IN BANCO.

Nelson Evening Mail, Volume IX, Issue 9, 10 January 1874, Page 2

IN BANCO.

Fbipat, January 9, 1874. Hokitika and Greymouth Tramway Company (Limited), v. County Council and Inhabitants of Westland. — Motion in arrest of Judgment. Action to recover £20,000 damages for breach of a contract that "in consideration that the plaintiffs would construct ancl maintain" a tramway (from Hokitika to Ahaura and Stafford Town) " for the benefit of the public, the defendants would, in the event ot any Government road being opened tbat fihould compete with the said tramway to its dotriment, pay to the plaintiffs reasonable compensation for their losb sustained thereby." The action was tried at Nelson on Wednesday last, ancl a verdict given for the plaintiffs for £15,347, or, if they could only claim damages up to tbe 4th September, 1873, the date of the commencement of the action, for £5227, Leave was reserved to defendants to move for the reduction of the damages to the latier amount. The Attorney-General (with him Mr South and Mr Fell) now moved for a rule nisi in arrest of judgment, or in the alternative, if this should bo refused, for the reduction of damages. There was, he stated, a preliminary question as to whethe: tbis was the proper time and place for the motion. On the question of time no objection would be taken by the other side, ussuming that this is the proper place to make the motion, and not the district in which the defendants reside. His Honor intimated his opinion that he had jurisdiction uDder the 4f,b section of the Supreme Court Act Amendment Act 1866, and that at any rate his doubts were not sufficient to induce him to refuse a rule nisi. The Attorney-General said that he should move on five grounds :— l . That the contract sued on was void for un-

certainty. 2. That if not void for uncertainty it was 0 contract aot to be complete*! within a year, and should under, the Statute of Frauds be in writing. 3. Thnt compliance with the directions contained in section 73 of " The County of Westland Act" is not nlloged in the declaration, and cannot be inferred. 4. That the County Council had no power to make such a contract as that alleged in the declaration, which is not binding, being ultra vires. 5. Thut thn maintenance of the tramway is a condition precedent to the recovery of compensation, aod as the action was commenced before tho time of termination of the maintenance, and it could not be performed, some ground of excuse should be alleged. As to the first and second grounds: — In the third paragraph of the declaration, which alleges the contract, there is no mention of any time, but it refers to " the said tramway." This expression must be taken fco mean a tramway granted under tho regulations set out in the second paragraph of tho declaration under which protection is to be granted to tramways for ten years, aud the contract must therefore bo taken to be a contract to maintain the tramway during tho time for which protection is granted. If not*— if it only means that plaintiffs would construct aud maintain a tramway for an indefinite time, tho contract is void for want of certainty. Tho same objection will apply to the time within which Government Roads may be opened. The ordinary presumption of reasonable time would not apply here. If then this is a contract to maintain the tramway for a defloite time it must be for ten years, and comes within the statute of frauds. Not only are plaintiffs to maintain the tramway for ten years, but if nuy Governments roads shall be opened within that time compensation is to be made. Though some contingency might happen to make defendants pvy in the first year it is evident that in the '.'*>ntemplation of the parties the tramway is to be constructed and maintained for teo years, nnd compensation to be made for any roads opened during the same period. The contract therefore ie not to be fully performed by either party within one year and is within the statute and should be iu writing JDonellan v.Read3.B. and Ad. 906: Cher ry v. Hemming 4. Exch. 631: Smith v. Neal 26 L.J.C.P. 143, Boydell v. Drummond 11 East 142. The contract is not alleged in the declaration to be in writing. Under the rules of pleading in the Supreme Court if the contract is required by law to be in writing it should be set out in the declaration; Miles v. WaittUi. Z. Ct. of App. Rep.; but in the present case as the contract is uot so set out it must be inferred to be parol only As to the third ground: — The contract being one which is required to be in writing, the declaration should shew that the directions contained in section 73 of " The County of Westland Act, 1868," have been complied with, viz., that it is in writing sigraed by the members of the Council or any two of them acting by the direction of and ou behalf of the Council. There is no allegation in the declaration to thia effect. As to the fourth ground, no powor is given by the Act to the Council to make such a contract as that alleged in the declaration. Tho 73rd section of the Act enacts that " The Council and every Road Board may respectively enter into contracts with any persons for the execution of any works directed or authorised by this Act to be done by the Council or Board, or for furnishing materials or for any other things necessary for the purposes of this Act," &c, but this ouly empowers the Council to make contracts for works. This is shown by the latter part of the clause, which says that "all contracts made according to the provisions herein contained being dulyexecuted bythe persons contracting to perform the works therein comprised respectively shall be effectual," &c. The 81st section may be relied on as giving wider powers to contract. Tbis section places moneys at the disposal of the Council for the purpose of constructing roads, bridges, and ferries, &c, " and for other purposes of public utility." There is nothing but these general words to support the argument on the other side, and there is a broad distinction between putting money at the disposal of the Conncil, and giving them power to contract. Tbe only power to contract is that given by section 73, aud that does not empower tbe Council to make auy such contracts as the one sued upon. As to the last ground: — The damage to the plaintiffs could only be ascertained at the termination of the contract. The plaintiffs ought not to be allowed to bring an action now and abandou the maintenance of their tramway. They are bound to maintain it for the use and benefit of tho public during the whole of the term of protection, and the public ought at any rate to have the option of going by tramway. In order to recover, the plaintiffs muat shew that their part of the contract has been performed or allege some excuse for the non-per-formanre^ — neither of whioh is shown in the declaration. The Attorney-General then formally moved for a rulo nisi, His Honor said : This is clearly a case for 0 rule nisi. The objections to the declarations are serious, more especially having regard to the large amount at stake. With regard to the time when the rule is to be made returnable, this is a case which I should like to see carried to the higher tribunal iu the first instance, and argued in the Court of Appeal. Unless the rulo could be argued before the long vacation such a course would involve but little delay, and in this case it seems doubtful whether after all the remedy will not lie in appeal to the public conscience rather than in compulsion. Rule nisi granted on all grounds, returnable at Hokitika on the 23rd March next, unless the parties agree to have it argued in the Court of Appeal.

It is stated in tho Melbourne "Telegraph" that O'Ferrall's frauds were iu a great measure facilitated by the laxity of tho Audit Commissioners, oue of whom admitted in the course of an examination that he had never examined O'Ferrall's accounts.