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79
structural work was concerned, whether it was mechanical
stoking or not, which would have prevented the recurrence of
the nuisance. So far as we know the emission of smoke was
caused by bad stoking. All I say is that there is no evidence
on which the Magistrate must find, or ought to have found,
that there had been a failure to comply with the notice. The
black smoke did not appear again for about four months,
but on some occasions in the month of March, and definitely
in the month of April, there was black smoke issuing. Then
the summons of May 2nd was taken out—it is a little more
than six months, but it does not matter—alleging that the
Respondents had made default in complying with the terms
of the statutory notice. Now I am not going to say that under
no circumstances could evidence have been brought before
the Magistrate to show that there had been a default in complying
with the notice, but the Magistrate had before him,
so far as this case was concerned, nothing except that black
smoke had come out on some occasions in March, and had
definitely come out on a date in April, and that was what was
said to be evidence of a default in complying with the terms
of the statutory notice. I do not base my view upon the fact
that there is another remedy, it may be more cumbrous, it may
be more expensive, and it may give the Defendants the power
to commit a nuisance once or twice without being fined for it,
I do not know how that is, that is a question of law; but it
seems to me that all we have to say is whether the Magistrate
was right when he came to the conclusion, as he really did,
that the respondents had not made default in complying with
the requirements of the notice. Now is that a finding justified
by the facts stated. In my opinion it is. Mr. Turner has
suggested that the real finding is somewhat obscured by the
use of the word 'recrudescence.' Honestly I do not know
what a 'recrudescence' of a smoke nuisance is except another
occasion of black smoke coming out. To call it 'recrudescence'
is not to connect it with the previous black smoke
coming out. If, as I said, the black smoke came out because