DISTRICT COURT, GREYMOUTH.

Grey River Argus, Volume XV, Issue 1832, 19 June 1874, Page 2

DISTRICT COURT, GREYMOUTH.

Thursday, June 18. ! (Before his Honor Judge Harvey.) j j mayok and corporation op the BOROUGH OP GKEYMOUTH V. HUGHES j AND M'CARTHY (LATE LESSEES OP THE BRUNNER COAL-MINE). This case, which was heard a few days ago, was called on for judgment. Mr Perkins appeared for the plaintiffs, and Mr Newton for the defendants. Mr Newton said that before judgment was given he would like to call the attention of the Court to the two points in the defence, and he would ask that judgment should be given on both points. The one went to the gist of the action, whereas on the other there might be a nonsuit, on the ground that the action was premature. His Honor then gave the following judgment:— "This is an action brought to recover the sum of Lll6 13a 4d on an agreement entered into between plaintiffs and defendants,, as set out at foot of the particulars of demand herein. In qrder to arrive at a cotrept decision in this case, it will be necessary to determine wha^ is the form of action proper to be brought upon this agreement. It is argued by the plaintiffs, and the particulars of demand seem to imply that the proper action is 'Debt,' whereas the defendants argue that the proper form is 'Damages for

broach of c mtract.' lam of opinion that the latter form is the correct one, inasmuch as the action of debt only lies for the recovery of a sum certain and agreed upon." In this case the sum is not certain, but merely an approximation, and therefore debt will not lie. The action then being resolved into damages for breach, it is argued on behalf of the defendants that it is inchoate ; that all things necessary to enable plaintiffs to maintain the action have not been performed — in short, that the reception of the engineer's report and the payment of his fee by plaintiffs are conditions precedent. I think that argument ought to prevail, and therefore I direct a nonsuit on this ground. I have been requested to decide I on the question of ultra vires raised by the defendants. I am of opinion that the agreement is ultra vires ; that it is not an agreement to perform work contemplated by the Municipal Corporations Act ; and that therefore no action can be . founded upon it, but as I do not understand the defendants wish to take advantage of this point beyond using it as a lever to obtain credit for the moneys received from the two Provincial Councils, I shall give no judgment upon this head." Mr Newton said he was instructed to press for a judgment on both points. Mr Perkins objected, as the point was only taken by way of a nonsuit. Mr Newton thought that could not be. The Judge said it was stated at the ' last hearing of the case that the Westland Provincial Government's share of the subsidy had not been paid, whereas he had learnt that it had been received the night before. Mr Perkins said that at the time he made the statement he was not aware of the fact of the money having been received. Mr Newton pressed for a judgment on the second point. The Judge thought that after the expression of opinion in the judgment just given the plaintiffs would not risk another action. Mr Newton said the defendants were, by the judgment, placed in an awkward position, as Mr McCarthy had left the Colony, and Mr Hughes wished to do so shortly, and another action might be brought against them. The Judge: Then the sooner they settle it the better. Mr Newton: But if the matter still stands as a nonsuit, the defendants will have to leave money behind them to meet any future action which might be taken. Mr Perkins : That is not necessary, if they are out of the jurisdiction of the Court. The Judge : But there is such a thing as a warrant of arrest. You had better take your nonsuit. Mr Hughes, who asked leave to address the Court, said that if the case was not then decided money would be actually impounded to wait speculative proceedings in the matter. The defendants were placed in a • very awkward position, as they had never contemplated anything but what was fair and just between themselves and the Borough Council, and they had made offers to settle the matter upon any equitable basis, but had been met with contemptous. indifference, He asked the Court to give judgment in the matter. Mr Perkins said he would do everything he could to have the case quietly settled. Mr Hughes : Every attempt we have made has been received with Mr Perkins : This is very irregular. It will put an end to the present case if I elect to be nonsuited, which I do now. The Judge : Take the nonauit, and I hope the matter will be settled without any further interference of this Court. Nonsuit accordingly, with L 7 11s 6d CO3tS. IN BANKRUPTCY. Rr James Noonan.— The 30th inst. was appointed as the day for this bankrupt's last examination ; and if not, it would be adjourned to the Bth or 9th July. The Court adjourned t6 the 30th inst.