SUPREME COURT.—IN BANCO.

Otago Daily Times, Issue 4165, 24 June 1875, Page 3

SUPREME COURT.—IN BANCO.

WEDNESDAY, 23rd Ju.VE. (Before His Honour Mr Justice Johnston.) I.DISAX V. WASTE LANDS. liOAI'.I). Mr Barton, on behalf of the defendants in this case, made a motion, but it was afterwards withdrawn on the understanding that the matter should be brought forward again in a different form. MAI.AUHAN V. WENK>r::iM. Mr Macassey, on behalf of the plaintiff, moved for a rule iiixi calling upon defendant to show cause why the Registrar' should not proceed with the taxation of plaintiff's costs of suit, or review his decision bj' which he had refused to allow plaintiff any costs of suit. He assumed :is a matter of fact that this refusal might possibly be treated, as a decision. His Honour: Does the Registrar ever determine who is to pay co^ts? Mr Maeassey said that at all events he had done so in this instance. The question now raised wa.s one of very considerable importance, and one to which the attention of the Judges and the profession had often been directed. It arose from Rule IC>7, which says:—" Costs in the cause shall be paid by the party against whom the judgment shall "be given .-'Provided that if the plaintiff in any action for the recovery of damages shall recover by the verdict of the Jury less damages than 405," such plaintiff shall not be entitled to any costs whatever; unless the Judge shall immediately afterwards certify upon the record that the action was brought to try a right other than the mere right to recover damages in the action, or unless the Jury shall find that the trespass or grievance in respect of which the action wa.s brought Was wilful and malicious." The facts involved in the present case might be shortly stated thus: —The plaintiff brought an action for slander. The declaration contained two counts, anil the slander complained of had reference to plaintiff in his trade, or calling. The jury found all the issues in favour of the plaintiff, and assessed the damages on one of the counts at the sum of one farthing. On these facts there would probably be good grounds for a new trial, according to recent decisions at home, as the decision of the jury was a compromise.^ The Judge certified for a special jury. There was no special finding by the jury of malice. The case was one of privileged communication, ami the Judge directed that unless the jury were satisfied the defendant published and spoke the words complained of under feelings of ill-will, or that the law constituted express malice, they were to find a verdict for defendant. Such a direction to the jury, and the finding upon that, necessarily involved this. That, as contra-distiuguishei from legal malice, the jury found here the existence"of personal ill will, and the question now for the Court to determine was whether, under those circumstances, the terms of the 107 th Rule were satisfied, namely, that the jury found that the trespass or grievance in respect of which the action was brought was wilful or malicious. Rule nisi granted. HARDING V. CAMPBELL. On the motion of Mr Barton, the rule nisi obtained by defendant in this case was discharged with costs. Mr Barton, on behalf of plaintiff, moved for a decree, which was granted. JIONSOX V. JIONSOX. Motion for a decree. Messrs Barton and Maeassey appeared for the plaintiff; Messrs C Cook and Howorth for J. and R. Monson; and Mr Smith for Blatch and wife. The prayer of the declaration 'asked that defendant might be directed to answer the material allegations of the declaration as if specifically interrogated with respect thereto, ami that the Court might declare and determine what property was intended to be, and had been, described by the testator under the words " all my property in Great King street," and also under the words " the property at fortobello Bay." That the defendant, j. K. Monson, might be decreed to account for the rents and profits of all the estate, and for all other assets of the testator that had come to his hands; that he be charged with rent for the occupation of two sections ; that he might account for the manner in which he had hitherto administered to said estate ; that he pay into Court to the credit of this cause all such moneys as shall be found due and payable by him "in respect thereof; that the estate might be duly administered in the Court, and all debts be paid, and, if necessary, portion of the property be realised for that purpose. The plaintiff further prayed that the said F. K. Mopsun not having been heard of for a period of nine years might be presumed to be deceased, and that his estate and also that of the said William H. Monson, who had not been heard of for more than five ' years, might, so far as it was necessary for the purpose of this suit, be duly administered. ! That the s-'aid defendant, J. R. Monson, might ,be restrained by injunction from recovering o

interfering with the estate and assets, and from selling or disposing of any part -thereof until a decree shall have been made settling the rights of the parties. That a receiver of • the estate be appointed. That a sufficient sum might be ordered and decreed to be paid during the minority of the infant plaintiff and the infant defendant for their maintenance and education. That a proper settlement of the estate of Mrs Blatch may be made upon hei-. That the costs of the infant plaintiff and infant defendant, William 1?. Monson, might be paid either by the defendant, J. R. Monson, or out of the estate. That the plaintiff might have such other relief as would be proper in the premises. The case was, after argument, adjourned till Monday. Ritchie v. Prondf oot and others. —Demurrer, on portion of a count of declaration. Mr Maccassey, with whom was Mr Haggitt, supported; Mr Barton, with whom was Air Howorth, opposed. The plaintiff, Matilda Ritchie, is a widow residing at P< rt Chalmers, and the defendants were the promoters of the Port Chalmers Railway, and had taken plaintiff's land for railway purposes without making any compensation. Questions were involved of damages, trespass, and statutory contract. After discussion, it was agreed that proceedings be adjourned so that the parties might agree to a special case ; and, if they could not, the ease could remain on the list. (.TiTIE AND dTHKIiS (APPELLANTS), AND CHKLSTiAN AND OTHKKS (RESPONDENTS). Mr Maeeassey for plaintiffs, and Mr Stout and Mr Mouat for the defendants. This was a special case, stated by Mr Wilson Gray, late Judge of the District Court of the Otago Goldtields, under the 83rd section of the GoldfielJs Act, ISG<>, reserving questions of law for the opinion of the Supreme Court. The case was stated in order to obtain the opinion of the Supreme Court as to whether sluicers discharging the debris of their claims into a river or creek, and thereby causing a water-race leading from the creek lower down stream to be choked with gravel, sludge, and silt, are liable in damages to the owners of the race. The questions submitted for the opinion of the Supreme Court were as follows :— (1.) Whether defendants were entitled by virtue of their sluicing claim, or by virtue of their grants of head-races terminating at their claims, to sluice and run off debris and sludge on the Crown lands of their watershed, and on through the water channels and rivers of the country? (2.) Whether, if entitled to do so, they were so entitled as against the plaintiffs, who ha<l a grant senior in time entitling them to divert water from the lower part of the creek or river? (:'..) Whether defendants were entitled by their grant of tail-race to discharge tailings at the mouth or termination of these races upon the Crown lauds or into the ordinary water channels of the countiy ; or whether the rights granted by the grants of tail-races arc limited, as the District Judge stated in his opinion that they were? (4.) Whether, if entitled, they were so entitled as ag.iinst the plaintiffs, holders of the earlier grant of head race ? (">.) Whether the plaintiffs' grant of headrace entitled them to have water that shall be tit for ordinary mining purposes, at the point where they are authorised to direct it? (li.) Whether the plaintiffs are entitled to have water that shall be reasonably fit to run in water-races, without being mixed with debris that will choke the race? (7.) Whether, if plaintiffs are entitled, as in the last question, they are so entitled only in respect of the coarser materials heroin described :is pebbles, gravel, and sand, or whether they are further entitled to have water free from that finer silt which hangs for a long time in suspension after the water has begun to run still in the race, but which, ultimately precipitating itself, chokes the race ? (8.) Whether, if a distinction be admitted, any rule can be laid down in such cases capable of being given as a direction to the jury, and which the District Judge should use as a direction to himself : and if so, how should that rule be expressed ? After hearing argument, His Honour said: I am of opinion that judgment must be for respondents, for the full amount of their claim. My answers to the questions submitted are as follows :—•(!.) No. (2.) No answer required, (o.) I say the claims are limited, as stated by the learned Judge. (4.) Yes. (;->.) Entitled to the water in its natural condition. (<>.) The answer as before. (7.) 1 say there is no distinction between the two sorts of materials. (8.) Xo necessity to answer. Judgment will therefore be for the respondents. Xo order will be made as to costs. KOHntTSOX V. CORPORATION OK QI'EENSTOWN. Mr Stout, on behalf of the plaintiff, moved that the rule m.si, obtained in this case, should be made absolute, no cause having been shown. Application granted. The Court then adjourned till 10 o'clock next tl:l J'- __=__—______