffs happened to be a B trough Council, it did not follow that such a thing should be allowed. But of course the Borough of Blenheim must have thoir “pound of flesh” right off, and sue a man for nine months’ rates for property tu,t ho did not occupy. The corporation wt ß n 0 doubt a very smart corporation, but he would guarantee that they could not seh+lie buildings on their property! He hole that there was a failure of consideration'., the case, and he hold that under secthn 47 of the Resident Magistrate’s Act. His Worshin could bring tho equity an d good conscience clause into force. The case was clearly one in which the G, lr t could exercise its jurisdiction under sotiou 47 of that Act. Ho quoted several to show that the rate book was not au a y a conclusive evidence. Iu the case of j la “ Walton Park Coal Company v tli. Taieri County Council,” in giving judgment Justice Williams said that the fact of a person’s name being on the roll should be taken as prima facie evidence only until it was proven to the contrary by abutting evidence. Defendant was not in occupation of the property, and therefore he was not liable. It was for the plaintiffs to show that he had been in occupation for a term of twelve months, for which term he bad been rated. Counsel submitted that the corporation were suing for money that they had, in equity, no right to. In reply to the Bench, Mr Sinclair said that defendant agreed to tho rates for three months—the date from which the rate was struck to the time when the hotel was burned down. Mr M‘lntire contended that as the liability had been accrued, plaintiff’s case had fallen to the ground. In tho case in which Judge Williams had given judgment for defendants, it was shown that they had not been in occupation of the property at the time of the rate book being compiled, and thus their names had no right to be in the book. When legal liability was incurred, he held that the Court could not interfere as to the equity clause. His Worship said he would like to take time to consider the case, and would reserve judgment until Friday next, Ist May.