the storehouses and locality. As to these matters, to the person authorised under the Act to receive therefore, I think the plaintiffs have not made out it. And where could it be taken? There was no any case. As to the finding of negligence in not other magazine, so far as the evidence shows. I taking proper care, I think there is some evidence think there is nothing in that argument. But to support it. The evidence, I think, showed that although I think there was some evidence, which the dynamite could have been stacked higher; and I have pointed out, from which the jury could find although I see no evidence of negligence in the negligence, it is by no means clear that they have way the cases were stacked in the first instance-done so on that evidence. It is very possiblethere being nothing to show that this was not the indeed, I think it very likely-from the way in which customary and safe way of doing it-yet, when the the case was conducted, that they found negligence flood became imminent, the stacks could have been in respect of not moving the explosives, as well made higher by reducing their bases, and in that as in respect of locality and storehouses. Further, way the loss might have been diminished. And so, the jury have assessed the damages in one sum in also, after the first flood. Although the evidence respect of the three heads of negligence found for the defendant is very strong against this, I under question 9. It is impossible for the Court think something similar might have been done to say how much or how little they have found with the uninjured cases when the second flood under each head, or whether they have found them became imminent. In either or both cases there under two, or only one head. Taking my view of must have been some loss, but the jury have not the case, even if the whole sum could be allowed for it. As to the detonators, there is appropriated to head (c), the damages would be evidence that if they had been properly stacked excessive, because they have found the whole loss the loss would have been only six cases. Thirty against the Government; whereas, in my opinion, cases were destroyed, and the jury have allowed a large part of it was bound to happen under the for them all, at least six cases too many. It was circumstances, for which they could not be held strongly contended that the whole loss could have answerable. I am therefore of opinion that the been avoided by the removal of the explosives judgment entered for the plaintiff should be set from the magazine either by drays or in barges. aside, and that there should be a new trial on the I think this is putting the duty of the Government question of negligence, limited to the matters I too high. The Government stands in the position have indicated. The appellants should have their of an ordinary bailee, no more, no less. What costs of the appeal. they could have done with "the Defence Force, REAL, J. With regard to the answers to the police, the crews of steamers, the Marine questions 9 and 13, and the motion that they Force," or the whole resources of the colony at ought to be set aside, I cannot go so far as Mr. their back," as suggested, was beside the question. Justice Chubb has done. The Courts have gone They were not bound to take extraordinary so far in upholding the findings of the jury, that precaution, such as would require the aid of these I feel bound to hold that the evidence given forces. They were bound to take reasonable care, entitled the jury to find that a reasonable man and were not required by their duty to furnish ought to have anticipated a flood higher than that drays or barges to remove the explosives. To of 1890 and as high as that of 1893, and ought to require that would be to require of them more have known that goods placed in a magazine or than ordinary care. But if it could have been store at a height less than the level of the floods done, where was the authority to remove the of 1893 was in danger of being injured by flood explosives? All that is regulated by the enact-waters, and to that extent unfit and improper. I inent, and the magazine-keeper cannot deliver a therefore think that the answers to these questions single case of dynamite out of the magazine except were supported by evidence, as far as the K 66 knowledge of the locality of the magazine and the officer in charge of the Government magazine was risks attending it were concerned. That, in my to receive and keep therein the explosives delivered opinion, made a complete defence to plaintiffs' to him. No power was given to that officer or to claim for damages, so far as it was founded on any officer to dispense with this law, or substitute alleged negligence as to storehouse and locality. barges, carts, or any other place, building, or The answer to question 14, taken in conjunction locality for the Government magazine. And I with the direction of the learned judge on that think that, so far from failing in any duty by not question, seems to me to as much preclude the removing the explosives from the magazine, in plaintiffs from recovering as if the plaintiffs had, contemplation of a flood, the servants of the with the opportunity of storing in a place above Government would be guilty of a breach of duty the level of the 1893 flood, selected the magazine in so doing, unless acting solely in the interests of at Eagle Farm Flats. This case, at the trial and public safety. In my view of the plaintiffs' case, by the learned judge in his judgment, seems to it must fail in so far as it alleges that the have been considered as an ordinary case of a Government servants were guilty of negligence warehouseman for hire, or if any destruction, as in not removing the explosives from the magazine, the case of a warehouseman to whom a monopoly even if there was evidence to show that the was granted, and thereby involving some greater Government servants could have obtained barges liability on the part of the Government and its authorised to carry explosives. I am, however, servants to plaintiffs than would devolve on an unable to discover any evidence in this case that ordinary warehouseman. It therefore becomes there was any large barge or boat available which necessary to consider if the rule which applies to complied with provisions 168 of The Navigation an ordinary warehouseman for hire is the true Act, or cart or other carriage which complied with measure of the Government's liability in respect sec. 176; and no attempt was made, judging from of explosives, and if not, what is? The Acts the evidence, to prove that such were procurable bearing on the subject (7 Wm. IV, No. 7; 5 Vic., within the time during which it was alleged the No. 11; 13 Vic., No. 24; 18 Vic., No. 21; 24 Vic., officers of the Government should have anticipated No. 14, and The Navigation Act) subordinated the danger. I do not, while deciding in this way, everything to the public safety. Part VII of The assent to the proposition that an ordinary wareNavigation Act, so far as it relates to explosives, houseman of ordinary goods will be bound to is to be considered as passed solely in the interest provide barges and send them down the flooded of public safety. The Legislature has, by its river to remove such goods when the owner thereof enactment, in effect declared that a Government is equally aware of the danger and makes no magazine, wherever situated, however constructed, effort to remove the same and no request to the is a fit and proper place to store explosives, and, warehouseman to furnish such barges. Indeed, except as was provided by sec. 180, a Government I think that an ordinary warehouseman and magazine is the only fit place. The Government the Government, if liable as such, would have was entrusted with the duty of deciding in the no such duty. Where an officer of the interests of the public safety when, how, and Government has the legal custody of the property where a magazine was to be established or of any person, he must, in the absence of some constructed. In my opinion, upon the true statute relieving him from the liability, take construction of that Act, it is not the province of reasonable care of the property so far as he can a jury or this Court to revise the decision of the do consistent with the object for which the Government or question the suitability of the property is in his custody; and whilst he is of place at which they may have, in the interest of opinion that the officer in charge of the public safety, fixed a magazine. The duty of the Government magazine has a paramount duty to do Act of 1886 (50 Vic., No. 16), s. 18—Contract under seal-0. XXXIX, r. 10—0. LVII, r. 6-Reversal of judgment. all things necessary in the interests of public. safety, and is not required to do any act which in his opinion, or the opinion of his superior, might possibly endanger the public safety, and that where the act or omission was bona fide taken or made in the interest of public safety, the propriety of such act or omission is not for the Court or a jury to determine. It was part of the plaintiffs' case that part of his goods might have been saved had they been re-stacked. There was no evidence to show that before the flood of the 5th February | The jury found that there was an agreement to build con With the Brisbane Bridges and Ferries Board, the plaintiff's entered into an agreement to build a punt, place it on a ferry, and to run it for two months. The plaintiffs alleged delivery, payment on account, and sued for the balance. The defendants denied the contract; alleged that, if made, it was not under seal; that it was not in writing, as required by the Statute of Frauds; and that before any breach the contract was rescinded by a new agreement. tained in certain of the exhibits; that the agreement, though not under seal, was signed by the president or two members of the corporation for the purpose of the contract acting by direction; that the punt was built in accordance with the plan, but was not delivered, and that there was a rescission before breach. had wetted the explosives, or any part of them, that there would have been any impropriety or danger to the public safety from stacking the detonators in tiers or the explosives in tiers of ten cases instead of eight. On the contrary, it appeared that such stacking was in part adopted, and the caretaker did not say that it was in any respect dangerous. With regard to the question. of restacking after the flood of 5th February, Held, on appeal, by Chubb, Cooper, and Real, JJ., that there was evidence that the removal would have been unsafe. I think there was evidence to support the finding of the jury to question 9c, so far as it can be taken as finding want of care on the part of the officers in charge of the magazine in not restacking before the flood of 5th February to reduce the amount of damage. I think that the motion of the plaintiffs ought to be dismissed, certain findings of the jury set aside, and a reassessment of damages obtained. COOPER, J.: The judgment of the Court will therefore be, to set aside the findings of the jury in answer to questions 9A and B, and 17, 18, and 19, and a new trial had between the parties to reassess the damages. Harding, J., entered judgment for the defendants. the contract was proved on the facts, that the punt was delivered, and there was no rescission of the contract. Held also, that, as practically the same evidence would be given at a new trial, the Court had power to set aside the findings of the jury and enter judgment under O. XXXIX, r. 10, for the plaintiffs for the amount claimed. THIS was an action by the plaintiffs, consulting and mechanical engineers, for £1,038 13s. 11d., the balance due on an alleged contract to build a punt for the defendants, the councils of the Municipalities of Brisbane and South Brisbane, which had been constituted a joint local authority, under the name of the "Brisbane Bridges and Ferries Board." The contract price was £2,000. The defendants denied the agreement; and pleaded that the agreement, if made, was not in writing, as required by The Statute of Frauds and Limitations of 1867; and was not authenticated by writing under the common seal of the corporation; that the agreement was not made as required by The Local Government Act of 1878. They also Contract-Sale of goods-Delivery-Rescission-denied the building and delivery of the punt, or Local Government Act of 1878 (42 Vic., No. any payments on account, and pleaded rescission 8), s. 160-Local Authorities (Joint Action) by the substitution of a new agreement. Solicitor for plaintiffs: J. F. Fitzgerald. CLARK AND FAUSET v. MUNICIPALITY OF BRIS- Lilley for the plaintiffs. Feez for the Munici- litigation should be free, and not carried on in pality of Brisbane. Byrnes, A. G., and Mansfield such an expensive way as that parties would be for the Municipality of South Brisbane. crushed out by the heaping up of costs. On the whole, therefore, I am of opinion that only one counsel should be allowed to address the jury for the defendants, and that if counsel do not make any arrangement among themselves it should be the senior counsel representing the several defendants. A question then arose as to the right of counsel for both corporations to address the jury. HARDING, J.: I have been told that that is the first time the question has arisen. I know it has arisen as far as allowing only one set of costs is concerned, and it is not the first case in which the question has arisen as to whether two counsel The jury found (1) that the agreement was should be heard. Under the circumstances, how-made between the parties to build the punt, agreeever, I may as well refer, if the point is a new ably to the plan, for £2,000; (2) that the exhibits one, to the authorities on the question:-Chippen- 3, 4, 5, 6 documents were proved; (3) that the dale v. Masson, 4 Camp., 174; King v. William- agreement was in writing contained in those son, 3 Stark, 162; Hogg v. Tindale, 3 C. & P., exhibits; (4) that agreement 6 (the report of 565; Perring v. Tucker, 4 C. & P., 70; Massey the Joint Authority) was signed for no other v. Goyder, 4 C. & P., 162; Sparkes v. Barrett, 8 purpose than creating a contract; (5) that the C. & P., 442; and Mason v. Ditchbourne, 1 M. & agreement was not under the seal of the corporaRob., 462, are the cases in favour of one address tion; (6) that the agreement was signed by the only. On the other hand, there are: Ridgeway v. president, acting by direction and on behalf of the Philip, 1 C.M. & R., 415; Child v. Stenning, 7 corporation, as required by The Local Government Ch.D., 413; Nicholson v. Brooke, 2 Ex., 213. So Act; (7) that the agreement was signed by far as I can see, the universal practice, approved Messieurs Luya and Hipwood and sanctioned by by the Courts of Appeal, is that only one counsel the president, as required by that Act, putting should be heard. I think I have done right in exhibit 6 out of consideration as an acceptance; allowing both counsel to examine witnesses; it (8) that the plaintiffs built the punt according to might have brought out something to show that the plan; (9) that the plaintiffs did not deliver there was some difference between them. As far the punt to the corporation on 6th April, 1893; as I can see, the statements of defence are as near (10) that £2,000 did not thereupon become due together in words as two gentlemen sitting in two to the plaintiffs; (11) that between 6th April and different chambers and without consulting each 10th October, 1893, the corporation did not make other could arrange them. I think they had on payments to plaintiffs on account; (12) that the coming into Court the same defence, except on balance claimed was not due on 10th October; one point, which has since been amended. Prac-|(13) that the agreement was rescinded by mutual tically, then, they were defending on the same agreement about 3rd March; (14) that a new ground, and had the same means of defence. The agreement was substituted in lieu thereof; (15) question might or might not arise subsequently that this was before breach; (16) that exhibit 2 whether, these defendants having separated in was the order in council; (17) and awarded no this way, more than one set of costs should be damages. allowed. This would arise in the case of the plaintiffs failing and having to pay costs of the action. There is a universal rule that where two defendants sever their defence, and fail, only one set of costs will be allowed, in the same way as if they had been united. It was intended that HARDING, J., entered judgment for the defendants with only one set of costs between the defendants, as though they had joined in the defence. The plaintiffs moved at the June Full Court that the above judgment should be set aside, and that, notwithstanding the findings of the jury, (subsec. 2) that any contract “which, if made judgment might be entered for the plaintiffs for between private persons, would be by law required the amount claimed, or in the alternative that a to be in writing, signed by the parties to be new trial be had between the parties. charged therewith, the council may make in Lilley and Macgregor for plaintiffs. Byrnes, writing signed by the chairman." The contract A.G., and Feez for defendants. between the plaintiffs and defendants seems to me COOPER, J. In this case the plaintiffs were to be contained in the documents numbered 3, 4, contractors, and the defendants were the Munici-5, and 6 respectively of the exhibits. The latter palities of Brisbane and South Brisbane, who, by is a copy of the minutes of the meeting held by the an Order in Council, dated 18th February, 1893, Bridges and Ferries Board on 9th March, 1893, were constituted a joint local authority under the and sets out in writing the acceptance of the name of the Brisbane Bridges and Ferries Board, terms offered by the plaintiffs, and is signed by the for the purpose, amongst others, of establishing chairman. The jury have found that it was signed and maintaining ferries across the Brisbane River. for the purpose of creating a contract, and I am The defendants being about to establish a ferry of opinion that there is sufficient evidence to across the river, and being in need of a punt for justify that finding. It follows that the contract the purpose, the plaintiffs, on the 2nd March, is in writing, and therefore binding on the defen1893, submitted a plan for a punt, with a descrip- dants. But the jury have found that the plaintiffs tion of the steam machinery and gear necessary did not deliver the punt to the defendants, and for working it. They stated that the cost would that the £2,000 did not become due. This can be £2,000, and that it would be got ready in ten only mean that the plaintiffs did not perform the or twelve days. They agreed to guarantee it for contract on their part. I have already said that allowed to appoint their own I hold the contrary opinion; the evidence on the engineer, and to run the punt altogether, provid-point is, to my mind, overwhelming, and there is ing men and coal, for the sum of £25 a week.no evidence whatever to support the jury's finding. They also undertook to submit to a penalty of £20 The defendants, however, pleaded a rescission of a day in the event of any delay arising through the contract before breach, and the jury found defect of plant or machinery. The punt was to the facts in their favour. I am of opinion that be worked by means of a revolving drum on either there is no evidence whatever of any rescission of side carrying a cable, which was anchored to the the contract before breach; but it was argued ground on both sides of the river. The defendants before us that there was in reality a new contract accepted this offer, and on the evening of the 6th substituted for the original one, which operated as April the punt was placed in the position agreed an accord and satisfaction by which the plaintiffs upon, and was afterwards continually used for the agreed to keep the punt and to run it as a ferry purposes of a ferry. I am of opinion that the on their own account. The evidence shows that plaintiffs performed their part of the contract on negotiations were on foot between the parties the 6th April, and that, therefore, the £2,000 with the object of re-transferring the punt to the became due by the defendants to them, unless the plaintiffs on certain conditions, and they dallied statute, under which alone the defendants were with the matter in such a way that I am not capable of entering into a valid contract, makes surprised at the jury coming to the conclusion provision for the observance of formalities which that the plaintiffs never parted with their property were neglected. Now, sec. 160 of The Local Gov- at all. These negotiations never resulted in a ernment Act of 1878 enacts that the council (in formal contract. If the defendants had been this case council means the Brisbane Bridges and private persons under no restriction as to incur Ferries Board) may enter into contracts, and ring liability by conduct, a binding arrangement two months if |