SUPREME COURT.

Evening Star, Issue 3942, 13 October 1875, Page 2

SUPREME COURT.

IN BANCO. "Wednesday, t ctober 13. (Before his Honor Mr Justice Williams.) Blakely v. Rullan...—lu this case a ver'“c'u D._iU i>.i i< r plaintiff in n action tor malicious prosecution. An application was ilien made for a mle nisi for a nonsuit on the ground that there was no evidence of the want of reasonable and probable c.<u,-e, orfailin;- 'h it whv a new mat sh.mll net b • ba I <>.. the fob lowing bounds :-(!.) Tlwt I'm v- (diet, was the weight el in ide 0‘ ; (2) in'siir cioi. I.y the ji, 'l.n*. Tim ml,. U „„ ~e vV ~j,a was nude abs.iiute, /i.'', , AND anot her v. Davidson and Dimers — r l he niof.’on her. in was refund with costs. Ids Honor saying that when tile case came before the Couit of Appeal he trusted the question would* be laised how far our (the 'supremo Court’s) procedure cm emplatcs (he issue of injunctions to res Pain actions. -H-' r-nor -.or cryri!',- v •;j.;:. <'ovf.'RAtion uP Dt’NADIN. iUis was a motion lor an u»jumrtwn t» retrain the Corporation bon

sums awarded for the widening of Prince* street, and also to restrain the leaseholders from taking proceedings to recover them. The main grounds upon which the relators rested their case were that the Corporation have no power to purchase land in order to widen streets ; that if they had, they have no power to go to arbitration ; that the Council are hound by the estimate of the expenditure they are compelled to publish by the Ordinance under which they are incorporated ; and that the estimate of the cost of widening Princes street falls far short of the suns* or the award. They contend also that the entire transaction, even if binding in other respects, is vitiated by the conduct of Mr H. fc>. Fish, jun., who was at the same time a member of the City Council, and one •f the leaseholders, and who promoted the scheme for the widening of the street at a meeting of the City Council, and also voted at the meeting at which the arbitrators, on behalf of the Corporation, were appointed. .After deciding that the Solicitor-'-eneral had power to bring the action, and reviewing *he c’se • t hngfli, bis Honor said "be 94 ; h r-c-------tion of the Ordinance must decide the question of expenditure of monies by the Corporation. That section directs that ‘‘funds” shall be I applied in payment of salaries and of the expenses of carrying the -refinance into effect, and i f such further expenses as under fhe directions of the Council shall bo incurred for the publi benefit of >he inhabitants, the repairing of the streets,'ewerage, lighting, and other improvements of the said City. The question is whether the latter words* include power to widen streets and to purchase- land for that purpose. The correct view seemed to him (his Honor) to bo that- if the widening of the street will bo for the public_ benefit, then tne Corporation has power to widen, that is, it is invested with a large discretion as to its expenditure, and that unless the proposed expenditure is for some object not beneficial to the public, the Court will not interfere. By the 77th section of the Ordinance the Corporation are to publish yearly a s atement of the estimated receipts and expenditure for the year ensuing. This provision was complied with, and the sum of L 15.000 was set down as the probable cost of the widening of Pripces street. The sum awa ded by the arbitrators to the tenants was L 26.765 17s 6d. -ho contention by the relators that the Corporation are bound by their original estimate at once opens up the more important question as to whether the Corporation had power to submit the matter to arbitration. The Corporation of Dunedin will be treated b> this Court as trustees of the funds in their hands, and following out the principle that the same rules which govern the Court, in cases where individuals are trustees will he applied to the Corporation when they are trustees ; and, assuming that the Corporation have discretionary power to purchase land to widen streets, an analogous case would appear to be where money is m the hands of a private trustee on trust to purchase real estate. Such a trust, like the trust of real estate, involves the exercise of dis cretion, and he apprehended there was no need to cite authorities in support of the proposition that trustees cannot delegate the discretionary powers vested in them. How far, then, is the submission to arbitration to determine the price to be paid for the estate a delegation of discretion. The Corporation had no power to submit their discretion to a third party. The injunction was granted with costs. Leave to appeal was given.