SUPREME COURT.

Globe, Volume II, Issue 198, 27 January 1875, Page 3

SUPREME COURT.

# SITTINGS IN CHAMBERS.

Tuesday, January 26. (Before His Honor Mr Justice Gresson.) His Honor sat in the Court Chambers at 11 a.m. BICKMAN V THOBNE. In this case his Honor delivered judgment as follows : This was a demurrer to a declaration claiming damages for the pollution by the defendant of . a certain stream flowing through and along the land of the plaintiff. The declaration states that the plaintiff before and at the time of the alleged grievances " was seised in fee simple of a parcel of land," which is particularly described; and the first ground of demurrer relied on is, that it does not appear that the plaintiff was in or entitled to possession of the said land at the time of the grievances complained of. The question, therefore, that arises on this ground is whether an allegation of seisen in fee.includes possession until the contrary be shown. This, I think, it undoubtedly does. The word " seisin " in itself means possession (I Inst. 17A); and the expression •'seised in fee simple in possession" is tautologous. Bullard v Harrison, 4 M. and S., 387.-Stott v Stott, 16 East, 343. It was formerly customary in personal actions for injuries to real property, corporeal or incorporeal, to state the plaintiff's title specially; but it is now fully settled that, in personal actions against wrongdoers for the recovery of damages, it is sufficient to allege possession. 1 Chitty on Pleading, 394. And as the rale, is well settled, that possession is prima facie evidence of seisin in fee, so e con,' veno, an allegation of seisin in fee must be held to include possession. 1 Dms. Saunders, 221 a. The only other ground of demurrer is, that it does not appear that the plaintiff was entitled to the use of the water at the time of the committal of the alleged grievances. The fact of the plaintiff's being seised in fee simple of the land through which the stream flows, as stated in the first paragraph of the declaration, would entitle him to have the stream run in its natural course, and in its natural state, according to the maxim of law. "Aqua currvt et debet currere ut eurrere solebat." Wood v Waud, 3 Exch., 748-785. But, independently of the allegation of seisin in fee, the second paragraph of the declaration states that the plaintiff has been 'and is entitled to the use of the water of the said river without its being fouled or polluted; and I thiuk that such statement sufficiently complies with our rules of pleading, and must be taken to be an assertion of plaintiff's title at the time of the committal of the grievances complained of. I am of opinion, therefore, that the declaration is good, and that the demurrer must be overruled. . . Order: Demurrer overruled with costs. Mr Garrick obtained leave to plead, the plea being verified. PATEBSON V THE MANDEVILLE AND EANGIOUA BO AD BOARD. This was an action brought by the plaintiff, who is a farmer living near Rangiora, against the defendants,to recover the sum of £IOO damages, for the alleged wrongful obstruction by the defendants of the water of a creek, whereby it overflowed the land of the plaintiff. At the trial of the action before the Resident Magistrate in Kaiapoi, the defendants' counsel objected to the jurisdiction of the Court, on the ground that the summons had not been served according to the provisions of the Resident Magistrate's Act, 1867, and that the provisions of the said Act do not confer on Resident Magistrates' Courts jurisdiction, to hear and determine actions by or against Road Boards. The Resident Magistrate overruled the objections, and gave judgment for the plaintiff for £SO and costs. Mr Joynt, for the defendants, obtained a rule nisi: for' a writ of prohibition' to the Resident Magistrate's Court, Eaiapoi, on the above grounds, and the motion to make the mle' absolute was argued on Friday last, before his Honor Mr Justice Gresson, by Mr Duncan for the plaintiff, and Mr Joynt for the defendants, when his Honor reserved his judgment. His Honor now delivered judgment; making the rule absolute on both grounds. In giving judgment, his Honor stated that no provision was made in the Resident Magistrate's Act for the service of a summons on a corporation, and that the remedies by distress and imprisonment provided by the Act for enforcing the judgment of the Court was inapplicable to Road Boards, because, generally speaking, the property of Road Boards consisted of their rates, which could not be attached by the process of those Courts ; and, of course, the alternative remedy of imprisonment was not available. A question was raised on .the affidavits, whether the first ground of objection was taken at the trial, and affidavits variously stating the fact were made by the Resident Magistrate. Mr Mellish, and Mr Duncan for the plaintiff, and. by the Clerk of the Board and Mr O'Neill for the defendant. His Honor said he did not think that the question, whether or not the point was taken at the trial was natural, as it was plain that the Resident Magistrate had exceeded his jurisdiction, but that if he had been called upon to express his decision, he should decide for the defendants that the point had been taken at the trial. Rule absolute, but without costs. Mr Duncan asked for leave to appeal, which his Honor granted. BE G. A. METCALF. The debtor in person applied for an order of adjudication, and fixing of first meeting of creditors. His Honor made the order, fixing Thursday, 4Lh February, at noon, for the first meeting of creditors. . BE ESTATE OF JOSEPH HEBDMAN ANDBEWS, In this case a rule nisi had been obtained on the part of the Provisional Trustee, calling

on Mr J. B. Banks to shew cause why his proof on the estate of the bankrupt should not be expunged or reduced. Mr J. B. Banks appeared, and was examined by Mr Garrick. Mr R. D. Thomas, who appeared for Mr Banks, al.«o examined him at some length. The Court then rose.