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in no case justify a forcible entry or detainer against the disseisee having a right of entry, as it seems that he may against a stranger, or even against the disseisee having, by his laches, lost his right of entry. (y) Wherever such possession is pleaded in bar of a restitution, either in the King's Bench or before justices of the peace, no restitution ought to be awarded till the truth of the plea be tried; and such plea need not shew under what title, or of what estate, such possession was; because not the title, but the possession only, is material. (z) If the defendant tender a traverse of the force (which must be in writing), no restitution ought to be till such traverse be tried; in order to which the justice, before whom the indictment is found, ought to award a venire for a jury: but if such jury find so much of the indictment to be true as will warrant a restitution, it will be sufficient, though they find the other part of it to be false. (a) Where the defendant pleads three years' possession in stay of restitution, according to 31 Eliz. c. 11., and it is found against him, he must pay costs. (b)

tution.

The same justices who have awarded a restitution on an indict- Of supersedment of forcible entry, &c. or any two or one of them, may after- ing the restiwards supersede such restitution upon an insufficiency in the indictment appearing unto them: but no other justices or court whatsoever have such power, except the court of King's Bench; a certiorari from whence wholly closes the hands of the justices of peace, and avoids any restitution which is executed after its teste, but does not bring the justices into contempt without notice. (c)

The court of King's Bench has such a discretionary power over of setting these matters, from an equitable construction of the statutes, that aside the resif a restitution shall appear to have been illegally awarded or exe- titution. cuted, that court may set it aside, and grant a re-restitution to the defendant. But a defendant cannot in any case whatsoever, ex rigore juris,demand a restitution,either upon the quashing of the indictment, or a verdict found for him on a traverse thereof, &c.; for the power of granting a restitution is vested in the King's Bench only, by an equitable construction of the general words of the statutes, and is not expressly given by those statutes; and is never made use of by that court but when, upon consideration of the whole circumstances of the case, the defendant shall appear to have some right to the tenements, the possession whereof he lost by the restitution granted to the prosecutor. (d)

The court of King's Bench has been so favourable to one who, upon his traverse of an indictment upon these statutes being found for him, has appeared to have been unjustly put out of his possession, that they have awarded him a restitution, notwithstanding it has been shewn to the court that, since the restitution granted upon the indictment, a stranger has recovered the possession of the same land in the lord's court. (e)

(y) 3 Bac. Abr. Forcible Entry, &c. the statute, ante, 285. (G). 1 Hawk. c. 64. s. 54.

(2) 1 Hawk. c. 64. s. 56.

(a) 3 Bac. Abr. Forcible Entry, &c. (G). 1 Hawk. c. 64. s. 58, 59. Reg. v. Winter, 2 Salk. 588.

(b) Reg. v. Goodenough, 2 Lord Raym. 1036. And see the words of

(c) 3 Bac. Abr. Id. ibid. 1 Hawk. c. 64. s. 61, 62.

(d) 3 Bac. Abr. Id. ibid. 1 Hawk. c. 64. s. 63, 64, 65.

(c) 3 Bac. Abr. Id. ibid. 1 Hawk. c. 64. s. 66.

How restitu

tion shall be made.

The justices or justice may execute the writ of restitution in person, or may make their precept to the sheriff to do it. (ƒ) The sheriff, if need be, may raise the power of the county to assist him in the execution ef the precept; and therefore, if he make a return thereto that he could not make a restitution by reason of resistance, he shall be amerced. (g) And it is said, that a justice of peace or sheriff may break open a house to make restitution. (h) If possession under a writ of restitution is avoided immediately after execution by a fresh force, the party shall have a second writ of restitution without a new inquisition: but the second writ must be applied for within a reasonable time. (1) And where restitution is not ordered till three years after the inquisition, it is bad. (k)

(f) 1 Hawk. c. 64. s. 49.

(g) Id. ibid. sect. 52.

(h) 4 Com. Dig. Forcible Entry

(D 6.)

(i) Rex v. Harris, 1 Lord Raym. 482. (k) Rex v. Harris, 3 Salk. 313.

CHAPTER THE THIRTIETH.

OF NUISANCES.

vate.

NUISANCE, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience, or damage. And nuisances are of two kinds; public or common nuisances, which affect the public, and are an annoyance to all the King's subjects; and private nuisances, which may be defined as any thing done to the hurt or Nuisances are annoyance of the lands, tenements, or hereditaments of another. (a) public and priPrivate nuisances, as they are remedied only by civil proceedings, do not come within the scope of this Treatise: but public or common nuisances, as they annoy the whole community in general, and not merely some particular person, are properly punishable by indictment, and not the subject of action; for it would be unreasonable to multiply suits by giving every man a separate right for what damnifies him in common only with the rest of his fellow-subjects. (b) In treating of public or common nuisances, we may consider, I, of public nuisances in general; II, of nuisances to public highways; III, of nuisances to public rivers; and, IV, of nuisances to public bridges.

(a) 3 Blac. Com. 216. 2 Inst. 406. (b) 4 Blac. Com. 166. There are, however, circumstances mentioned in the books upon which a party has been admitted to have a private satisfaction by civil suit for that which is a public nuisance; namely, where he has sustained some extraordinary damage by it beyond the rest of the king's subjects. As if by means of a ditch dug across a public way, which is a common nuisance, a man or his horse suffer any injury by falling therein; there, for this particular damage, not common to others, it has been held, that the party may have his action. Co. Lit. 3 Blac. Com. 219. 56. 5 Rep. 73. And see also Fowler v. Sanders, Cro. Jac. 446. But the particular damage

in this case must be direct, and not
consequential, as by being delayed in
a journey of importance. Bull. N. P.
In Rex v. Dewsnap and another,
26.
16 East. 196. Lord Ellenborough, C.
"I did not expect that it
J. said,
"would have been disputed at this
"day that though a nuisance may be

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public, yet that there may be a spe"cial grievance, arising out of the common cause of injury, which presses more upon particular indi"viduals than upon others not so im

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mediately within the influence of it. "In the case of stopping a common "highway which may affect all the "subjects, yet if a particular person "sustain a special injury from it, he "has an action."

Of public nuisances in ge

neral.

Offensive trades and manufactures.

The existence of the nui

also upon its making the enjoyment of

life and prouncom

SECT. I.

Of Public Nuisances in General.

PUBLIC nuisances may be considered as offences against the public order and œconomical regimen of the state; being either the doing of a thing to the annoyance of all the King's subjects, or the neglecting to do a thing which the common good requires. (c) But the annoyance or neglect must be of a real and substantial nature: and the fears of mankind, though they may be reasonable, will not create a nuisance. (d)

Offensive trades and manufactures may be public nuisances. A brewhouse, erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighbourhood, may be indicted as a common nuisance: and so in the like case may a glasshouse, or swineyard. With respect to a candle manufactory, it has been holden, that it is no common nuisance to make candles in a town, because the needfulness of them shall dispense 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 that it is necessary to make them in a town. (e)

An indictment will not lie for that which is a nuisance only to a few inhabitants of a particular place: as where, upon an indictsance depends ment against a tinman for the noise made by him in carrying on upon the number of houses his trade, it appeared in evidence, that the noise only affected and concourse the inhabitants of three numbers of the chambers in Clifford's Inn, of people; and and that by shutting the windows the noise was in a great measure prevented, it was ruled by Lord Ellenborough, C. J. that the indictment could not be sustained, as the annoyance was, if any thing, a private nuisance. (ƒ) But an indictment for a nuisance, by steeping stinking skins in water, laying it to be committed near the highway, and also near several dwelling houses, has been held sufficient: and the court said, that if a man erects a nuisance near the highway, by which the air thereabouts is corrupted, it must in its nature be a nuisance to those who are in the highway; and that therefore the indictment was well enough. (g) And an indictment was held good for a nuisance in erecting buildings, and making fires which sent forth noisome, offensive, and stinking

perty upon

fortable.

(c) 4 Blac. Com. 166. 1 Hawk. P. C. c. 75. s. 1. 2 Roll. Abr. 83.

(d) By Lord Hardwicke, Anon. 3 Atk. 750.

(e) 1 Hawk. P. C. c. 75. s. 10. In 5 Bac. Abr. Nuisance, (A) it is said, “It "seems the better opinion that a "brewhouse, glasshouse, chandler's

shop, and sty for swine, set up in "such inconvenient parts of a town

"that they cannot but greatly incom-
"mode the neighbourhood, are com-
"mon nuisances:" and 2 Roll. Abr.
139. Cro. Car. 510. Hut. 136. Palm.
536. Vent. 26. Keb. 500. 2 Salk.
458. pl. 3. 460. pl. 7. 2 Lord Raym.
1163. are cited.

(f) Rex v. Lloyd, 4 Esp. 200.
(g) Rex v. Pappineau, 1 Str. 686.

smokes, and making great quantities of noisome, offensive, and stinking liquors, near to the King's common highway, and near to the dwelling houses of several of the inhabitants, whereby the air was impregnated with noisome and offensive stinks and smells. (h) Upon the report of the evidence it appeared that the smell was not only intolerably offensive, but also noxious and hurtful, and made many persons sick, and gave them head-aches; and it was held that it was not necessary that the smell should be unwholesome, but that it was enough if it rendered the enjoyment of life and property uncomfortable; and further, that the existence of the nuisance depended upon the number of the houses and concourse of people, and was a matter of fact to be judged of by the jury. (i) But the carrying on of an offensive trade is not indictable, unless it be destructive of the health of the neighbourhood, or render the houses untenantable or uncomfortable. (k)

noxious trade may be sanctioned.

It appears to have been ruled that a person cannot be indicted How far a for setting up a noxions manufactory in a neighbourhood in which other offensive trades have long been borne with, unless the inconvenience to the public be greatly increased. (7) And also that a person cannot be indicted for continuing a noxious trade which has been carried on at the same place for nearly fifty years. (m) But this seems hardly to be reconcileable to the doctrine, subsequently recognized, that no length of time can legalize a public nuisance, although it may supply an answer to the action of a private individual. (n) It should seem that in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, when the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. With respect to offensive works, though they may have been originally established under circumstances which would prima facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to adopt established improvements, which would make them less offensive, may be indictable.

bles.

It seems, that erecting gunpowder mills, or keeping gunpowder Gunpowder magazines near a town, is a nuisance by the common law, for and combusti which an indictment or information will lie. (0) And the making, keeping, or carrying, of too large a quantity of gunpowder at one time, or in one place or vehicle, is prohibited by the statute 12 Geo. 3. c. 61. under heavy penalties and forfeiture. And it ap

(h) Rex v. White and Ward, 1 Burr. 333.

(i) Rex v. White and Ward, 1 Burr. 337. where see also that the word “noxious" not only means hurtful and offensive to the smell, but includes the complex idea of insalubrity

and offensiveness.

(k) Rex v. Davey and another, 5 Esp. 217.

(1) Rex v. Bartholomew Neville, Peake 91.

(m) Rex v Samuel Neville, Peake 93. (n) Weld v. Hornby, 7 East. 199. Rex v. Cross, 3 Campb. 227., and see post, 305.

(0) Rex v. Williams, E. 12. W. an indictment against Roger Williams for keeping 400 barrels of gunpowder near the town of Bradford, and he was convicted. And in Rex v. Taylor, 15 Geo. 2. the Court granted an information against the defendant as for a nuisance, on affidavits of his keeping great quantities of gunpowder near Maldon in Surry, to the endangering of the church and houses where he lived. 2 Str. 1167. 2 Burn. Just. Gunpowder; where it is said, " or ra"ther it should have been expressed "to the endangering the lives of his majesty's subjects.'

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