Title: The Wild West in Chancery

Periodical: Morning Post

Date: August 5, 1887

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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 plaintiff, 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 his 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 neighbours 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 gentlemen 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 Phil-beach-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 the defendants submitted that there was no case for an interlocutory injunction made out in the 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 objection 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 plaintiff'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 complaint 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 imitating the Indians and rattling their sticks against the corrugated iron." (Great laughter.) Such statements as that brought home no responsibility to the defendants, 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 performance, 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 the 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 the subject of compensasion. On the present interlocutory application the evidence of independent witnesses was, it was submitted, in favour of the defendants.

Mr. Justice Chitty said that upon the general balance of evidence he should decline to grant an interim injunction, and in weighing the evidence he considered it collectively, and it was impossible to minutely discuss and comment on the affidavits of each witness separately. He, however, held that there was not such a weight of preponderating evidence as would justify the court in coming to the conclusion that the plaintiff must succeed at the ultimate trial. The plaintiff had no doubt made out a primâ facie case, but it was met by a late body of evidence on the other side. It had been said that the defendant's witnesses had in some cases been biased by having received tickets of admission; but he attached no importance to that, for, taking the witnesses as a body, they were quite as much interested in and affected by the existence of a nuisance as was the plaintiff, and his witnesses were equally to be believed. Strange to say, the plaintiff had but one witness from an immediately neighbouring house who supported his complaint, and in that very house a witness of the defendants resided, who told quite a different story. Moreover, the defendants had a great number of witnesses from other houses in the neighbourhood, who said that they were not annoyed. The nuisance complained of was one which could have been ascertained upon the hearing of evidence, and not one which spoke for itself as being an obvious nuisance. The defendants' counsel had offered to pay a sum of money into court, but the parties could not agree as to the amount. He should therefore fix a sum of £100 as enough, and the action could be set down at once for trial and leave obtained to expedite the trial. He should not give the costs of the present application for an interim injunction, but costs would be costs for the action. There was also on the balance of convenience and inconvenience a good reason for not granting an interim injunction—that was, that to decline such an injunction would do less injury to the plaintiff if he should succeed at the trial than to grant it would do to the defendants if the plaintiff ultimately failed at the trial.

Title: The Wild West in Chancery

Periodical: Morning Post

Date: August 5, 1887

Topic: European Tours

Keywords: American bison American Indians Court decisions and opinions Cowboys England and Wales. Court of Chancery Firearms Horses Noise control Odors Railroads Shooting Stables Trials

Place: Earl's Court (London, England)

Sponsor: This project is supported in part by a grant from the National Endowment for the Humanities and the Geraldine W. & Robert J. Dellenback Foundation.

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