THE COURTS.

New Zealand Mail, Issue 916, 20 September 1889, Page 23

THE COURTS.

SUPREME COURT.

CIVIL SITTINGS. Thursday, September 12. (Before his Honor Mr Justice Richmond and a special jury.) MACARTHY V. THE CORPORATION. Mr Travers, with him Mr Gully, appeared for the plaintiff, and Mr Martin represented the Corporation. William Robertson Perston was chosen foreman of the jury. The plaintiff (Thomas George Macarbhy) alleged that he was the owner of part of section 213, and was entitled to have the use of the water of a stream which flowed through the same for his cattle to drink, and divers other purposes; that the defendant Council wrongfully polluted and disturbed the stream, and still continued so to do in such a way as to render it unfit for the plaintiff’s cattle to drink, whereby the plaintiff has lost the /use of the stream, and the value of his land has been greatly lessened thereby. He therefore claimed the sum of L6OOO as damages. For further causes of action he claimed L6OOO, as the water had been polluted and was unfit for domestic purposes, and had been rendered unfit for the requirements of a mill belonging to the plaintiff, erected on the said land. The statement of claim goes on Jo show, that the defendant, acting under the authority of the Te Aro Reclamation Act, 1879, some time since reclaimed a certain portion of land below high water-mark adjoining the northern boundary of the plaintiff’s land, and the plaintiff had suffered the cutting off of the water frontage. On the 20th September, 1887, the plaintiff’ made a claim against the defendant Corporation for compensation for the loss sustained by him by reason of the reclamation, and both parties agreed that the claim should be adjusted and settled in the manner set out in an agreement in writing made between them. The copy of the agreement showed that the City Council had agreed to allow the plaintiff reclaimed land, valued at L2O per foot, to the extent of L4OO, with a frontage to a street running eastward for Cuba-street extension. The City Council were to make a brick culvert in the plaintiff’s premises in lieu of the then existing wooden one, and also a sufficient connecting drain from the mill to tbe sewer, and to supply the mill with sufficient water free of charge to work it from the city service mains. These terms the plaintiff accepted, and agreed with the Corporation that if they were carried into effect he would release hem from all actions and demands whatsoever, whether by reason of the reclamation or the polluting of the stream above referred to. And although the plaintiff had always been ready and willing to perform the conditions of the agreement, the defendants had hitherto refused, and still continues to refuse, to perform the said agreements. Wherefore the plaintiff claimed that the defendants be required to specifically perform the said agreement, and to do all acts necessary for the performance thereof on their part ; or in tlqe alternative that the Court would decree that the defendant Corporation pay the plaintiff whatever sum it should think as sufficient, and as damage in respect to the non-performance of the agreement. The defendants in their pleadings denied that the plaintiff was entitled to the use of the water in the stream. They said that at the time of the construction of the brick culvert enclosing the higher parts of the stream they received permission from Mr Thomas Kebbell, one of the prior owners, to lead sewerage into the stream. This was in the year 1881, and the plaintiff did not become possessed of the stream until 1886. The Corporation has for upward of 20 years enjoyed the right of fouling the stream by leading sewerage into it. The defendants denied that they ever virtually agreed with the plaintiff that the compensation ;

claim should be adjusted and settled, as stated by the statement of claim ; that the alleged agreement Avas never executed by the Corporation in any of the modes set out by the Municipal Corporations Act, 1886 ; and that the agreement Avas never signed by any person authorised by them in such a Avay as to satisfy the requirements of the Statute of Frauds. On the 28th May, 1888, the Foreshore Committee of the Council authorised Mr Samuel BroAvn, the then Mayor, to negotiate with the plaintiff with respect to any claims he might have against the defendants, and as to acquiring the right to the stream as a public drain. Mr Browll and the plaintiff made the arrangement by which the latter Avas to take the reclaimed land to the extent of L4OO, as stated. The defendants contended that the arrangement and correspondence Avas settled by Mr BroAvn Avithout the express authority of the Council, and that they had refused to ratify it. The defendants further stated that at the time the agreement was entered into the said Samuel Brown was aAvare of the approximate quantity of Avater necessary for Avorking the mill, and it Avas Understood that the maximum quantity of water required would be only 6000 gallons per day, whereas it is believed that over 100,000 gallons per day Avould be necessary. Evidence for plaintiff was given by T„ Kebbell, W. P. Barber, J. Liddle, E. Seager, J. Foster, J. P. Luke, N. Marchant, J. D. Baird. At the conclusion of the last witness’ evidence, the hearing of the case Avas adjourned until 10 o'clock next morning.

The hearing of the case was continued before Mr Justice Richmond last Friday. On resuming, his Honor, referring to some remarks he had made on the previous day that it was unfortunate that the case had been allowed to come into Court, said that after having heard the explanation of counsel he must admit that there were questions of law and of fact which either side might reasonably determine to take into Court. Further evidence in support of the' plaintiff's ease was given by James Wood, H. P. Higginson, T. G. Macarthy (the plaintiff), and A. G. Johnson. Evidence for the defence was given by James Kerslake, Thomas Meek, and J. Wellsby. At the conclusion of the evidence for the defence, the case was adjourned until 1 o’clock next day. The case was concluded on Saturday. Counsel having addressed the jury, his Honor summed up. The jury retired at 12.35 p.m., and returned at 2.15 with a verdict for the plaintiff, giving £250 damages for deprivation of water rights, and 40s damages for the nuisance complained of. The question of costs was reserved.

IN BANCO. (Before Mr Justice Richmond.) Wednesday, September 18. POAKA AND OTHERS V. WARD AND OTHERS. In this a written judgment was delivered for the defendants with costs LlO 10s. IN RE THE NATIVE LANDS FRAUD PREVENTION ACT AND A LEASE HONE PITAMA TO LOAVDEN. In this case written judgment was delivered, allowing the appeal from the Trust Commissioners, and granting a certificate in respect of the lease. Mr 801 l asked for costs against the Crown, to which 'Mr Edwards objected. After some discussion Mr Justice Richmond held that he had power to allow costs against the Crown under the rules under the Native Lands Fraud Prevention Acts, and allowed LlO 10s. GOLDSMITH V. CAMPBELL AND OTHERS. In this case a prohibition to the Resident Magistrate at Gisborne was claimed on the ground that he had decided a case in which a question of title to land was raised. Mr Brown for the plaintiff in prohibition contended that a question of boundary was one of title to land, and that the affidavits showed the question to have been one of bouudary. Mr Edwards, for the defendant Campbell, admitted that a question of boundary was one of title to land : but contended there had been no dispute, as any boundary laid down by the instrument which had been relied upon (a Native lease) ; that the point .raised had really been that the lease required rectification ; and that the magistrate was bound to act upon the instrument as it stood. Ultimately the case was ordered to stand over for further affidavits. IN RE CHAS. COOK. Mr Jellicoe moved for a writ of attachment against Mr Chas. Cook, solicitor, for not complying with an order requiring him to pay over certain moneys received by him. The writ was granted, with costs L 5 ss. AVI PARATA V. CLIMIE. This was an appeal from a conviction of the appellant by the Resident Magistrate, Wellington, under section 76 of the Public Works Act, 1882, of having obstructed the respondent in the survey of a road through the Ngarara Block. The respondent had entered by the authority of a warrant of the Governor, under section 93 of the Native Land Court Act, 1886. Mr Jellicoe for the appellant ■; Mr Chapman for the respondent. Mr Justice Richmond delivered judgment as follows :—ln this case, I feel no difficulty on the points which appear to have been raised before the Magistrate. It appears to me to have been sufficiently proved that Mr Climie Avas a surveyor appointed within the meaning of the Public Works Act. He is a surveyor appointed by the local authority, the HoroAvhenua County Council, and the Horo Road Board, and he is also a person authorised to make the survey by the Governor. I think the fact that he swears he was employed by

the local authority justifies the inference that he Avas appointed by it to do this work. I ' see no difficulty in the fact that he would thus have a double authority. No doubt he did not act under a double authority, but it was necessary that that should be So - . I think also that this road Avas a public Work Avithin tlie meaning of tbe Public Works Act. Two other points were stated Avhich were not raised before the magistrate. First, that the evidence does not shoAY that the Ngarara Block is within the district within Avhich the local authority had authority ; second, that the evidence does not shoAv that the land proposed to be taken did not, inclusive of Avhat might have already been taken, exceed one-twentieth of the Avhole landWith regard to the latter point, I am disposed to think that there is evidence Avhich could be held sufficient. However that may be, I am clearly of opinion that it is not competent for an appellant in a case of this kind to start points of the kind in this Court for the first time. If they had been raised before the magistrate he might, in his discretion, have admitted further evidence. The points are of a kind which may almost be taken to be admitted because they are incontestable, and it would be productive of great inconvenience if they Avere alloAved to be raised for the first time on appeal. I say this having before me the case of Knight v. HalliAvell, the principle of which is that a point may be taken on appeal which was not taken in the Court below, if it fairly arises upon the case as stated. But in my opinion these points do not fairly arise upon the case as stated. The appellant is responsible for the form of the case, and is bound to make his points so as to show what he is really appealing upon. Appeal dismissed, with costs L 7 7s. TUTOHEN V. HALL. This Avas an appeal from a decision of the Resident Magistrate at Gisborne. The appellant had distrained on the respondent, Avithdrawn at his request, and subsequently distrained again for the same rent and for what had further accrued due. The respondent claimed for wrongful distress, and the magistrate found the second distress illegal, and gave judgment for the respondent. Mr Brown, for the appellant, cited ThAvaites v. Wilding, 11 Q.B.D. 421, and 12 Q.B.D. 4. The respondent did not appear, and judgment was reserved on that ground. Bankruptcy Court. —A sitting of the Bankruptcy Court was held before his Honor Mr Justice Richmond on Monday morning. Frederick Harding, coal and produce dealer, applied for his discharge. The Official Assignee informed his Honor that a majority of the debtor’s creditors had passed a resolution in favour of an immediate discharge. His Honor granted the application. Willie George, gardener, aiso applied for his discharge. The Official Assignee stated that there was no opposition, and the debtor said that his position was due to the illness of his wife and children. The Official Assignee stated that Edward H. Trueman, painter, had written to him stating that he was unable to pay for the necessary advertisements, and he (Official Assignee) therefore asked that the hearing of the discharge should be adjourned until next sitting. The application of George Boothby, painter, for his discharge was also adjourned until next sitting, at the request of the Offioiai Assignee, who stated that the debtor had not filed a certain affidavit. His Honor decided that, as the debtor had already advertised he intended to apply for his discharge, that there would be no necessity for him to do so again. The following bankruptcies were declared closed, and the bankrupts ordered to come up for their discharges at next sitting :—Joshua W. Brook, Henry Sundgren, William Weggcry and J. J. Ingram. With regard to the latter case, the Official Assignee explained that at the previous sitting of the Court the debtor had been ordered to come up for his discharge at the next sitting, but owing to a misunderstanding the bankruptcy had not been declared closed, and therefore the debtor could not apply for his discharge at present. An application by the Official Assignee to be released from thirty-two estates, the names of which have already been published by us, was granted. The Court on rising adjourned until the 10th October.