IN BANCO.

Press, Volume LXV, Issue 13609, 18 December 1909, Page 5

IN BANCO.

(Before Ms Honour Mr Justice Sim.) APPEAL CASES. Judgments were fiiven in several appeal cases. SEFTON-ASHLEY DRAINAGE BOARD v. GORRIE. In this case the respondent brought ; an action against the appellant to recover £40 as damages lor injury done to his land by reason of the neglect of the Board to keep Baird's creek, a watercourse, properij' cleared and cleansed and maintained in proper order. The Magistrate held that the watercourse was under the management { of the Board, and that the respondent ' had suffered damage by reason of tiie ■ neglect of the Board. Judgment was < given for Gorrie for £20. His Honour ! found that the evidence justified the finding of the Magistrate that the < watercourse was under the management s of the Board. Section 66 of the Land 1 Drainage Act did not,, however, justify ] the conclusion that all watercourses in \ a drainage district were tmder the man- -\ agenu'iit of the Board immediately on i the formation of the district. If the ■ Legislature had intended that, and to" make tho Board responsible for the cleansing of them, it would have said so in direct terms. In this case- there 5 was ample evidence to justify the find- ' ing that the watercourse was under the management of the Board, and' that - finding was not onen to review on an appeal on point of law. In regard to r the respondent's right of action, the Act imposed vertain duties on a Board, and then provided that in default the Board should bo liable in the manner specified. The obvious intention of the Legislature was to make the Board liable to owners or occupiers of land for damage done by reason of the failure to perform duties. This construction would not have the effect of imposing any serious b-nien on a Drainage Board, because, under section 62, the Board could require the occupiers of land on tho banks of any watercourse to remove all weeds and other growth calculated to imnrde the free flow of water. He could see no reason for holding that this section did not apply to Drainage Boards. ..The appeal was dismissed, with £7 7s costs. Mr G. Harper, with Mr Helmore, appeared for the appellant, and Mr Stringer, K.C., with Mr Johnston, for t"Jie respondent. HARPER v. FRANCIS. In this case Jse appellants, E. W. and C. Harper, -ippeaied against the decision of ! the Magistrate in refusing to allow damages against J. W. H. Francis. The appellants were driving along

Qumn s road, Shirley, when their horse shied at a heap of corse which had been place! on the road by the respondent. and the vehicle wns overturned. The Magistrate held that the use of the road by the -espondent was usual and reasonable. His Honour found that there was uncontradicted evidence that the method adopted by the respondent was tho customary war of dealing with gorse fences. It was oiit cf the question to say that a landowner mint not allow the clippings _to fall on the- adjacent highway, for if that were so it would be impossible to trim a on the side next tho road. It would not be a reasonable us*» of the road in a city, but it was not necessarily unreasonable in the ease .f a country road. His Honour found that the evidence justified the finding of the Magistrate, and dismissed the appeal, with costs to tho respondent. Mr Johnston nrreared for the appellants, and Mr Stringer, K.C., with him Mr Itoss, for the respondent. CORMACK v. COCKBFRX. In this cose it wns proved by satisfactory evidence that the principal sum of £1000 had been reduced by payments to the sum of £344 17s, and that" interest had been paid Up to Ist December, 1903. The question of costs was reserved. A tender was made to the defendant on the 19th of Oc- . tobor, 1909. of a sum more than sufficient to pay what was then owing for principal and intrrest. The tender thus made was refused. The late Mr Cockburn did not keep any books, and he had not given the plaintiff -my receipts. It was quite proper for the defendant to ask th» Court to decide what was * owing.. For the purposes of the pres- * ent action, however, the defendant was not entitled to be put in a better I position than her kite husband would have been in had he been the defendant. His Honour held that a proper tender of tho amount having been made, the defendant was not entitled to any further interest,. The plaintiff 1 was entitled to judgment with costs and witnesses' expenses. t Mr Wilding appeared for tho plaintiff and Mr Skerrett, K.C., with him Mr Graham, for the defendant. COCKBCRN v. PYNE AND CO. In this case the plaintiff claimed from tho defendant firm, £797 7s 10d, the proceeds of a sale held by the defendant firm. His Honour, in giving judgment, said that a document which was signed on April 28th by Samuel Humm and his wife was a valid equitable assignment to the plaintiff of tho proceeds to arise from the sale of the live and dead stock on the farm at Whitecliffs. It was also an absolute assignment of a chose in action within the meaning of section 4G of the Property Law Act, 1908, and express notice in writing of it was given to tho defendants on June 22nd, before they had received any of the proceeds of the sale of the stock. The case of in re Sheward (1893), 3 Ch. 502, had been cited by the defendants in support of the contention that the document was not intended by the parties to operate as an assignment, but in this case it had not been suggested by Humms that the document did not express their real intention, and it was not competent for the defendants, as strangers, to raise a point as to whether a Court of Equity would or would not enforce it. Tho plaintiff was entitled to judgment for the amount claimed, £797 7s lOd, less tho prccoeds of tho sale of furniture, which was admittedly not covered by the assignment, with costs according to scale Mr Skerrett, K.C., with him Mr Dougall, appeared for the plaintiff, and Mr Stringer, K.C., with him Mr Lane, for the defendants.