SUPREME COURT.-IN BANKRUPTCY.

Press, Volume XIV, Issue 1892, 8 May 1869, Page 2

SUPREME COURT.-IN BANKRUPTCY.

Thursday, May 7. [Before Mr Justice Gressou.] BE C. J. FOSTER. On the application of Mr Fereday, the Court made an order confirming the choice of trustee, and fixing the day for final examination and discharge for 10th June. BE HENBY DTJNSFOBD. On the application of Mr Garrick, an order was made allowing Messrs Walton, Warner and Co. to prove in this estate. BE FBANCIS PITT. On the application of Mr Garrick for Mr Cottiell, the Court appointed 10th June as the day for final examination and discharge. ECCLESIASTICAL JUBISDICTION. BE THE "WII.Ii OP THOMAS BABBETT, DECEASES. On the motion of Mr Joynfc, the hearing of an application for probate to the three executors named in the will was postponed until Tuesday. In Banco. beswick v. the matob, councillobs, and bubgesbeß of the bobotjgh of kaiapoi. In this case a rule had been obtained on 22nd March calling on plaintiff to show cause why the verdict of the jury ought not to be set aside and a new trial hid on the following grounds : —That the verdict was against the evidence. That the learnd judge erroneously rejected evidence on the part of the defendants that the land in the pleadings mentioned was part of a publio highway. That the learned judge should have directed the jury that inasmuch as the wharf in the pleadings mentioned was shown to have projected into the Waimakariri, they ought to find for the defendants. And that he also should have directed the jury that, as the plaintiff had not proved his right to the use of the passage of vessels to the wharf as claimed by him, they ought to find a verdict for the defendants. Mr Garrick now showed cause against the rule, and said that as to the first ground, that the verdict was against the evidence, he scarcely felt called upon to make any observations, for the facts proved as to the injury sustained by the plaintiff were indisputable • the facts which went to the jury were indisputable, and the verdict could not have been otherwise upon the evidence submitted to them. If indeed his Honor was wrong in rejecting evidence which if admitted might have turned the verdict the other way; but that could not apply to the ground of tbe verdict being against the evidence. He would now ask the attention of the Court to: what seemed to him to be a fallacy in the grounds on which this rule was applied for. His learned friend (Mr Travers), in applying for the rule, had argued that the alleged wrong having been done by a publio company, plaintiff could not recover, unless he could show that he had an exclusive right beyond that possessed by others. In fact, it was arguing that because the defendants were a public company, in doing a wrong for the public benefit they were entitled to a certain protection. Now that was an erroneous position, for there was nothing to show that defendants were a publio company; or if they ;were a publio company that they had authority to act in such a manner as would damage private individuals, or, in other words, create a publio nuisance leading to private injury. Supposing a publio company, such as a Gas Company, having power to open up the streets, did so, and by reason of their leaving drains uncovered, and want of proper precaution, a person fell and broke his leg, it would not be apprehended, he contended, that such a person had not his action for the injury sustained. But the fact was that the Corporation of Kaiapoi were not charged in the declaration as a public company, they were merely charged as the " Mayor, Councillors, and Burgesses " to identify them. The learned counsel then proceeded to state that the other side had pleaded that the bridge in question had been erected by the Provincial Government, under the Kaiapoi Bridge Ordinance, but he would point out that the Ordinance which gave power to erect the bridge also expressly provided that the navigation of the river Waimakariri should not be impeded. Supposing authority was given to erect such bridge, in order to entitle defendants to a verdiot it must be shown that the ace done was not done oppressively to the injury of private rights. No such question was raised in the pleadings, and therefore it could not be used now. His learned friend, in obtaining the rule, had laid down a principle which no one would attempt to controvert, viz., that no act which amounts to a public nuisance confers on a private individual the right to recover damages, unless that individual had sustained some special injury. Now his learned friend had no right to assume that the act complained of was a public nuisance inasmuch as it was not so stated in the pleadings—it was not. upon the record — there was nothing on the pleadings to show that it was a public nuisance, whereas it was shown that the plaintiffs had suffered a private injury. The learned counsel then proceeded to contend that plaintiff being in possession of the land granted in the lease given by defendants was quite sufficient as to his title of right, inasmuch as the lease having been granted by defendants, they not having pleaded that they wero a public company

acting by etatutablo authority """* position to turn round and control? I 0 * own act. For tho reasons ho Wl t,lci? wou!d submit f,nt the tT"^ chared. A.»fWiri».BHf O (U/),v, (i,! - ----13«J; M,,tlon and Other* , S s^, Hand,,!<;<) ; Doe «U lit v Hares, 4 B Mn { All , n5 ' ' » J.ty'r. Grores. 1 Kspinnese ; Sex n Di rntn?.*- 1 " Dock Company, 12 Kwt ; *«* Mtles,4, M.iulo and Solwyn 101 », r *° Crowther, Bund C, 703 • H7/K,,' ° >l * gerford Mtrl-et Compani 2 vT ' //tt * Chester r .Brookes, 7 Qtt 'ny r? c " Btackmore.9 QU, <M)l . /» ' ,'. ,/ ff c QB. 5U3 ; Green v London olnLfr' 8 29LJcr,m pi; ChamberlJ* ?s*?»*', and Crystal Palace Company 3 2 if nif 201,auri32 LJ Ex. U > Q B > Mr Wyirn William*, in support of tho hill contended that on tho following ground,,? , verdict was ngainet tho evidence plaintiff's caueo of notion ia founded on agreement from defendants to himself toW 1 piece of land abutting on the rivor v£ karin, by which agreement m euch ri*? that contended for by the plaintiff i, nttZ* to be given, and therefore failed to prove each right, was not entitled ? right as alleged m paragraph* 6 and 7 of ? declaration which right wa, distinctly d ec y by defendants, under rule 43 (a) and lh\ rr this denial, plaintiff framed the i..ue :-<; Was a wharf erected upon of land in the agreement in the declaffi mentioned at the time of the a!W«H .no* ?" Plaintiff's own the witness Day, not objected to, ds - n .f proved that the wharf was not O n ?£% land ; but, on the contrary, £ high water mark, and this being the m TZ verdict was against the Y° the jury never found on that i ' at all. Upon the evidence ™1, t jury were bound to find for defen dants on that issue and therefore the verdict m favor of the plaintiff for damage, Z flgainst the evidence, because plaintiff foundS his claim solely on his alleged right of Uvint aright of navigation along the eaid river for yessele going to staying at, and returning from the said wharf, to load and unload It i clearly proved that the wharf was not on thl land purported to be leased, and therefore J that he had a ri#ht of to th-s particular spot. Ho proved nono by grant from the Crown or prescription, and therefore, as he had failed to proro euch a right, he was not entitled to damagei, ai in the absence of any special right hi ß only remedy was that po eß eseed in common bj all the Queen's subjectß, viz, an indictment for nuisance. The learned council here cited Beswick s Wharf Ordinance, 1862, whioh was disallowed by Hie Excellency the Governor and Beswick'e Wharf Ordinance, 1864 & illustration of a right which would hare given the parties a claim for damages. He Mould also contend that inasmuch as the plaintiff himself proved that the wharf was not ia hit occupation under the agreement, but, on the contrary, that it was in the rivor, tho learned judge should have directed the jury to find for the defendants, because plaintiff claimed under the agreement his right to navigate up and down the river to the wharf. Now it waa clear that the agreement gave him no such special right, and therefore his only remedy was by indictment for nuisance.' Tho fact having been proved that the wlmrf was below high water mark, the right to erect it could only emanate from the Crown be from the Governor under the Customs Kegulatioa Act, 1858. It was quite clear that in tho absence of a right by custom or long usage an act of the Legislature or a grant from the Crown was required to givo individual rights., . Supposing, however, that there was the colour of suoh right given by the agreement it would be in direct contravention to publio statutes (Customs Regulation Acts and the Marine Act) and that therefore defendants would not be estopped from showing that pjaintiffii had no fluou right under such ngreemont. Morover plaintiff was not allowed to erect a wharf without defen« dants' consent, and supposing defendant bed the power to permit such erection it wae not alleged or proved that ho had such consent. And further, if he had such consent defen* dants had no power to givo it, and therefore it would have been illegal had they donoeo. The learned counsel contended that tho rejection of the evidence that the land in t!i9 agreement mentioned waa part of tho publio highway was erroneous on the part of the learned judge who tried the cnec, a§ it wai clearly illegal to obstruct a public highway in any manner. It was quite clear that if ths defendants had even executed a lease foe twenty-one years and had professed to gi?o the rights claimed by the plaintiffs that euoli lease would have been void from illegality. The evidence offered by defendants, but; rejected by the learned judge afc tbe trialf would have shown that the land in :question was absolutely a reierve for a high road, and therefore in the absence of a grant from the Crown to occupy euch lands, mere possessioa was not sufficient as against the defendant the agreement itself being void from illegality For these reaaons he would submit that the rule must be made absolute for a new tnw. Authorities cited :—Kerr's Blacketone, vol h 258 ; Mtftton and Others v Gilbert end Others 2 Term, Bep 16i»; Bayley v Mares, 4 B ana A } VoogU v Winch, 2 B and A m! W v EacJce.lt, 2QB; Rex v Smith, 2 DoogW. 411; Harper v Charlesworth, 4> B, and U 574 ; Hex v the Directors of the Bristol Don® Company, 12 E, 459. His Honor took time to consider.