POLICE COURT.—Thursday.

New Zealand Herald, Volume III, Issue 647, 8 December 1865, Page 5

POLICE COURT.—Thursday.

(Before Thomas Beckham, Esq., R.M., and Dr. norne, J.P.) Oases pou Judgment. INSPECTOR OP NDISANCE3 V. WIUOHT. Tn delivering judgment in this caso, his Worship said, tho information in this caso is laid under the 21st subsection of tho 2nd clause of the Auckland Municipal Police Act, for wilfully obstructing tho public thoroughfare during the month of November, that the defendant did so by placing earth upon tho footpath is beyond all doubt, and that a further obstruction was caused by tho slipping of the earth in consequence of a cutting mado to roduce tho street to its presont lovel is also beyoud doubt, ai.d that tho cutting was made by tho City Board is also equally clear, for tlio counsel on behalf of the complainant produced a oocument signed by the defendant and othors authorising the City Board to perform that work, and it was also ndinitted by Ibe defendant himself.

This is the document: — " We, tho undorsignod owners and leaseholders of property in Albort-streot, Auckland, authorise and empower the City Bourd of Commissioners of Auckland, to carry out and complete tho cutting of said 6troot, opposito to our respectivo properties, perpendicularly from tho palling downwards, and wo lieroby relieve tho said City Board of Commissioners of nil claims for damages that might in any way arise to un or the oecupiers of our respectivo properties in consfqucnco of tlie flaid City bo carrying out paid cutting. Thia waa elgri6d bjr defendant and eevoral c

Tho counsol on behalf of the dofendant, in hia argument, divided tho caso into two portions—lst for wilful obstruction, and 2nd for an obstruction causod by tho slipping of tho oarth. It would perhaps be more doairublo to put aside tho first part, and let the caso rest entirely upon the second, as that may possibly affect all tho persons who signed tho document authorising the City Board to reduce the siroot to its present lovol. By tho arguraont of the learned counsol on behalf of the defendant, lie desired to show that as flie City Board had made the cutting, and left the banks in such a ala to that they \ must of necessity crumble and fail down from tho action of tho woathor, the dofondant and others wer© not liablo for tho obstructions so causod, and that tho authority produced by the complainant for tho City Board to make the cutting only idemnifiod that body from damago whioh might arise to their proportio from that act, but after a careful consideration of tho wholo case, it aproars to the Court that tho authority givon by tho defen .ant and others to make tho alteration in tho stroet not only indemnified tho Board against any damage which might ari»o to their property, but it mado the acts of the City Board thoir acts indeed, that the cutting was made by their agency, and thoreforo thoy becamo responsible for any obstruction* which might arise in consequence, and it was their duty to havo seen thnt tho City Board secured the banks so ns to prevent them falling down, or to havo done so themsulves. " Every man," obsorves Lord Truro, " is restricted against using his property to tho prejudice of othors," and the samo loarned lord further romarks that " this maxim applies to tho public in at least as full force as to individuals." Again, it is laid down as a maxim, " that a party shall not convert that which was dono by himsolf or with his assent into a wrong—that a man shall not tako advantage of his own tortuous act." In this case tho defendant gavo his " assont," and therefore his not having takon tho necessary precautions to prop up tho embankment to prevent it falling down, and thoroby obstructing tho public thoroughfare, must be taken as a wilful obstruction on his part, and tho Court is therefore bound 11 convict, but as this case appears to havo brought only for the purpose of having tho obstruction removed, and not for tho inQicfion of a heavy ponalty, tho Court will merely order a nominal fine of Is. and co'jts. ALPE V. KELLY. I'i delivoring judgmont in this case his Worship said, this ij a caso in which goods are alleged to have boen supplied. From the evidonco it would seem that these goods wero supplied to the master of Metoor, and booked to master, Farrell. It seems cloar thnt the goods were supplied, in fact thero is no doubt nbout. thnt. Tho only question was to whether dofendant is liablo, and on that point I think he is not. The lav? is very clear on that point, that tho master of a cannot got goods in the naino of tho owner when tho owner is within such distanco as to bo communicatcd with. Tho goods wero absolutely ordered and booked to tho master himsolf, tliu3 rendering him liable. Tf tho master had beon tho dofendant instead of the owner tho judgment, would have been for tho plnintiff. A nonsuit must bo recordod. UNDEFENDED CASKS. Judgments woro given for plaintiffs in tho following cases—Low and Motion v. J. Frazer, £13 12s; Winks and Hall v. Edward Clark, £13 17s 6d; David Prictor v. 11. S. Frazer, £16 15s; B. Tonks v. Edward Drury, £5 10s; McKcrras v. G-. Fisk. £9 2a fid ; Buchanan v. Scott, £12 1 7a ; Horno v. J, Russell, £19 5s sd; D. Davidson v. S. Maidon. £11 18s Id; Brigham v. Camwell, £1; Bolous v. Young, £10 9s 6d ; Dickoy v. Loyland, £5 13s Id; Phillips v. Paora Tuahcro, £21 4s ; Forrest v. Forbes £8 8s ; Jas. Gilbert v Jas. Inglis, £G 4s ; Wilson v. Teague, £1 8s 6d ; Wilson v. Smith, £6 lis lOd; Blackburn v. Bryant, £9 9s; Burns and Reynolds v. Davidson, £5 Hi; Brown v. Pilkington, £38 6s ; Slater v. H. J. F. Richardson, £39 2s 7d; Slater v. j Jaa. Grant, £5 10a 4d; Owen and Mackay v. Donald Sutherland, £9 os lid; S. H. Smith v. J. Pilz, 17s 2d. NON-SUITS. Nonsuits wero rooordod in tho following cases— Hunter and Co. v. Patrick Bonfield, £7 18J 94; Chrisp v. Howoll, £1 10s Sjd. Defended CA3E3. IIOtTRKE V. SMITH. Claim, £3 10s. IOJd., for goods supplied. Catherine Bourke, sworn, said : I supplied goods to dofendant iu April and May last. Thoy woro booked to her. I havo asked lior for tho amount, and sho said she would not pay me when I asked her. Sho nover detiiad having tbo goods. Defendant produced a book In which there was only n balance of 10s. lOd. Judgment for plaintiff. CRAIG- AND OTHERS V. BLAOKOYE. Claim, £37 7s. Bd., for labour done. This caso had been before the Court two or threo times before, and a nonsuit had boon recordod in conscquence of tho plaintiffs not having joined thoir casos together. Plaintiffs not being able to pay tho previous costs, tho case was adjourned to a later period of the day. Tho costs wero ultimately paid, and the mattor roferred to arbitration. WATT V. LINDSAY. Claim, £47, for timber supplied. Defendant denied the claim altogether. Mr. Wynn, for tho pros-oution, said the action had boon beforo tho Court previously, and boforo it was brought into Court tho dofondant agreed to pay £1 a woek until it was paid off. Ho had paid £1, and had never paid anything since. Plaintiff gavo ovidonce in support of this statement. Dofendant ploaded that tho quantity of timber delivered to him to soil on commission was nothing like wliat was statod by plaintiff. Ho had sold part of it, and tho romaindor had beon carted away by plaintiff into his own yard. Tho caso was adjourned until noxt Thursday to procure tho attondaneo of a witness to prove t e payment of £1 by dofondant to plaintiff. CONNELLY V. SI. W. ABMSTEONO. Claim £25, damages for trespass. Mr. Wynn for plaintiff. Mr. Gillies for dofendant. Mr. W. Armstrong sworn, said : Some timo ago I was employed to move a building from ono part of an allotmont to another. The dividing fenco was a fence and a stable. Tho Btable and part of the fence were pulled down, with tho consont of the plointiff, in order that tho house might bo placed where the stable had boen. (Plan of premises produced). The romainder of tho fenco was left in good order. I will swear thero was not one panel nor ono paling pulled off. I loft tho fenco to his Batisfactien. Ho expressed his satisfaction at tho way in which I loft the fenco. Francis Connolly, tho plaintiff, deposed: Defendant had to removo a building on an allotment • adjoining mino in February last. In the course of

removal four panels of tho fence wero knocked down. I never gavo permission to knock down the fenco. I complained to defendant of what he was doing. Ho promised to repair and fix the fenco. Ho afterwards Bd ho did not think it right that ho should repair it. *1 never gave consont to tho romoval of tho fence. Neither h« nor anyono elso put tho fenoe up afterA discussion then ensued as to whether the defendant was liable for damages done by goats and other animals getting in when tho fenco was knocked down, that fonce not having been put up again by tho Worship said: Of course, if tho plaintiff suffered from these animals that day, it would bo right that tho defendant should pay, but after that it would be plaintiff's own fault if he loft his fenco uncont'muod : There was damage done by pigs and goats to my garden. A few days after tho fenco was knocked down. There was none of tho fenco pulled down, except that portion where tho 1)01180 was put in. When the house was finished it occupied tho part of tho fence which was pulled down. The animals got under tho house. I objected to the fonce being knockod down. I did not use the posts and rails, and use them myself. 1 complained about the opening below the house. Me nailed slips along the blocks. I never told lnm that I was satisfied. I have loft tho fenoo open ever since defendant left it, that wai last February. M. W. Armstrong, recalled said: There waa no garden in roar of plaintiff's house. It was Scoria ash. Ho keeps pigs and goatain hia "back yaaa. He never made any objection to my taking down the fence. Ho complained about tho opening below the house. I nailed on some palioge, and ho was satisfied. 1 lie only time ever he complained waa about three months ago. whon ho was drunk. By Mr. Wynn; Thero wero only two fruit trees iu tho eornor of his girdon. There wore no vegetab os tlicro at all. , .. John Riley and George Morris gayo corroborative evidence. 1 JudgrSsnt for defendant