Mr. Windeyer - Your Honor, in this case Andrew Oliver is the plaintiff, and James Hughes is the defendant.  This action contains two counts; the damages are laid at £200; the plea entered, not guilty.  This is a case of nuisance - melting fat.

Mr. Windeyer then stated the case.  Mr. Oliver keeps a haberdasher's shop; the defendant, who lives next door, is a grocer, and has lately turned his attention to candle making.  He received a quantity of raw fat, which he melted down; the effluvia arising therefrom was so offensive as to spread over the whole of the house and premises, and it had been ascertained by medical men that the noxiousness of its vapours was injurious to health.  Mr. W. contended that more than nominal damages should be given in this action, from the malicious motives which had influenced the mind of the defendant; Mr. Oliver was not desirous to injure his neighbour, and disliked litigation: it was on account of his family, and having been so continually annoyed, that he brought this action.  Mr. Oliver's solicitor had repeatedly written to defendant concerning the nuisance complained of.  The plaintiff by means of his conduct had sustained considerable injury, greatly annoying both himself and family, and this for a considerable time, while the defendant had been realizing by these means considerable profit.

Mr. Joseph Wyatt sworn - I know these parties; they are neighbours dwelling under the same roof, but the houses are separated by a gateway; it is in Pitt-street, and there is a yard in the rear; Mr. Oliver is a linen draper and haberdasher; I am the landlord; Oliver and Smart took the business at the first; at that time my brother used to be next door; when Oliver and Smart took it, there was no melting of fat, or anything noxious; Mr. Hughes came long subsequent to Mr. Oliver.

Cross-examined by the Attorney-General - Mr. Hughes has had the property about 18 months; the premises are extensive, in depth about 160 feet, running as far back as the Tank stream; I live at present in Castlereagh-street; up to October, 1838, I receive the benefit of being landlord; I have the house from MR. Samuel Terry for seven years; I take the rent from Mr. Oliver at the present time; I am not prevented from going into the  shop to collect rent by reason of any unpleasantness in the smell; I lived there when there was another party next door, but I fenced him off.

The Attorney-General - You could not fence a smell off, -- eh?  (Laughter.)

Mr. Thomas Ware Smart sworn - I was in partnership with Mr. Oliver.

The Attorney-General - Mr. Wyatt says he gave you and Mr. Oliver possession.  If anything occurred to Mr. Oliver now, would it affect you?  No.

Examined continued - I sleep at my own house in George-street, but have my meals in Pitt-street; I have paid rent in conjunction with Mr. Oliver; I gave up possession by leaving.

Cross-examined by Mr. Foster - I was in partnership with Mr. Oliver; I know the premises of Mr. Hughes; I know that Mr. Oliver resides there a considerable time before Mr. Hughes came; Mr. Oliver's principal trade is from the custom of ladies; Mr. H. erected a building near Mr. O's yard; it was in the rear of Mr. H's premises, and not near the tanks; the building has windows; they open right on Mr. O's premises, and are shut in to other people's houses.

By His Honor - The windows are towards Mr. O's yard, and shut in elsewhere.

Cross-examination continued - Mr. H. appropriated this building to candle making; after this I was at Mr. Oliver's premises, and took my meals there, and found the smell very oppressive at times; I could not sit down without shutting doors and windows; the smell was very annoying; as an inmate of Mr. O's family, I can say that it has had the effect of preventing me from taking my dinner; I should have been ill if I had continued there long; I never felt any nuisance before the candle making took place; I can speak positively that the nuisance arose from the raw fat, which I have seen going in; it was brought in a cart, from 150lbs. to 200lbs at a time; I have seen it come there in a very filthy and bad condition; I have seen the process of candle making going on, from 6 to 10 cwt. a week; the smell was more disgusting in the summer months, than the winter; the process would have compelled me to quit at any loss; I would not give half the rent with the candle process going on; I think that ladies would leave the shop; custom was lost on this account; the property of Mr. O. is worth about £10,000 that is on the premises, principally in the ladies trade; I have known the candle process to be going on at night time; I spoke to the brother of plaintiff to have the nuisance removed, but the nuisance still remained, but certainly not so bad; the smell was extremely offensive and in the winter months; I would not live in the house with the nuisance attached to it.

Cross-examined by the Attorney General - In summer months it was most offensive; I have seen quantities of fat in a putrid state; I heard ladies complain several times and leave the shop; Mr. Oliver is in an extensive way of business, and has good connection; I never measured the distance of the building from the house; the smell was very great, and I am quite certain that the smell came from the boiler and prevented my eating my dinner; since January last I occasionally smelt it unpleasant; there is no opening whatever to Mrs. Inch's premises; a greater facility arises from the effuvia to spread into Liver's than Inch's premises.

Thomas Fuller examined by Mr. Windeyer - I am a tailor; I live in George-street; I have worked for Mr. Oliver since January last; Did you recollect next door their beginning to make candles? yes. - Well did you like it? it was not very pleasant; I did not enjoy it; did you do anything to prevent the smell? yes - I went and bought some snuff, that was when it first commenced.  His Honor suggested to ask where the smell came from.  Mr. Hughes's premises, from candle making; are you a suuf taker? lately.

Richard Hordorn examined by Mr. Foster - Do you recollect the candle making commencing? yes - and smelt a very unpleasant smell; I closed the doors on account of it; I have been rendered uncomfortable by it; I did not close the windows; I have heard people in the house complaining of the smell; I have heard customers making observations in the shop about the smell; I should say that he smell arose from candle making; I was there in October 1836, and the smell has been there ever since; I have not smelt it so bad lately, as in summer months.

Mr. Foster - Asked witness whether he could have any doubt of the smell arising from anything else but candle making - None whatever.

Mr. Kenyon sworn - examined by Mr. Windeyer - I am brother in law of the plaintiff; I know of the candle making going on; I have sometimes felt it extremely offensive.

His Honor - Did it ever deprive you of your appetite? - Yes; I have been obliged to leave the house on that account; it arose from melted fat; it rendered my stay in the house very uncomfortable.

Cross-examined by the Attorney General - I lived in the house; and have put the bed room window down in consequence of a bad smell; it is annoying to close the doors and windows to exclude the smell. - Have you any scents in the shop: such as Lavender water, Eau de Cologne, Otto of roses, &c. ? - Yes, for sale. - The smell did not affect your appetite, I suppose. - Yes.

Mr. Tawell examined by Mr. Foster. - I am a surgeon; I know the plaintiff; he was in an infirm state of health; I attended him in a professional capacity; I attended him about three months this year; I perceived an unpleasant smell in the house; it arose from raw fat in a state of putresence - have repeatedly experienced the same smell; I conceive the melting of the fat would be more offensive than the fat in its rough state; decidedly no one could live there without being uncomfortable; the smell was prejudicial to Mr. Oliver's health; as a medical gentleman I ascribe his ill health to it.

Cross-examined by the Attorney General - Nausea and headache would arise from the smell; I believe the fat to have been in a course of rendering, and that the smell originated from it; I have reason to [believe] the smell arose from decomposed animal matter.  I felt in every part of the house bad smell, except I the room occupied by Mr. Kenyon; the front windows open to the street; they were in general open; it was exceedingly unpleasant; an anatomical room might be compared to the smell complained of.

By Mr. Foster - Pitt-street is one of the principal streets in Sydney. 

By His Honor - Was Mr. O.'s illness occasioned by the stench? -- It was increased by it.

By the Attorney General - What was Mr. O.'s complaint? - Liver disease, and indigestion; the stench would have the power to make him worse; it would occasion loss of appetite and headache; and cause a general injury to the health.

Mr. Foster then addressed His Honor and said that there were three letters some from plaintiff to defendant relative to this nuisance.

This ended the evidence on behalf of the plaintiff.

The Attorney-General then addressed the Court on behalf of his client, wherein he stated that the plaintiff and his witnesses had put too high a coloring on the matter altogether; that the making of the candles was no nuisance, but the defendant's lawful trade; citing other cases in regard thereto, from Lord Tenterden, &c.  The learned gentlemen contended that there was no grounds for action, for if a verdict was given against his client it would be establishing a precedent dangerous in the extreme; this was only a common inconvenience, and he could instance fifty more of a worse character in Sydney.

Mr. Foster replied at great length.

Mr. Jilks, Chief Constable, and William Lloyd were produced for the defence. - Their evidence went directly to shew that there was no nuisance either of a public or private nature; it was all in a fair way of trade.

His Honor summed up, and left it to the Assessors, who returned a verdict for the plaintiff.  Damages 1s. with costs.