COURT OF APPEAL

Dominion, Volume 11, Issue 179, 18 April 1918, Page 8

COURT OF APPEAL

INVOLVED WILL CASE

AN INJUNCTION APPEALEDI AGAINST, ' Sittings of tho Court rd' Appeal were ooatmuetl yestordify. There wero on the 1 Bench Thc-ir Honours the Chief Justice Sir Robert Stout, Air. Justice Edwards, Mr. Justice Cooper, Mr. Justice Chapnmn, and Mr. Justice Sim. The Court heard involved legal argument touching a will case, John Codo Irwin, of EuirheM, tanner, v. Alary Elizabeth Muirhead, Westorheld, Jas. Henry Muirhead, John M'Phail, and Jas. Irwin .Muirhead. Sir John tmidlay, K.C., and with him Air. A. S. Adams, appeared for the plaintiff, and Mr. Jl. J. (jrcssnn for tho defenduiiLs, M. E., and J. M. Muirhead, and J. Al.'Phail, tiu'stees, who would abide by the order of the Court, and for Jas. Irwin.'Muirhead, infant, who by his guardian, ad iitcon opposed tho plain-, tiff's claims. it appeared that John Irwin, deceased, devised a, farm at Ilaknia to his son (the plaintiff) for life, and on plaintiff's death to such son of Mary Elizabeth Muirhead, as she ■should appoint to take the I name of the testator. I'y subsequent agreement Atrs. Muirhead relinquished her power of appointment oh payment of .S2OOO. The point at issue was the determination of the validity of the release executed in pursuance of this agreement, of which tho plaintiff fought tpecific performance. Since the commencement of these proceedings, which, according to Sir John Findlay, constituted a friendly action, one son had been horn to Mrs. Muirhead. ' After a partial hearing the case lras adjourned till this morning. FLOOD DAMAGE APPEAL UPHELD. Reserved judgment was delivered in the Court of Appeal yesterday in an action involving damage by hooding in Southland., The parties wtre Martin L. Crowe and Michael Crowe, of South Hillend, Southland, farmers, appellants, and Alexander Gerrard, of.Uaridy, Southland, farmer, respondent, 'ihe case was heard by Their Honours the Chi,ef Justice (Sir Robert Stout), Mr. Justice Cooper, Mr. Justice Chapman, and Mr. Justice Hosking. The appeal was against the decision of Mr. Justice Sim awarding to Gerrard! £W damages, and the issue of an in- ! i junction to restrain the Messrs.. Crowe ! I from diverting on to the plaintiff's land, iby means of an embankment, flood waters from the Oreti River, •'•lnch, but for such embankment, would rot, it was claimed, have gone there. The Chief Justice, in his judgment, held that the respondents d:'d not go beyond the natural use of Iheir own I land, and he accoidingly ruled that the | appeal lie allowed. Sir Robert Stout slated that Mr. Jiwtice Hosking dissented from this judgment. Their Honours Mr. Justice Cooper and Mr. Justice Chapman intimated that they agreed with the judgment of the Chief Justioe. At the hearing of the appeal Mr. C. P. Skerrett, K.C., with him Mr. Lillicrap, of'lnvercargill, appeared for the appelants,' and Sir John Findlay, IC.C. with him Mr. D. Pi, Hoggard," for the respondent.