but only for a new trial, on the ground that the verdict on the second plea was against the weight of evidence. No question, therefore, was raised here, or has to be considered, as to the effect or sufficiency of the plea. Moreover, if under the allegations in the second plea evidence was admissible of disaffirmance by the defendant of the contract on discovery of the falsity of the representation, no issue to that effect having been raised, there was no such question for the consideration of the jury, nor is there for this Court on this application-the question being, according to the practice of the Supreme Court, limited to whether the findings of the jury on the issues raised upon the plea are against the weight of evidence. The main points urged by the plaintiff at the argument were, that the evidence did not show such a representation as could, in law or fact, have induced the defendant to enter into the covenant; and that the evidence showed that he did not in fact rely upon the representation, and was not induced by it to enter into the covenant. It was not contended on behalf of the plaintiff that the representations relied upon by the defendant were true in fact, nor that they were not untrue to the knowledge of the plaintiff. The declaration was on a covenant by the defendant contained in a deed whereby the defendant covenanted to pay an annual sum from 1864 to 1874, in consideration of a lease thereby granted by the plaintiff to the defendant of a section of land in Lyttelton, to commence in 1874 at an annual rent. During the negotiations between the plaintiff and the defendant which resulted in an agreement for the lease, the plaintiff represented to the defendant, in effect, that the section of land was divided into eight lots, and there were seven separate tenancies; the rent received from each tenant was represented, and that the total from all the tenants was £402. But, in addition, the representation relied upon as false and material was made; and this representation was involved in a proposal that the defendant should pay as rent £500 a year, "after the expiration of the present lessees' term." Moreover, the plaintiff, by his agent, stated as follows:-" In order to make it quite clear to you, we enclose a plan of the property with the several lettages marked thereon, with the rents to the end of the present leases marked to each, the annual 1876. CREYKE v. DRANSFIELD. 1876. CREYKE v. DRANSFIELD. income being to us £402. At the end of ten years, all the buildings will come to us, and pass at the same time to the freeholder." And further, "You will be as able as ourselves to calculate what it is likely the property will be worth to you after ten years. Of course you will gain nothing until that time, and the difference of rental of the buildings on the land for the second eleven years, and £500-the rent we shall require-is the profit to yourself." Thereupon the defendant agreed to "take a reversion of the lease." As a fact, at the time of the representation three of the leases did not exist. Of those that did exist, the defendant held two as lessee. A fire occurred in 1869, whereby all the buildings were destroyed. The deed sued upon does not contain any provision whereby the defendant could enforce, either against the plaintiff or his under-tenants, any covenants contained in the under-leases; and upon this fact it is argued on behalf of the plaintiff that the representation, though false, could not, in the nature of things, have induced the plaintiff to enter into the contract; for it was contended, if the defendant relied on the representation of the existence of a binding contract between the plaintiff and his under-tenants to rebuild, the defendant would have required that the contract between him and the plaintiff should have been carried into effect in a different manner than the deed sued upon; that the defendant would have required that a privity should have been created between himself and the under-tenants, or that the plaintiff should have bound himself to the defendant by covenant to enforce the covenants against the under-tenants. But we think that the representations as to rents payable under leases for ten years, and as to the buildings, were of such nature as to be material. It is not necessary that the subject-matter of the contract should be substantially different from that contracted for. "There is," says Blackburn, J., in giving the judgment of the Court in Kennedy v. Panama &c. Mail Co. (L. R. 2 Q. B. 587), a very important difference between cases where a contract may be rescinded on account of fraud, and those in which it may be rescinded on the ground that there is a difference in substance between the thing bargained for and that obtained. It is enough to show that there was a fraudulent representation as to any part of that which induced the party to enter into the contract which he seeks to rescind." We think that the jury were justified in finding that, as a fact, these representations were material, and did influence the defendant, and induce him to enter into the contract. If, then, the plaintiff made this representation with a knowledge of its untruth, the jury were justified in finding that the representation was fraudulently made. In the judgment above referred to it is said that "if it could be shown that there was mala fides in the representation, as, for instance, if it was false to the knowledge of those who made it, we should have had no doubt that the contract to take the shares might be avoided, and the shares returned." We think, therefore, that the rule must be discharged, with costs, to be taxed in the Court below. 1876. CREYKE v. DRANSFIELD. Rule discharged. May 11, 12, 23. THRELKELD v. BLACKETT AND OTHERS. Canterbury Rivers Acts, 1870, ss. 26, 27, 28; 1871, s. 4-Powers of Conservators— The Canterbury Rivers Acts, 1870 and 1873, passed for the management of rivers, and for making protective works to lessen the damage occasioned by their overflow, empowers Conservators to construct works for securing lands within certain districts, against the irruption and overflowing of rivers, and for carrying off their superfluous waters. Held, That the Conservators had power to divert a river, such diversion being necessary for the purposes of the Act. A plea alleging that a diversion of a river, complained of in the declaration, was necessary for the purposes of the Act, was held sufficient, although it did not allege that the river was one which overflowed, and although its form tended to create such embarassment for want of particularity as would have justified an application to amend. THIS is an appeal under section 4 of "The Court of Appeal Act 1. That the plaintiff is lawfully possessed of certain parcels of land respectively shown upon the plan annexed to these presents, and thereon coloured pink, being the sections numbered 1621, 1693, 1694, 1695, 1894, 2312, and 2556 on the map of the Chief Surveyor of the said Province of Canterbury, setting out rural land in the Mandeville district of the said Province of Canterbury. 1876. 2. That the defendants heretofore, to wit between the 1st day THRELKELD of September, 1873, and the 1st day of May, 1874, unlawfully, wrongfully, and improperly cut, deepened, enlarged, and widened AND OTHERS. a certain drain running along the north-eastern boundary of certain v. BLACKETT sections of land numbered 5223, 5226, 6981, 7057, 7071, and 7407, which said drain is shown upon the plan hereto annexed by a line of pink colour. 3. That during the respective periods in the last paragraph mentioned, the defendants unlawfully, wrongfully, and improperly constructed and erected, and from thence hitherto have maintained, and still maintain, divers embankments and mounds upon and along a certain road shown upon the said plan hereto annexed, and thereon called the Rangiora Swamp Road, and which said embankments and mounds run parallel with and alongside the said drain in the last paragraph mentioned, so as aforesaid cut, deepened, enlarged, and widened by the defendants. 4. That the said embankments and mounds so unlawfully, wrongfully, and improperly constructed and maintained by the defendants from the time of the construction and erection thereof, unlawfully and wrongfully penned back and obstructed, and still continue unlawfully and wrongfully to pen back and obstruct, the flow of the waters of a certain river called "the Cust" along its natural and regular course, and caused the waters of the said river to be diverted from their natural and regular course along the bed of the said river and to flow along the said drain, so as aforesaid cut, deepened, enlarged, and widened by the defendants, and to be discharged into a certain other drain called "the Rangiora Main Drain," and thereby, at divers times, unlawfully and wrongfully caused a large quantity and volume of water, which water ought to have flowed, and but for the said embankments and mounds, and the wrongful acts of the defendants as aforesaid, would have escaped and flowed by other ways, to be discharged into and pass and flow along the said Rangiora Main Drain, and past the said lands of the plaintiff known as Rural Sections 1621, 1693, 1695, and 2556 respectively, and thereby wrongfully and improperly caused, at divers times, a large volume and great quantity of water which ought to have flowed, and, but for the aforesaid wrongful acts of the defendants, would have flowed and escaped by other ways, to flow with great force, violence, and impetuosity along and upon the said lands of the plaintiff. That by reason of the said alleged v. BLACKETT grievances, and of the waters of the said River Cust being so as 1876. aforesaid unlawfully and improperly penned back and diverted, THRELKELD the said waters burst and overflowed the banks of the said Rangiora Main Drain, undermined, washed away, swept away, and wholly AND OTHERS. destroyed a large quantity of the said lands of the plaintiff, and the said water at divers times overflowed the whole of the said several parcels of land of the plaintiff before mentioned, and remained upon the said several parcels of land for a long time, and the said lands of the plaintiff were and are greatly diminished in value. 5. That by reason of the aforesaid wrongful acts and conduct of the defendants, and by their continuance and maintenance of the said embankments and mounds, and of the said drain so cut, deepened, and widened as aforesaid, the plaintiff's said lands are being gradually washed away and undermined, and are placed in danger of, and are subject and liable to, being flooded and overflowed by large quantities of water, which, but for such embankments, mounds, and drain, would and ought to flow and escape by other ways, and away from the plaintiff's said lands: Wherefore the plaintiff claims that the defendants may be decreed by this honorable Court to pull down and abate the said embankments and mounds, and to fill up the said drain so cut, deepened, widened, and maintained by them as aforesaid, and to do all other necessary acts and things so that the waters of the said River Cust may flow in their accustomed channel: And, further, that the defendants, their servants, workmen, and agents may be restrained by the injunction of this honorable Court from diverting, or penning back, or in any way interfering with the natural and proper flowing of the waters of the said River Cust: And that the defendants may be decreed to pay to the plaintiff the sum of £500 for the damages sustained by him by reason of the grievances in the declaration mentioned: And that the defendants may be ordered to pay the costs of this action: And that the plaintiff may have such further and other relief as the circumstances of the case may require, and as to this honorable Court shall seem fit. Take notice, that the plaintiff seeks to recover the sum of £100 for special damages sustained by him by reason of the destruction of the herbage growing upon the said lands, the destruction of |