Resident Magistrate's Court.

Marlborough Express, Volume III, Issue 135, 12 September 1868, Page 4

Resident Magistrate's Court.

BLENHEIM —Monday, Sept. 7, 1868. [Before S. L. Muller, Esq., E.M., J. Balfour Wemyss and S. Eobinson, Esqs., J.E’s.] JEFFERY' V. HUTCHESON. Mr. Conolly, for the plaintiff, said that as the same Magistrates were not upon the Bench as when the case was first heard, he and the solicitor for the defendant had agreed to ask the Court to permit the irregularity. He suggested that the case should commence de novo, the notes of taken by the Bench to be taken as evidence in the absence of Honeywell. Mr. Nelson, for the defence, would not agree to be bound by the notes of the Bench until he had heard them read. The Bench declined to have the notes impugned in any way. Mr. Nelson then withdrew his objection. The evidence was then read by the Chairman, and certain documents handed in by Mr. Conolly, who stated that was the plaintiff’s case. Mr. Nelson objected that the document handed in came under the meaning of the llegistration of Bills of Sale Act, which was to prevent secret assignments and fraud. He did not mean to impute fraud to the plaintiff, but still the creditors of Honey - well had suffered loss by reason of it. The only question was whether the documentor bill of sale should be registered. John M. Hutcheson, storekeeper, deposed that he was the plaintiff in a case heard in this Court some time ago against Honejrweli. Ordered a distress warrant to be issued. Knew there was a bill of sale against his crops, through my solicitor. Heard of this before he searched for it. Had never heard there was a bill of sale against the horses.

By Mr. Conolly : The debt was contracted in the latter part of 1866 and 1867. After giving credit, made search for the bill of sale. ISA part of the credit was after July 6th, 1867. Knew there was a bill of sale over the. crops, but my solicitor informed me that there was no bill of sale over the horses, so far as he could see. It was after part of the account was incurred that I heard there was a bill of sale on the crops. John Paap, sheriff’s officer, deposed that he got a distress warrant in the ordinary form, and seized two horses under it. No one was present but Honeywell and his man. No claim was made against them for about a week, when Mr. White told me plaintiff had a claim upon them under a bill of sale, but part of the money was due upon them yet, I referred him to Mr. Emerson. The amount of debt and costs was then lodged in Court. He said everything was covered by a bill of sale. By Mr. Conolly : Honeywell told me the horses were not his. I think one person (Hathaway) told me he believed they did not belong to him. I did not see (Smith, but Powick told me that some two or three months ago he saw a bill of sale in your office. lam not certain he used the words bill of sale. Honeywell’s men backed him up in everything he said, but I did not pay much attention to it.

Mr. Conolly said the case was really a question of fact. Were the goods in question the property of Honeywell or not? Mr. Helson had not shown anything to prove this was one of the cases coming under the Hills of Sale Act. He then went on to prove that such was not the case, that the dealings of defendant with Honeywell had no effect or influence on the case, and that an absolute sale had taken place.

The Beach then retired, and after an absence of four hours they returned, when the Chairman stated that after considerable deliberation, a majority of them were of opinion that these documents were not a sufficient protection to Mr. Jeffery in the transfer of the property, the judgment would therefore be for the j udgment creditor, the defendant in this case.

Mr. Conolly applied for leave to appeal, on the ground that there was an erroneous finding on the point of law, that although there was a purchase and delivery, it required a deed of transfer. Mr. Nelson objected that delivered had not been proved. Mr. Conolly asked the Court to say whether there had been delivery. Mr. Wemyss said their finding was upon the whole case ; that the deed of sale was good as between the parties, but that it was such a one as came under the provisions of the Bills of Sale .Registration Act, and that there had been delivery. A case was then stated by the Chairman as follows:—The judgment for the defendant upon the grounds that although the horses were bought and delivery taken by Jeffery, yet under the circumstances of the case, it should have been done by deed of transfer, and duly registered, in order to protect Jeffery from an execution creditor. Costs to follow the j udgment, TUESDAY, SEPTEMBER Bth, 1868. [Before S. L. Muller, Esq., R.M.] Phillip Lawrence was charged upon the complaint of Moritz Sklaark that on the 25th ult. he erected a nuisance contrary to the form of the Statute in such case made and provided. Mr. Nelson appeared for the defendant, who was not present. Mr. Pitt, for the complainant, objected that Mr. Nelson was not entitled to appear, us this was a penal offence. The Bench said that under the Justices of the Peace Act where a defendant did not appear, a warrant could issue. Mr. Nelson quoted clause 16, which enabled a defendant to appear either in person or by his solicitor, ile then put in an authority from the defendant to act for him. Mr. Pitt said the complaint was laid under the 16th section of tiie Constabulary Force Ordinance, and it only remained for him to prove that an inspection had been made of the premises. He was sorry the defendant was absent, as he would have to make some comments upon him. The offence was one of a most revolting character ; there was a dividing fence between the premises held by the two parties, and on the side of it complainant had a well for the use of his household. The defendant, for more than mere annoyance, at a time when a scourge of .unusual virulence was raging, and knowing this, sought wilfully to pollute his neighbor’s water by placing close to it a water-closet, the drainage from which must detile his water. He considered that the infliction of the extreme penalty, £lO, was insufficient to meet the circumstance ; and that other more severe punishment should be awarded, since a man that could do such an act might almost be considered as bad as a murderer, inasmuch as the Water would be rendered poisonous by the emanations and drainage from the nuisance complained of. Mr. Nelson objected that the case could not be proceeded with under the Ordinance named, as an Act had been specially passed for this province, as the Blenheim 1 mproveraent Act.

An argument took place as to whether the Act in question provided for the case ; as to its validity ; and as to the existence of a Board. The Court ruled that the Act and Ordinance ran concurrently, in the absence of any reservation in the former with respect to the latter. He held with Mr. Pitt that at a time like this, in the absence of a Board to deal with the case, the safety of the town and protection of the public required that some steps should be taken to abate the evil. He should hold by the view expressed, and rule that it was correct.

Mr. Nelson pressed for an adjournment of the case until Monday next to enable defendant to appear, as the nuisance was not continuing.

Mr. Pitt objected. The .Bench did not wish to press upon any one, but the nuisance should be abated as early as possible; a complaint was made, and the police inspector sent, who reported that a serious nuisance existed; seven days notice was given, after which plaintiff desired protection, and the summons issued. Defendant had shown a contempt for the Court by not appearing. He should go on with the case, and reserve the right to adjourn if he saw cause hereafter. He sat there in the public interest, and to protect its well-being.

Moritz Sklaark, draper, High-street, deposed tha: defendant’s property adjoins mine, and there is a well about nine feet from my door. A fence divides the properties, about feet distant. Defendant has erected a building which my parlor and dining-room window overlooks. I saw it used-as a privy previous to the summons being taken out, and after Inspector Emerson visited it. * # ■*

By Mr. Nelson: Saw it used by Lawrence himself one evening, while we were at tea. Saw him go in, stay a while, and come out adjusting his clothes. * * Saw it after it had been capsized, which was after the summons was issued. The building had been formally used on the other side of the yard, and was brought over. I did not upset it, or hold out any inducement to any one else to do so. I might have said it would be a good lark to do so. Saw an effigy hung out the other day over Lawrence’s shop.

The Bench declined to allow the examination to continue on this point. Mr. Nelson said if allowed to go on, he would show that an animus existed.

The Bench was willing to hear it disproved that a nuisance existed. Was a man to be poisoned because of a disagreement between him and his neighbour ? He would hear anything about the nuisance, but would not hear any nonsense about the effigy, and would allow Mr. Nelson to proceed as long as he would stick to the point. The question was this—Was a nuisance committed a fortnight before? and it had nothing to do with what had taken place since.

Examination continued : The filth remained there still. I was in the building with Inspector Emerson and Dr. Horne, and saw i: ' * # I have not seen any one else use it; it was open ; Lawrence was present; he did not inform me that ho did not use it. We do not kiss each other, nor are we on good terms. Had some horses in the pound; remember saying he was a blackguard poundkeeper, &c., because he overcharged me, and he afterwards returned the money after I had been to Mr. Wemyss. The Dench again stopped the examination, the question was us he had before stated it. Examination continued: Lawrence told me before the building was removed that he would erect it there for the purpose of annoying me. Hid not care to be on intimate terms with him.

Mr. Nelson quoted Taylor on Evidence, to show that he was in order when bringing foreign questions into the case. The Bench would not be insulted; he was willing to do the best he could iu the case, but would listen to no extraneous matter, and if continued would take adequate means of protection. Mr. Nelson did not care what steps were taken.

John Emerson, Inspector of Police, deposed that in consequence of directions received he inspected the premises of defendant ; there was an old closet there, and iu an offensive state ; saw a well of plaintiff’s premises feet from the closet, and about 3 yards from his back door. The witness described the filthy state he found it in. By Mr. Nelson: Do not know who used it. Lawrence said he would keep it as long as he liked. His wife said it had never been used, and he was angry and said she had no right to say anything about it. Could not be used as it now lies. Consider the .closet itself a nuisance, and the water and dirt is enough to poison the well. James Eobinson deposed that he had examined the premises yesterday, and found the stench arising awful, and injurious to health. Considered the water would be decidedly affected by the closet. Mr. Nelson urged that the complaint should be dismissed, as it had not been proved that it had been used as a receptacle for filth. He had a perfect right to pull down a stable and turn it into a byre if he choose \j or to pull down this building and use it to store kerosene in; he had a perfect right to do so. He contended that unless it was proved that Lawrence had used it, the complaint must fall. He again urged for an adjournment till Monday next. The Court would not adjourn the case.

Mr. Nelson then called Dr. Williams, in order to prove that its continuance was not prejudicial to health. Henry Williams was requested to examine the hole excavated lor the closet a fortnight ago; did not know it was for a closet; might be a well; was asked to examine a water closet there capsized ; there was an excavated space with nothing in it but surface water ; did not examine further than the hole; there was only 2 inches of water in it; did not examine further at that time; had again examined _ it this morning, and found onion peels in it; I am not aware that Sklaark is fond of onions; # * * perceived no smell; saw an accumulation of mud upon it, which might

have been caused by a flood ; did not think if the enquiry was deferred 2 days it would be any detriment. By Mr. Pitt: Would recommend the hole to be filled up, because it would become stagnant, perhaps in two weeks ; the sight would be a nuisance.

The Court held that the question was, Did a nuisance exist at the time stated? if intended for the reception of kerosene, why was a hole dug. Lawrence was equally liable if he erected a privy, if another used it. The Court had a public duty to perform ; there was no doubt that Lawrence removed a privy near to Sklaark’s well, and dug a hole beneath it; evidence was given to the effect that it was used, the stench was awful. Dr. Williams did not come in as a scientific man, but as to a matter of fact to contradict other witnesses; the preponderance of evidence was to the effect that Lawrence had created a nuisance. With the understanding that the hole be filled up and the building removed at once, he would not inflict the full penalty, but commute it to £5, with reasonable costs, in accordance with the Justices of tire Peace Act. Penalty £5, with £2 16s. costs. Messrs. Robinson and Emerson declined to take expenses. Execution not to issue for a week. EMERSON V. HOMES. An action to recover 2s. Court fees unpaid. Mr. Pitt appeared for defendant. John Kennedy, assisl ant-bailiff, deposed that tke'‘Alefenffalltrtotdt'TuTa summons in July last, and being engaged with other business neglected to charge him with the service money, which he had since had to pay himself. Had since asked defendant to pay it, who refused. By Mr. Pitt: The case in question was settled out of Court; do not know how. Mr. Pitt said the defendant in that case ought to have paid the costs. In this case the clerk should have sued, and not the bailiff, and on that ground he should be nonsuited. The witness stated that the clerk did not tell defendant he had to pay the money; nor did the defendant request him to pay it for him.

Mr. Pitt contended that plaintiff could not recover money paid, without the request of defendant to pay it on his behalf. The Bench coincided with this view, and gave judgment for defendant, but refused costs.

[The following was published in Extas issued on Wednesday and Thursday last.]