Smith v Hayes

Judgment Date09 May 1867
Date09 May 1867
CourtExchequer (Ireland)



Davies v. MarshallENR 10 C. B. N. S. 697.

Davies v. MarshallENR 10 C. B. N. S. 697.

Winter v. BrockwellENR 8 East, 308.

Liggins v. Inge 7 Bingh. 682.

Blood v. KellerUNK 11 Ir. C. L. R. 124.

Haines v. TaylorENR 2 Phil. 209.

Attorney-General v. Baliol CollegeENR 9 Mod. 411.

Williams v. Newland 2 B. & Cr. 319.

Freeman v. CookeENR 2 Exch. 654, 663.

Jorden v. Money 5 H. L. 185, 214.

Williams v. The Earl of JerseyENR 1 Cr. & Ph. 91.

Barkart v. HaughtonENR 27 Beav. 425.

Tipping v. St. Helen's Smelting Company L. R. 1 Ch. Ap. 66.

Dann v. Spurrier 7 Ves. 230.

Williams v. The Earl of Jersey 1 Cr. & Phil. 91.

Cornish v. AbingdonENR 4 H. & N. 549, 555.

Haines v. TaylorENR 2 Phil. 209.

Bickett v. Morris L. R. 1 Sc. Ap. 47, 57.

Hanies v. TaylorENR 2 Phil. 209.

Jackson v. Cator 5 Ves. 689.

Duke of Devonshire v. EglinENR 14 Beav. 530.

The Rochdale Canal Co. v. KingENR 2 Sim. N. S, 78.

Lord Cawdor v. LewisENR 1 Y. & C. Exch. 427.

Powell v. ThomasENR 6 Hare, 300.

Davies v. MarshallENR 10 C. B. N. S. 697.

William v. The Earl of JerseyENR Cr. & Ph. 91.

Equitable Defence Acquiescence Standing by.

COMMON LAW SERIES. 333 right and prudent for counsel to have advised the application for Cam. Pleas. leave to reply fraud ; but, the jury having negatived this allega- 1867. tion, it must be taken that the replication ought not to have been GUINEA filed. The case, then, is this :-To the plea the Plaintiff had a good ALLEN. answer, and a bad one ; and, if she had rested on the good one, there would have been no occasion for the motion. The Plaintiff is not entitled to these costs; andwe must therefore comply with the motion. CHRISTIAN, J., and O'HAGAN, J., concurred. Attorney for the Plaintiff : C. J. Daly. Attorney for the Defendant : G. W. Allen. SMITH v. HA YES. Equitable Defence-Acquiescence-Standing by. Exchequer. 1867. i1320, 6, 29 To an action for injury to Plaintiffs' watercourse by certain works of Defen- Apr dant, it was pleaded, by way of equitable defence, that the injury arose from the May 9. removal of an embankment, which removal was necessary for the carrying out of certain costly works of the Defendant, and that the Plaintiffs knew of these works during their progress, and of the necessary consequences of them. Held that the plea was insufficient, inasmuch as it did not aver that the Plaintiffs knew that Defendant was acting in reliance on Plaintiffs' acquiescence, or that the acts relied on were such as would induce any reasonable man to think that the Plaintiffs acquiesced. Davies v. Marshall (1) discussed. THIS was a demurrer to the Defendant's second defence. The Plaintiffs' Summons and Plaint in effect stated that they were possessed of certain lands, and had enjoyed, and of right ought to enÂÂjoy, the flow of a certain stream or watercourse through the said lands ; and the Defendant, by enlarging a certain reservoir, and constructing other works, as therein alleged, obstructed the water of the said stream or watercourse, and prevented and imÂÂpeded, and varied and altered the flow thereof to and through the said lands of the Plaintiffs. The Defendant pleaded, first, a traverse ; and, secondly, by way of equitable defence, a plea as follows :-As to all the causes of ac (1) 10 C. B. N. S. 697. 334 THE IRISH REPORTS. Exchequer. tion in said Plaint contained, except as much thereof as complains 1867. of the enlarging of the reservoir therein mentioned, and the obÂÂSMITH struction and alteration of the flow of water of said watercourse ne cessarily consequent on such enlargement, that he, the Defendant, did not commit the grievances in said count respectively complained of, or any of them, as therein alleged ; and, as to the said enlargeÂÂment of said reservoir, the Defendant says that same consisted solely of the removal by the Defendant of a certain embankment which previously existed in said reservoir, in the channel of the said watercourse, opposite the Defendant's dwelling house and lands ; and the Defendant, for the purposes of this plea, admits that the removal of said embankment did a little enlarge said reserÂÂvoir, and obstruct, prevent, and impede the flow of the water in the said watercourse, and did a little alter the flow of the said water in the said Plaint complained of ; and the Defendant says said emÂÂbankment formed the rampart of an ancient millrace, which ran parallel with the channel of the said watercourse and said reservoir therein, and lay between said millrace and said reservoir ; and that the said millrace and embankment had for a long time previous to the removal of the said embankment been useless, and disused for the purposes for which the same respectively had been made ; and said embankment had become pervious to water, and an eyesore to the said dwelling house and grounds of the Defendant ; and he therefore, for the purpose of ornamenting his said house and grounds, and not otherwise, did proceed to remove, and did, by his servants and workmen, in fact remove the said embankment, and planted ornamental trees and shrubs in his own grounds upon the border of the said watercourse when so enlarged, the soil and freeÂÂhold of which was his, the Defendant's ; and which border, by the removal of said embankment, had thus become a portion of the Defendant's ornamental grounds ; and the Defendant avers that the removal of said embankment was essential to the ornamental works so effected by him, which otherwise would be wholly useÂÂless ; and he says that on said removal and said ornamental works he made a large expenditure, and employed much time and labour, and largely improved the value of his said property in respect of ornament ; and he avers that he never would have executed any portion of said ornamental work unless upon the condition...

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1 cases
  • Carlisle v Orr
    • Ireland
    • Court of Appeal (Ireland)
    • 19 June 1917
    ... ... Smith v. Selwyn , [1914] 3 K. B. 98 , distinguished. Notice of Motion on the part of the defendant for an order that all proceedings in ... Barber ( 3 ); Hayes v. Smith ( 4 ); Wellock v. Constantine ( 5 ); and, as non-suits are now abolished, such an action, if brought to trial, must now be dismissed, and ... ...

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