SUPREME COURT.—IN BANCO.

Evening Star, Volume VII, Issue 1930, 13 July 1869, Page 2

SUPREME COURT.—IN BANCO.

This Day. (Before His Honor Mr Justice Ward.) CRAWSHAW AND ANOTHER V. THE MAYOR AND CORPORATION OF PORT CHALMERS. The argument on the rule nisi for a new trial of this case was continued. The grounds upon which the rule had be-'-n obtained were these: —That the appointment of Mr Millar should have been under seal ; that the verdict of the jury was against the weight of evidence ; and misdirection by the earned judge who tried the case Mr Barton (with whom was Mr Stewart) appeared in support of the rule ; and Mr Maeassey showed cause. Mr Maeassey submitted that the point on which the defence relied—that Mr Millar’s appointment was not under seal —di i not properly arise in the present case, as it had not been raised on the issues. He would submit two or three reasons why, when a special point of defence ■was raised, it should be put on the record, more particularly on account of the peculiar system of procedure in this C lony. In the first p'ace, a corporation although existing under common law, might perhaps be allowed to plead in the same way .is persons ordinarily sued would be entitled to plead ; still, if created by statute, and especially by statutes passed in this country, they should be entitled to plead iu the ordinary way. In ca-es of companies created under the Jmnt Stock Com panics’ Act at Home, it was clearly necessary

that this should be done, in order that the Court might determine as to whether or not a seal was required to enable them to enter into contracts. It was ue-essary that that fact should a pear on the record Upon this point he w >uld ask the Cirwt to draw a disfunction between corpor itions existing under common law, and corporations existing and created under a special Act of the Imperial Legislature The question to decide was not whether or not the contract required a seal, bit whether the agreement was in fact and in law made ? The reasons why the point raised by the defence should have |bccn on the record were that under the system of pleading in rogue in this colony, it was necess .ry ; and, because the defendants should, as a matter of defence, have placed upon the record every ordinance and material part of an ordinance which tended to show that the Corporation had not power to enter into a contract without it was made under seal.

Mr Barton replied at some length to the contention of the other side, that Mr Millais appointment was in the nature of that of a surveyor There bail been no evidence that his duties were similar, and the Court was asked to decide a matter of fact as against the evidence that went to the jury. He took it that at the very utmost, the contention of the other side was, that under the agreement Mr Millar undertook to perform duties which the Court was asked to take judicial notice of as being those of a surveyor. The Judge observed that Mr Barton did not need to pursue his contention. He must take it that Mr Millar’s duties were those of a consulting engineer. Mr Barton then proceeded to show at considerable length that it was necessary that Mr Millar’s appointment should have be n under seal; and it not having been so, the the verdict of the jury in respect to his sa'ary ought to be entered in favor of the defendants. With regard to the claims for extras, there had been no formal resolutions authorising tha*xtras. In order to make the Council responsible, it was necessary that they should do so, before entering into contracts which were not within the daily scope of their business. In this case, the Corporation, as Mr Millar had stated, did not order the things charged for, and there was not—nor was it pr-tended that was—any resolution authorising them. The verdict of the jury in respect to those charges, was against the weight of evidence, because the evidence of all the councillors went to show that Mr Millar presented the things to the Corporation, Mr Stewart thought that in dealing with the case the Court should keep its peculiar circumstances in error. He needed scarcely state that the old Town Board being a corporation was an invisible body, and therefore its contracts must as a general rule be under a common seal. He would also submit that there was a clear distinction between corporations generallyandmunioip d corporations a id they were placed on a d.stinct footing in the authorities. The grounds upon which he submitted that the verdict of the jury should lie entered in favor of the defendants were :—First, that the Corporation had no power exprefacdly or impliedly to employ a consulting engineer. Second, t hat if the Corporation had such power, they did not exercise it in the maimer prescribed by law. With regard to the extras, there was no evidence given at the trial to show that they were not necessary for the purposes of the Corporation. The Judge remarked that that question did not arise now. The only question was whether the verdict was against the weight of evid nee.

Mr Stewart submitted that the verdict would be against the weight of evidence if there was no evidence at all. Besides, the evidence went to show that the things had not been ordered at all; and therefore the Corporation could not by implication be made liable f r the things. The finding of the jury throughout was greatly against the weight of evident. With regard to the first point of this c iitent on. lie thought that the position was incontrovertable, and there was not the slightest pretence for saying that the Corporation had the power to employ a con* suiting engineer. The Corporation of Port t 'halmers was created under a particular statute ; it had no common l?w rights, and its powers were limited. The Ordinance under which the Corporation was created was of very faulty construction, and the duties of its officers badly defined. It provided that those officers should be appointed pucler There was in It nothing to show what the duties of a consulting engineer were, and there was not in it the remotest reference to any duty which would devolve upon such an officer. He (piite admitted that if general power was given by the Ordinance to appoint officers to fulfil and discharge the duties devolving op the Board under the Ordinance, there might not be a necessity to appoint them under seal. He then proceeded to show that Mr Millar’s office being a superior one, and one not contemplated by the Ordinance, the appointm ‘ot ivquired to be made under seal. His Honor reserved judgment,

Stampdr v. Wilson, —Mr Stewart’s motion for a new trial was being argued when our reporter left.