1865. ROBERTS v. ROSE. alternative way of abating a nuisance, if one way would cause injury to the property of an innocent third party or to the public, that cannot be justified, although the nuisance may be abated by interference with the property of the wrongdoer. Therefore, where the alternative way involves an interference either with the property of an innocent person or the wrongdoer, the interference must be with the property of the wrongdoer. Applying those principles to the present case, it appears that a license was originally given to the plaintiffs by the defendant's lessor and Lowe to make and use a watercourse which flowed across Lowe's land, and then across the defendant's into a canal. The effect of this was that there was a revocable license, which was to remain in force so long only as Lowe permitted the water to flow across his land, and the defendant also authorized it to flow across his land. When the defendant revoked the license and said that the water should no longer flow across his land, the plaintiffs, having notice of the revocation, were wrongdoers in continuing to pump the water into the watercourse on Lowe's land; for he had authorized the plaintiffs to use that watercourse so long only as the water would flow through it into the watercourse on the defendant's land. If the defendant had come to Lowe and said, "I will no longer allow the water to flow on to my land; you must revoke your license," Lowe would, no doubt, bave said to the plaintiffs, "Stop the water coming on my land, unless you can make some arrangement by which it may be carried away." It is clear that after that the plaintiffs would have had no right to complain if Lowe had stopped the water from coming on his land; and if he had done so, the very mischief would have ensued of which the plaintiffs now complain, the only difference being that it would have been caused by Lowe instead of the defendant. Now, could the defendant have lawfully put a dam and obstructed the water on his own land at the place I (a) when the inevitable consequence would be to flood Lowe's land? That would have been a wrong to Lowe, and his cause of complaint would have been, not that the defendant obstructed the watercourse upon his own land (which he had a right to do), but that, without justification, he caused the water to flood Lowe's land. That would have been a trespass. Therefore, if the defendant had stopped the water in the way in which the plaintiffs say that he ought to have stopped it, he would have done a wrong to Lowe, an innocent third person. That being so, in estimating what was a reasonable way of abating the nuisance, we must look at the mischief actually done to the wrongdoer's property, and at the same time consider the mischief which would have been done to the property of an innocent third person, if the water had been stopped in any other way; and it certainly seems that the fair and reasonable way was to stop it without doing injury to an innocent person. But then the defendant, in stopping the water at the point A (a) necessarily committed a trespass against Lowe by crossing his land; and my brother Montague Smith entertained some doubt whether, as in either way of stopping the water some wrong would be done to Lowe, that did not raise a question for the jury, and afford ground for a new trial. The majority of the Court however think as to this point, which was not raised at the trial, that though the relative amount of these two wrongs might raise a question for the jury, the slightness of the one wrong, coupled with the fact that Lowe made no complaint, brings the case within the rule that a nonsuit shall not be disturbed because there may have been a scintilla of evidence for the jury, which if it had been left to them would not have warranted a verdict for the plaintiff. (a) See the plan, 3 H. & C. 162. 1865. ROBERTS v. ROSE. MELLOR, J., and LUSH, J., concurred. MONTAGUE SMITH, J.-I agree with the principles of the decision pronounced by my brother Blackburn. My only doubt was, whether it was not a question for the jury, upon the evidence, whether the defendant had stopped the water in a way which was least injurious to Lowe. If the defendant could have entered upon Lowe's land without committing a trespass, or if he could have stopped the water at the point I (a) without flooding Lowe's land and subjecting himself to an action at his suit, I should have thought that he would have been liable to the plaintiffs, because, having two courses open to him, he adopted that which did the most injury to them. But it appears by the evidence that the defendant could not have stopped the water at the point I without flooding Lowe's land; and if that fact had stood alone, no doubt the nonsuit would have been right. But it also appears that, by stopping the water at the point A. (a), the defendant committed a wrong against Lowe, and subjected himself to an action at his suit. Then comes the question whether greater mischief was done to Lowe by stopping the water at the point A than would have been done to him if it had been stopped at point I. That seemed to me a question for the jury. But upon the facts, I think that the jury were not warranted in coming to the conclusion which they did. I do not dissent from the view taken by the other members of the Court, and only express a doubt whether there was not some evidence for the jury. However, upon the whole I think that substantial justice has been done, and that the judgment of the Court below should be affirmed. Judgment affirmed. (a) See the plan, 3 H. & C. 162. IN THE EXCHEQUER CHAMBER. (Appeal from the Court of Exchequer.) 1865. WHITTAKER and Another v. Lowe. Nov. 30. THIS was an appeal from the decision of the Court of In estimating the requisite Exchequer in discharging a rule to enter a verdict for the majority in plaintiffs, pursuant to leave reserved at the trial (a). The cause was tried, before Mellor, J., at the Manchester Spring Assizes, 1865, when it appeared that the action was brought to recover the sum of 3461. 19s., the balance due from the defendant to the plaintiffs for work done by them as millwrights. The only defence relied upon by the defendant was, that after action brought a deed of arrangement, under the 192nd section of the Bankruptcy Act, 1861, had been entered into between the defendant and his creditors. This deed was not executed or assented to by the plaintiffs; and the sole question was, whether it was executed or assented to in writing by a majority in number representing three-fourths in value of the defendant's creditors. It was proved that if, in estimating the value of the debts of the creditors who executed or assented to the deed, the value of the securities held by them ought to be deducted, three-fourths in value had not assented; but if the value of such securities ought not by law to be deducted, a majority in number representing three-fourths in value (a) Not reported, the Court of Exchequer having discharged the rule, on the authority of Turquand v. Moss, 17 C. B. N. value of as senting creditors, under the 192nd section of ruptcy, 1861, the Bank the value of securities held by them must be taken into account. 1865. WHITTAKER v. LOWE. had executed the deed, or assented in writing to its provisions. The learned Judge ruled, on the authority of Turquand v. Moss (a), that the value of the securities held by creditors should not be deducted in order to arrive at the value of their debts, and directed the jury to find a verdict for the defendant, leave being reserved to the plaintiffs to move to enter the verdict for them for 3467. 19s. The question for the opinion of the Court of Appeal is, whether or not, in estimating the value of the debts of creditors, who under the 192nd section of the Bankruptcy Act, 1861, are required to assent to a deed made. between a debtor and his creditors, in order to make it binding on non-assenting creditors the value of securities held by creditors ought to be deducted. If the Court shall be of opinion in the negative, the verdict for the defendant shall stand, but if the Court shall be of opinion in the affirmative, a verdict is to be entered for the plaintiffs for 3467. 19s., with judgment accordingly. Holker argued for the plaintiffs (¿).—In estimating the three-fourths in value of assenting creditors, under the first condition of the 192nd section of the Bankruptcy Act, 1861 (24 & 25 Vict. c. 134), securities held by creditors ought not to be taken into account. The authorities on this subject are not uniform. In Ex parte Godden (c) the Lords Justices held that the debts due to secured as well as unsecured creditors must be taken into account. But there it was not necessary to decide the point, because the deed was bad on the ground that it did not extend to all the creditors. [Blackburn, J.-Two points were raised, upon either of which the case might have been disposed of, (a) 17 C. B. N. S. 15. Smith, J., and Lush, J. |