RESIDENT MAGISTRATE'S COURT.

New Zealand Herald, Volume III, Issue 642, 2 December 1865, Page 5

RESIDENT MAGISTRATE'S COURT.

Friday. (Before Thomas Beckham, "Esq., 8.M.) ODgTKTCTINO A FOOTPATH. Alexander Wright appeared to answor to n chargo of wilfully obstructing the public footpath by throwing earth on it. Mr. Wynn for the prosecution, and Mr. Gillio3 for the dcfo-ico. The case had boon hoard a fortnight ago and timo was allowed to defendant to romovo tho obstruction, which ho had f.iiled to do, and on applying to a solicitor was advised to lot tho matter be fully arguod in Court, as to whether ho was liable for a land-slip caused bv the cutting aw iv of tho slrent. Mr. Wynn having stated tho facta of the case, said ho should provo that this soil had tumblod from Wri"ht's premises and was tha obstruction complained of- un lor tho Municipal Polico Act, and also, that a portion of that soil was placod thoroby defendant himself. Therefore,if hedid that, !io was liable who'her ho had sinco removed it or not. If ho did obstruct tho public thorougfaro, it made no difference if he immediately removed it, ho was guilty of the offence and the faet of removing the obstruction before the case came on for ho.fring would not mitigate or romovo the peniltv. Joseph Riley dopised : On tho 13th Novombor last I was in Albert-street. I saw an obstru -lion in the street consisting of a quantity of earth on the foatp tth. It covered the whole t'ootp ith t) a depth of four feet. I know defendant, Alexander Wright. The earth was lving in front of his house. When t"ld to remove the earth ha said ho would not do so, as if ho did his hms') would fall. Thomas Macready deposed that tho cutting mado by the Oity Hoard was twenty foot deep in front of defendant's house, and was nearly povpendicular. Before tho cutting was mado a document was signed by nearly tho whlo of tho inhabitants of tho street authorising tho City Board to cut tho street away perpendicularly. Mr. Wright signod it. Since the cutting was made tho onrth on either side of the road had slipped on to tho footpith. Ho had fiequontly seen Mr. Wright cutting out tho earth and throwing it on tho footpath to put in his props. Crosi examined by Mr. Gillios : Tho earth slipped down partly from natural c uisca and some from boing dug a'iay. James Georgo deposed that ho resided in Albertstreet. He knew whore the defondant resided. Ho had noticed an accumulation on the footpath in front of Mr. Wright's houso. Flo had seen Mr. Wright working there. Ha was cutting tho earth away from hiß premises and throwing it on the footpath. Had seen him doing that last month. Mr. Gillies said th : s case had divHed itself into two portions—one was a partial obstruction by tho tho defondant himself, and the other was that of an obstruction being caused by a slipping of tho earth Ho would first call tho attention of the Court to the fact that while the defondant was apparently charged with a breach of the 21st sub-section of tho Municipal Polico Act, yot when it camo to specify how ho had broken that clause there was no offonce. Tho clause ran to the following ofToct: —" Any person who shall wilfully obstruct a public thoroughfare." Now tho defendant was not charged with wilfully obstructing, but with simply obstructing. Therefore there was 110 real charge against liim undor that section. On that ground, therofore, if on no the information must bo dismissed. But to go into tho merits of the question in regard to the wilful obstruction by digging and throwing earth on the footpath, lie would point out that there was no evidence that at any timo did the defondant obstruct tho footpath by throwing earth on it. There was evidence that at some timo last month, or soma months ago, defendant did throw sotio earth on tho footpath, but whether that earth was an obstruction to the footpath had never boon proved. It might only have been some that had dropped when throwing it into a cart s but they had lmd no evidonce to Bhow that he really obstructed tho footpath by throwing earth on it. Itsfore ho bogan digging tho footpath was obstructed by the land that had slipped. There whs no evidence to show that defendant did not at once remove what ho had placod there, and therefore thero was no obstruction caused by anything ho did. So much for tho wilfulness. Thero was no ovidence to show that tho earth was obstructing tho footpath at tho time mentioned in the information. There was no evidonco fo show any specific dato on which the footpath was obstructed by defendant in this case. Ho now came to this attempt to make tho defendant liable for this landslip. A more impotent attempt ho had never heard. When public officers were entrusted with th« duty of finding obstructions, it would be more creditable if thoy were to look after those obstructions which they saw so constantly on tho roads and pavements, such as boxes and barrels —articles lying about in all directions. But those wero quietly passed by, and a landBlip that took placo was immediately pounced upon by an officer of the armed polico forco. Ho did not blame the oificor for this, but ho thought ho would not do such a thing if he had not had suggestions from other parties who wei'3 more interested in keeping tho street clear—those who made tho street and thus cro-ited this vory nuisance. Tho evidence showed no voluntary act on tho part of tho defendant to cause this obstruction. A document had been put in which absolved the City Board from responsibility. Had the City Board not had this docuinont it would havo been liable for the slipping of tho earth by this cutting. The occupiers agreed that that they would not cliim damages, but they did not say that thoy would take all the rUks and consequences connected witli tho results of that landslip It was quito cloar that the land slip had occurred from natural causes, from tho cutting having been mado perpendicular. Now instead of tho defendant doing this wilfully, it was an actual damago to his property.- H.: was obliged to shore up his house to keep it from falling. There was nothing to show that ho had any intention ol obstructing the pavement. Mr. Beckham said had the defendant made thii cutting himself, lie might havo mado provision againsl this land slip, but thai would have been agaiust tli< interests of his neighbours to make a cutting. Hi would tlion havo been bound to have used his owi property without prejudice to his neighbours. Then wero several, points worthy of consideration," as fo instance was the house budt before tho lovols weri made, &c. In the course of a day or two the Cour would givo it 3 decision on tho matter. ILLICIT DISTILLATION. — M'Clough alias M'Leod, and — Daly alia Oallagan, charged with being in possession of aj: paratus for distillery, wero called upon but did no ap near. The constable who served the summons boing oi duty at tho Supremo Court, tho caso was adjourne until to-day. .