SUPREME COURT.

Otago Daily Times, Issue 13288, 20 May 1905, Page 2

SUPREME COURT.

IN BANKRUPTCY Fmiuy, MAY 19. (Before lus Uonoi Mr Justice Williams.) RF, J AMI'S IKBSIKI.I, A eioditor's petition for adjudication llr J. A. Cook appealed in support of the petitioning creditor, Dalgety anil Co. Mr Cool; said the petition was made on tho giound that the committed an act of bankruptcy bv departing froan his dwelling and i>U°enlirg hunsolf al'qgether. Immg ,tplaiently absoondej from this ixtrt ot tl'o colony. His Hcnoi would remomboi that about a fortnight l }' previously he (Ml Cook) made au order tot substituted service of the petition, ordering that i f bo advertised onco in tho New Ze-tland and onco in the local papei, and that had bewi anvphed with. Ihcic had been no notico of anv appeaTancc on the lart rf tlio debloi. The airidavits fully set out the whole oas"—namely, that Alairsliall was a former on the Bainego Settlement. Ho sold all his stock m Oanuaay, and put up Ills place for sale (but it was noi "-o'dl, p.nd, hnvmg disposed of ins horses in Duncdiu, he disappeared, leaving his crop standing The petitioning cie litor (Dalgctj ard Co) cut the crop for tho benefit of pit concerned. Counsel fluked if m the face ot the affidavits any evidence waa required His Honor said tho affidavits were sufficient, and that the order would be made as prajfd.

CIVIL SITTINGS. (Boloie his Honor Mr Ju°tioe Williams.) I'OWLCI: V. GTIIILUQ. Claim £200 for loos and nicom oiuonce caused by want of Intaral support to land Mr F. Calvert appeared for the plsimtill, Lih.l'i Amelia Fowler, Hi W. C MacGrcgor (instincted by Messrs F Z. aud \V L Moore) for the defendant, George Stilling. The plainltlfd statement of cUiiu ie-t out tlwt she owned allotment 23 ot subdivision ot section 47, block XXXVII, Dmiedin, mid defendant owned section 23, these beirg adjoining premies, Many years ago the defendant excavated on Ills land, and deprived th» plaiutiK's ground of its natural lateral support, and the plaintiff's land slipped. Additional evidence for the plaintiff was gi\en by Aim Jenkiiß and "Wlllncui Jenkins. Mi m opening the ease for the defendant, said lie regretted that the plaintiff -us weal, enough to sacriiico lier own sense of justice and accept the niTvico of the bnil#ig society und the soßielyV advisers The pnn cipalo would probably liave been able to jetllo their dificiences easily if they had come together m a neighbourly way without the intervention n! other pmtim, He submitted that plaintiP und her predecessors in title were the authors of their ov.n wrong, and could not succecd in the action Tkintifl's case v«s hssod on the nl'eged right o'f the plaintiff to have her land supported bv tlic land of the defendant, but that right only obtained wheio the plaintiffs land was iu its " natunl and unencumbered state." The laff \mw summed up in Clerk and Lir.dell's "Law of Torts"— namely, m that "the ushfot suppoit, apart f'om an casement to ha\o a greater degiee of rapport, ii limited to support afforded to land iu lis lmtuial state—'.hat is to r.ay, to hnd on the oi e hand unburdened wi*li ibr weight ot l.mldmcp, lrsenoire of iralei, or othci artifM.il erection-. which would '•end to m-cre,u-e the natural downward oi lateral thrust;

and on llie other hand, linwcakencd. by any Artificial cscavntion or any intervening 6trip of land (whether belonging to tho plaintiff or a thud party) lying between it and the soil from which the right of support is claimed." Defendant's case \V*.s this: th;;t plaintiff's li)nd was not i)o\v in its natural slato-that waa to say in the qlqte of Nature that the Court of Appeal spoke abcut in the caio of the Ccapora-, tion ol Birmingham v. Allen. It was by plain-' tiff and her predecessor in title oncumbeied by buildings from time to time, and thereby increased m weight, and had been by the acts of the Fowlers and their predecessors (the Mackenzie's) made rotten, and oau&sd to slip,' not orce but twice—first by the direct presence of the cesspit and its influence on tho surroundiug soil; secondly, bv becoming saturated with water from the house by tVo downfall pipe, prior tq Optobor, 1901; and thirdly, by a conoentrfited flop oi water from % drainage of the housa prior "to and sinos October, 1004, and this prcceas of improper saturation was, he contended, going on to the present day. He proposed to call ovidenco as to the early his'ory of tjiess properties, and fplt sure that by the facta he would adduce his Honor would bq conyipcsd thai &o far front plaintiff having a cause of aptjon pgamst defendant, tho position was that defendant had a cause of action against plaintiff, and had defendant ljeon a litigious raai} tlw position \yould have been just tho reverse of what it !!OYr vrets.

His Honor remarked that plaintiff's own evidence had shown that tho case was eminently one for neighbourly settlement. Evidence for the defence was given bv Geo.' Stirling, Robert Qorunds, Arthur Youngwm. Edward Drpy, Michael Bio Key, Charles Hugh Rsid, Latham O George Clarke, and Frederick 'William Lydors, after which fui'liei (to allow counsel the opportunity of addiessiug the court) was till a future date to bo subsequently fixed.