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THE

LAW JOURNAL REPORTS

FOR

THE YEAR 1894:

CASES

DECIDED BY THE

JUDICIAL COMMITTEE AND THE LORDS OF

Her Majesty's Privy Council,

REPORTED BY

EDWARD BULLOCK, BARRISTER-AT-LAW;

AND IN

The House of Lords (Scotch and Irish Appeals),

REPORTED BY

JAMES EYRE THOMPSON,

BARRISTER-AT-LAW.

MICHAELMAS 1893 To MICHAELMAS 1894.

PRIVY COUNCIL, VOL. LXIII.

[CONTEMPORARY WITH LAW REP. [1894] A. C.]

LIBRAN

UNIVERSITY
LELAND STANFOR

LONDON:

STEVENS AND SONS, LIMITED, 119 AND 120 CHANCERY LANE,

Law Publishers and Booksellers.

1894.

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CASES ARGUED AND DETERMINED

IN THE COURT OF

THE JUDICIAL COMMITTEE AND THE LORDS OF

Her Majesty's Privy Council

(INCLUDING SCOTCH AND IRISH APPEALS IN THE House of lorDS).

MICHAELMAS 1893 TO MICHAELMAS 1894.

57 Victoria.

1893. Aug. 3.

THE CORPORATION OF RALEIGH

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(appellants) v. s. A. WILLIAMS AND ANOTHER (respondents).

Canada Ontario Municipality Drainage Works-Construction-Maintenance-Neglect of-Municipal Act, 1887.

The Municipal Act, 1887, c. 184 (Revised Statutes of Ontario), imposes upon every municipality the duty of preserving, maintaining, and keeping in repair drainage works within its limits, whether the drainage is the work of the municipality or a work constructed before the municipality was incorporated; and section 583, subsection 2, provides that any municipality neglecting so to do upon reasonable "notice in writing" given by a person injuriously affected by such neglect, may be compelled by mandamus to make the necessary repairs, and shall be liable to pecuniary damage to the person affected by such neglect. Section 591 provides that for any damage necessarily resulting" from the exercise of the statutory powers of the Act the plaintiff's remedy is by arbitration.

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A municipality neglected to keep in repair a drain within its limits constructed before incorporation, whereby the respondents' land was damaged:-Held, that although no action could be brought to compel a municipality by mandamus to execute repairs without notice in writing, an action could VOL. 63.-P.C.

be maintained to recover damages without notice.

By the construction of a drain after incorporation the respondents' land was "necessarily" damaged :-Held, that the respondents were not entitled to maintain an action, but must seek their remedy by arbitration.

This was an appeal from a judgment of the Supreme Court of Canada reversing a judgment of the Court of Appeal for the Province of Ontario, and restoring a judgment of Ferguson, J., given in the Chancery Division of the High Court.

The respondents brought an action against the appellants for damages occasioned to the respondents' lands by the overflow upon the lands of water from a system of land drainage, and for a writ of mandamus to compel the appellants to do the works necessary to prevent recurrence of the damage.

The action came on to be tried, and was by consent referred to Archibald Bell, Esq., the County Court Judge, who heard the evidence and made his report in favour of the respondents.

The respondents moved for judgment on this report, and the appellants moved to set it aside as contrary to law; and on the 20th of September, 1890, Ferguson, J., adopted the report, and gave

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