RESIDENT MAGISTRATE'S COURT.

New Zealand Herald, Volume IX, Issue 2521, 23 February 1872, Page 3

RESIDENT MAGISTRATE'S COURT.

Thuksdat. [Before His "donor T. Beckham.] Yestehdat being fixed for the hcariug of summonses i3sued aguiiiaL certain trustees of the Waitakorei East Highway Board, for the purpose of testing the validity of the election, — His Worship took his seat on the bench at 10.30 a.m. There were four summonses, as follow, namely, against Messrs. Geor;;e, Bethell, Smyth, and Von der Heyde. The object was to oust all these trustees from oflice. The case arose out of the usual meeting, at which Mr. Vou der Heyde presided, having command, it was said, of some sis votes, and controlling, as it was also said, the proceedings. It was alleged that Mr. Yon dec Heyde had not paid rates, and therefore had no right to take "part in the meeting; and it was further alleged that all who were elected trustees at that meeting, or by majority of these votes were unduly elected : hence the present litigation. With respect to the allegation that Mr. Vou der Heyde was not a ratepayer and had not paid rates, it was explained that the land formerly stood in the name of Henderson ami Maefarlane, with which firm Mr. Von der Heyde .< as connected, and that firm had since ceased to bo known by that title, being succeeded by another firm, of which Mr. Voii der Heule is also a memb'r. — Mr. Lnsk appeared for the plaintiff (Mr. Henry T. Probert), Mr. Brookfield and Mr. Beveridge for the defendants. First B-imm 'i'B : — Pkouekt v. Geohge.—The summons in each case called upon the defendants to show cause why he should not bo adjudged to bo ouatrd from his office as trustee of the Board, and in accordance with the provisions of the Highways Act and the Highway Boards .Empowering Act (1871) pay a sum of £20.—-Mr. Brookfield, upon the case bein? called, objected to the summons upon the following points of form—Firal, that the plaintiff was j named, and therefore did not appear; that the defendants were not called upon to answer I a plaint of which " nobody" took the

responsibility. There was u t'urthrr objucnoa I" the circumstance that no purtl-ulars were disclosed in the summons. TII2 oulv information given m to the source of information was that the summons was endorsed by "Mr. Lusk for John Probert." It did not appear that -Mr. Probert was plaintiff. The proceedv,' a3 . onr ' , a!;! ' la Sous to an application for a rule nisi m Ino Supreme Court, which could only be had upon reading an affidavit in which the whole of the matters were set out.—Mr. Lusk said that affidavits had been filed and were m Court. He contended that the appearance of the plaintiff in nerson, or by his solicitor, cured the defeats of form. lie hoped the Court would not allow the objection which -was jiurelj of u technical character, and not in the least touched the merit-. ,jf tlie questions in dispute. The delay of the proceedings would be a serious matter for the district. There was much reason to apprehend that if this matter continued from month to month in an unsettled state the district would not be in a position to receive any portion of the money appropriated by the General Assembly to be distributed by the General Government. The whole district would possibly lie damnified by any procrastination. All work would be stopped. Nothing could be done, and the actual less would be very great. iU.. _rookfie!d must object to appeals ad miserecorihaiii. Whatever blame there w,u nitiso be, born ,bv those who fomented the dispute 1-1 the first instance. So far as the argument of his learned friend was concerned, , Qld no , : ku ' JW Mr. Probert as the person who was plaintiff; lie might not be so 3 at all •-■vents it did not follow that he was ao; ho migut be a common informer for anything that appeared in the summons. He would oiler the following terms to the plaintiff:— ihat lie should pay the costs incurred, amend his summons, and go on with the case. IF tnat were not. accepted, he would stand upon ins rights, and ask the Court to dismiss the summons, llr. Lusk said he could not, lookto the pressing wants of this district, sailer such a termination of the case without Struggle. He could hardly expect that his .earned friends upon the other side would insist upon taking advantage of a purely technical omission fo press the case to a premature conclusion. The points at issuo were important, as interpreting the meaning 01 Certain clauses in the Act. So far as he was concerned, he must decline responsibility iu the mutter. —Mr. Brookfield: That is the vei*y re-:son we press this objection, because vrc shy there is no responsibility. If the case should be dismissed upon the merits the defendant would be entitled to his costs. To whom were they to look but to the plaintiff? Who was plnintiif*?—ilr. Probert, at this stage of the proceedings, came to the solicitor's table aud said ho would rather the ease was dismissed than be kept hanging on. in ihat manner. At a later stage of the proceedings the same gentleman came up to tho solicitor's table a-u. demanded to know why they did u not argue" the ease on its merits, and said they seemed like a set of " cowards all of theiu."—His Worship regretted that the distuct would be put to n loss by these delays. Ihe terms offered by the defendant appeared to him to be reasonable, for there was a manifest; defect in the form of the summons for which somebody other than the Court or the Clerk of the Court was responsible. Tho cost of curing such defect must bo with those through whom that defect originated. Ho would bo disposed to do everything he possibly could, but if the case was to be decided as it then stood, lie could only eay that there was no question offered to him upon which to give judgment, except this one just raised.—Mr. Lusk said it was not the intention, of his client (llr. Probert) to interfere further with these gentlemen. He says he would prefer to have tins case dismissed than that it should be thus delayed.—The case was accordingly dismissed.