HAWERA RESIDENT MAGISTRATE'S COURT.

Hawera & Normanby Star, Volume II, Issue 121, 11 June 1881, Page 3

HAWERA RESIDENT MAGISTRATE'S COURT.

Thursday, June 9. (Before C. A. Wray, R.M.)

PUBLIC NUISANCE.

Town Board v. John Burton. — Wm. Pinches, Inspector of Nuisances, gave evidence — I received a complaint from Mrs. Carson, and in consequence served a notice [produced] on defendant to abate the same. The drain complained of is shown on the plan produced. The nuisance arose from water in the drain in a state of ferment. I cannot say how long the nuisance has existed. The smell was offensive and unpleasant, and it was, I .should say, unwholesome. I received several verbal complaints from parties, before receiving Mrs. Carson's in writing. By Mr. Ward — I produce my appointment as Inspector of Nuisances. lam in receipt of a salary of £1 per annum. I laid the information at the instigation of the Board, under the Public Health Act, and not under, the Public Works Act. I am not a chemist. This nuisance is on the side of the road opposite to the brewery. I served Mr. Burton because he is the owner. Mr. Johnson was in possession. The nuisance came from the brewery. I am of opinion that it was primarily. Mr. Johnson- who committed the nuisance.

By Mr. Barleyman — I consider the drainage is bad, at present, because the drain at the brewery is three inches lower than the drain across the road. It could easily be amended by forming a proper drain, and deepening the outfall from the brewery.

Mr. Wanklyn, Town Clerk, gave evidence — I have known the drain opposite the brewery for more than two years; complaints have been continually made during the proprietorship of the three last owners. I should be afraid to live near the drain, for fear of the fumes arising causing fevers. I know of three deaths which have occurred in a house near the drain, one of which was attributed to the foul smells. I consider the smells very unwholesome. I have, when acting as town clerk, served several notices on Mr. Burton to abate the nuisance. Mr. Burton is the owner of the property. I know that Mr. Burton is shown on the valuation list as the owner of these premises. Mrs. Mary Carson, residing in Hawera, deposed — I know the drain which crosses from the brewery over the road to my house. It is in a very filthy state. Early in April it was very bad, and foul smells arose from it at night. I consider the odors unwholesome, and injurious to health. lam certain of ifc. My youngest son stated that the smell spoilt his appetite.

.By Mr. Ward— To th,e, .best of my .knowledge, the only filthy wafer which has flowed into that drain came from the brewery.

By Mr. Wray — I cannot say for certain that the health of my family has been affected by the smelL , Mr. Ward .contended that the owner yras not liable for a nuisance which did not exist on his property. He thought the information should, have been kid under the Public Works Act.

Mr. Burton, defendant, deposed—l cause no nuisance in Princef.*street. There is a" cess-pool, where sediment is deposited-^ There are several 6trainers which inter- 1 cept aU sediment, and only pure water can flow away. There is not sufficient fell to the drain ; the drain is stopped by gorse-slippings and cattle treading the banks in. I have no right to interfere with a public drain. The Town JBoard has always cleaned out the drain hitherto. I regard this summons as the outcome of

some private misunderstanding between me and a new member of the Board, Mr. McCutchan.

By Mr. Barleyman : I consider the filtering apparatus efficient to prevent all foul matter from running into the drain.

By the Bench — Why do you continue to allow your refuse matter to flow into a drain which, by your own showing, is unfit to carry off the liquids poured into it by you ? — I expect the Board to clear off any liquids poured into the drain by me. I have done nothing to abate, the nuisance. ,' The Bench read the Gist section of the Act, and 6aid — It appears to the Court quite plain that the nuisance does exist. An order will be made that the defendant shall take the necessary steps to abate the nuisance, as required by the Board, and shall also take such 6teps as shall prevent a recurrence of the nuisance. If his business was such as necessarily to cause a public nuisance, he would be compelled to remove the brewery. No man can claim a right to injure the comfort and convenience of his neighbors. No penalty will be imposed ; costs will be allowed of seven shillings.

; The Bench declined to allow costs to the inspector.

THREATENING LANGUAGE. -O'Donovan v. Byan. — Threatening to do grievous bodily harm. K. O'Donovan sworn, a settler in the Ngaire district, said — On Sunday last he was passing Ryan's tent, and the defendant, who was a contractor for the Ngaire Eoad Board, threatened him that if witness did him harm, he would do witness harm.

By the Bench — I cannot now say lam in fear of defendant. I believe he bears me malice. lam not now in bodily fear. Case dismissed. CIVIL CASES.

D'Alton v. Quinlivan. — Application for re-hearing, on the grounds that he had mistaken the day of hearing. No appearance of applicant Application refused. McGregor v. McCoy. — Application for re-hearing. Application dismissed. Same v. Vine.— Claim for dSI32 2s. 2d. Beduced to j£so, in order to bring the amount within the jurisdiction of the Court. The summons was issued for j£so.

Mr. Ward, for defendant — We deny the sale and delivery of the goods. r< Mr. Barleyman— l regard that as rather a dishonest plea to put in. His Worship required the particulars of demand to be amended.

The case was adjourned till next Court day, to enable a cross action to be brought.

Patterson v. Geo. Olliver. — Judgment summons, £34 11s. 10d., at the Resident Magistrate's Court, Hokitika.

Defendant, called and sworn, said, in answer to his Worship — I received a summons from Patterson, but did not appear. I have not paid any portion of the claim, which was not incurred by me. I am a railway overseer, and receive £3 12s. a week. I have nine or ten of a family to support. I pay £5 a month to my family. (Defendant handed in a statement showing that he only retained 255. a week for his own use.) I have no other income. — Case dismissed.

Hawke v. Nathan. — Claim of i-22 9a. 3d. No appearance of defendant. Certain items in the account for 61£ yards of gravel, &c, were admitted. Judgment for amount, and costs.

Noble v. Alexander. — No appearance of either party. — Case adjourned, the summons not having been served.

Kilroy v. Ckrk.— Claim of M.

T. Kilroy, sworn, deposed that about March 13th he had lent defendant £4, but that the latter now denied the debt.

P. Clark, ganger on the NormanbyManaia road, denied that he bad borrowed any money at the Normanby Hotel.

Judgment for defendant. McGuire v. McMooney. — Claim for £2Q ss. Judgment for amount and costs.

DISPUTED OWNERSHIP.

W. Prosser v. Frank T. Bailey. — Claim of £40, value for entire horse Papawai. W. Prosser, livery-stable keeper, sworn, said — I bought the Horse Papawai from W, Staunard for .£lB 10s., and got a receipt for the money, which was paid for by my endorsing a promissory note for that amount. I got possession of the horse the same day and same hour as Stannard bought it. The consideration given by me was the backing of Mr. Stannard's promissory note for i'lß 10s. My endorsement was given in return for a clean receipt for the horse, and delivery being then and there given to me. The horse got kicked in my paddock, and W. Stannard said he could get grazing for the horse at Wilson Bros., on condition that the horse would ran in a paddock with a few mares belonging to Wilson Bros. Two months afterwards I heard the horse was at Bailey's. I told Bailey the horse was mine. I had a clean receipt for him. Bailey said he had bought the horse for £10, and held a receipt for him. I said if Bailey did not give up the horse, I would take proceedings. The promissory note for iSIB 10s. produced is the one I backed, and had to pay. I gave Mr. Ward instrnctions to take possession of the horse.

By Mr. Barleyman — The understanding was that if the money was paid by Stannard when the bill matured, I was prepared to 6ell him the horse back again for the money. I did not intimate to Bailey that unless the bill was met, I should take proceedings. I claimed the horse as soon as I heard he was at Bailey's, and was not in Wilson's paddock. J. E. Ward sworn, stated — I claimed the horse from Mr. Bailey. On the previous morning Bailey said tbe horse was in Peterson's paddocks. Mr. Bailey said he did not want to have any more trouble about the horse. I went to Petersen's paddocks and tendered the grazing fee ; thereupon Mr. Peterson drove the horse up to Hawera with me, and delivered him to Mr. Bailey. Mr. Cockburn, blacksmith, sworn, said — I saw Stannard and Proßser on the date of the sale of the horse by Tingey. Stannard asked me to back a bill for him to pay for the horse. I refused, but saw Mr. Prosser back the bill, and the receipt given [produced]. The horse was to be given as S' curity.

By Mr. Barleyman — If I backed the 'bill, the horse was to be given up to me as security for the endorsement. If the bill was not met, the horse was to be mine ; if it were met, the horse would be Stannard's. As far as I could understand, the same arrangement was proposed to Prosser as had been proposed to me. I beard a similar arrangement made with Prosser. I left before the documents were signed.

By the Bench — I saw the horse in Prosser's possession.

Frank Bailey sworn, said— l bought the horse Papawai from Stannard for i-10, about the middle of March. Early n May, Prosser came to me and asked had I bought Papawai. I said "Yes." He said, "The horae is mine." He explained he had backed the bill to Tingey, and got a clean receipt for the horse. He believed Stannard had bought the horse from Tingey, and never knew Prosser owned him. Prosser said, "If Stannard does not meet the bill, I shall have to claim the horse."

By Mr. Ward — I consider a fair price for the horse in the condition I bought him, with his leg cut and running. I had a bill of sale over Stannard's effects, and it dealt with Papawai. The bill may be registered in New Plymouth. I cannot explain why I gave £10 for the horse under the circumstances, while holding a bill of sale.

Mr. Ward pointed out that Bailey did not take even the ordinary precaution of finding out how Stannard had obtained possession of tbe horse, previous to purchasing him. Judgment reserved. The Court adjourned at 3.30.