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
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.
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.
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)
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:
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.
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.
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
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,
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.
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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