SUPREME COURT.

Evening Star, Volume VIII, Issue 2225, 24 June 1870, Page 2

SUPREME COURT.

IN BANCO, This Day. (Before Mr Justice Chapman.) RED, V. THE TINE HILL R(M P BOARD AND THE GENERAL ROAD BOARD, In this matter a rule nisi had been obtained calling on the General Road Board to show cause why a writ of mandamus commanding the defendants to satisfy a judgment debt recovered by Hugh M‘Fad yen for the sum of LSB 19s sd, should not be issued. Mr Macassey moved tho rule be made absolute, and Mr Haggitt showed cause for the General Road Board. ■ Mr Haggitt cited the Road Boards Ordinance, and said it was very clear fi’oin that that the only power the General Road Board had was to levy a yearly rate for the purposes specified under the 24th section of the Act, and could only levy special rates on the recommendation of the local Board, and then in no case could the yearly and special rate combined exceed the sum of one shilling per acre. The first objection lie had to make was that the General Road Board was not bound, nor could it be compelled, to levy a rate for tho purpose of carrying' oat-a edntraot which the local Board had no power’to enter into, and under no circumstances could the General Road Board levy a rate for the purpose of satisfying this judgment—even supposing the work to which it had reference had yet to be done, instead of having been already done* It fefs clear from the affidavits fifed that the contract was this —ip’consideration of Mr M'Fadyen allowing p road to be made through his lapd, the local Board undertook to fence the japal.ou both side* of tfie road at their own cpst. The road was not a road already existing in the district, and the local Board had taksn pppu themselves' to make it, and tc purchase Jpho land required on their own account. He ’contend,eel uqder the 2lst section of . the Ordinance the local Board, had up suck powers ; their..powers were simply “to superintend the expenditure of monies en'trusted to them on the public roads lying within their district, and the repairing ..and maintaining.of the .same.” . There was no single word in the Ordinance giving) or bad they by implication, the power to purchase land tor a road, and it was exceedingly questionable Avhether, if a local Board; did take a road in suck a way, whether they would have the power to levy a rate for j tbe repairing and making of it, H? thought’ the conclusion’arrived at would be that tlleyjiad no such power- Besides, it was stated in iu.ono of. the affidavits that the road was a private pne. Ho submitted that the Court would not by mandamus compel the General Road Board to levy a rate for tho purpose of satisfying a judgment debt upon a contract which tho local Board had no power or authority tp enter into, and which had been entered into without the consent of -tip? General Road Board. The rule asked for what w»? desired to be obtained in two wa y ß _in the first place, thst the General Board might be commanded to pay the .amount of the judgment, and failing that, that a road rate or special rate might be levied. The affidavits failed to show that there were any funds in the hands of the General Board available for the purpose of paying the Judgment, and he apprehended under no circumstances would the Court make an order for its satisfaction, when there were no funds applicable for the purpose. The learned counsel next proceeded to show that there was no case made out upon which the Court could exercise the

power of iuuing a mandamus, and contended ’ that judgmentharing been entered up execution should have and that, while that remedy was open the present mode of proceeding was improper. Mr Macasscy was heard in support. His Honor reserved judgment.