I. What it is. A COMMON nuisance seems to be an offence against the public, Common Annoyances to the prejudice of particular persons are not punishable by a public prosecution as common nuisances, but are left to be redressed by the private actions of the parties aggrieved by them. 1 Haw. c. 75. § 2. 4 Blac. Com. 167. Where, note a diversity between a private and a public nuisance: if it be a private nuisance, he shall have his action upon his case, and recover damages; but if it be a public nuisance, he shall not have an action upon his case, and this the law hath provided for avoiding of multiplicity of suits; for if any one might have an action, all men might have the like; but the law for this common nuisance hath provided an apt remedy, by presentment or indictment at the suit of the king, in the behalf of all his subjects; unless any man hath a particular damage; as if he and his horse fall into a ditch made across a highway, whereby he received hurt and loss, there for his special damage, which is not common to others, he shall have an action upon his case. 1 Inst. 56. Difference be tween a private and public nuisance. Where an a public Or if one man obstruct another passing by a ditch and gate across a public road, by which the latter is obliged to go a longer action lies for and a more difficult way, and oppose the other in attempting to remove the nuisance, in that case also the latter may bring his action. Chichester v. Lethbridge, Willes, 71. Although a nuisance may be public, yet there may be a special There being a grievance arising out of the common cause of injury, which presses special grievmore upon particular individuals than upon others not so imme- ance. diately within the influence of it. In case of stopping a common highway, which may affect all the subjects, yet if a particular person sustains a special injury from it, he has an action. Per Ld. Ellenborough C. J. R. v. Dewsnap, 16 East, 196. will not lie, unless the nuisance affect the public. And from hence it clearly follows, that no indictment for a Indictment nuisance can be good, which lays it to the damage of private persons only; as where it accuses a man of surcharging such a common, or of inclosing such a piece of ground, wherein the inhabitants of such a town have a right of common, to the nuisance of all the inhabitants of such a town; or of disturbing a water-course running to such a mill, to the damage of such a person and his tenants, without saying of all the liege subjects of the king. 1 Haw. c. 75. § 3. Where a tinman was indicted for a nuisance, on account of the noise which he made in carrying on his business, and it appeared that the noise only disturbed the inhabitants of three numbers of Clifford's Inn, it was held by Ld. Ellenborough C. J. that the prosecution could not be sustained, as it was, if any thing, a private nuisance only, and not indictable. R. v. Lloyd, 4 Esp. 200. cit. 1 Russ. 296. Noise affecting a few chambers only. Yet it hath been said, that an indictment of a common scold is Common scold. good, although it conclude to the common nuisance of divers, instead of all, the king's subjects; perhaps, for this reason (says Mr. Hawkins), because a common scold cannot but be a common nuisance. 1 Haw. c. 75. § 5. Public nuisance laid And if the law be so in this case, why should not an indictment, setting forth a nuisance to a way, and expressly and unexceptionto affect divers ably shewing it to be a highway, be good, notwithstanding it con of the king's subjects. Bawdy-houses, gaming houses, and stages for rope dancers. Feme covert indictable,bawdy-house. So gaminghouse. Single room. Disorderly inn. In improper situation. Playhouses. 25 G. 2. c. 36. Constable's duty upon notice of persons keeping a &c. clude to the nuisance of divers, without saying all, the king's subjects? And 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 therefore that it shall be intended, from the conclusion of the indictment, that it was a private way. 1 Haw. c.75. § 5. There is no doubt but that common bawdy-houses are indictable as common nuisances: and it hath been said, that all common stages for rope-dancers (a), and also all common gaming-houses, are nuisances in the eye of the law, not only because they are great temptations to idleness, but also because they are apt to draw a great number of disorderly persons. 1 Haw. 75. § 6. 4 Blac. Com. 167. It has been adjudged that a feme covert may be guilty of keeping a bawdy-house as well as if she were sole, and that she, together with her husband, may be convicted of it. R. v. Williams, 1 Salk. 383. And so for keeping a gaming-house: for in each of these cases the female may be presumed to bear a principal part. R. v. Dixon, 10 Mod. 335. See 1 Russ. 16., and n. (r) ib., and 299. And if a person is a lodger, and has only a single room, yet if she use it as a bawdy-house, she may be indicted for keeping one. R. v. Pierson, 2 Ld. Raymond, 1197. 1 Russ. 299. The keeper of a disorderly inn or alehouse may be prosecuted for a public nuisance if he usually harbour thieves or other scandalous characters, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where it is not wanted, to the hindrance of other old-established inns, or keep it in a place which for its situation is wholly unfit for it. 1 Haw. P. C. c. 78. § 1. See 3 Bac. Abr. Inns, &c. (A). ib. (C) 2. 1 Russ. 298. See tit. Alehouses. Also it hath been holden, that a common playhouse may be a nuisance, if it draw together such a number of coaches or people, as prove generally inconvenient to the places adjacent. i Haw. c. 75. § 7. By 25 G. 2. c. 36. § 5., “If any two inhabitants of any parish or place, paying scot and bearing lot therein, do give notice in writing to any constable (or other peace officer of the like nature, where there is no constable) of such parish or place, of any person bawdy-house, keeping a bawdy-house, gaming-house, or any other disorderly gaming-house, house, in such parish or place, the constable or such officer as aforesaid, so receiving such notice, shall forthwith go with such inhabitants to one of his majesty's justices of the peace of the county, city, riding, division, or liberty in which such parish or place does lie; and shall, upon such inhabitants making oath before such justice that they do believe the contents of such notice to be true, and entering into a recognizance in the penal sum of 201. each, to give or produce material evidence against such person (a) See the case of Jacob Hall, 1 Mod. 76. for such offence, enter into a recognizance in the penal sum of 25 G. 2. c. 36. 30l. to prosecute with effect such person for such offence at the next general or quarter sessions of the peace, or at the next assizes to be holden for the county in which such parish or place and 10% on conviction to does lie, as to the said justice shall seem meet; and such constable The charges of or other officer shall be allowed all the reasonable expenses of prosecution, such prosecution, to be ascertained by any two justices of the peace of the county, city, riding, division, or liberty where the offence shall have been committed, and shall be paid the same by the overseers of the poor of such parish or place; and in case such person shall be convicted of such offence, the overseers of the poor of such parish or place shall forthwith pay the sum of 10l. to each of such inhabitants; and in case such overseers shall neglect or refuse to pay to such constable or other officer such expenses of the prosecution as aforesaid, or shall neglect or refuse to pay, upon demand, the said sums of 10. and 10. such overseers, and each of them, shall forfeit to the person feiting double. entitled to the same double the sum so refused or neglected to be paid." person so each of the two inhabitants, to be paid by the overseers, on penalty of for ing bawdy houses, &c. to be bound over, § 6. “Upon such constable or other officer entering into such Persons keeprecognizance to prosecute as aforesaid, the said justice of the peace shall forthwith make out his warrant to bring the accused of keeping a bawdy-house, gaming-house, or other disorderly house before him, and shall bind him or her over to appear at such general or quarter session or assizes, there to answer to such bill of indictment as shall be found against him or her for such offence; and such justice shall and may, if in his discretion he thinks fit, likewise demand and take security for such person's good behaviour in the mean time, and until such indictment shall be found, heard, and determined, or be returned by the grand jury not to be a true bill." § 7. "If any such constable shall neglect or refuse, upon such Penalty. notice, to go before any justice of the peace, or to enter into such recognizance, or shall be wilfully negligent in carrying on the said prosecution, he shall for every such offence forfeit the sum of 201. to each of such inhabitants so giving notice as aforesaid." person Who shall be deemed the bawdy-house, § 8. "Any person who shall at any time hereafter appear, act, or behave him or herself as master or mistress, or as the having the care, government, or management of any bawdy-house, keeper of such gaming-house, or other disorderly house, shall be deemed and &c. taken to be the keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof." § 9. provides, "That upon any such prosecution against any Evidence may person for keeping a bawdy-house, gaming-house, or other dis- be given by an orderly house, any person may give evidence against the defend- inhabitant, &c. ant, or on behalf of the defendant, in such prosecution, notwithstanding his or her being an inhabitant or parishioner of the said parish or place, or having entered into such recognizance as aforesaid." § 10. enacts, "That no indictment which shall at any time after Indictment not the said 1st day of June be preferred against any person for keeping removable by a bawdy-house, gaming-house, or other disorderly house, shall be certiorari. removed by any writ of certiorari into any other court; but such 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. Notices directed by 25 G. 2. c. 36. to be given to constables in certain cases, to be given also to the overseers of the poor, who are to prosecute. Crown not bound as to the certiorari. Different de.. fendants in same indict offences. By 58 G. 3. c. 70. § 7., "A copy of the notice which shall be given to such constable shall also be served on or left at the places of abode of the overseers of the poor of such parish or place, or one of them, and such overseers or overseer of the poor shall be summoned or have reasonable notice to attend before such justice of the peace before whom such constable shall have notice to attend; and if such overseers or overseer of the poor shall then and there enter into such recognizance to prosecute 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." But $ 10. of 25 G. 2. c. 36. does not restrain the crown from removing an indictment by certiorari, as nothing appears to shew that the statute intended to bind the crown. R. v. Davies and others, 5 T. R. 626. More than one defendant may be included in the same indictment for keeping a disorderly house, stating, that they "severally" ment for several kept such houses, 2 Hale 174.; and it has been held, that several different defendants being charged in different counts of an indictment 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 in indictment. Acc. Stopping a prospect; or lights. An action for a nuisance does not lie for stop ping another's lights, though they have con It seems necessary to state where the house is situate, and the 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. The indictment need not allege particular facts; but the charge being general, particular facts may be given in evidence. Per Lord Hardwick. Clarke v. Periam, 2 Atk. 339. Stopping a prospect is not a common nuisance. 2 Salk. 247. Building a house in a larger manner than it was before, so that the street became dark, is not any public nuisance by reason of the darkening. R. v. Webb, 1 Ld. Ray. 737. 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 an ancient house, and the lights ancient lights. 2 Salk. 4.59. So, if two men be owners of two parcels of land adjoining, and one of them doth build an house upon his land, and makes windows and lights looking into the other's land, and this house and the lights have continued by the space of thirty or forty years; yet the other may, upon his own land and soil, lawfully 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. a 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 section power was given to two justices to convict, and also to local road act. 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 nuisance though also held that, though the act gave a summary remedy, yet, as it declared such building to be a public nuisance, an indictment would lie. R.v. Gregory, 5 B. & Ad. 555. remedy. 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). 1 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. rier. It is a nuisance if a carrier carries an unusual weight with an Unusual unusual number of horses. 3 Com. Dig. Chemin (A. 3.) 1 Russ.318. weight with And it was held not necessary to state the number of horses. horses by carR.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; way, to the 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 highthrowing 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 unauthorised 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 dictable offence. |