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25 G. 2. c. 36. indictment shall be heard, tried, and finally determined at the

same general or quarter session or assizes where such indictment
shall have been preferred, (unless the court shall think proper,
upon cause shewn, to adjourn the same,) any such writ or allow.

ance thereof notwithstanding.”
58 G. 3. c. 70. By 58 G. 3. c. 70. § 7., “ A copy of the notice which shall be
Notices given to such constable shall also be served on or left at the
directed by

places of abode of the overseers of the poor of such parish or 25 G. 2. c. 36. to be given to

place, or one of them, and such overseers or overseer of the poor constables in

shall be summoned or have reasonable notice to attend before
certain cases, to such justice of the peace before whom such constable shall have
be given also to notice to attend; and if such overseers or overseer of the poor
the overseers of shall then and there enter into such recognizance to prosecute
the poor, who
are to prose-

such offender as the constable is in and by the said act required
to enter into, then it shall not be necessary for, nor shall such
constable be required to enter into such recognizance; but if
such overseers or overseer of the poor shall neglect to attend
such justice on having such notice, or shall attend and shall decline
or refuse to enter into such recognizance to prosecute, then such
constable shall enter into the same, and shall prosecute, and shall
be entitled to his expenses, to be allowed as in and by the said act

is directed.” Crown not

But § 10. of 25 G. 2. c. 36. does not restrain the crown from bound as to the

removing an indictment by certiorari, as nothing appears to shew certiorari.

that the statute intended to bind the crown. R. v. Davies and

others, 5 T. R. 626. Different de.. More than one defendant may be included in the same indict. fendants in

ment for keeping a disorderly house, stating, that they “severally" same indict

kept such houses, 2 Hale 174.; and it has been held, that several
ment for several

different defendants being charged in different counts of an indict.
ment for offences of the same nature, it is not an objection on
demurrer, though it may be a ground for applying to the discretion
of the court to quash the indictment. R. v. Kingston and others,

8 E. R. 41. 1 Russ. 301.
Averments It seems necessary to state where the house is situate, and the
in indictment. time of the disorder; but it is not necessary to prove who fre-

quents the house ; for if it is proved that unknown persons are
behaving disorderly there, it is sufficient. Per Buller J. Janson

v. Stuart, 1 T. R. 754. 1 Russ. 302. Acc.

The indictment need not allege particular facts; but the charge being general, particular facts may be given in evidence. Per

Lord Hardwick. Clarke v. Periani, 2 Atk. 339. Stopping a

Stopping a prospect is not a common nuisance. 2 Salk. 247. prospect;

Building a house in a larger manner than it was before, so that the street became dark, is not any public nuisance by

the darkening. R. v. Webb, 1 Ld. Ray. 737.
or lights. So, erecting a shed so near a man's house that it stops up his

lights, is not a nuisance for which an action will lie; unless the
house is an ancient house, and the lights ancient lights. 2 Salk.

An action for a So, if two men be owners of two parcels of land adjoining,
nuisance does

and one of them doth build an house upon his land, and makes not lie for stop windows and lights looking into the other's land, and this house lights, though and the lights have continued by the space of thirty or forty they have con- years ; yet the other may, upon his own land and soil, lawfully

reason of

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erect a house or other thing against the said lights and windows, tinued for forty and the other can have no action ; for it was his folly to build his years. house so near to the other's land. But if the former had continued from time immemorial, it is otherwise. Bury v. Pope, Cro. Eliz. 118.

All injuries whatsoever to a public highway, as digging a ditch, Injuries to or making a hedge across it, or laying logs of timber in it, or highways. doing any other act which will make it less commodious, are public nuisances at common law. 1 Haw. P. C. c. 76. § 144. 1 Russ. 317.

Where, by a local road act (3 G. 4. c. cxii.), no building was to Building near be erected or continued within ten feet of the road, and any such a road, a building was to be deemed a common nuisance, and by another nuisance under

a local road act. section power was given to two justices to convict, and also to remove the buildings, the case was, that a wall having stood Distinction adjoining the road, it was pulled down, and a shop erected, not between buildhigher than the wall, which was connected with a house that ing and wall. stood farther back. On indictment and special case, it was held by Indictment K. B. that this was a building within the meaning of the act, and lies for a that there was a distinction between a building and a wall : they there be another also held that, though the act gave a summary remedy, yet, as it de

remedy. clared such building to be a public nuisance, an indictment would lie. R. v. Gregory, 5 B. f Ad. 555.

It is also a nuisance to suffer the highway to be incommoded Ditches, trees, by reason of the foulness of the adjoining ditches, or by boughs overhanging. of trees hanging over it, &c.

And an occupier of a house standing on the highway, though Ruinous house. tenant at will only, is indictable for suffering it to be so ruinous as to be dangerous to passengers. 3 Bac. Ab. Highways (E). I Haw. P. C. c. 76. $ 5. 8. 147. 1 Russ. 317.

It is said the owner of land next adjoining the highway is bound Scouring of right to scour his ditches ; but that the owner of land next ditches. adjoining such land is not so bound, except by prescription; so Lopping trees. that the owner of trees overhanging the highway is bound at common law to lop them; and that any other person may do it, so as to remove the nuisance. 1 Haw. ib. 1 Russ. ib.

Laying logs in a highway will be still a nuisance, though so laid Logs in highthat by winding and turning people may still pass. 1 Haw. P. C. way. c. 76. § 145. 1 Russ. 319.

It is a nuisance if a carrier carries an unusual weight with an Unusual unusual number of horses. 3 Com. Dig. Chemin (A. 3.) i Russ.318. weight with

horses by carAnd it was held not necessary to state the number of horses. R. v. Egenby, 3 Salk. 183.

A gate erected in a highway where none had been before, is a Erecting a common nuisance. 1 Haw. c. 75. § 9.

gate; So, erecting a wall across a highway. 8 T. R. 142.

It appears to have been holden, that an indictment will not lie Every unauthofor setting a person on the footway in a street to distribute hand- rised obstrucbills, whereby the footway was impeded and obstructed; nor for tion of a biglithrowing down skins into a public way, by which a personal injury annoyance of is accidentally occasioned, R. v. Gill, 1 Str. 190.; but acts of this the king's subkind, if improperly performed, might possibly be deemed nui- jects, is an insances; as it seems now to be well established that every unau- dictable offence. thorised obstruction of a highway, to the annoyance of the king's subjects, is an indictable offence. R. v. Cross, 3 Camp. 227. Thus where a waggoner occupied one side of a public street in the city


plying for


of Exeter, before his warehouses, in loading and unloading his

waggons, for several hours at a time, both day and night, and had Waggons

one waggon, at least, usually standing before his warehouses, so loading and

that no carriage could pass on that side of the street, and someunloading.

times even foot passengers were incommoded by cumbrous goods lying on the ground on the same side, ready for loading, he was held to be indictable for a public nuisance; although it appeared that sufficient space was left for two carriages to have passed on the opposite side of the street. R. v. Russell, 6 East, 427. Upon the same principle it has been held to be an indictable offence for

stage coaches to stand plying for passengers in the public streets ; Coaches and Lord Ellenborough C.J. said, a stage coach may set down

or take up passengers in the street, this being necessary for public passengers.

convenience, but it must be done in a reasonable time; and private premises must be procured for the coach to stop in during the interval between the end of one journey and the commencement of another.” R. v. Cross, 3 Campb. 224. In the same case

his lordship intimated, that there would be no doubt but that if Carriages at a coaches, on the occasion of a rout, should wait an unreasonable rout.

length of time in a public street, and obstruct the transit of his majesty's subjects wishing to pass through it in carriages or on foot, the persons who might cause and permit such coaches so to

wait would be guilty of a nuisance. See 1 Russ. 463. Obstruction From R. v. Jones, 3 Camp. 230., it appears also that an obstruefor purposes of tion to a public highway will not be excused, on the plea of its

being necessary for the carrying on of the party's business, though such obstruction be only occasional. It was proved that the defendant, who was a timber merchant, occupied a small timber yard close to a street, and that from the narrowness of the street, and the construction of his own premises, he had, in several instances, necessarily deposited long sticks of timber in the street, and had them sawed into shorter pieces there before they could be carried into his yard : and it was contended on his behalf, that he had a right to do so, as it was necessary to the carrying on of his business; and that it could not occasion more inconvenience to the public than draymen taking hogsheads of beer from their drays and letting them down into the cellar of a publican. But Lord Ellenborough C. J. said, “ If an unreasonable time is occupied in the operation

of delivering beer from a brewer's dray into the cellar of a publican, this is certainly a nuisance. A cart or waggon may be unloaded at a gateway; but this must be done with promptness. So as to the repairing of a house; the public must submit to the inconvenience occasioned necessarily in repairing the house ; but if this inconvenience is prolonged for an unreasonable time, the public have a right to complain, and the party may be indicted for a nuisance. The rule of law

this subject is much neglected, and great advantages would arise from a strict and steady application of it. I cannot bring myself to doubt of the guilt of the present defendant. He is not to eke out the inconvenience of his own premises by taking in the public highway into his timber yard; and if the street be narrow, he must remove to a more commodious situation for carrying on his

business.” Want of care In an action on the case for obstructing a highway, by in person in. of which the plaintiff was thrown from his horse and injured, &c.,



R. v.

it appeared that the plaintiff was riding through the streets as jured by the fast as his horse could go, and that if he had used ordinary care obstruction. he must have seen the obstruction. The verdict was for the defendant; and upon application for a rule to shew cause why there should not be a new trial, it was refused, and Ld. Ellenborough C.J. said, that two things must concur to support this action : an obstruction in the road by the fault of the defendant, and no want of ordinary care to avoid it on the part of the plaintiff. Butterfield v. Forrester, 11 East, 60.

A river common to all men is considered a highway, and any Navigable obstruction which impedes the free use of it is an indictable nui- river. sance. 1 Hawk. P. C. c. 76. § 1. 1 Russ. 339.

Upon the trial of an indictment for a nuisance in a navigable Passage of a river, by erecting staiths there for loading ships with coals, the river narrowed jury were directed by the learned judge to acquit the defendants, by a staith, but if they thought that the abridgement of the right of passage the public conoccasioned by these erections was for a public purpose, and pro- creased. duced a public benefit, and if the erections were in a reasonable situation, and a reasonable space was left for the passage of vessels on the river; and be pointed out to the jury that, by means of the staiths, coals were supplied at a cheaper rate, and in better condition, than they otherwise could be, which was a public benefit. It was held, by Bayley and Holroyd Js., that this direction to the jury was proper, Lord Tenterden C. J. diss. Russell, 6 B. &C. 566. "See also R. v. Pease, 4 B. & Adol. 30.

The public are not entitled, at common law, to tow on the banks Towing. of ancient navigable rivers. Ball v. Herbert, 3 T. R. 253.

If a river changes its course, the highway continues in the new Change of channel. 1 Hawk. P. C. c. 76. § 4. 1 Russ. 340.

It has been held, that the soil of a public navigable river, primd Soil of navigfacie, though not necessarily, belongs to the king, and is not, by able river. presumption of law, in the owners of the adjoining lands. R. v. Smith, Dougl. 441. 1 Russ. 340.

It is a nuisance to divert part of a river, so as to make the cur. Diverting rent less navigable. 1 Hawk. P. C. c. 75. § 11. 1 Russ. ib.

So, laying timber in a river, if it obstruct the passage of vessels, Laying logs. though it be the party's own soil. 3 Bac. Abr. Nuis. (X.) 1 Russ. ib.

So, placing a floating dock in a river, though useful for repairing A dock. vessels. 1 Hawk. ib. (n.) 1 Russ. ib.

So, bringing a large ship into a common dock, used for small Acc. vessels only coming to London market. 5 Bac. Abr. Nuis. (A.) 1 Russ. ib.

Weirs erected across rivers are treated as a nuisance by Magna Weirs. Charta and subsequent statutes. Per Lord Ellenborough, Wild v. Hornby, 7 East, 198. 1 Russ. ib.

Held, that the conversion of a brushwood weir into a stone Obstruction weir could not be supported by shewing that two thirds of it had after time has so been converted above forty years. Wild v. Hornby, 7 East, 195. elapsed.

And so, that an obstruction to the navigation, by keeping the Acc. water to a certain level for twenty years, did not give a right to do so. Vooght v. Winch, 2 B. & A.662.

Where an embankment had been made across a bay of the sea for Acc. forty years, it was considered, that if there had been a public right of fishing there prior to the forty years, such public right would not have been lost. Chad v. Tilsed, 5 Moore, 185. 1 Russ. 341.



to clear it.

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Obstruction by

Where a vessel has been sunk, by misfortune, in a navigable vessel being river, the owner is not indictable for not removing the nuisance to sunk.

the navigation. R. v. Watts, 2 Esp. R. 675. 1 Russ. ib. River clogged, If a navigable river be stopped, and none bound by prescription and none bound to clear it, it is said those who have the piscary, and neighbouring by prescription towns enjoying the easement of passage, may be compelled to do

1 Hawk. P. C. c. 75. § 13. 1 Russ. 342. Public bridges, All public bridges in a highway are considered as the highway nuisances in. itself, and all obstructions to such bridges are indictable nui

sances, as is before stated in regard to nuisances in highways.

1 Russ. 343. cit. 12 East, 202, 203. Ruinous house Defendant was indicted for not repairing a ruinous house, adadjoining to joining to a bridge, charging that he was bound to repair it ratione bridge. tenure. It was found, by a special verdict, that he was only tenant

at will; but the court held, that he ought to repair, lest the public should suffer; and though not properly chargeable ratione tenuræ, yet the averment should be intended of the possession, and not of

the service. Reg: v. Watson, 2 Ld. R. 856. An useless A bridge built in a public way without public utility is indict. bridge. able as a nuisance; and so if it be built colourably, in an imper.

fect or inconvenient manner, with a view to throw the burthen of rebuilding or repairing it immediately on the county. 2 East, 342.

Vide per Grose J. 351.; and see 43 G. 3. c. 59. Offensive busi- It seems that an indictment will not lie for setting up a noxious ness in a place manufactory in a neighbourhood where other offensive trades have where other

been long borne with, unless the inconvenience to the public be offensive ones are carried on.

greatly increased. R. v. B. Neville, Peake, 91. 1 Russ. 297. acc.

R. v. Watts, Mood. & M. 281. Noxious trade Nor for continuing a noxious trade which has been carried on long carried on. at the same place for nearly fifty years. R. v. S. Neville, Peake,

93. 1 Russ. ib. Generally, no

The general principle, however, is, that no length of time will time will legal- legalise a public nuisance. Wild v. Hornby, clk., 7 East, 195., ise a nuisance.

per Ld. Ellenborough, 69. R. v. Cross, 3 Campb. 227. Coupland

v. Hardingham, ib. 398. Noxious trade, But where a noxious trade is set up in a remote situation, and originally in a afterwards houses and roads are made near it, it will not be the tion.

subject of indictment, for it is the voluntary act of such as come

to settle in the neighbourhood. R. v. Cross, 2 C. & P. 483. Powder-mills, Erecting gunpowder mills or keeping gunpowder magazines

near a town, is a nuisance at common law. i Russ. 297. and n. (c). Dangerous ar- So, putting on board a ship articles of a combustible and dan. ticles put on

gerous nature, without giving due notice of the contents, will be board ship. à misdemeanor. 1 Russ. 298., and see Williams v. East India

Company, 3 East, 192. 201.

See further as to nuisance, tit. Lewdness. Brewhouse, It hath been holden, that it is no common nuisance to make glasshouse,

yard candles in a town, because the needfulness of them shall dishog-chandler's shop.

pense with the noisomeness of the smell ; but the reasonableness of this opinion seems justly to be questionable, because, whatever necessity there may be that candles be made, it cannot be pretended to be necessary to make them in a town; and surely the trade of a brewer is as necessary as that of a chandler ;

and seems to be agreed, that a brewhouse erected in such an inconvenient place wherein the business cannot be carried on without

remote situa


yet it

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