*942]

*The QUEEN v. RUSSELL. June 10.

Where a prosecution, though criminal in form, is in substance merely a proceeding for trying a civil right, the Court, after an acquittal, will grant a new trial for misdirection or a verdict contrary to the evidence, and will not restrain itself to correcting the miscarriage by merely suspending the judgment.

Quære, whether an indictment for obstructing a navigation by erecting a wall be within this rule? Per Lord Campbell, C. J., and semble per Crompton, J., it is not.

Per Coleridge, J., semble that it is; but that in cases within the rule the misdirection or finding against evidence must, to justify granting a new trial, be more palpable than is requisite in proceedings which are civil in form.

The Judge, on the trial of such an indictment, asked the jury whether they thought the erection would prove "a material nuisance," in which case they were to find a verdict of Guilty; but told them that, if they thought the "nuisance" was so slight, rare, and uncertain that the defendant ought not to be made criminally liable for it, they should acquit him: and the jury saying that they considered the erection, "although a nuisance, was not sufficiently so to render the defendant criminally liable," he directed an acquittal. On motion for a new trial for misdirection:

Held, by Coleridge and Crompton, Js., and semble per Lord Campbell, C. J., that the charge was to be understood as meaning, not that a party may legally commit a small nuisance, but that an obstruction might be so insignificant as not to constitute a nuisance; and that the jury must be understood as finding that the obstruction in question was so insignificant. And that therefore there was not a misdirection warranting a new trial.

THE indictment charged that, from time whereof, &c., there was and is a parcel of land covered with water, situate, &c., used by all the liege subjects, &c., with their ships and other sailing vessels, steam vessels and boats, to go, return, pass, repass, labour, stay, and anchor, at their free will and pleasure, without any obstruction, hindrance, or impediment and that there is, upon the said land, a large bank of sand and earth, situate, &c., which at times is covered with water, and over which the said liege subjects are then accustomed, with their ships, vessels, and boats aforesaid, to go, pass, and repass, as aforesaid: and, from time whereof, &c., the said liege subjects have been used and accustomed, and still, &c., to anchor their said ships, vessels, and boats to and into the said bank, without any let, hindrance, or obstruction whatsoever. That defendant, well knowing the premises, *but *943] intending and contriving to impede and hinder the said liege subjects from going, returning, passing, and repassing, staying and anchoring, in, over, and upon the said land so covered with water as aforesaid, and in, over, and upon the said bank when covered with water as aforesaid, did, on, &c., at, &c., unlawfully and injuriously erect, put, and place on and across the said bank, and over and across the said land so covered with water as aforesaid, a certain stone wall of great length and height, to wit, of the length of two hundred yards and of the height of three feet, and did there and then, unlawfully and injuriously, put and place divers, to wit, twenty, heaps of large stones in and upon the said bank and the said land so covered with water; and the said stone wall so erected, put, and placed, and the said heaps of stone so put and placed, from the said, &c., until the day of the taking of this inquisition, did there unlawfully and injuriously continue, and still doth con

tinue; so that the liege subjects, &c., during the time aforesaid, could not, and still cannot, go, &c., with their ships, &c., in and over the said land so covered with water, and in and over the said bank when covered with water as aforesaid, as they ought and were wont and accustomed to do. To the great damage and common nuisance of Her Majesty's liege subjects going, returning, &c., in, over, and along the said land so covered with water, and the bank aforesaid; to the evil example, &c., and against the peace, &c.

On the trial, before Williams, J., at the last Assizes for Carnarvon. shire, it appeared that the defendant had in fact erected a wall or embankment on the place described; but a question arose, whether, upon the evidence, it appeared that what had been done produced an [*944 inconvenience sufficiently important to render him criminally liable; and Rex v. Tindall, 6 A. & E. 143 (E. C. L. R. vol. 33), was cited for the defendant. The learned Judge asked the jury, whether they thought the embankment would prove a material nuisance, directing them, in that case, to find a verdict of Guilty; adding that, if they thought the nuisance was so slight, rare, and uncertain that the defendant ought not to be made criminally liable for it, they should acquit him. The jury said that they considered that the embankment, although a nuisance, was not sufficiently so to render the defendant criminally liable. The learned Judge then directed a verdict of Not guilty.

In last Easter Term, G. O. Morgan obtained a rule Nisi for a new trial, on the grounds of misdirection and that the verdict was against the weight of evidence.

Welsby and M Intyre showed cause.(a)—First, as the defendant has a verdict in a criminal case, a new trial for misdirection cannot be granted. [Lord CAMPBELL, C. J.-A roundabout practice used to prevail, of staying judgment where it was considered that there had been misdirection. But is not the direct mode the more convenient one?] The authorities appear not to support the adoption of such a mode. In Regina v. Chorley, 12 Q. B. 515 (E. C. L. R. vol. 64), the rule was made absolute for a new trial: but that was not the form of the rule Nisi: and it rather appears that the rule absolute was drawn up inadvertently. In *Regina v. Leigh, 10 A. & E. 398 (E. C. L. R. [*945 vol. 37),(6) a new trial was granted after a verdict for the defendants but the question was scarcely discussed. [Lord CAMPBELL, C. J.-The direct mode at least appears to be the best when the question is substantially as to a civil right.] At any rate, the new trial will not be granted on the question of the weight of evidence: that distinction has

(a) The earlier part of the argument was heard on Thursday, June 8th, before Lord Campbell, C. J., Coleridge and Crompton, Js.

(b) See p. 406.

been pointed out in the case of penal actions by Lord Kenyon; Wilson v. Rastall, 4 T. R. 753, 758, Calcraft v. Gibbs, 5 T. R. 19, 20. [Joseph Brown, amicus Curiæ, mentioned Hall v. Green, 9 Exch. 247.† COLERIDGE, J.-A penal action may have been thought odious.] In Rex v. Sutton, 5 B. & Ad. 52 (E. C. L. R. vol. 27), the Court acted on the precedent of Rex v. Wandsworth, 1 B. & Ald. 63, by suspending the judgment, and refused to make a precedent for granting a new trial after an acquittal. Rex v. Russell, 6 B. & C. 566 (E. C. L. R. vol. 13), was there cited: but in that case the objection that a new trial could not be granted for misdirection was not taken. Regina v. Chorley, 12 Q. B. 515 (E. C. L. R. vol. 64), was a case of improper reception of evidence and misdirection. [Lord CAMPBELL, C. J.-You may perhaps be justified in contending that this indictment may really charge an offence, and that the verdict will not bind any right.]

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Secondly, there was no misdirection. The learned Judge, in effect, and almost in words, left the case to the jury in conformity with the language of the judgment in Rex v. Tindall, 6 A. & E. 143, 152 (E. C. L. R. vol. 33), where, upon a special verdict finding that, by the defendant's works, the harbour is in some extreme cases rendered less secure," this Court held that no person can be made criminally responsible for *consequences so slight, and uncertain, and rare, *946] as are stated by this verdict to result from the works of the defendants," and ordered a verdict of Not guilty to be entered. In Hale De Portibus, ch. 7 (Hargrave's Collection of Tracts, p. 85), it is said: "It is not therefore every building below the high-water mark, nor every building below the low-water mark, is ipso facto in law a nuisance. For that would destroy all the keys that are in all the ports of England. For they are all built below the high-water mark; for otherwise vessels could not come at them to unlade; and some are built below the low-water mark. And it would be impossible for the King to license the building of a new wharf or key, whereof there are a thousand instances, if ipso facto it were a common nuisance, because it straitens the port, for the King cannot license a common nuisance. Nay, in many cases it is an advantage to a port to keep in the sea-water from diffusing at large; and the water may flow in shallows, where it is impossible for vessels to ride. Indeed, where the soil is the King's, the building below the high-water mark is a purpresture, an encroachment and intrusion upon the King's soil, which he may either demolish or seize, or arent at his pleasure; but it is not ipso facto a common nuisance, unless indeed it be a damage to the port and navigation. In the case therefore of building within the extent of a port in or near the water, whether it be a nuisance or not is quæstio facti, and to be determined by a jury upon evidence, and not quæstio juris." This supports the direction, which is also in conformity with Regina v. Betts, 16 Q

B. 1022 (E. C. L. R. vol. 71). (a) The question here was, whether there was a material obstruction; and in that sense only can the jury *have understood the words of the learned Judge when he spoke [*947 of a "nuisance." They cannot have supposed that, if the facts showed what amounted really to a nuisance, commune nocumentum, the defendant was to be acquitted. "It would," to use the words of Lord Tenterden, in Rex v. Russell, 6 B. & C. 566, 603 (E. C. L. R. vol. 13), "be a very ill compliment to juries to suppose that they are likely to be misled by such accidental expressions." And the jury, when they found that the embankment was a "nuisance," but not so sufficiently to render the defendant criminally liable, must have meant what, in more strict language, would be expressed by saying that there was an obstruction, but not one sufficient to amount to a nuisance.

Thirdly, the verdict was justified by the evidence. (The argument as to this is omitted.)

G. O. Morgan, contrà.-This prosecution is in the nature of a proceeding for enforcing a civil right. [Lord CAMPBELL, C. J.-Do you say that, if a man were indicted for keeping up an offensive manufactory, we could set aside a verdict of Not guilty on the ground of its being contrary to the evidence?] The nearest analogy appears to be that of an indictment for non-repair of a high road. [Lord CAMPBELL, C. J.-That is very much in the nature of a question as to a civil right: the fine imposed is usually nominal: but can we know that here the conduct of the defendant, if he had been found Guilty, might not have been such as to demand substantial punishment?] The Court, in Regina v. Cricklade, (b) made *absolute a rule for a new trial, after [*948 a verdict of Not guilty; Lord Denman, C. J., saying, that a precedent had been established in Regina v. Chorley, 12 Q. B. 515 (E. C. L. R. vol. 71). [CROMPTON, J.-In Regina v. Chorley there was no question as to any substantive offence; it was a contest between the right of the public and the right of an individual to a footway.] The Court seems to have considered Regina v. Cricklade (b) to be a criminal case that was an indictment for non-repair of a road.

There is a clear misdirection. In Rex v. Tindall, 6 A. & E. 143 (E. (a) See Regina v. Charlesworth, 16 Q. B. 1012.

(b) The Queen v. The Inhabitants of Cricklade, St. Sampson, January 12, 1849. This was an indictment of the inhabitants of a parish for non-repair of a highway, charged as a public carriageway and as a horse and pack and prime way: to which defendants pleaded Not guilty: and, on the trial (before Platt, B., Wiltshire Spr. Ass. 1848), a verdict of Not guilty was found. In Easter Term following, Crowder obtained a rule Nisi for a new trial on the ground of misdirection, and that the verdict was against the weight of evidence. J. Greenwood and Hodges now showed cause, contending that a new trial could not be granted after a verdict for defendants in a criminal case; at any rate, not on these grounds. Crowder was heard in support of the rule. Some of the authorities in the text were referred to. The Court (Lord Denman, C. J., Patteson, Coleridge, and Wightman, Js.) made the rule absolute as to the counts charging a horse and pack and prime way, Lord Denman, C. J, saying that a precedent had been established in Regina v. Chorley, 12 Q. B. 515: that some judgment must be given; and that the Court would not give a judgment which it saw to be wrong. For the proceedings on the second trial, see Regina v. Cricklade, 14 Q. B. 735.

C. L. R. vol. 33), it was not found that there was a nuisance, or even an obstruction: the case decides merely that there may be acts producing results so slight as not to amount to a nuisance. But here the Judge asked the jury if the facts showed a material nuisance, and told them to acquit the defendant if they thought the nuisance so slight that he ought not to be made criminally liable for it. But, if there was a nuisance at all, the defendant should have been found Guilty: there cannot be a nuisance so slight *as that the party committing it *949] is not to be held criminally liable, though there may be an obstruction so slight as not to create a nuisance. It was once thought that, when there was a public nuisance, though producing a private injury, no action lay; Hubert v. Groves, 1 Esp. N. P. C. 148. The law, however, is now held to be otherwise. (a) There actual damage to the individual must be shown ;(6) but, in the case of a public indictment, a nuisance may be proved to exist without proof that any one has actually been annoyed. Rex v. Russell, 6 B. & C. 566 (E. C. L. R. vol. 13), which has been referred to, was overruled in Rex v. Ward, 4 A. & E. 384 (E. C. L. R. vol. 31); and in Regina v. Randall, Car. & M. 496 (E. C. L. R. vol. 41), Wightman, J., ruled accordingly. [Lord CAMPBELL, C. J.-Yes, as to the doctrine of disproving a nuisance by mere proof that, though public injury is produced, greater public benefit is produced.] Regina v. Betts, 16 Q. B. 1022 (E. C. L. R. vol. 71), is rather an authority against the defendant: the jury there found that there was no obstruction had they found any obstruction, the verdict, as appears from the language of the Judges, would have been entered for the Crown.

Lastly, the verdict was against the weight of evidence. (The argument as to this is omitted.)

Lord CAMPBELL, C. J.-I am of opinion that this rule should be discharged. I am not called on to give any positive opinion as to the direction probably it could not be said to be a misdirection, though I think the expression is not felicitous. Nor need I decide whether the verdict be contrary or according to the evidence. *The ground *950] of my decision is, that this is a criminal proceeding, and that the defendant ought not to be twice put in peril for the same cause. That rests upon a maxim of English law which will, I hope, always be held sacred. I, for my own part, reprobate the recent speculations as to the propriety of granting a new trial after acquittals for felony and murder. If there be an improper conviction, it should be set aside; but I hope the same practice will never prevail in the case of an acquittal. When an indictment is instituted purely to raise a question of civil right, I agree with the doctrine which I find established. When there is no serious charge of an offence, it has been customary to interfere by sus(a) See Chichester v. Lethbridge, Willes, 71.

(b) Dobson v. Blackmore, 9 Q. B. 991 (E. C. L. R. vol. 58) (see errata to that volume).