SUPREME COURT.-IN BANCO.

Auckland Star, Volume X, Issue 2771, 13 March 1879, Page 3

SUPREME COURT.-IN BANCO.

[Before Hia Honor Mr Justice Gillies.]

Murdoch v. may and others. (Concluded.) Mr Whitaker and Mr Tyler for plaintiff; Mr Hesketh and Mr George for defendants.

His Honor said, years ago, a slip was caused by an excavation made by somebody, but that Was not the question jit was a prospective matter. _ Inquiry had been made, but the necessity for an iujuction was to restrain defendants from committing further injury. Mr Hesketh said that defendants were not absolutely charged with having caused the slip, but left the Court to infer that it 1 was in couscquence of defendant's operations. • ■ -: ■ His Honor said ho could see very little in the present proceedings to fight about. It was whether the defendants, as a public body, (icting in terms of the Public Works Act, were liable to pay the costs.

Mr Hesketh then adduced several reasons in favor of a dissolution of the injunction, and hoped defendants, as a public body, would not he charged with costs. Mr Whitakcr considered that his friend had misconceived the matter in terms of>tlie injunction which lie thought was a very reasonable one. Tha- whole purport of the injunction was to prevent plain tiff's pro. perty from further damage. His Honor held the facts brought before the Court on the iirst occasion were insullicient for a provisional injunction. Counsel theu addressed the Court ou the subject of costs, and as Mr Hesketh's argument was likely to last some time, his honor suggested that counsel for the defence; should resume and close his argument in the morning. In the meantime his honor would consider a few points and give his decision.

PS IN BANKRUPTCY. KB GEOBGK PATRICK DOWER. This Bankrupt came up for his final discharge, aud Mr Brassey appeared on behalf of several creditors of the Thames to oppose the application. As it was gotting late, and the hearing of the opposition likely to take some time, the case* was postponed until Monday next.

THIS-DAY.

Mr ITcsketh resumed his argument in defence, and stated as a reason for the nonliability of defendants under the Public ■Work's Act, that the land in question known | as tho Government shoot was a road before ' the defendants took the lands. If so, defendants could not have taken the laud, and wore not subject to compensation. nis Honor said the power to make a road | did not give power to injure a person's | property, and public works must be performed in such a manner as not to injure the property of another. The injunction was merely to keep the property of plaintiff in statu quo. Mr lleaketli still contended that it was for plaintiff to show that injury had been done, or was likely to be done by the work of defendants. Thero was no evidence of any intention to work on tho eastern side of tho shoot. lie would still urge that under the circumstances Ihoro wan no ground for an injunction. The plaintid was asking thp Court to continue the injunction on totally different grounds, and it wan for him to show by engineers and others, that tho woric was not carried on properly. The plaintiffs affidavit alleges, or would lead to the belief that injury had been done to plaintiff's land, or was threatened. His Honor said, whether or not injury had been .done was a question for a jury, I should a trial arise, but at present the Court I had only to deal with the aflidavits. He considered the injunction a proper, oue. There was nothing in the injunction to prevent defendants from prosecuting their works, provided they did not interfere with plaintiff's land. , ■.. , Mr Hesketh said that if such was the case thore was no necessity for an injunction. Tho defendants say, wo have done the work, properly under the Public Woiks Act, and under the eye of their engineer, and uo oiic '■ has suffered. The plaintiff, therefore, had no right to an injunction, which should not be continued, and in support of tbis view, Mr Ilcsketh referred to a number of similar cases, viz.. Clowes v. Stafford Potteries, St. Mary's v. Jenkins, Gano y. Shepherd and others. Ho would submit, therefore, that the injunction should be dissolved, because tliu Court had not been properly informed, and for the other reason included in his argument. His Honor said ho would take time to consider the points of Mr llesketh'n argument and give his decision at an early date. ! BK JOHN GREY. , 111 the case of this debtor, a resident ot the Isay of Islands, Mr Hesketh appeared for Mr, Gray in view of his diachurgo from his liabilities. Adjourned until Wednesday next. Demurrer. M'IIUTCIIM V. THOMPSON.

Mr Laishley appeared in support of tho declaration, and Mr Hesketh iv support of thc\lemurrer.

It appeared that plaintiff anil defendants had business transactions together near Taranaki, and tho declarations set forth that defendants had leave to defend the claim of plaintiff under writ ot summons issued under the summary procedure ou Bill Acts. Tho defendauts, Thompson and McGnire, accepted and signed an order on the 2Stli May last, to pay plaintiff the sum of £162 sterling, on behalf of the firm of Cud' and Co. The defendants alleged that the declaration was bad in substance ; that it does not disclose any cause of action ; that tho document not being a bill of exchange, should show some consideration for tlie defendant's promise to pay tlie £IG2, and that the declaration does not show that defendauts had sullicicnt funds to pay the £iG2, or any part thereof. Mr Laishloy adduced various authorities on the subjeat, and stated that, at the timo of the acceptance of the bill of exchange, the proceeds of tho business in which tho parties1 were associated were ample to meet tl^o bill on it.s becoming duo ; that this had been ascertained, and allclarties were aware that moans of payment were ou hand. His Honor wished to know who really were the parties to the agreorueut, as the plaintiffs name did not appear, nor was there anything to show that McHutchcu was in any way connected with the transaction. This was required for the purpose of establishing the right of action. ' Mr Laishley showed that defendants had promised to pay to Mr Hntchin on tho authority of CuiFand Co., aud thore must be Borne one entitled to sue ou tho order.

His Honor poiuted out several diiliculties in the case. Mr Hutchm hold CuiFa bill, and probably had a right of action, but it was not shown in the declaration.

Mr Hesketh otlered some remarks in support of the demurrer. His Honor said there was no doubt but the declaration was defective in not stating particulars fully, and uot showing any vity of contract between'the parties. The declaration entirety failing in giving tho facts of the case. The demurro therefore must bo allowed.

On the application of Mr Laishley, leave was given to amend the declaration upon payment of costs.