RESIDENT MAGISTRATE'S COURT.

West Coast Times, Issue 96, 8 January 1866, Page 2

RESIDENT MAGISTRATE'S COURT.

Saturday, Jan. 6. (Before GK G-. FitzGornld, Esq., R/M.) ' " Laroksjy. — Jeremiah M'Grath was remanded foi medical examination.

CIVIIi CASKS.

Kennedy v. Moflut. — Mr Oakes appeared for the plaintiff ; Mr South for the 1 defendant. This was an action to recover LIOO damages alleged to havo boon sustained through the Uo•fendant's pigs injuring plaintiff's house, and destroying his trade. The case had besn > previously gone into, but adjourned to allow plaintiff time to ffurnUh particulars of special damage. These had been supplied, aud the hearing wjb proceeded with — Previous to going into further ovidonco, Mr South said, that in case of appeal, he drew the attention of the bsnch to an omis-iion in the particulars furnished,' which he submitted should have been supplied. Special damage had been cl timed for loss occasioned * through boarders leaving, bnt tho names of the persons should have been - stated. He did not wish to interrupt the case at this stage, but he merely wanted the raagiatrato to make a note of tho ohjeotion. Mr Kennedy, tho plaintiff, was called, uud said that he had let his billiard-room to a man named 'Freddor who had left some two months ago, iv consequence of the piga being sj annoying. Fiedder gave Lll per weak for tho room, but siuce his leaving the witness had not let his rootm, and their returns had not averaged LlOperweok. Out of thU ho'had to pay a marker L 3 per woek, and keep him in addition, so he sustained a clear weekly loss by Predder leaving Tho damage ho sustained was considerably more than ho now sought to recover, and would amount for the past two months to about L 9 per - week. Through the same pig nuisance persons had left his house, one pei-sou especially he would mention, Mr Hunter. This gentleman had jiow gone to Melbourne, Aw her, named Walker, also left for the same reason.and' others had com* plained and threatened to leave through the stench arising from the. pigs. — In cross-examina-tion by Mr South, plaintiff slid that the nuisance aoiuplaiued of had existed for three months. Tl c furthor cross-examination went to dispute the • ownership of the pig-», and in reduction of the .# ftpepial damages claimed, as also to ,«how that plaintiff httd not taken any stops to protect hi 3 property by boarding round ths home. — Thom:w Hawloy, tho plaintiff's marker, corroborated the former evidenoa as to the nuisance existing fa tho billiard-room through tho pigs underneath, and that persons had actually loft the room in consequence of tho stench occasioned ' by, tiiem. Samuol Symms gave similar testimony. H. Munohauson was culled, but did not givo any material oridonco, Q-eorgo ' Handy said that ho had left off going to Sir Konnody's houso because tho smell urisimj from tho pigj was so obnoxious that it was , enough to make auyonosiok to havo a nobbW there.— Mr South submitted that plaintiff must bo nonsuitod, inasmuch n3 it was shown ' by his own ovidonco that he had not taken reasonable precaution to prevent tho injury' compliiinoJ of, by boarding his house round. Pluintilf could not come into conrfc to seok compensation for damages sustained byroason of his own nogloot or defuult. In roforonco to tho special damage, nothing had boon proved but what was so romoto that it could not bo appliod to" this caso jin fact,' no damagoa whatovor had boon provod. A^ll tho injury done was dono through tho plaintiff's jioglect, and ho was thoreforo not cntitlod to recover. —Mr Oakos argued lhat plaintiff was not ro(luirod or bound' to fenco round his houso in ordor to prevent damage through animals of any description whatovor. Moreover, if ho had dono so it would have beeuusfiloss, for ifc had boon provod that tho pigs had rooted out tho collnr bonrding, and it; w«s only reasonable to suppo3o that thoy would havo dono tho samo if tho boards had boon pu.t round tho houso. Iv roforouoe to naming tho persons who had loft in consequence of tho stench, it was not necessary, for he had already provod that thoy had dono so. — An argument ensuod, but tho magistrate ovorrulod these points, and tho caso procooded.— The defendant said that plaintiff complained somo four or live woeks ago about tho pigs. 110 had proper piggeries into which thoy were put afc night, and they ran about tho boaoh during tho day. 'At tho ' timo ho got tho summons, there were somp 200 or 300* pig 3 running about tho beach in addition to his. A porition had beon got; up for tho romoval of pigs and slaughtering from the town, and plaintiff told him that from a neighborly principle ho would not sign it. Witness then woub to tho oxpo'nso of putting up a piggory, about 100 or 150 yards distant. Iho nuisance plaintiff ihon complained of was not of pig* boiug under his homo, but of their being too near, and tliu was tho reason of his ' ■ moving thorn. Ho would swear that ho had always dono everything in his power to pro- ' vonfc hia piga being a nuisance. He conBidorod that a stagnant pool of water at the roar of plaintiffs promises, into which the lattor's sorvants throw slops, &c.,wasagroater nuisance than tho pigs. In crosa-oxamination, defendant denied that tho plaintiff complained of tho nuisance two or throe months ngo, and said that ho had only complained once. Tho slops ho had soon emptied into tho pool was tho kitchon slush, and in his opinion was the first thing that attraotod tho pigs to the promises.—Aloxam'lor Smith and Thomas Montague wore called, but provod nothin* of importanoo to tho case— Tho magistrate cavo a vordicl for the plaintiff, with £25 dasnagos.— Air South gave notico of appeal. Tho Court then adjournod.