THE OTAKII MAYORALTY.

Otaki Mail, 3 July 1933, Page 2

THE OTAKII MAYORALTY.

PETITION DISMISSED. AN IMPORTANT JUDGMENT. An unexpected turn was taken by tho Magisterial inquiry, which opened in the Otaki Courthouse on tho 21st June, into the Otaki Borough Mayoral election, counsellor Mr. T. O'Rourke (the Mayor-elect for the time being) submitting that the cheque for £lO which accompanied Mr. C. F. Atmore's deposit of the petition for the inquiry did not constitute legal tender, and that this Electoral Court was .therefore without jurisdiction to proceed with the inquiry. After hearing counsel on both sides in argument which lasted an hour and a-half, Mr. J. L. Stout, S.M., adjourned the case sine die, as it was necessary that he consult furthor authorities than those quoted. Mr. Foden appeared for the petitioner, and Mr. Rhodes for the respondent.

Tho judgment now given by Mr. J. L. Stout, S.M., is as follows: "A petition has been lodged in this Court asking that the election held on the 3rd day of May, 1933, to fill the office of Mayor JEor Otaki Borougfc

should be declared void or in the alter-1 native that tho defeated candidate should We declared duly elected the petition sets out various grounds relied upon to support its prayer. "When the petition came on for hearing -on tho 21st June, H>33, the counsel for the present Mayor, w'.io had given due notice of his intention to oppose the petition, raised as a preliminary objection, that due security had not been lodged with the petition as required by Section 5S (2) of the Local Election and Polls Act, 1U23 (No. 35). That sub-section reads as follows: (2) 'Every petition shall bo accompanied by a deposit of ten pounds.' "It is'admitted that what was done in the present case was to file the petition and deposit with it a cheque of the defeated candidate for ten pounds as security.

Counsel for the present elected Mayor submits that this is not a compliance with the provisions of the Act and asks that the petition be dismissed. In my opinion the objection must be sustained. The Act says that the petition must be accompanied by a deposit of ten pounds. Words "accompanied by" mean, in my opinion, that the deposit must bQ lodged simultaneously with the petition. "The position then is that the only security lodged with the petition is a cheque for ten pounds. "In my opinion the provisions of the Act call "for the deposit of ten pounds in money.

"Ten pounds in money means the pounds in legal tender, that is bank notes or coin of the realm. See Index Laws of New Zealand (1931) under coin and coinage for Statutory pro-

"A cheque is a mere order ou a banker and payment can be stopped at any time before payment, and the right to payment is further determined by notice of the drawer's death. See Hart on Law of Banking, pp 282 and 327. "A cheque is not legal tender and cannot therefore be considered as 'money' cf 0 Halsbury 2nd. Ed. p 55<J ss USD and G ( JO and 7 Halsbury 2nd Ed. p 199, see also quarere by the learned Judge in Simpson v. Hunter 11 N.Z.L.K. 705. The petition in this case was lodged on the last day of the 1-1 days provided in the Ad. and the cheque was received by the Clerk of Court at Otaki with the petition. "There is no provision in the- Act specifying what the Clerk should do with 'the security lodged, and I take it, that it is his duty to hold it pending the result of the hearing and decision on the petition. In the present case the Clerk for safety paid it into his Law Trust Account, but it is admitted that the cheque could not have been cleared until the next day. Even then if it could be contended that so long as the security was lodged within, the II days prescribed for the filing >. »' the petition, the Act' has been complied with.

"The cheque in the present case was not changed into money until t.ne day after the 14 days had expired and the security therefore lodged too late. This decision is in accord with the Canadian cases of Re St. Boniface (1892) S Man L.R, 474. "Re Emerson (1S87) 4 Man L.R. 257. "Re North Dufferiii (ISS7) 4 Man L.R. 2SO, cited in 20 E and E digest p 155. Notes (k), (p) and (q). "In England the security can be given either by recognizance with one to four securities, 'or by a depo.sit of money." Where the deposit is made by way of money payment it is paid into the Bank of England to the account of the Municipal Corporations Act, ISB2, security fund, which is vested in the Lord Chief Justice. Se 12 Halsbury p 494. 964. I have been unable to find any case authorising payment by cheque. "In my opinion"due security was not lodged with the petition as required by tho Act. and the petition must !.e dismissed. "Petition dismissed with £3 3s costs."