The Courts.

New Zealand Mail, Issue 606, 15 September 1883, Page 21

The Courts.

SUPREME COURT. IN BANCO. (Before their Honors the Chief Justice and Mr Justice Richmond.) Wednesday, September 5. GANNON V. NEW ZEALAND LAND SETTLEMENT COMPANY. His Honor Mr J'ustice Richmond read the judgment of the Court herein, dismissing the appeal with costs. STUART V. HARCOURT. This was a suit for the rectification of a deed of dissolution of partnership. The cause had been tried before Mr Justice Richmond and a special jury. At the trial the plaintiff abandoned the principal part o f his claim, viz., a claim that a sum of money taken out of the business by the defendant should be paid to the plaintiff. It appeared at the trial that a piece of land originally held by way of security for a debt had been purchased by the firm as mortgagees. No provision was made in the deed of dissolution concerning this land, but it was admitted by the defendant that the plaintiff was entitled to a conveyance of it.—Mr Bell, for the plaintiff, now moved for a decree rectifying the deed so far as the same relates to the property other than thebook debts.—Mr Justice Richmond said the real question was one of costs. —On th 6 pleadings the defendant denies any mistake, and insists that the deed is binding at law and in equity in its present form, we are entitled to a decree as to assets other than book debts, the defendant will say as to the land only, but there may be other assets. — (The Chief Justice: Ought you not to have specifira'ly mentioned the land). —It is included in “ other assets.”—(The Chief Justice : There is no evidence that Stuart ever applied to Harcourt to transfer the land). —No doubt we claimed as liquidator, but that does not prevent us from having a decree for the equity we are entitled to. —Mr Quick and Mr Chapman for the defendant. The plaintiff has failed on all the issues. The agreement declared on is that the plaintiff was entitled as liquidator, whereas now it appears he can only claim, and does claim, as absolute owner.—(Mr Justice Richmond : Can we give you cash if we make a decree against you?) Yes, if we submit to decree. Wetherell v. Ross, 1 H & M 349 ; Norman v. Johnson, 29 Beav, 77 ; Burrell v. Delivante, 30 Beav. 550; Fane v. Fane, 13 Ch. Div. 228 ; Heighington v. Grant, 1 Beav. 228 ; Hardy v. Hall, 17 Beav. 355.—Mr Bell in reply : The whole position taken up by Hareourt before he consulted his solicitor was different and inconsistent with the position taken up by him afterwards.—His Honor the Chief Justice : The only question is, whether the plaintiff can have a declaration that he is the sole owner of the of the property, or whether the suit ought not to be dismissed. We think such a declaration can be made, as the defendant does not resist. Can, then, the Court order the plaintiff to pay the costs of the suit ? We have no doubt it can, and in this case ought to do so. If any claim had been made prior to this suit for a conveyance, it is clear the defendant would have complied with it. If it had been clearly claimed in the declaration, the defendant would have submitted on this plea; but, in reality, the plaintiff in this suit was not seeking any such relief as is now asked for, but was seeking to throw on the defendant a loss made in the business. We further think that there was nothing in the conduct of the defendant that ought to have induced the plaintiff to think he was assenting to the view taken by the plaintiff. We cannot see sufficient in the conversation with Mr Bell to show that the defendant caused the suit to be commenced. The suit was unnecessary, and the defendant must have the costs. Mr Justice Richmond concurred. The decree would be “The defendant consenting declares the plaintiff entitled to conveyances and transfers of all lands and other assets other than stock-in-trade ; plaintiff to pay the costs of the defendant.”

MCLAREN T. WALKER. The plaintiff sued on a bill of exchange, which, when it came into his hands, was not stamped. He deposited it with a bank for collection, and before doing so, affixed the proper stamp and duly cancelled it. The question was whether the bill was sufficiently stamped to enable the plaintiff to sue a prior endorser.—Mr Edwards, for the defendant, argued that tha Bill was not so stamped as to enable the plaintiff to recover.— Mr Travers argued that the Bill was made good in the hands of the Bank, and remained good when it came back to the plaintiff. The Court took time to consider its'judgment. Monday, September 10. (Before their Honors the Chief Justice and Mr Justice Richmond). MCLAREN V. WALKER. This wa3 a motion by the defendant for judgment in a case heard at the last nisi prius sittings of the Court. Mr Edwards for the defendant ; Mr Travers for the p'aintiff. After argument, the Court reserved judgment. REGINA V. TAYLOR. This was a motion in the action tried lately upon a bond given for the re-appearance of the defendants in the Porirua whiskey still casps, to set aside the verdict given for the defendant, and enter judgment for the CrowD. Mr Beil for the Crown ; Mr Gully for the defendant. The case was not concluded when the Court adjourned. Wedne-day, September 12. BOOTH V. EAGLE AND EAGLE V. BOOTH. His Honor the Chief Justice delivered judgment in these cases as follows ;—These cases, it has been agreed, have now to bo dealt with as one. In Eagle v. Booth, the action was for damages for the infringement of a legal right, the first couut I eing for the interference with a water-right, and the second count being for trespass to laud ; and in the trial the jury found for the plaintiff, with damages on each count 40s. I think the plaintiff is entitl'd to maintaiu the suit for these damages, and that the injunction asked for in the case of B > »th v. Eagle must be refused. The ground on which the plaintiff in Booth v. Eagle asks that the case of Eagle v. Booth should be restrained, is that Eagle had, by his conduct, acquiesced in the acts which he now complains of, and that this conduct now deprives him of his right lo an injunction, and is such as to give Booth a right to an injunction to restrain the action against him. The main ground relied upon by Booth was Eagle’s acquiescence, and to some extent the nature of the injury was relied on as a reason why the injunction should be granted. On both grounds, I think, Booth ha 3 failed. In order to found his claim on the ground of acquiescence, it is manifest upon the cases that Booth must establish, that he has been encouraged by the other side in the doing of the acts complained of. It is said that by various acts, such as assisting in

selecting the site, and in making the mill, Eagle has acquiesced in the erection of the works, and by lxis delay has deprived himself of a right which, but for these acts, he would have had. I think that none of these acts amount to any encouragement of the construction of the mill. The characterin which Booth endeavors to deal with the parties is, one as a mill-owner, and the other as an owner of land, but the only position which Engle had held was merely as employed for the performance of certain acts. There is no pretence for saying that Booth dealt with Eagle as owner of the lanil, or that he gave up any right in his land, - which was at a considerable distance from the mill. On these grounds, I think that Eagle has established a legal right, and that an injury has been sustained which, though not serious, has some substance in it, and that, if Booth continues his operations, that injury to the land may become serious. At present the injury is not serious, but a legal right has been infringed and soma injury sustained. This would give Eagle a right to bring an action on every renewed interference with that legal right, and the cases show that where there is no substantial damage there is yet a legal injury, the person who has the legal right has a right to enforce it as often as it is infringed. That is Eaglet,’ position, and if the works are carried on there may be a more substantial damage. Putting it at the lowest he has some legal right, and it it is interfered with he can bring his action from time to time. That is a condition of things which ought not to be tolerated, and although no real injury has been done, the Court will grant an injunction to restrain to prevent a repetition of suits. For these reasons I think that the suit by Booth should be dismissed with costs, and that Eagle in his action is entitled to judgment for 40s, and to his injunction with costs. —Mr Justice Richmond : I have very little to add to what has been said by His Honor. The defence to the application w.ub rested wholly and solely on the ground of the acquiescence of the plaintiff. It was conceded that the smallness of the damage was no ground for refusing the injunction. I agree with the Chief Justice that the case of acquiescence has entirely failed. Booth and Go. were the owners of h tract of bush land on the banks of a stream called the Mangatarara, and Esgle was the owner of a section of about sixty acres on the same stream, about a mile further down by land, but further along the stream. In 1873, Booth and Co. determined to erect a sawmill on their land, and the site ultimately determined on was in a small stream running into the Mangatarara. It was al’eged by Booth and Co. that Eagle had selected the site of the mill, but the jury negatived that allegation. It could in no way have been said that Eagle had selected the site ; he was employed as a laborer, or, at the most, as a ganger or foreman in carrying out the works. At the time of the erection of the sawmill, the whole of the land of the plaintiff and defendants was covered with forest, and Eagle did not occupy hia section till some years after the erection of the Bawmill. I fully agree to what fell from the Chief Justice, and on which the case mainly turns, that the parties were never dealing with one another as mill-owner and land-owner. It seems impossible to find that Eagle ever gave any encouragement to Booth and Co. to erect the mill. Looking to the relation of the parties, there is not a tittle of evidence to show that Eagle wa3 dealt with as owner of a section which might be injured by the erection of the mills. It was not within the contemplation of either party that Booth and Co. might make use of the stream in a manner which would be injurious to Eagle. There was therefore no standing by on tha yart of Eagle—no acquiescence. I have looked at the cases, with a view of seeing whether in any of them an injunction had been refused, on the ground that the damage was nominal, and the legal right was being made an instrument of extortion, but it is not taken notice of, or, if it is, it is to the effect that even if there be no actual damage there is a right which the Court of Chancery will enforce. The case of Goods m v. Richardson, L.R. 9 Ch. 221, is a remarkable one. There the plaintiff sustained no damage by the Act of the defendant laying water-pipes in a high way ; he was the owner of the soil, but he suffered no direct damage by the laying of the pipes ; nevertheless, the Court of Chancery enforced the legal right by injunction. And in Granville v. Kirby, 3 Ch. Div., the same principle is recognised. There Mrs Kirby, the copyholder, was not really damnified by Lord Granville carrying coal under the land, but the injunction went. On the whole, then, I concur with the judgment delivered. Eagle is plaintiff in one action and defendant in another. In both he will get costs ; but the scale in which costs will be allowed in Eagle v. Booth will be settled in Chambers. I should like to add an additional ground, viz., that it was not shown that Booth and Co. could not dispose of their sawdust and shavings other than by putting them in the stream. It was by no means shown that such a means of disposing of them was essential ; but the prohibition of the use of the stream for that purpose does not mean the stoppage of the sawmill ; at all events there was no evidence to that effect, and that there was no other way of getting rid of it. KEGINA V. TAYLOR. Argument in this case was then proceeded with and concluded, Court took time to consider its judgment.