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Isherwood v. Oldknow, 3 M. & S., 382; and Held, upon demurrer, a good replication ; it being 2 Sngden on Powers, 472 (6th ed.),

for the defendant to show that he had, in abating the were also cited.

nuisance, done only what was necessary. Raymond (Chambers, Q.C., with him), in support

DEMURRER.---Second count of declaration. That of the rule. The lease was a good execution of the power ; for, according to the very letter of the deed, before the committing of the grievances hereinafter menthis was a repairing lease ; and, moreover, before the tioned, they the plaintiffs being possessed of a certain expiration of the lease, a large sum of money would colliery, did by the licence of the owner and occupier necessarily have to be laid out on the premises. The of certain land near the said colliery, make a water

course in the said land for carrying away the water plaintiffs would have the claim in the will read as ** building and repairing." Isherwood v, Ollknow, colliery, and from thence until and at the time of the

by them from time to time pumped from the said ubi supra, is, if anything, in our favour. I rely upon the language of the power.

committing of the grievance hereinafter mentioned,

during all which period they were possessed of the said POLLOCK, C.B. —This rule should be discharged colliery, they the plaintiffs by the licence, &c. of the as to the mere question of the length of the lease, I said owner and occupier of the said land, enjoyed the say nothing. The power given was either to lease advantage of having the water by them pumped, flow for twenty-one years at a rack-rent, or for sixty-one away from the said colliery along the said watercourse, years-or I will assume even for a shorter period-on and the plaintiffs say that the said licence and consent building or repairing leases, and I am of opinion that to enjoy the said advantage, and their said possesthis lease is not valid within the terms of that power. sion of the said colliery continued till the commence

ment of this suit, and still do continue, and the said CHANNELL, B.—I am also of the same opinion. The licence, 'consent, and advantage, were of great value to lease being for more than twenty-one years, must, to be the plaintiffs

, and the plaintiffs say that the defenwithin the power, be a building or repairing lease. I dant knowing that the plaintiffs were enjoying the give no opinion about the use of the disjunctive ‘or' advantage aforesaid, wrongfully and wilfully obstructed in the power. Looking, however, at the terms of the the said watercourse, and thereby prevented the water lease and at the extrinsic circumstances, I do not from flowing along the same, away from the said consider this a good repairing lease.

colliery, by means whereof the plaintiffs sustain, and Picorr

, B.- Looking at the language used in the will sustain, damage, &c. will, the words must have meant something more than

Fourth plea to the said second count.--That before the ordinary covenant contained in farming and other and at the time when the plaintiff's made the said waterleases.

course as in the second count mentioned, and from

thence until at and after the committing by the defenBEAMWELL, B.—I agree with the rest of the Court. dant of the alleged grievances in the same count menI think the lease cannot be supported as a good tioned the defendant was the occupier, and was lawrepairing lease, and independently of authority, this fully possessed of the said land near to the said colliery is the common sense view of the case.

The reference in which the plaintiffs made the said watercourse as in to Sugden on Powers, ubi supra, confirms this opinion. the second count mentioned, and the plaintiff's made Je is said

, however, that this is good as a repairing the said watercourse in the defendant's said land with lease when the state of the premises is considered, but the leave and licence of the defendant, and with such it is a sufficient answer to this to say, that the facts do leave and licence used the same until the defendant

Under a repairing afterwards revoked such leave and licence, and gave lease a man would have to do more than he would be notice to the plaintiffs of such revocation, and because hable for under the terms of such a lease as the the plaintiffs continued to use such watercourse

, and present.

to send the water down the same after such revocaRule discharged. tion, and notice thereof against the will of the defen

dant, the defendant obstructed the same as in the said ROBERTS and Another ROSE. second count mentioned.

,

not warrant such a conclusion.

Ex. 16 Nov. 1863.

v.

Watercourse— Nuisance—Abatement – Excess of not for the obstruction on the

defendant? said land of

& watercourse on the defendant's land, but for an damage.

obstruction on other land than that mentioned in the Where, in an action for obstructing a watercourse on said fourth plea, and being the land in the second the obstruction, in the place where made, was unneces- defendant was the occupier and possessed, as in the land not the defendant's, the replication set out, that count mentioned, and not being the land of which the sory for preventing the evils complained of by the defen- fourth plea mentioned, of a watercourse made on such dant, and was higher up the watercourse than reces- other land with the licence and consent of William

Lowe, the occupier of such other land.

sary :

Second plea to new assignment. That, at the time Gray, Q.C., in support of the demurrer. It was of the committing by the defendant of the alleged on Lowe's land we were entering, and not on the grievances in the new assignment mentioned, the de plaintiffs, and Lowe, if any one, should have brought fendant was possessed of certain land adjoining to the the action. Assuming that the defendant could obland in the new assignment called other land, and the struct the water at any part, why must he allege that said watercourse in and over such other land was so he could not do so at any place other than where he constructed that the water passing in and along the did stop it? The plaintiffs should have alleged that same was wrongfully discharged from the same on to the defendant was damaging Lowe more than was the said adjoining land of the defendant, and without necessary. The defendant was not bound to stop the entering on the said other land in the new assignment water-course in the way which would do the plaintiffs mentioned, and obstructing the said watercourse on the least injury, but in the manner likely to do the such land, the defendant could not prevent the water owner of the land the least harm, and the replication from the watercourse from being discharged there. | does not assert this. from and coming on the land of the defendant in this

H. Mathews (Huddlestone, Q.C. with him), in supplea mentioned ; wherefore, in order to prevent the

port of the replication. The plaintiffs are as much said water from the said watercourse from being so discharged, and coming on the land of the defendant, entitled to their watercourse as Lowe is to his land. the defendant obstructed on such other land the said Though a man may abate a nuisance on his own land, watercourse made on such other land as he lawfully in such manner as he thinks fit, he must only do what

is

necessary for that purpose when he enters upon the might for the cause aforesaid.

land of another. Second replication to second plea to new assignment. – That the obstruction so made by the defendant at

(BRAMWELL, B.- Taking the whole declaration, it

means that the defendant might have done the acts the place where it was made was not necessary

for

preventing the water from being so discharged from the said complained of on Lowe's land, but ncarer to his

own.] watercourse, and coming on the defendant's said land, as the defendant knew at the time when he made it ; the replication amounts to an informal new assign

[CHANNELL, B.—The defendant in effect says, that and the plaintiffs say that the said obstruction was an

ment.] obstruction mado much higher up the said watercourse than the defendant's said land, so as to prevent the

Com. Dig. Action upon Case for Nuisance, 423;

Bateman v, Bluck, 18 Q.B. 870; and water from flowing down a large part of the said water

Dimes v. Petley, 15 Q. B. 276 ; course on the said other land where the plaintiffs had such licence and consent, as in the second count men

are a few of a number of cases which might be cited in tioned for the flowing thereof; and the plaintiffs say,

the plaintiff's favour. The 2nd plea to the new assignthat the water might have flowed along the said last

ment is bad, upon the ground stated in mentioned part of the said watercourse without being and for not showing that the obstruction, as effected,

Joncs v. Williams, 11 M. & W. 176, discharged from the said watercourse, and coming on the defendant's said land, or injuring the defendant,

was necessary in order to abate the nuisance. and might have been by the defendant lawfully ob

Gray, Q.C., in reply. It is perfectly consistent structed on the said other land lower down the said with the pleadings, that the defendant mado the obwatercourse after it had flowed over the last-mentioned struction in the way least likely to do injury to the part thereof, and nearer to the defendant's said land

owner of the land. than the place where he did obstruct it, as the defendant, at the time when he made the said obstruc

POLLOCK, C.B.- The plaintiffs are, in my opinion, tion, well knew; and the plaintiffs say, that if the entitled to our judgment, though it would have been same had been obstructed lower down the said water

better had we known somewhat more of the facts. course on the said other land, and nearer to the de. Mr. Gray has, I think, failed in making out his profendant's said land as aforesaid, such obstruction would position. I cannot enter into the notion that whero have prevented the water from being discharged from

there is a long line of watercourse, a person may, for the said watercourse, and coming on the defendant's the purposes mentioned in the argument, interfere just

where he likes. said land, and would not have caused the damage to the plaintiffs in the second count mentioned; and such

BRAMWELL, B.-I am of the samo opinion. It is obstruction which the defendant go made as aforesaid, difficult, however, to divine what the circumstances of was an unnecessary and unreasonable mode of preventing the case wero. I will assume, however, that the the water from being discharged from the said water- defendant had a right to enter upon the land in quescourse, and coming on the defendant's said land, and by tion, and will also, for the sake of the argument, agreo reason thereof, did the plaintiffs unnecessary damage.

with Mr. Gray that, in abating the nuisance, the Demurrer to the second replication to the second defendant must do so in such a manner as to do the least plea to the new assignment, and thereupon joinder in ' possible injury both to Lowe and to the plaintilis. deinurrer.

| The plaintiff's say by their replication, you did more

say so.

injury than was necessary, and I think that is good. not having been duly removed from the County Court, Suppose for a moment that by abating the nuisance and there being no judgment or proceeding in this half a mile lower down, no injury would have been Court upon which such ca. sa. could lawfully issue. done, either to Lowe or to the plaintiffs. But Mr. And I further order that no action be brought against Gray says, “You do not say in your replication, that the plaintiff or the sheriff in respect of the arrest stopping the watercourse in a mode less injurious to herein. And I further order that the costs of and inciyou, would also have been less injurious to Mr. Lowe.” dent to the proceedings hercin, be paid by the plaintiff's I think, however, that the replication does practically attorney, Hockley Wood.”

The pleadings are of a decidedly misty The facts were, that on the 30th of July, the plainnature.

tiff recovered against the defendant, in the Westminster

County Court, a judgment for 201. 4s., and 5l. 5s. CHANNELL, B.-So far as I can form an opinion costs. On the 4th of August the County Court from the pleadings, I think the plaintiffs are entitled Judge made an order for the payment of the debt and to our judgment. Assuming that the defendant had a costs. Thereupon, Wood, as the plaintiff's attorney, right to enter upon his neighbour's land, the second took out a judgment summons, on the ground that the plea to the new assignment ought nevertheless to show defendant was about to leave the country; which was that he did no more damage than necessary. The dismissed with costs. On the 7th of August Wood replication practically says, that more injury than obtained a certificate from the officers of the County necessary was done.

Court, and then applied, on affidavit, to Keating, J., Pigort, B.— I am of the same opinion. The repli- into the Queen's Bench, under 19 & 20 Vict. c. 108,

for an order for a certiorari to remove the judgment cation in effect says, that more was done than was

s. 49. This order was dated 8th August. Wood then necessary. Judgment for the plaintiffs. applied to the County Court officials to know when

he could have the certiorari returned, and was to that he could not have it till the middle of Septeni Jer, as it must be signed by the Judge or the Registrar, and

both would be out of town till that time. He then Bail Court.

} Rouch v. ALBERTY. Nov. 23, 1863.

took the certiorari, with a minute of the judgment, to

the Treasury Office of the Queen's Bench ; and ono PracticeJudge's ChambersCostsNotice in Boddy, acting for the senior officer here, took in the Summons.

certiorari and the paper as a matter of course, supAn order upon an attorney of one of the parties to pay from the County Court.

posing the paper with the certiorari to be the return

Thereupon Wood issued a the costs incurred in proceedings in a cause, he not being

ca. sa., and arrested the defendant. This was on a a party applying to the Court, is bad, if the attorney Saturday; and on Monday, August the 10th, the had no notice in the summons that he would be called

summons above set out was heard before Keating, J., xpon to pay such costs.

Wood and defendant's attorney both attending it. Lacton had obtained a rule to show canse why an The summons was adjourned to the Tuesday, and then order of Keating, J., in this cause should not be re-adjourned to a later hour the same day ; but on neither scinded or varied as to so much thereof as related to of these latter occasions did Wood attend. Keating, J., the payment of costs by Mr. Wood, the plaintiff's having meanwhile made inquiries of the Master, then attorney personally,

made the order set out above. Temple, Q.C., now showed cause.

It will be said on the other side that the Judge at The summons upon which Keating, J., made the Chambers had no power to make the order, or that if order was as follows:

he had it was not properly exercised. But the full " Let the plaintiff's attorney or agent .... show Court would have had power to make the attorney pay cause why the writ of ca. sa, issued herein should not costs; and whatever a Judge at Chambers orders canbe set aside, and the defendant discharged out of the not be enforced without making it a rule of Court ; eustody of the Sheriff of Middlesex, the action not and the party thinking himself aggrieved has then an having been duly removed from the County Court, and opportunity of being heard. there being no judgment or proceeding in the Court of [CROMPTON, J.-But the rule may be made behind Queen’s Bench upon which such ca. sa. could lawfully the back of the Court.] issue, and the facts not having been disclosed to the Still there is an opportunity given of discussing Judge granting the order for the certiorari, and the the propriety of the order of the Judge at Chambers. affidavit for such order being wrongly entitled." Then, if there was such a power, was it properly The order was

exercised ? It is conceded that the summons did not " That the writ of ca. sa. issued herein be set aside, call on the attorney to show cause why, he should not and the defendant discharged out of the custody of pay the costs : but the order ought to be supported on the Sheriff of Middlesex as to this action, the action the facts as a matter of discretion. The affidavit put into Wood's hands at Chambers sufficiently apprised the affidavits that he was never called on to make him of the nature of the imputations thrown upon such an affidavit as he has now made. Consequently him. In

the case falls within both the rules I have mentioned Reg. v. Borron, 3 B. & Ald. 432,

above. the Court refused an application for a criminal infor- There are several cases where the attorney was a mation against a justice; and at the end of his judg-party to an application for criminal proceedings and ment, Abbott, C.J., says :—“It is only necessary to has been made to pay costs ; but he being the party add further, that, as the application to this Court applying, the Court had jurisdiction over him and could appears to be the act of Mr. Charles Pearson, the costs mako him pay, as he put himself improperly forward of the rule must be paid by him.”

in the nature of a relator. But except in that class of [CROMPTON, J.-- But here it was an application on cases I can find no case bearing on the question. a collateral matter, and no warning was given to the There are two ways of proceedings at Chambers, attorney. The attorney had no opportunity of saying, either by sunmons in the principal matter with notice I did this under a mistake, and there was nothing to that tho attorney is to pay the costs, or by substanput him on his own personal defence.]

tivo application that the attorney should pay the costs

of the proceedings : and there may also be an applicaLaxton, in support of the rule. The summons did not call on Wood to pay these tion to answer matters on affidavit. Some at all

events of those courses will be open to the party here. costs. The person really in the wrong was Boddy.

I am bound to alter so much of the order as directs He should have looked at the documents before he that the attorney should pay the costs. I cannot gave a certificate. Moreover, a certificate is evidence alter it so far as to throw the costs on the plaintiff, as of the proceedings in the County Court,

I should thereby be falling into the error I am now 9 & 10 Vict. c. 95, 8. 111.

correcting Cur, adv. vult.

Rule absolute. 24 Nov. 1863. CROMPTON, J., now delivered judgment.--I have

Temple subsequently obtained a rule calling on the come to the conclusion that the order made on the attorney to show cause why he should not pay the merits, is perfectly right, whether the attorney merely costs, and in the event of his not being ordered to pay, showed gross ignorance, or something worse.

But

why the plaintiff should not pay them. there is a principle of considerable importance involved, -viz., whether, on this summons, such an order could be properly made. I have consulted the other Bail Court.

} ERSKINE V. WALLACE. Judges, and am now still more strongly of opinion 23 Nov, 1863. than I was yesterday, that the order cannot be sup

Arbitration-Setting aside Award. ported.

It is a general principle, frequently acted on with It is no ground for setting aside the award of an regard to the decisions of Justices, and to be very | arbitrator, or for sending back to him the matters strongly maintained, that no person should be injured referred, though the reference is of the cause and all by a decision without an opportunity of hearing and matters in dispute between the parties, that he omitted meeting the charges brought against him.

to take into his consideration a claim of the defendant There is another rule as to practice at Chambers, against the plaintiff, which was not brought under his that where it is intended to charge an attorney with notice at the hearing of the reference. misconduct, the application for costs against him should be a part of the summons.

G. B. Hughes obtained a rule to set aside the award In the present case, it was sought to do something of an arbitrator in this cause on the ground that the more on the summons than the summons called on the award was not final, and left matters in difference party to answer, and the attorney had no notice that between the parties. any attempt would be made to make him pay the

Giffard now showed cause. costs. It did not appear that this question ever came

It appeared that after the arbitrator hail published before the Judge at Chambers. However he, as I do, his certificate, finding 251. damages for the plaintiff, entertained a very strong opinion on the merits. He he expressed his regret that he had not taken into consaid that he would give judgment next day, and sideration a certain claim of the defendant against the added, very properly, that he should like to consult plaintiff. The reference, which was by order of Willes, the Master of the Court, probably with regard to the J., was of the cause, and all matters in difference particular practice as to certiorari. After having seen

between the parties ; but it did not appear that the him, he decided that the attorney should pay the claim in question was brought under the notice of the costs. But the attorney did not appear, and there

arbitrator. was no discussion before the Judge as to whether he would have to pay the costs; and I must take it on Hughes supported the rule.

CROMPTON, J.-There should have been an affidavit himself before he had done. The condition and class to show that this matter was brought under the notice of the premises were proper to be inquired into, but of the arbitrator. I can only send the matters referred not their state of repair at the time of the demise. back to him if it appear that something was brought Payne v. Haine, 16 M. & W. 541. before him which he has not taken into consideration,

Rule discharged.

CROMPTON, J.-If the under-sheriff told the jury to look at the prior promise, it was

misdirection. But

so far from doing that, he sent them back to reconsider Bail Court.

HALDANE and Others v. their verdict. Ho clearly had the case of Payme v. 23 Nov, 1863.)

NEWCOME.

Haine before his mind, and told them they might look

at the age and class of the house. Demised PremisesKeeping in repair-Evidence.

Rule discharged. Premiscs were demised to a tenant under an agreement to keep and leave them in good repair. In an action

Bail Court. BEAL and Others (Executors) against him for not leaving them in such repair, it

} 23 Nov, 1863.

V. MARTIN. would be a misdirection to tell the jury to regard a promise of the lessor to put the premises into repair Practice-Trial-Nonsuit-Witnesses. made prior to the demise; but they may measure the extent of the repairs to be done by the age and class of

On an application by a plaintiff to set aside a nonsuit, the premises.

on the ground that the defendant had bribed his witnesses

to stay away from the trial:Declaration on an agreement by the defendant to

Held, that he must show that his witnesses could have keep and leave certain premises demised to him in good given material evidence, and that steps were taken to repair : breach, that he did not leave them in good

procure

their attendance. repair. Judgment by default, and writ of inquiry to the Sheriff of Essex to assess the damages : verdict, Detinue and trover for certain papers. Pleas : nonone farthing

detinet and not possessed.

The cause was tried at Croydon before Bramwell, B. Philbrick had obtained a rule to show cause why At the trial, the junior counsel for the plaintiffs applied the inquisition should not be set aside, and a fresh for a postponement, on the ground that his leader was inquisition had, on the ground of misreception of evi- absent, and on no other ground. The application was dence, and of misdirection.

refused.

The plaintiff, Beal, was called, and proved that he Murphy showed cause.

was co-executor of a testatrix together with the other The misreception complained of was, that the

two plaintiffs, Lewis and Atterbury ; that, as such defendant was allowed to give evidence of an alleged executor, he had come into possession of a probate and promise by the plaintiffs or their agent to put the pre-certain other papers of the deceased ; and that his comises in repair before and at the time of the contract executor, Lewis, had taken them out of his possession, in the declaration admitted, and also of the particular since when he had not seen them. state of repair of the premises at the time of the

No application was made to postpone the trial on demise. The undersheriff had made no note of such

the ground of the absence of material witnesses. objection, and the gentleman who appeared for the

The defendant proved that Lewis had borrowed defendant stated that none such was made.

money of him on the account of himself and AtterPhilbrick. I took the objection myself.

bury, and had deposited with defendant the papers in [CROMPTON, J.-You should have got the Judge to question by way of security. make a note of it.]

On the learned Judge intimating that he would

direct a verdict for the defendant, the plaintiff's coun. Murphy, as to the mislirection. The jury first sel elected to be nonsuited. returned a verdict that considering the state of repair of the premises when the defendant took them, and Laxton, for the plaintiff, had obtained a rule to set the promise maile that they should be repaired by the aside the nonsuit, on the ground that the defendant plaintiff, they found for the plaintiff, with one far- had bribed the plaintiff's witnesses to stay away from thing damages. The under-sheriff told them he could the trial : he moved on the joint affidavit of the plainnot take such a verdict, but he should ask them if tiffs, Beal and Lewis, in which they stated that Lewis they found for the plaintiff or for the defendant simply, and Atterbury did not appear as witnesses ; that they and if for the plaintiff, with what damages. The jury were necessary witnesses ; that they received 31. 10s. then found one farthing damages for the plaintiff.

from the defendant to stay away, from their attorney ;

and that defendant promised, if they would stay away Philbrick, in support of the rule. The Judge laid at the trial, he would withdraw the record in an action down the law rightly at first, but entirely contradicted which he had brought against them. It also appeared

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