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1851.

ground of public nuisance, an information was filed by the Attorney-General.

SOLTAU

DE HELD.

In Crowder v. Tinkler the bill was filed, by a private individual, to restrain the erection of a corning-mill

, for the manufacture of gunpowder, near to his premises, on the ground that it would endanger the safety of his property: and the Lord Chancellor directed the plaintiff to indict the building as a nuisance, that is, as a public nuisance; and, in the mean time, he put the Defendant on terms as to how he should use the mill, with liberty to apply on the result of the trial. That case is against the proposition contended for by the Defendant; because there the nuisance was a public nuisance ; yet Lord Eldon sustained the bill.

Hudson v. Maddison was the case of five persons joining together to complain of an act which was a separate nuisance to each of them: and all that was decided in that case was that the five could not sue together.

Squire v. Campbell was the case of the erection of the statue of George the Third near Pall Mall East; and the Attorney-General was made a Defendant to the suit, not in respect of nuisance, but because the freehold of the ground on which the statue was erected was in the Crown.

The Attorney-General v. Cleaver was the case of a public nuisance; and there an information was filed by the Attorney-General. But that proves nothing. It only shows that, where the object is to restrain a public nuisance, an information must be filed. It does not at all show that an individual may not file a bill, if he can show special damage arising to himself out of a public nuisance.

1851.

These are the cases cited in support of the proposition that the bill will not lie.

SOLTAU

0. DE HELD.

Several cases have been referred to on the part of the Plaintiff; such as Spencer v. The London and Birmingham Railway Company, Sampson v. Smith, Haines v. Taylor, and Walter v. Selfe, in all of which it was held that, if an individual sustains a special and particular damage from an act, he may have the interference of the Court on a bill, although the act complained of be, in its nature, a public nuisance. Two other cases were cited : The Attorney-General v. Forbes, and The AttorneyGeneral v. Johnson. Those cases show only that there may be both an information and bill; that is, that the Attorney-General may file an information to restrain the act complained of as a public nuisance, and that an individual who sustains a particular injury may join as Plaintiff as well as Relator, and have the remedy for himself also in the same suit. I am of opinion, therefore, that the first ground of demurrer is not tenable.

The next ground insisted upon in support of the demurrer, was that the Plaintiff had not established his right at law. Now, it is true that Equity will only interfere, in case of nuisance, where the thing complained of is a nuisance at law : there is no such thing as an equitable nuisance: but it is no ground of demurrer that the matter has not been tried at law. It very often is a ground for refusing an injunction ; but it is not ground of demurrer, as appears from Berkley v. Ryder, 2 Vesey, sen., p. 533, and from Lord Cottenham's judgment in Elmshirst v. Spencer, where his Lordship expresses himself thus : “ The Plaintiff, before he can ask for the injunction, must prove that he has sustained such a substantial injury, by the acts of the Defendant, as would

1851.

SOLTAU

DE HELD.

have entitled him to a verdict at law, in an action for damages.” And then, in another part of the same judg. ment, he says: “This Court will not take upon itself to adjudicate upon the question whether this is a nuisance or not : that must be ascertained in a Court of Law, as laid down by Lord Eldon in The Attorney-General v. Cleaver.” Now, in The Attorney-General v. Cleaver, which was a case of public nuisance, Lord Eldon directed the indictment, which had been already brought and was pending, to be prosecuted, and ordered the motion to stand over until the hearing of it. Therefore Lord Cottenham, in that case, is referring to this; that you cannot ask for the injunction if there be a question about its being a nuisance at law. But I do not know where it is laid down that a bill will not lie, that is, that it is ground of demurrer because the action has not yet been brought. However, whether that be so or not, the Plaintiff in this case has brought his action at law, and obtained a verdict.

Then this ingenious argument was adduced. It was said: “There has been an action at law; but what is now being done, and which you call a nuisance, has never been tried at law. When the trial took place we were ringing every day in the week: we were beginning at five o'clock in the morning, and we were ringing a considerable period of time on each occasion : but now we ring only on Sundays. We ring a fewer number of times, and do not ring so long at a time. Therefore you must bring your action for this, and try whether this is a nuisance.” If that argument were to prevail, see what it would come to. Supposing that, after the trial of the action, the Defendant, instead of ringing seven days in the week, had rung six ; or, instead of beginning at five o'clock in the morning, had begun at six; or, in

1851.

SOLTAU

υ. DE HELD.

stead of ringing for a quarter of an hour, had rung ten minutes each time ; and, when the Plaintiff came into Equity to restrain him, he had said : “ You have not tried this. When you brought your action, I rang seven days in the week. I ring only six now. I began at five o'clock: I now begin at six in the morning." If that were yielded to, and another action brought and damages recovered, the Defendant would reduce the number of days' ringing from six to five, and say you have not tried this; and so on toties quoties. It is clear the argument, if pushed to its full extent, must result in that which is contrary to all reason and to all justice. The questions to be tried were, whether the Plaintiff's right in his house was such as to entitle him to come for relief at all, and whether the ringing of the bells was in its nature, a nuisance at law. Both those questions have been tried ; but the exact extent or quantum of injury or nuisance inflicted, need not be ascertained. Besides, the whole argument upon this ground is put an end to by an allegation in the bill, which the demurrer, of course, admits to be true; “ that the Defendant threatens and intends, not only to continue tolling or ringing the last-mentioned bells every Sunday in the manner last aforesaid ; but he also threatens and intends to ring peals of the said six bells, and also to toll and ring, on week days; and he also threatens and intends to toll and ring the bell of the before-mentioned chapel or religious house." Therefore, upon this demurrer, it is quite clear that the argument that the Plaintiff has not established his right at law, cannot be maintained.

There was one point raised by the Plaintiff which I do not think it necessary to go into. The plaintiff insisted that it was illegal for Roman Catholics to ring and toll bells in a steeple annexed to their place of worship.

1851.

SOLTAU

DE HELD.

It appears to me that whether that be so or not, is perfectly immaterial to this case ; because, if it be illegal, I am not to grant an injunction to restrain an illegal act merely because it is illegal. I could not grant an injunction to restrain a man from smuggling, which is an illegal act. If it be illegal, the illegality of it is no ground for my interfering. Therefore, I do not at all go into the question, whether, under the numerous Acts of Parliament relating to Roman Catholics, it be or be not now lawful to have a steeple and bells. For the reasons which I have mentioned, I overrule the demurrer.

Judgment on the motion.

I now proceed to give my opinion with regard to the motion. And many of the observations which I have made upon the demurrer, necessarily apply, more or less, to the motion : for I find that the facts alleged by the bill are verified by affidavit. I have already stated those facts, and, therefore, I need not repeat them. But I must observe that the six bells in the steeple of the church, are not, in respect of size, such as are used in most chapels and district churches in and near London : but they are unusually large bells; and the effect produced by ringing them is thus described by Mr. Soltau in his affidavit: He says, “That, when a peal of the bells of the said Roman Catholic church was rung, the noise was so great that it was impossible for me or the members of my family, to read, write, or converse in my dwelling-house: And I further say that the tolling and ringing of the said bell and bells, was and is an intolerable nuisance to me; and, if the said bell or bells is or are permitted to be tolled or rung in the manner in which the same was so tolled and rung as aforesaid, it will be impossible for me to continue to reside, any longer, in my said house.” That is the description of the effect produced by the ringing of the bells as it was

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