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otherwise such a judgment would be absurd. (m) And if the court be satisfied that the nuisance is effectually abated before judgment is prayed upon the indictment, they will not in their discretion give judgment to abate it. And though it was contended, on the authority of several cases, (n) that if the nuisance be of a permanent nature the regular judgment must be to abate it, the court refused to give such judgment upon an indictment for an obstruction in a public highway, where the highway, after the conviction of the defendant, was regularly turned by an order of magistrates, and a certificate was obtained of the new way being fit for the passage of the public, and the affidavits stated that so much of the old way indicted as was still retained was freed from all obstruction. (©). But where the existence of a building, &c. is a nuisance, and the indictment imports that it was existing at the time of the bill being found, it seems that if a judgment be pronounced, it can only be a judgment to abate the nuisance. (a) But where the nuisance arises not from the existence of the thing, but from the use to which it is applied, a judgment to abate, &c. is not necessary ;(b) and, therefore, if a stinking trade is indicted, it does not follow that the house in which it is carried on is to be pulled down. (c) And if a house is a nuisance from being too high, so much only as

is too high shall be pulled down. (d) Levying and The 13 Geo. 3. c. 78. s. 47. enacts, that no fine, &c. for not reapplication of pairing the highways, or not appearing to any indictment or prefines.

sentment for not repairing the same, shall be returned into the court of exchequer, or other court, but shall be levied by and paid to such person or persons residing in or near the parish, township, or place, where the road shall lie, as the court imposing such fines, &c. shall order and direct, to be applied towards the repair and amendment of such highways; and the person or persons so ordered to receive such fine shall receive, apply, and account, for the same, according to the direction of such court, or in default thereof shall forfeit double the sum received ; and if any fine, &c. imposed on any such parish, &c. shall be levied on any one or more of the inhabitants of such parish, &c. then that such inhabitant or inhabitants may make his or their complaint to the justices at their special sessions, and the justices are authorized by warrant under their hands and seals to cause a rate to be made according to the form and manner thereinbefore prescribed for the reimbursing such inhabitant or inhabitants : and the rate so made

(m) Rex v. Stead, 8 T.R. 142. court are about to impose a fine. In

(n) Rex v. Pappineau, ante, note(k). Rex v. Wingfield, i Blac. Rep. 602. Rex v. the Justices of Yorkshire, 7 T. where a person was convicted upon an R. 467, Rex v. Stead, ante, note (m), indictment for not repairing a road and other cases cited in those.

ratione tenure, it was held that the (0) Rex v. Incledon, 13 East. 164. court would not inflict a small fine, Judgment was given that the defend- on a certificate of the road being reant should pay a fine to the king of paired, until the prosecutor's costs 68. 8d. Io Řex v. Sir Joseph Mawbey were paid. and others, 6 T. R. 619. it was held (a) I Str. 686. that a certificate by justices of the (6) Id. Ibid. peace, that a highway indicted is in (c) By Ld. Raymond and Reynolds, repair is a legal instrument recognized J. 1 Str. 688, 9. by the courts of law, and admissible in (d) By Ld. Raymond, 1 Str. 689. evidence after conviction wben the

and confirmed by any two justices is to be collected and levied by the surveyor of the parish, &c. indicted; and the surveyor is within a month after the making and confirming the rate to collect, levy, and pay, unto such inhabitant or inhabitants the money so levied on him or them as aforesaid. Upon the latter part of this section it has been held that the application for the rate to reimburse the inhabitants, on whom a fine has been levied, after a conviction upon an indictment against the parish for non-repair, ought to be made within a reasonable time after such levy, and before any material change of inhabitants; and the court of king's bench refused a mandamus to the justices to make such rate after an interval of eight years, though applications had been made in the interval, from time to time, to the magistrates below, who had declined to make the rate on the ground that the parish at large had been improperly indicted and convicted, and though, so lately as the year before the application to the court of king's bench, the magistrates had ordered an account to be taken of the quantum expended upon the repairs out of the money levied. (p) In a case where it appeared that although separate parts of a parish were bound to maintain their own roads, there had been an indictment, and judgment against the parish generally, but that such indictment was only known to and defended by that part of the parish in which the defective road lay, it was held that the justices might make a warrant to reimburse upon that part only; and the court of King's Bench granted a mandamus to collect to the surveyor of that part only.(:)

The 3 Geo. 4. c. 126. s. 10. provides for a portion of the fine Where turnbeing paid by the turnpike trustees when the highway shall be a pike roads are turnpike road; and enacts that, when the inhabitants of any court may proparish, township, or place, shall be indicted or presented for not portion the fine repairing any highway, being turnpike road, and the court, before and costs bewhom such 'indictment or presentment shall be preferred, shall tween the inimpose a fine for the repair of such road, such fine shall be ap- the trustees. portioned, together with the costs and charges, between such inhabitants and the turnpike trustees as to the court shall seem just; and the court may order the treasurer of such turnpike road to pay the same out of the money then in his hands, or next to be received by him, in case it shall appear to such court, from the circumstances of such turnpike debts and revenues, that the same may be paid without endangering the security of the creditors who have advanced their money upon the credit of the tolls. The true construction of a similar provision in the repealed act of 13 Geo.3. was held to be, that the court which imposed the fine had the power to apportion it between the parish and the trust; so that where an indictment was originally preferred at the assizes, and afterwards removed into the court of King's Bench by certiorari, it was held tliat the court of King's Bench might apportion the fine. (9). The 13 Geo. 3. c. 78. s. 64. enacts, " that it shall be lawful Upon the trial

of an indict" for the court, before whom any indictment or presentment shall

ment or prebe tried for not repairing highways, to award costs to the prosecu- sentment the

court may (p) Rex v. the Justices of Lancashire, obligation to repair, and the situation award costs. 12 East. 366.

of the road indicted wholly in one part. (2) Rex v. Townsend, Dougl. 421. (9) Rex v. Upper Papworth, 2 East. The mandamus was special, stating the R. 413.

VOL, I,

Z

tor, to be paid by the person or persons so indicted or presented, “ if it shall appear to the said court that the defence made to such “indictment or presentment was frivolous: or to award costs to “ the person indicted or presented, to be paid by the prosecutor, “ if it shall appear to the said court that such prosecution was “ vexatious.” It has been held that it is matter to be determined by inquiry, whether a person is or is not the prosecutor within this section of the statute; and that a court of quarter sessions, before whom a parish is acquitted upon the trial of an indictment for not repairing a highway, may, by their order, award C. and E. to pay costs to the parish, although the names of C. and E. be not on the back of the indictment, and although the indictment originated in a presentment of A. and B. constables, whose names are on the indictment: and it was also held to be enough, if the order is entitled as in the prosecution of C. and E. without shewing further that C. and E. are prosecutors; and that it need not appear on the face of the order that the indictment was tried, if that appear by the record of the proceedings; and also that the order is good in form, if it be for the payment of the costs to the solicitor of the parish. (r) The statute does not direct any certificate to be given in a precise form of words, in order to entitle the party to costs; therefore where the Judge, on the trial of an indictment, certified that the defence was frivolous, without also awarding costs in express terms, it was held that the prosecutor was entitled to costs. (s) But it has also been holden, in the construction of this section of the statute, upon an indictment, which had been removed into the court of King's Bench by certiorari and been sent down for trial to the assizes, where the defendants were acquitted for want of prosecution, that the court of King's Bench had no power to award costs to the defendants on the ground of the prosecution having been vexatious, but that the application ought to have been made to the Judge at Nisi Prius. (0)

The 5 W. and M. c. ll. s. 3. (which has been already cited) 1. c. 11. 5.3. enacts, that if the defendant, prosecuting such writ of certiorari ere the de- as is mentioned in that act, “ be convicted of the offence for dant has “ which he was indicted, that then the court of King's Bench oved the ictment by

“ shall give reasonable costs to the prosecutor if he be the party “ grieved or injured, or be a justice of the peace, mayor, bailiff, “constable, &c. or any other civil officer, who shall prosecute

upon the account of any fact committed or done that concerned “him or them as officer or officers to prosecute or present” to be taxed, &c. Upon this statute it has been held, that a justice of the peace who indicts a road for being out of repair is entitled to his costs, after a removal of the indictment by certiorari, if the defendant be convicted.(u) But the prosecutor must shew himself to be the party grieved in order to obtain costs under this statute: therefore, in a case where he did not apply for the costs until two years after judgment given, and it did not appear that he had ever used the highway before it was stopped, and it was

(r) Rex v. Commerell and Ellis, 4 (1) Rex v. Chadderton, 5 T. R. M. and S. 203.

3 to costs un'r 5 W. and

fitiorari.

(1) Rex v. Clifton, 6 T. R. 344. (u) Rex v. Kettleworth, 5 T. R. 33.

272.

stated, that while the highway was stopped, he had declared that he did not care about it, the court held that he was not entitled to costs as the party grieved, although the prosecution was at his instance and expense. (x) In a recent case, where this statute was considered as a remedial law, (y) it was held that several persons were entitled to costs under it as prosecutors of an indictment, removed by certiorari, for not repairing a highway; one, as constable of the manor within which the highway lay; the others, as parties grieved; they having used the way for many years in passing and repassing from their homes to the next market town, and being obliged, by reason of the want of repair, to take a more circuitous route. (2)

Section 65 of the 13 Geo. 3. c. 78. enacts, that if the inhabitants Payment of of any parish, township, or place, shall agree at a vestry, or other expenses of public meeting, to prosecute any person by indictment for not re- carrying on or pairing any highway within such parish, township, or place, which prosecutions they apprehend such person to be obliged by law to repair, or for agreed upon committing any nuisance upon any highway, or shall agree at such

other public vestry meeting to defend any indictment or presentment against meeting. them, the surveyor may charge in his account the reasonable expenses thereof, after the same shall have been agreed to by such inhabitants at a vestry or public meeting, or allowed by a justice within the limit where such highway shall lie.

at a vestry or

SECT. III.

of Nuisances to Public Rivers.

In books of the best authority a river common to all men is Rivers consicalled a highway: (a) and if it be considered as a highway, any dered as high

ways. obstructions, by which its course and the use of it as a highway by the king's subjects are impeded, will fall within the same principles as those which relate to public roads, and which have been considered in the preceding section of this Chapter. But it should be observed that a learned Judge appears to have considered a river as differing, in some respects, at least, from a highway, where he is reported to have said, “ Callis compares a navigable river to

an highway : but no two cases can be more distinct. In the " latter

case, if the way be foundrous and out of repair, the public “have a right to go on the adjoining land: but if a river should (2) Rex v. Incledon, 1 M. and S. where that learned Judge said, that

the statute had always been construed (y) By Lord Ellenborough, C. J. as strictly as possible. in conformity with the opinion of (z) Rex v. Taunton St. Mary, 3 M. Lord Kenyon, c. J. in Rex v. Kettle- and S. 465. worth, 5 T. R. 33. and contrary to

(a) 1 Hawk. P. C. c. 76. s. 1. citing the view taken of it by Buller, J. 27 Ass. 23. Fitz. 279, 2 Com. Dig in Rex v, Sharpness; 2 T. R. 48. 397, And see Anor. Loft, 556,

268.

vers.

a

happen to be choaked up with mud, that would not give the “ public a right to cut another passage through the adjoining “ lands." (b) In the same case the court decided, that the public are not entitled at common law to tow on the banks of ancient

navigable rivers. (c) Where the It has been before observed, that a highway may be changed by course of a ri- the act of God; and upon the same principle it has been holden, ver is changed, that if a water, which has been an ancient highway, by degrees it is still a highway, change its course, and go over different ground from that whereon

it used to run, yet the highway continues in the new channel, in the same manner as in the old. (d) It has been held that the soil of a navigable river prima facie, though not necessarily, belongs to the king; and is not by presumption of law in the owners of the

adjoining lands. (e) Obstructions It is a common nuisance to divert part of a public navigable in public ri- river, whereby the current of it is weakened and made unable to

carry vessels of the same burthen as it could before. (f) And the laying timber in a public river is as much a nuisance, where the soil belongs to the party, as if it were not his, if thereby the passage of vessels is obstructed. (g) The placing a floating dock in a public river has been also held to be a nuisance, though beneficial in repairing ships : (n) and the bringing a great ship into Billingsgate dock, which, though a common dock, was common only for small ships coming with provisions to the markets in London, appears to have been considered as nuisance, in the same manner as if a man were so to use a common pack and horse way with his cart, as to plough it up, and thereby render it less convenient to riders. (i) And the erection of weirs across rivers was reprobated in the earliest periods of our law. “ They were considered as public nuisances. “ The words of Magna Charta are, that all weirs from henceforth “ shall be utterly pulled down by Thames and Medway, and “through all England, &c. And this was followed up by subse

quent acts treating them as public nuisances, forbidding the “ erection of new ones, and the enhancing, straitening, or en“ larging, of those which had aforetime existed.” (k) Upon the principle, therefore, which has been before stated, (l) that the public have an interest in the suppression of public nuisances, though of long standing, it was held that a right to convert a brushwood into a stone weir (whereby fish would be prevented from passing, except in flood times,) was not evidenced by shewing that forty years ago two-thirds of it had been so converted (6) By Buller, J. in Ball v. Herbert,

But it seems that where 3 T. R. 263.

“ there are cuts made in the banks (c) Ball v. Herbert, 3 T. R. 253. “ that are not annoyances to the river,

(d) i Hawk. P. C. c. 76. . 4. 22 “ the timber lying there is no nui. Ass. 93. 1 Roll. Abr. 390. 4 Vin.

66 sance." Ab. Chimin (A).

(h) Anon. Surry Ass. at Kingston, (e) Rex v. Smith, Dougl. 441. 1785, cited in the notes to I Hawk, (f) i Hawk. P. C. c. 75. s. 11. P. C. c. 75. s. 11.

(g) 5 Bac. Abr. Nuis. (A). where it is (i) Reg. v. Leech, 6 Mod. 145. 5 also said, " And hence it seems to Bac. Abr. Nuis. (A). “ follow that private stairs, from (k) By Lord Ellenborough, C. J. in “ those houses that stand by the Weld v. Hornby, 7 East. 198, 199. “ Thames, into it, are common pui. (1) Ante, 305.

sances.

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