1854. V. RUSSELL. Regina v. Leigh (a) a new trial was granted after a verdict for the defendants: but the question was scarcely The QUEEN 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 been pointed out in the case of penal actions by Lord Kenyon; Wilson v. Rastall (b), Calcraft v. Gibbs (c). [Joseph Brown, amicus Curiæ, mentioned Hall v. Green (d). Coleridge J. A penal action may have been thought odious.] In Rex v. Sutton (e) the Court acted on the precedent of Rex v. Wandsworth (g) by suspending the judgment, and refused to make a precedent for granting a new trial after an acquittal. Rex v. Russell (h) 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 (i) 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.] Secondly, there was no misdirection. 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 (k), 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 (a) 10 A. & E. 398. See p. 406. (e) 5 B. & Ad. 52. (h) 6 B. & C. 566. VOL. III. The learned (b) 4 T. R. 753. 758. (g) 1 B. & Ald. 63. 1854. consequences so slight, and uncertain, and rare, as are The QUEEN stated by this verdict to result from the works of the v. RUSSELL. defendants," and ordered a verdict of Not guilty to be entered. In Hale De Portibus, ch. 7. (Hargrave's Collec tion 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 highwater 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 incroachment 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 (a). The question here was, whether there was a material obstruction; and in that sense only can the jury (a) 16 Q. B. 1022. Sce Regina v. Charlesworth, 16 Q. B. 1012. XVII. VICTORIA. 1854. V. RUSSELL. have understood the words of the learned Judge when he spoke of a "nuisance." They cannot have supposed The QUEEN that, if the facts shewed 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 (a), "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 (a) 6 B. & C. 566. 603. (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 carriage way and as a horse and pack 1854. V. RUSSELL. absolute a rule for a New trial, after a verdict of Not The QUEEN guilty; Lord Denman C. J. saying, that a precedent had been established in Regina v. Chorley (a). [Crompton J. In Regina v. Chorley (a) 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 (c) 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 shewed 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 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 shewed 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 judg. ment 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. (a) 12 Q. B. 515. (b) See note (b) ante, p. 947. (c) 6 A. & E. 143. as that the party committing it 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 (a). The law, however, is now held to be otherwise (b). There actual damage to the individual must be shewn (c); 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 (d), which has been referred to, was overruled in Rex v. Ward (e); and in Regina v. Randall (g) 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 (h) 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. (a) 1 Esp. N. P. C. 148. (b) See Chichester v. Lethbridge, Willes, 71. (c) Dobson v. Blackmore, 9 Q. B. 991 (see errata to that volume). (d) 6 B. & C. 566. (9) Car. & M. 496. (e) 4 A. & E. 384. (h) 16 Q. B. 1022. 1854. The QUEEN V. RUSSELL. |