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Practice: See PRACTICE, Civil, 2, 3, 5, and p. 352, note.

Practice-Appeal for refusing rule nisi-" Court of Appeal Act,
1862," s. 297.] Semble-Where there is an appeal on the ground that a
rule nisi has been improperly refused, the respondent may be heard on
the motion for the rule nisi in the Court of Appeal: if he does not then
appeal, he will be heard to show cause against the rule if granted.
CREYKE v. Dransfield

1867.

from Waste Lands Board: See WASTE LANDS BOARD APPEAL ACT,

from "Provincial Rating Act, 1871:" See RESIDENT MAGISTRATE'S
JURISDICTION, 2.

AUTREFOIS ACQUIT, Plea of: See INDICTMENT, 6.

BREACH OF PEACE: See INDICTMENT, 3.

BREAKING AND ENTERING WAREHOUSE: See INDICTMENT, 1.
BURGLARY: See INDICTMENT, 1.

CANTERBURY RIVERS ACTS:

Acts, 1870, ss. 26, 27, 28; 1871, s. 4-Powers
of Conservators-Diverting river-Plea-Necessary works-Embar
rassing plea.] 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, empower 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 diver-
sion 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 embarrassment for want of particularity as would have
justified an application to amend.

THRELKELD v. BLACKETT AND OTHERS

CERTIFICATE OF COURT OF APPEAL: See PRACTICE, Civil, 4, and
p. 852, note.

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CHARITY: See WILL, 2.

CHILD, ILLEGITIMATE-Habeas Corpus-Custody of illegitimate child
under seven years of age-Contract for custody and maintenance-
Revocation. On habeas corpus, the mother of an illegitimate child was
held entitled, in the absence of any evidence that it would be injurious to
the child's person or morals, to its custody while it is within seven years
of age, although she had entered into a contract with the reputed father
for its maintenance and custody by him and his wife, and had agreed not
to interfere with the management of the child, and not to represent
herself as its mother; such contract being only a consent, revocable at
any time.

REGINA . BAILEY (Ex parte EMILY CASSIN)

v.

CHILD MURDER: See EVIDENCE.

COLONIES, Law applicable to: See GOLD FIELDS.

CONFESSION: See EVIDENCE.

CONSERVATORS OF RIVERS: See CANTERBURY RIVERS ACTS.
CONSTRUCTION: See WILL, 2.

CONTRACT: See CHILD, ILLEGITIMATE ; PLEADING, Civil, 2; PLEADING,
Civil, 3; IMMIGRATION ACTS.
CONTRACT:

1.

2.

3.

For future lease-Misrepresentations—Materiality—Re-
scission of contract-Practice.] When on a treaty for a lease of land
and premises, to commence at a future time, the plaintiff, the intend-
ing lessor, represented that the various portions of the land were held
by different lessces under leases till that time; and the defendant, who
accepted the lease to commence at the future time, gave evidence that
he was induced to enter into the contract upon the faith of the exis-
tence of the intermediate leases; and it appeared that some of the alleged
leases had not been actually executed; and that the plaintiff was aware
of the fact: Held, That the defendant was entitled to rescind the con-
tract on discovering the non-existence of those leases-as for a material
misrepresentation,-although he could not enforce the covenants in them
against the lessees, and the plaintiff had not covenanted that the tenants
under them would keep the premises in repair.
CREYKE v. DRANSFIELD

Novation-Representation not contract-Responsibility of
agent.] There can be no novation of a contract if there be no exoneration
from liability on the former contract. When the defendant, the manager
of a Bank, represented that certain moneys would be paid by the Bank
on behalf of a debtor as a composition to his creditors, and gave the
agent of himself and the debtor authority to draw on his Bank for the
composition payable to the several creditors: Held, That the defen-
dant had not entered into any contract-at all events into one in which
he was individually responsible.

HENTY AND OTHERS, Appellants; HOLT, Respondent

Pleading-Fraud-Contract void or voidable-Plea of fraud-
Necessary averments-Disaffirmance-Election--Restitution-Equitable
defence-Unconditional equity-Actions for money and specific relief--
Reg. Gen. 1856, rr. 40, 43, 50, 109.] 1. The ordinary effect of fraud
upon a contract is to render it not void, but voidable at the option of the
party defrauded; but-2. There may be such fraud in the execution
of a deed as to render it altogether void. (See Mason v. Ditchbourne, 1
Moody & Rob. 460.) 3. The right to rescind or disaffirm a contract
on the ground of fraud is subject to the capability of the party rescind
ing to put the other party in the same position as he was in before
the contract. 4. A contract cannot be rescinded in part, for fraud.

PAGE

46

231

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V.

5. A defrauded lessor or lessee who has executed a lease cannot treat it
as a nullity, but must have it rescinded by an appropriate tribunal.
(See Feret v. Hill, 23 L. J. C. P. 185.) 6. A mere default in payment
according to the terms of a contract cannot be taken as amounting to
an election by the party making default to rescind the contract. 7. An
equitable plea in an action for money, under Reg. Gen. 1856, r. 46, is
not good if it does not show a right in the defendant to unconditional
relief; and therefore, when it appeared from the declaration and plea in
an action for money that complete justice could not be done without a
decree in an action for specific relief, the plea was held bad. 8. An
action for money cannot, upon such plea, be turned into an action for
specific relief. (Reg. Gen. 1856, r. 109.) 9. A plea of fraud to a declara-
tion on a special contract is not good without an averment that the
defendant had disaffirmed the contract. (Distinguishing Lawton
Elmore, 27 L. J. Ex. 141; and Dawes v. Harness, L. R. 10 C. P. 166.)
10. To make a plea of fraud in such an action good, it ought, under
Reg. Gen. 1856, rr. 40, 43, and 50, specifically to aver (1) the fraud;
(2) election by the defendant to rescind, made promptly after discovery
of the fraud; and (3) restitution, or capability and readiness to make
it. The plaintiff by deed granted to the defendant a term of eleven
years in certain premises, to commence on the termination of certain
leases which had ten years to run, subject to the payment of an annual
sum during the ten years and certain rent during the term. In an
action, commenced after the expiration of the ten years, for arrears of
the annual sum payable before the beginning of the term, the defendant
pleaded that he was induced to enter into the contract by false and
fraudulent representations by the plaintiff that his premises were held
under existing leases to various tenants at certain rents and subject to
the performance of covenants. Held, on error, that the plea was bad,
even after a verdict affirming the fraud, because it contained no aver-
ment that the defendant had elected to disaffirm his contract, and that
he was able and ready and willing to make restitution; and that, even
if it could be taken as containing an averment by implication that he
had disaffirmed the contract, it was insufficient, because it appeared on
the record that the defendant had at the time of action bought a vested
and transmissible interest of which he could not divest himself without
proceedings for specific relief. Decided by Prendergast, C.J., Richmond,
J., and Williams, J.; Johnston, J., hæsitante as to some points. Gillies,
J., not concurring, and expressly dissenting from the ruling that an
equitable plea can be pleaded as a bar in New Zealand only when it
shows a right to unconditional relief.

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CONVEYANCE: See NATIVE LANDS ACTS.

CO-OWNERS: See PLEADING, Civil, 2.

CORPORATION: See RESIDENT MAGISTRATE'S JURISDICTION, 1, 2,

CORPUS DELICTI: See EVIDENCE.

CORROBORATION: See EVIDENCE.

COURT OF APPEAL: See APPEAL Court.

CRIMINAL LAW: See INDICTMENT; PRACTICE, Criminal.

CROWN, Contract by: See IMMIGRATION ACTS.

RIGHTS TO AURIFEROUS DEPOSITS: See GOLD FIELDS.
AGAINST GRANTEES: Ib.

CROWN GRANT: See NATIVE LANDS ACTs, 1869, 1865.

CROWN REDRESS ACT, 1871-Set-off under.] Per totam Curiam, That
"The Crown Redress Act, 1871," not giving the Crown a right to plead

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set-off, as is given to it in England by the 24 and 25 Vict. c. 31, s. 7; and
the Set-off Acts of George II. not applying to the Crown; the Queen
cannot plead a set-off in the colony: Williams, J., dubitante as to the
latter point.

BROGDEN BROTHERS v. THE QUEEN

CY-PRES: See WILL, 2.

DAMAGE, resulting from Fraudulent Representations: See PLEADING,

Civil, 1.

DAMAGES: See GOLD FIELDS.

DEED, Rectification of: See MARINE INSURANCE, and RECTIFICATION.

DEMURRER: See PRACTICE, Civil, 4.

DISAFFIRMANCE: See CONTRACT, 3.

DISTRESS AND REPLEVIN ACT, 1868: See PLEADING, Civil, 4.

EASEMENT: See RIPARIAN RIGHTS.

EDUCATION: See WILL, 2.

ELECTION: See CONTRACT, 3.

Mis-election: See LOCAL BOARD.

EQUITABLE DEFENCE: See CONTRACT, 3.

EVIDENCE: See PLEADING, 4.

EVIDENCE-Child murder-Conviction-Proof of Corpus delicti-Admis
sion or confession-Necessity for corroboration as to Corpus delicti—
Accomplices-Corroboration-Question for Jury.] The prisoner was
indicted for the murder of a child recently born of the body of S. W. It
appeared that S. W., a young girl, the niece of the prisoner, lived with
him at a remote place, accessible only by sea, along with other members
of her family; that she had had one child by him some time before; that
while she was pregnant with a second child she was seen to be in that
state, and was concealed by order of the prisoner on a visit by some rela-
tives; that the prisoner delivered her at night in his bedroom; that he
told her he would smother the child; that the child uttered a loud cry
after the worst pain; that he told her after that that he had smothered
the child. The prisoner's sister said she was in an adjoining room, and
heard the child cry, and heard talking in the room, and a door shutting.
The sisters afterwards searched for the body, but did not find it. The
prisoner threatened both of them that he would shoot them if they spoke
of the matter. Held-1. That there was sufficient evidence to go to the
jury that the child had been completely born alive. 2. That though the
body was not found, there was evidence of the corpus delicti sufficient in
law to go to the jury. 3. That even if there be a positive rule of the law
of England that a person accused cannot be convicted merely on his own
confession or admission without corroboration-(which seems doubtful)-
there was sufficient corroboration in this case. 4. That it was a question
for the jury whether either of the girls was an accomplice; and even if the
jury thought that they both were accomplices, yet there was corroboration
of their testimony; and that the non-corroboration of accomplices is not
a good ground in point of law for invalidating a conviction.
REGINA v. WOODGATE

FEE SIMPLE, Equitable: See NATIVE LANDS ACTS. Evidence of Seizin
in: See RIPARIAN RIGHTS.

FORCIBLE ENTRY: See INDICTMENT, 3.

FORGERY: See PRACTICE, Criminal.

PAGE

201

320

PAGE

FRAUD, in Contract: See CONTRACT, 3.

in Judgment: See JUDGMENT.

Plea of: See CONTRACT, 3.

FRAUDS, Statute of: See PLEADING, Civil, 2, 3.

FRAUDULENT REPRESENTATIONS: See PLEADING, Civil, 1.
GOLD FIELDS-Common and Statute Law applicable to colonies-Riparian
rights-Fouling stream-Stream through or abutting on land—-Damages,
substantial or nominal, where fouling by various persons—Acquiescence,
and Quiescence-" Gold Fields Act, 1866," s.6: Regulations-Power to
use water-Returning polluted water to stream-Right of Crown to
auriferous deposits-Right of Crown as against its grantees.] The
common law respecting the rights of riparian proprietors is applicable to
the colony. The common-law rights of such proprietors are so far abridged
by the provisions of "The Gold Fields Act, 1866," s. 6, as to give the
holders of miners' rights the power to take, divert, and use the water of
streams on private lands, subject to regulations made under the Act; but
the miners are not entitled to return the water into the stream in a polluted
state. Auriferous deposits belong to the Crown, subject to the gold fields
laws of the colony. But the Crown would not be entitled, for mining
purposes, to foul streams beyond gold fields to the detriment of the
holders of land under Crown grants. A freeholder may maintain an action
for polluting water flowing through or past his freehold, unless it be with-
in a proclaimed gold field, and the pollution be justified by statutory
regulation. In the absence of prescription or grant of an easement, it is
unimportant whether the freeholder bought his land before or after the
proclamation of a gold field. There is no distinction, as to use of pure
water, between the rights of a freeholder possessing land on one side or on
both sides of a stream. Semble, That in the colony the riparian freeholder
on each side of a stream is entitled to the soil, usque ad medium filum
aquæ. The nature and extent of a riparian proprietor's interest in the
land affect only the question of damages in an action for pollution of the
water of the stream. Any unjustified fouling is ground for damages, at all
events nominal. It is no bar to the recovery of damages to show that,
without the pollution caused by the defendants, the water was sufficiently
polluted by others to render it useless to the plaintiffs. (Crossley v.
Lightowler, L. R. 3 Equity, 279; 2 Chan. Ap. 478.) Semble, If the acts
of the defendants were sufficient to create the whole damage suffered by
the plaintiffs, they may be liable for the whole. Mere quiescence may not
be acquiescence; and the doctrine of acquiescence in injurious acts does
not apply to acts done on lands not belonging to the party said to have
acquiesced.

BORTON AND OTHERS v. HOWE AND OTHERS

IMMIGRATION ACTS: See CROWN REDRESS ACT.

Immigration &c. Acts, 1870, ss. 39, 40, 45, 46, 93,
and 1871, s. 4-" Crown Redress Act, 1871"-Contract in name of Queen
-Validity-Adoption of irregular contract-Executory and executed
-Set-off, plea of, by Crown-Plea, not indebted."] "The Immigra
tion and Public Works Act, 1870" (ss. 39 and 40), enables the Governor
to make contracts and regulations for immigration; and the 45th section
enables him to appoint an Agent-General for the colony in Great Britain.
The Amendment Act, 1871, s. 4, enacts that all contracts under the Acts
of 1870 and 1871 shall be entered into in the name of the Queen, her
heirs and successors. A contract for the introduction of immigrants, set
out in a plea in the nature of a set-off pleaded by the Queen to a petition
under "The Crown Redress Act, 1871," for payment of money under a
railway contract, was alleged to have been entered into between Sir
G. F. B., the Governor of the colony, for and on behalf of the colony, by
I. E. F., the Agent-General of New Zealand, and the suppliants; and it was

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