37

THE WILD WEST IN CHANCERY

In the Chancery Division yesterday, before Mr. Justice Chitty, the hearing of the case of "Garland v. American Exhibition (Limited)," which was adjourned from last Friday, was resumed.

The plantiff, an artist, residing in Eardley-crescent, applied for an interim injunction to restrain the defendants until the trial, or further order, from causing a nuisance of noise or smell. The alleged noise was stated to be caused by the shooting, shouting, &c., during the performance of Buffalo Bill's Wild West entertainment, and to alleged smell by the stabling of horses and buffaloes in the vicinity of plaintiff's residence.

Mr. Rigby, Q.C. (with him Mr. Maclean, Q.C. and Mr. Butcher), for the defendants, resumed their defence, which had only just opened when the court adjourned on Friday. Mr. Rigby read affidavits by the immediate neighbors of the plaintiff, speaking to the insufficiency of the noise to cause any real annoyance, and also commenting on the short duration of the noise, and stating that the behaviour of the Indians and cow-boys was of the most orderly kind and not objectionable, and in every respect contradicting the evidence of the plaintiff. The defendants also produced an affidavit from Mr. L. S. Forbes Winslow, stating the noise from the railway, as heard from plaintiff's premises, was far more injurious and observable than the noise from the shooting. Much amusement was caused by the contradictory statements by two gentlmen living in the same house, one of whom deposed that the noise was an intolerable nuisance, and the other that it could not cause the slightest inconvenience. An address was produced and unrolled in court, signed by 51 out of 75 residents in Eardley-crescent, and 59 out of 70 inhabitants in Philbeach-gardens, and by 592 persons in all. The address stated that the undersigned residents regretted that steps were being taken to put a stop to the performances of the Wild West Exhibition, and that they in no way found the noise caused by the discharge of fire-arms a nuisance, and should regret to have any obstacle put in the way of the Wild West entertainments. The learned counsel for an interlocutory injunction made out in evidence. It had been said during the hearing that the case possibly might be settled by paying for the plaintiff's expenses of removal, say to the seaside. The defendants were not disposed to yield in that way. They were amply solvent, and they would have no onjection to paying a sum of money into court to abide the issue at the trial, and sufficient to cover any expenses to which the plaintiff might be put by having to move or to incur expense. The plaintiff said he had not moved at first because he thought that he might get used to the noise; that showed that it could not have been so intolerable after all. The learned counsel then proceeded to comment on the plaintiff's evidence. With regard to the shot falling in the plantiff's premises, it was admitted that some shot did fall in the plaintiff's studio. He had, however, exaggerated this cause of annoyance, for a small charge of shot in a fowling piece at 220yds. distance was nothing very serious. That such was the case was shown by the circumstances that the plaintiff, being in the line of fire, the defendants had caused the direction of the shooting to be altered, and other persons who were in the line of fire, if any shot reached them at all, made no complain whatever. The fact was that plaintiff had altogether exaggerated his case. As regarded the smell, there were many persons who resided nearer the stables than the plaintiff, and they said they had experienced no inconvenience. The stables were erected subject to the approval of the district surveyor, who had inspected and approved of the buildings. They were erected on the vacant land belonging to the railway, and the defendants had no less right to build stables behind the plaintiff's house than other persons had to build or occupy stables behind Grosvenor-square. His argument was that the plaintiff had shown a case of exaggeration. "The screams of the persons returning from the Exhibition in the imitating the Indians and rattling their sticks against the corrugated iron." (Great laughter.) Such statements as that brought home no responsibility to the degendants, no more than a person could be made responsible for the shriek of a street boy, which was no less terrible than the yell of an Indian and--(laughter)--had to be endured. The defendants of course regretted that persons should be thus annoyed, but the noise was not made by them. The plaintiff had to put up with 40 trains an hour passing his house; of course, that was no reason why he should have to endure other noises, but it was a circumstance on a piece with the exaggeration of the case made by him against the defendants. One would fancy from what the plaintiff told them that the Indians had not had enough of the performace, but were keeping up their yells from morning to night. The learned counsel said that without saying anything about the prospects of the final issue at the trial, he submitted that in evidence used at the present application, the defendants had shown a clear answer to the plaintiff's complaint, which disentitled the plaintiff to success upon his present application. Moreover, if it should be ultimately found at the trial that the plaintiff had suffered damage, his case was not irremediable, but one which could be subject to compensation. On the present interlocutory application the evidence of the independent witnesses was, it was submitted, in favour of the defendants.

Mr. Swinfen Eady, for the plaintiff, in reply, submitted that the defendants were not entitled to inflict a nuisance on their neighbors for the sake of making a profit. It was clear that a substantial nuisance had been created. As for the address which had been produced, when it was remembered how petitions were sometimes prepared, it was submitted that the court would attach no great weight to it as evience. The plaintiff had made a substantial case, and the defendants had only endeavoured to rebut it by evidence of a general and sterotyped character.