section 8, the Corporation are authorised to open the The Attorney General contra. The words "public and private," in section 7, must be limited to the word "streets;" for there cannot be a private highway. The power given was intended to apply to any space which is not built over. It is contended that this was the site of a public natural watercourse, and, therefore, that the Corporation had the right to turn the sewerage on the place. For, by the express terms of section 7, the Corporation is entitled to cause the sewer to communicate" with any stream or public watercourse;" and to remove any obstruction preventing such communication. The distinction between natural and artificial watercourses will be found in Gaved v. Martyn (b). There were rights possessed by the public with respect to this watercourse with which the plaintiffs are not entitled to interfere; Gale on Easements (c). The Corporation may, at all events, cause any drain to communicate with the sea," i.e., continue the drain to the sea. 66 STEPHEN, C.J. The question simply is, whether the Corporation can, under the Sewerage Act, construct a (b) 19 C. B. N. S. 37; 33 L. J. C. P. 353. (c) p. 262. (a) p. 651. 1866. MANSFIELD V. The MAYOR, ALDERMEN, and CITIZENS of the City of Sydney. 1866. V. The MAYOR, ALDERMEN, and CITIZENS Sydney. sewer through the Gas Company's premises, the spot not MANSFIELD being the site of any dwelling-house, but being an inclosed space and not a thoroughfare. The plaintiffs maintain that no such power exists, except in respect of some tract or place used as a thoroughfare. I am of of the City of opinion that the word "place," in the enactment, can mean only some place ejusdem generis, with the other words used in that section; that is, some spot or tract used in some way as a thoroughfare. If the Corporation find it necessary to enter upon private property, they must purchase the right to do so. Was not this at most a water outlet? Low ground to which the rain water naturally tended, and on which the overflow would fall when the fall was heavy? Is that a watercourse? If so, low ground towards which surface rain water would naturally flow, and did in heavy falls so flow, could never be enclosed or raised, or in any manner dealt with as property. The rule would extend to all low ground, however slight the depression; for where could you draw the line? I doubt much whether this proposition can be law, that every natural outlet for such surface water is a "watercourse," within the meaning of the word in Broadbent v. Ramsbotham (a), or in this enactment. HARGRAVE, J. I think that this is not a watercourse. In delivering the judgment of the Court of Exchequer, in Broadbent v. Ramsbotham, Baron Alderson observes, that "all the water falling from heaven, and shed upon the surface of a hill, at the foot of which a brook runs, must, by the natural force of gravity, find its way to the bottom, and so into the brook; but this does not prevent the owner of the land on which it falls from dealing with it as he may please, and appropriating it. He cannot do so, if the water has arrived at and is flowing in some definite channel. There is here no watercourse at all." The Court cannot take judicial notice of the character of this locality. There is no evidence as to any banks, or flow, or identity of character; nothing to show any natural watercourse. CHEEKE, J., Concurred. (a) 11 Exch. 615. Rule discharged. 1866. BLATCHFORD against THE QUEEN. PETITION of right under the provisions of the 24 Vic., No. 27, alleged that the Government, &c., acting on behalf of her Majesty, were indebted to the suppliant in the sum of £571 4s. 8d., for money had and received, and on accounts stated. The petition then alleged that the said sum was due in respect of overcharges made by the said Government, &c., for the coinage of certain quantities of gold transmitted by the suppliant to the said Government for the purpose of being coined. It then stated that the following is a tabular statement, shewing the respective dates upon which the gold was transmitted by your suppliant to the said Government; the respective standard weights of such gold-the respective standard value of such gold the respective charges made by the said Government for the coinage of such gold-the respective charges which the said Government were entitled, under the laws and regulations in force in the said colony, to make for the coinage of such gold-and the respective overcharges made by the said Government, &c. The petition then set forth a table containing these particulars, and claimed in respect of the cause of action hereinbefore mentioned. Plea, that the statements in the petition are not, nor is any of them, true in fact. Issue thereon. The Mint the 25th SepRegulations of tember, 1855, state that 66 (1) Importations of gold for coinage, from 1000 dard upwards, will be received subject to a charge of three quarters per cent. for ounces stan converting the same into coin; (2) importations below this amount will be coined at a charge of one per cent." A. had, be tween January 1863 and April 1865, imported gold for coinage in about thirty-six de posits, each of which weighed more than 1000 ounces, but was packed in several bags, no one Under the order in Council of 19th August, 1853, weighed 1000 establishing a branch of the Mint in Sydney, the Goverounces. On all such denor and Executive Council are authorised to frame reguposits A. had lations, under which the Mint shall receive gold bullion, been charged and coin the same. A code of regulations was accordingly for coinage; published on the 25th September, 1855. One of these regulations declared that importations of gold or gold dust for coinage, from twelve ounces or upwards, would one per cent. and various documents had been issued by the Mint and received by A., on the face of which it appeared that each separate bag had been dealt with by the Mint as a separate importation. A., contending that each of the deposits was a separate importation, brought an action for the overcharge of one quarter per cent. Held, that the plaintiff had no cause of action. 66 be received upon the following (inter alia) terms:- Between January 1863 and April 1865, the suppliant had imported for coinage, in some thirty-six deposits (each of which weighed considerably more than 1000 ounces, and was packed in several bags, no one of which weighed 1000 ounces) a quantity of 59,008 ounces standard. On all such consignments the suppliant had been charged one per cent. for coinage. 1000 The suppliant contended that as each of his deposits, though packed in several bags, no one of which weighed 1000 ounces, contained above 1000 ounces, he should only have been charged three quarters per cent.; and the present proceedings were taken to recover the alleged overcharge of one quarter per cent. The Crown justified the charge that had been made, on the ground that every bag was a separate importation, although all the bags were brought together, and by one and the same owner; and that by the course of dealing the suppliant had adopted and recognised this construction. There was a great deal of evidence as to the course of dealing. The deposit receipt, as before mentioned, stated on the face of it that the gold was contained in a number of bags, "for separate assay.' A document issued by the Mint and received by the suppliant was a "memorandum of the particulars of a purchase of gold bullion, deposited in the Royal Mint, Sydney, by the Oriental Bank, on the, &c." This document gave the "Number of importation; weight before melting; assay report of fine ness; standard weight of each importation; net value of each importation." There was also a "purchase ticket" in the following terms-" Memorandum of the particulars of a purchase of gold bullion from the Oriental Bank, the value of which has this day been ascertained," and contained the particulars under the following headings-"Date of deposit; weight before melting; weight after melting; assay report of fineness; value; net value of each importation." In all these documents the contents of each bag, and its weight, value, &c., was given separately. The jury having found a verdict for the suppliant for the amount claimed, The Solicitor General, for the Crown, obtained a rule nisi to enter a verdict for the Crown, or for a new trial, on the ground—(1) That on the true construction of the contract the charge of one per cent. was the correct charge; and (2) that the evidence showed a course of dealing between the parties that either established that construction or created a new contract. Sir W. Manning, Q. C., and Darley showed cause. September 9. It appears that if 999 ounces were sent, the charge would be twenty shillings per cent., but no more, whether there be one assay or fifty assays; but if 1000 ounces, the charge would only be fifteen shillings per cent., whatever the number of assays. So that the entire question is, what is meant by an importation? The regulations establish a charge for coining, and not for assaying. The principle of the decision in the recent case of Baxendale v. South Western Railway Company (a) is applicable in the construction of these regulations. On the question of the intention of the parties, the finding of the jury that the suppliant sent the whole parcel as one importation is conclusive. It is submitted that the course of dealing cannot make a new contract. The Deputy Master of the Mint had no authority to make one. The suppliant did not discover the overcharge until May 1865; and it is quite clear that, under the circumstances, if the question of importation is (a) 35 L. J. Ex. 108. |