SUPREME COURT.-IN CHAMBERS.

Press, Volume XIV, Issue 1854, 24 March 1869, Page 3

SUPREME COURT.-IN CHAMBERS.

Tuesday, Mabch 23. [Before Mr Justice Greason.] IK BiNKEUPTCY. EE THOMAS WILLIAM BAUGH. On the application of bankrupt in pereon the Court made an order of .adjudication, and appointed 31st March, at noon, for a meeting ofcreditore. BE NATHANIEL SELLABS. Bankrupt applied for an order tiling the gate for final examination and discharge. His Honor eaid that as 60 days had elapsed since the order for adjudication he could not want the order prayed for, but with the conMBt of creditors who had proved he would annul the order of adjudication, and bankrupt could then commence proceedings de novo. BE GEOBGE ALBERT BUNGE. On application of bankrupt in pereon the Court fixed the day for final examination and discharge on Bth April, to be then adjourned to 6th May. BE FBBDETtIC M. ABNOLD. On application of bankrupt in pereon the day for final examination and disoharge was fixed for 6th May. BE ESTATE 01? DAVID DAVIS. MrGarrick said that the creditors in. this estate having accepted an offer of composition he moved for leave to take the 'petition off the file. Leave granted. BE THE ESTATE OF GEOBGE PISH.EE AND HENEY FIBHEB. On the application of Mr Cottrell an order of adjudication was granted, and meeting of creditoie fixed for 31st March, at 1 p.m. BE B. W. COOKE, A DEBTOB IN CUSTODY. Mr Slater, for Mr Joynfc, moved npon affidavit for the discharge of the debtor from custody, on the ground that default had been made in the payment of maintenance money. The Court made the order. Ecclesiastical Jt/bisdiction. BS WILLIAM M'COBMICK, DECEASED, INTESTATE. . On the application of Mr Hanmer, letters of administration were granted to the Curator of Intestate Estates. EE THE WILL OF GBOBGE OBOSS, DECEASED. On the motion of Mr Bamford, probate was granted to the executor, W. Dale. SB THE WILL OF WILLIAM HABBI3, DECEASED. On the motion of Mr Duncan, probate was granted to George Bishop. BB THB WILL OP J. A. EING, DECEASED. - On the motion of Mr Duncan, probate was ordered to issue. In Banco, beswick v the mayob, cotjnotllobß, and BtfBGBSSES OP THB BOBOTTGH OF KAIAPOI. Mr Travers, instructed by Mr Wynn Williams, moved for a rule to show cause why the verdict for plaintiff should not be set aside, and a verdict entered for defendants, or a new trial had on the following grounds: —1. That the verdict was against the evidence. 2. That the learned judge who tried the case erroneously admitted evidence on the part of the plaintiff of special damages sustained by Mm. 3. That the learned judge also erroneously admitted parol evidence on the part of the plaintiff of his holding certain premises in the notice of claim for special damages mentioned. 4. That the learned judge erroneously rejected evidence on the part of defendants that the land in the pleadings mentioned was P9rt of a publio highway. 5. -£hat the learned judge also erroneously directed the iwy to find a verdict for the plaintiff, whereas ac should have directed the jury that, inasmuch as the wharf in the pleadings mentioned was shown to have projected into the Waimakariri, he should have directed the jury to find s verdict for the defendants, and that he elso should have directed the jury that as the Pkintiff had not proved his right to the use of &c passage of vessels to the wharf as claimed fey him, the jury should find a verdict for defendants. Hie Honor—l think the first part of that j ksfc ground is wrong. I think I declined to I direct the jury to find for the plaintiff. Did IJ not, Mr G-arriek ? I have not got it on my fiofea j but I have a note referring to the part of the last ground. ' caMr Garrick—l asked your Honor to direct the jury to find for the plaintiff, but you dodined to do so. Mr Travere said that he would abandon the second and third grounds. With reference to the ground that the verdict wns egainst the «*Ktenee, it appeared that the action was bright for injury alleged to have been sustained by plaintiff through defendant's obefaruetiog the river, and that plaintiff's ground of action was that he was thereby obstructed jg*. the use of hia wharf. Now he (Mr were) would submit that plaintiff liad no *2gat whatever to any exclusive wharf except

under the proviaions of an Act of Parliament, or n. grant from the Crown uruler th<» provisions of tho Public Keserves Acts. In no other wrj in this prorince could a person obtain such an exclusive right, and no person who had not such "a right could hring an action for damages for injury sustained by him in common wi*h the general public. The remedy would be by indictment if a public nuisance bad been created. Hie Honor thought that a person had a right to bring an action for private injury arising from a public nuisance. Mr Travere would submit that such was not the case. In tho rase of Rex v. The Directors of the Bristol Dock Company, 12 E. 459, it was sought under the Bristol Dock Act to recover compensation for the owners of a certain brewery for deterioration to tho water of the Biver Avon, which they had been in the habit of drawing from pipes laid below low watermark, but it was distinctly laid down by Lord Ellenborough that they could not recover unless the injury complained of was an injury inflicted on a right exclusive of that common to all the King's subjects. His Honor—Suppose jou were to throw a quantity of rubbish on a highway, and thereby obstruct it, and I was to fall over it and break my leg, should I not be able to recover damages for injury sustained ? Mr Travers—The cases are not finalagous, your Honor. In the case you have named the remedy would be by a different form of aorion. In the case of The Governor and Co. of the British Plate Glass Manufactory v Meredith and others, 4 Term Rep. 794, an additional element came into operation. It must not only bo shown that the act complained of inflicted an injury on a person having an exclusive right, but it must also be shown that the act done was in excess of the authority of the doers. Now, in the present case, it had not been shown that tho act complained of was in excess of the authority of the Cor,joration,and thereforehe would submit that in the present case the plaintiff was not entitled to recover. The same principle was also laid down in Boulton v Crowther, 2 B and C, 703, and he (MrTravers) would thus summarize this stage of the argument. 1. That the act complained of must, be shown to be outside I the jurisdiction of the body committing it; and 2. That a special injury had been inflicted on a person beyond tbe injury done to other I parties. What class of injury then would confer upon a party the right of recovering damages ? It must be some right conferred by Act of Parliament or by a grant from the Crown, or it might be a prescriptive right acquired by usor beyond time of memory. It might, however, be urged, that if the defendants had the power to make such arrangement with plaintiff as they had done, he could bring his action and recover ; but he (Mr Travere) would submit that in such a case the action must be brought on the contract and not in the form of a wrong. But he would contend that the defendants had no power to make euch an arrangement, and that the plaintiff at the time of making it knew that they were a body constituted under an Act. He knew also the extent and limit of their powers, and knowing this, if he chose to make such an agreement, he did so at his own risk. Then came the question, were the defendants stopped from showing that they really had no power to grant a lease of land to the plaintiff, the same being on a public highway ? Mr Garrick —Wo were in possession. Mr Travers—lt was merely possession under the contract. His learned friend would not presume to contend that plaintiff was in lawful possession. The doctrine of estoppel did not apply to public companies, Title—On demise of Mytton and others v Qibbs and others, 2 Term Rep: 169— Doe on demise of Baggaley v Hares, 4 B. and A., 435), and therefore he would contend that the learned judge ought to have accepted evidence to show that the agreement under which plaintiff claimed the title of an exclusive right not held in common with the general mass of the public was not in the defendants' power to grant. If therefore plaintiff had no lawful title he could have have received no injury beyond that inflicted on other parties, and this was fully sustained in the following cases :— Chamberlain v The West End and Crystal Crystal Palace Railway Co , 31 L. J., Q. B. 201 and 32 L. J. Ex : Ch : Page v Harcourt 8 Q. U., 539: Dobson and Sutton v Blackmore, 9Q. B. 991. These cases all went to the question of lawful possession, and this he (Mr Travers) would submit that the plaintiff had not. In the present case it had not been made out that the defendants were not justified in making the bridge. It I was not alleged in the declaration I that they had unlawfully erected the bridge, but that they had erected it wrongfully as against the plaintiff, but not unlawfully as against the public, of whom plain- | tiff was one ; in fact, it was not averred in the declaration that the defendants had no lawful right to erect the bridge ; and admitting for the sake of argument that the navigation of the river had been impeded, and a public nuisance thereby created, still he would sub- | mit that no action would lie ior an individual wrong; unless it could be shown that the j person bo wronged possessed a right exclusive to that possessed by the general public. The onus lay upon the plaintiff to show—l. 1 That the defendants had acted beyond their authority. 2. That a public nuisance had been created. 3. That the plaintiff had been injured by such nuisance in the possession of an exclusive right of which he was lawfully possessed. (The Mayor and Burgesses of Colchester v Brooke, 7Q. 8., 339.) This plaintiff had not done and for the reasons he had given, and upon the grounds stated, he would submit that the rule ought to issue. His Honor —You can take a rule on the first, fourth, and the latter part of the fifth grounds. Rule nisi granted, returnable on 4th May. The Court then rose.