out setting forth the particulars in the indictment: (y) though the offence must be set forth in technical words, and with convenient certainty; and the indictment must conclude not only against the peace, but to the common nuisance of divers of his Majesty's liege subjects.(2) It is not necessary to give in evidence the particular expressions used; it is sufficient to prove generally that the defendant is always scolding. (a) A defendant was convicted on an indictment for making great Noises in the noises in the night with a speaking trumpet, to the disturbance of night. the neighbourhood: which the court held to be a nuisance. (b) fection. The exposing in public places persons infected with conta- Spreading ingious disorders, so that the infection may be communicated, is a nuisance, and has been already treated of in a preceding Chapter. (c) It is said that a mastiff going in the street unmuzzled, from the Mastiff unferocity of his nature being dangerous and cause of terror to his muzzled. Majesty's subjects, seems to be a common nuisance; and that, consequently, the owner may be indicted for suffering him to go at large. (d) There are also some offences which are declared to be nuisances Nuisances by statutes. by the enactments of particular statutes. & 10 W. 3. c.7. By the 9 & 10 W. 3. c. 7. it is enacted that it shall not be law- Fireworks. 9 ful for any person to make, or cause to be made, or to sell or utter, or offer or expose to sale, any squibs, rockets, serpents, or other fireworks, or any cases, moulds, or other implements for the making any such squibs, &c. or for any person to permit or suffer any squibs, &c. to be cast, thrown, or fired from out of or in his house, lodging, or habitation, or any place thereto belonging or adjoining, into any public street, highway, road, or passage, or for any person to throw, cast off, or fire, or be aiding or assisting in the throwing, casting, or firing of any squibs, &c. in or into any public street, house, shop, river, highway, road, or passage, “and that every such offence shall be a common nuisance." statute also imposes pecuniary penalties for these offences, to be inflicted upon conviction before a magistrate: but as it declares the offences to be common nuisances, they may clearly be also prosecuted by indictment. (e) Com. 168. Burn. Just. Nuisance, III. Cuck, or guck, in the Saxon language, (according to Lord Coke) signifies to scold or brawl; taken from the bird cuckow, or guckhaw: and ing in that language signifies water, because a scolding woman, when placed in this stool, was for her punishment soused in the water. 3 Inst. 219. (y) 2 Hawk. P. C. c. 25. s. 59. (z) Rex v. Cooper, 2 Str. 1246. (a) By Buller, J. in J'Anson v. Stuart, 1 T. R. 754. (b) Rex v. Smith, 1 Str. 704. And see a precedent of an indictment for keeping dogs which made noises in the night, 2 Chit. Crim. Law, 647. (c) Ante, Chap. ix. p. 113, et seq. The see a precedent of an indictment for (e) Ante, p. 47. The pecuniary pe- Lotteries. 10 17. By the 10 & 11 W. 3. c. 17. all lotteries are declared to be pub& 11 W. 3. c. lic nuisances; and all grants, patents, and licences, for such lotteries to be against law. But for many years past it has been found convenient to the Government to raise money by the means of them; and accordingly different state lottery acts have been passed to license and regulate offices for lotteries. (f) But the statute 42 Geo. 3. c. 119. declares all games or lotteries, called Little Goes, to be public nuisances, and provides for their suppression; and also imposes heavy penalties upon persons keeping offices, &c. for lotteries not authorized by parliament. Of the removal of nuisances. Of the prohibition of them by writ from the King's Bench. Of the indictment in cases of nuisance. It is laid down in the books that any one may pull down, or otherwise destroy, a common nuisance; and it is said that if any one, whose estate is, or may be, prejudiced by a private nuisance, may justify the entering into another's ground and pulling down and destroying such nuisance, surely it cannot but follow à fortiori that any one may lawfully destroy a common nuisance.(1) And it is also said that it seems that in a plea justifying the removal of a nuisance, the party need not shew that he did as little damage as might be :(m) but this may perhaps be doubted, as, even where there is a judgment to abate a nuisance, it is only to abate so much of the thing as makes it a nuisance. (n) It is also stated as the better opinion, that the Court of King's Bench may by a mandatory writ prohibit a nuisance, and order that it shall be abated; and that the party disobeying such writ will be subject to an attachment. (0) Such writs appear to have been granted in some cases; and the proceeding in one case was that the Judges, upon view, ordered a record to be made of the nuisance, and sending for the offender, ordered him to enter into a recognizance not to proceed; but he refusing to comply, the Court committed him for the contempt, issued a writ to the sheriff on the record made, to abate the building, and ordered the offender to be indicted for the nuisance.(p) But the more usual course of proceeding in cases of nuisance is by indictment, in which the nuisance should be described according to the circumstances; and it should be stated to be continuing, if that be the fact. (q) An indictment for carrying on offensive works may state them to be carried on at such a parish. It is not necessary to state that they were carried on in a town or village; (a) stating them to be carried on near a common King's highway, and near the dwelling-houses of several persons, to the common nuisance of passengers and of the inhabitants, is sufficient : it need not be stated how near the highway or houses they were carried on. (y) The offence should be charged to be done ad commune nocumentum, "to the common nuisance of all the liege subjects, &c."(z) But an indictment against a common scold, using the The defendant cannot excuse shewing that the nuisance himself by has existed for a long time. words communis rixatrix has been considered to be good, though it concluded ad commune nocumentum diversorum, instead of omnium, because from the nature of the thing it could not but be a common nuisance. And Hawkins says that for the same reason it may be argued that an indictment, with such a conclusion, for a nuisance to a river, plainly appearing to be a public navigable river, or to a way, plainly appearing to be a highway, is sufficient: and he says that perhaps the authorities which seem to contradict this opinion might go upon this reason, that in the body of the indictment it did not appear with sufficient certainty whether the way wherein the nuisance was alleged were a highway, or only a private way; and that therefore it should be intended, from the conclusion of the indictment, that the way was private.(s) The safer mode, however, will be to lay the offence to have been committed "to the common nuisance of all the liege subjects, &c." It will be no excuse for the defendant that the nuisance, for which he is indicted, has been in existence for a great length of time; as however twenty years' acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances though of longer standing. (t) It has been held that a party could not defend the putting his woodstack in the street before his house, on the ground that it was according to the ancient usage in the town, leaving sufficient room for passengers: for it is against law to prescribe for a nuisance. (u) And Lord Ellenborough, C. J. said in a late No length of case, "It is immaterial how long the practice may have prevailed, time will legalize a public "for no length of time will legitimate a nuisance. The stell nuisance. fishery across the river at Carlisle had been established for a "vast number of years: but Mr. Justice Buller held that it con"tinued unlawful, and gave judgment that it should be abated." (w) But in some cases length of time may concur with other circumstances in preventing an obstruction from having the character of a nuisance: as where, upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used for a market for the sale of clothes, for above twenty years, and that the defendant put the bags there for the purpose of sale, Lord Ellenborough, C.J. said that after twenty years' acquiescence, and it appearing to all the world that there was a fair or market kept at the place, he could not hold a man to be criminal who came there under the belief that it was such fair, or market, legally instituted. (x) 66 All common nuisances are regularly punishable by fine and imprisonment: but, as the removal of the nuisance is usually the chief end of the indictment, the court will adapt the judgment to the nature of the case. Where the nuisance therefore is stated in the indictment to be continuing, and does in fact exist at the time sance, 13. Prat v. Stearn, Cro. Jac. 382. Rex v. Bayward, Cro. Eliz. 148. Anon. 1 Ventr. 26. 2 Roll. Abr. 83. 7 Hawk. P. C. c. 75. s. 3, 4, 5, and the authorities there cited. And see 5 Bac. Abr. Nuisance (B). In 6 East. 315, Rex v. Reynell, there is an indictment for not repairing the fences of a VOL. I. X churchyard "to the nuisance of the (t) Weld v. Hornby, 7 East. 199; (u) Fowler v. Sanders, Crò. Jac. 446. Of the judgment in cases of nuisance. Costs upon an indictment for a nuisance where the defendant had removed it by certiorari, and been convict ed. Costs in cases of nuisances arising from furnaces used for steamengines. of the judgment, the defendant may be commanded by the judgment to remove it at his own costs: (y) but only so much of the thing as causes the nuisance ought to be removed; as if a house be built too high, only so much of it as is too high should be pulled down; and if the indictment were for keeping a dye-house, or carrying on any other stinking trade, the judgment would not be to pull down the building where the trade was carried on. (2) So in the case of a glass-house the judgment was to abate the nuisance; not by pulling the house down, but only by preventing the defendant from using it again as a glass-house. (a) But where the indictment does not state the nuisance to be continuing, a judgment to abate it would not be proper. In a case where this point arose, Lord Kenyon, C. J. said, "When a defendant is in"dicted for an existing nuisance, it is usual to state the nuisance "and its continuance down to the time of taking the inquisition; "it was so stated in Rex v. Pappineau, et adhuc existit; and in "such cases the judgment should be that the nuisance be abated. "But in this case it does not appear in the indictment that the ❝ nuisance was then in existence; and it would be absurd to give "judgment to abate a supposed nuisance which does not exist. "If however the nuisance still continue, the defendant may be "again indicted for continuing it." (b) The statute 5 W. & M. c. Îl. s. 3. enacts that if a defendant prosecuting a writ of certiorari (as mentioned in the act) be convicted of the offence for which he is indicted, the court of King's Bench shall give reasonable costs to the prosecutor if he be the party grieved, or be a justice, &c. or other civil officer, who shall prosecute for any fact that concerned them as officers to prosecute or present. Upon this clause it was decided in a recent case, that persons dwelling near to a steam engine, which emitted volumes of smoke affecting their breath, eyes, clothes, furniture, and dwelling houses, and prosecuting an indictment for such nuisance, are parties grieved entitled to their costs, the defendants having removed the indictment from the sessions by certiorari, and been afterwards convicted. (c) The statute 1 & 2 G. 4. c. 41. reciting the great inconvenience and injury sustained from the improper construction and negligent use of furnaces employed in the working of engines by steam, and that though such nuisance, being of a public nature, is abatable as such by indictment, the expense had deterred parties suffering thereby from seeking the remedy given by law, enacts "that it shall and may be lawful for the court by which judg"ment ought to be pronounced, in case of conviction on any such "indictment, to award such costs as shall be deemed proper and "reasonable to the prosecutor or prosecutors, to be paid by the party or parties so convicted as aforesaid; such award to be "made either before or at the time of pronouncing final judgment, as to the court may seem fit." (y) 2 Roll. Abr. 84. 1 Hawk. P. C. c. 75. s. 14. Rex v. Pappineau, 1 Str. 66 696. (2) Rex v. Pappineau, ante, note (y) 9 Co. 53. Godb. 221. (a) Co. Ent. 92 b. strong opinion was intimated upon the point when the same case was previously brought before the court in another shape, Rex v. the Justices of Yorkshire, 7 T. R. 468. (c) Rex v. Dewsnap and another, (b) Rex v. Stead, 8 T. R. 142. A 16 East. 194. 2 court for the The second section enacts, that if it shall appear to the court An order may by which judgment ought to be pronounced that the grievance be made bythe may be remedied by altering the construction of the furnace, it alteration of shall be lawful for the court, without the consent of the prosecutor, the furnace. to make such orders as shall be by the court thought expedient for preventing the nuisance in future, before passing final sentence on the defendant. to extend to The statute then enacts, that the provisions contained in it, as But these profar as they relate to the payment of costs and the alteration of visions are not furnaces, shall not extend to the owners or occupiers of any furnaces of furnaces of steam engines, erected solely for the purpose of work- engines for ing mines of different descriptions, or employed solely in the working smelting of ores and minerals, or in the manufacturing the produce of ores or minerals, on or immediately adjoining the premises where they are raised. (c) mines, &c. SECT. II. Of Nuisances to Public Highways, to public highway. In treating of nuisances to public highways, we may consider in the Of nuisances first place what is a public highway; secondly, of nuisances to a public highway by obstruction; and, thirdly, of nuisances to a public highway by the neglect, on the part of those who are liable, to put it in repair. Highway is said to be the genus of all public ways; (d) of What is a pubwhich there are three kinds, a footway; a foot and horseway, lic highway. which is also a pack and prime-way; and a foot horse and cart way. (e) Whatever distinctions may exist between these ways, it seems to be clear that any of them, when common to all the king's subjects, whether directly leading to a market-town, or beyond a town as a thoroughfare to other towns, or from town to town, may properly be called a highway; and that the last, or more considerable of them, has been usually called the king's highway. (f) But a way to a parish-church, or to the common fields of a town, or to a private house, or perhaps to a village, which terminates there, and is for the benefit of the particular inhabitants of such parish, house, or village only, is not a highway; because it belongs not to all the king's subjects, but only to some particular persons, each of whom, as it seems, may have an action on the case for a nuisance therein. (g) And in a late case, a very learned Judge (c) S. 3. (d) Reg. v. Saintiff, 6 Mod. 255. (e) Co. Lit. 56 a. (f) Id. Ibid. 1 Hawk. P. C. c. 76. s. 1. 3 Bac. Abr. Highways (A). And in a case where the terminus ad quem was laid to be a public highway, and it appeared in evidence that it was a public footway, it was held that the (g) 1 Hawk. P. C. c. 76. s. 1. So by |