for any person to make, or cause to be made, or to sell or utter, or offer to 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." The 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 can clearly be also prosecuted by indictment. (m) By the 10 & 11 Wm. 3, c. 17, all lotteries are declared to be pub& 11 W. 3, c. lic nuisances; and all grants, patents, and licenses, 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. (n) 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.

Lotteries. 10

17.

Of the removal of nuisances.

Of the prohi

by writ from the King's

Bench,

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 (o). 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; (p) 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. (q)

It is also stated as the better opinion, that the Court of King's bition of them 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. (r) 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, issuing a writ to the sheriff on the record made, to abate the building, and ordered the offender to be indicted for the nuisance. (s)

But the more usual course of proceeding in cases of nuisance is

(m) Ante, p. 49. The pecuniary penalties are imposed by ss. 2 and 3, of this statute. And see Burn. Just. tit. Fireworks.

(n) See the acts collected, Burn. Just.
tit. Gaming, HI.

(0) Hawk. P. C. c. 75, s. 12. Bac.
Abr. tit. Nuisance, (C).
(p) Id. Ibid.

(q) Post. 331.

(r) Bac. Abr. tit. Nuisance, (C.)

(s) Rex v. Hall, 1 Mod. 76. 1 Vent, 169, S. C. And Hale, C. J. mentioned another case in 8 Car. 1, of a writ to prohibit a bowling-alley erected near St. Dunstan's

church.

of nuisance.

by indictment, in which the nuisance should be described according Of the indictto the circumstances; and it should be stated to be continuing, if ment in cases that be the fact. (1) 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; (u) 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. (v) The offence should be charged to be done ad commune nocumentum, "to the common nuisance of all the liege subjects," &c. (w) But an indictment against a common scold, using the 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. (x) The safer mode, however, will be to lay the offence to have been committed "to the common nuisance of all the liege subjects," &c.

In some cases it is no defence to show that the premises, out of which the nuisance arises, are in the occupation of a tenant, for the Defence. receipt of the rent is an upholding of the nuisance.

from premises

If the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the Where a landland, he is liable to an indictment for such nuisance being con- lord is liable tinued or created during the term. So he is if he let a building, for a nuisance which requires particular care to prevent the occupation from being in the occupaa nuisance, and the nuisance occur for want of such care on the part tion of tenants. of the tenant. (y) If a man purchase premises with a nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance. But if, after the reversion is purchased, the nuisance be erected by the occupier, the reversioner incurs no liability; yet in such a case, if there were only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable. (2) Where, therefore, the defendant was in the receipt of the rents of some dwelling-houses, let for short periods to

there cited. And see Bac. Abr. tit. Nui-
sance (B). In 6 East, 315, Rex v. Reynell,
there is an indictment for not repairing the
fences of a churchyard "to the nuisance of
the inhabitants of the parish." But qu.

(x) 1 Hawk. P. C. c. 75, s. 5.

(y) Rex v. Pedley, 1 A. & E. 822. 3 N. & M. 627.

(z) Per Littledale. J, ibid.

The defendant cannot excuse

himself by shewing that the nuisance

has existed for a long time.

No length of time will le

tenants, and two privies and a sink belonging to them were used in common by the occupiers of the houses; it did not appear whether any of the present tenants commenced occupying the houses before the defendant began to receive the rents; but the privies and sink were used by the tenants of those premises before his time; there was no distinct proof of any actual demise of the privies and sink, but they had regularly been cleansed by the persons occupying the houses, until the time of the nuisance, when the cleansing had been neglected; the nuisance had arisen since the defendant began to receive the rents; it was held that the defendant was liable to be indicted for the nuisance. (~) It is no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are done in the course of their employment; for if persons for their own advantage employ servants to conduct works, they are answerable for what is done by those servants. (a)

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. (b) 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. (c) And Lord Ellenborough, C. J., said, in one case, "It is immaterial how long the practice may have prevailed, for no length of time will galize a public legitimate a nuisance. The stell fishery across the river at Carlisle had been established for a vast number of years, but Mr. Justice Buller held that it continued unlawful, and gave judgment that it should be abated." (d) 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, 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. (e)

nuisance.

the nuisance.

If the indictment be so general that it does not convey sufficient Particulars of information to the defendant to enable him to prepare his defence, the Court will order the prosecutor to give the defendant a particular of the several acts of nuisance he intends to prove. (ƒ) And where the indictment is for the obstruction or non-repair of highways which are described generally, a particular of the several highways obstructed or out of repair may be obtained. (g)

(2) Rex v. Pedley, supra.

(a) Rex v. Medley, 6 C. & P. 292. Lord Denman, C. J. See ante, p. 109,

110.

(b) Weld v. Hornby, 7 East, 199; and
see post, Sect. 3.

(c) Fowler v. Sanders, Cro. Jac. 446.
(d) Rex v. Cross, 3 Camp. 227.
(e) Rex v. Smith & others, 4 Esp. 111.

See Bliss v. Hall, 4 B. N. C. 183.

(f) Rex v. Curwood, 3 A. & E. 815. (g) Rex v. Marquis of Downshire, 4 A. & E. 698. Reg. v. Inhabitants of Pembridge, June 26, 1841. Patteson, J., at chambers; and no affidavit is necessary, as the necessity for particulars appears on the face of the indictment,

of nuisance.

All common nuisances are regularly punishable by fine and im- Of the judg prisonment: but, as the removal of the nuisance is usually the chief ment in cases 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 of the judgment, the defendant may be commanded by the judgment to remove it at his own costs: (h) 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. (i) 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. (j) 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 indicted 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." (k)

any

where the de

certiorari, and

The 5 Wm. & M. c. 11, s. 3, enacts, that if a defendant prose- Costs upon an cuting a writ of certiorari (as mentioned in the act) be convicted indictment of the offence for which he is indicted, the Court of King's Bench for a nuisance shall give reasonable costs to the prosecutor if he be the party fendant had grieved, or be a justice, &c., or other civil officer, who shall prose- removed it by cute for fact that concerned them as officers to prosecute or pre- been convicted. sent. Upon this clause it was decided, 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. (1)

furnaces used

The 1 & 2 Geo. 4, c. 41, reciting the great inconvenience and Costs in cases injury sustained from the improper construction and negligent use of nuisances of furnaces employed in the working of engines by steam, and that arising from though such nuisance, being of a public nature, is abatable as such for steamby indictment, the expense had deterred parties suffering thereby enginess. from seeking the remedy given by law, enacts that it shall and may be lawful for the Court by which judgment 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;

(h) 2 Roll. Abr. 84. 1 Hawk. P. C. c. 75, s. 14. Rex v. Pappineau, 1 Str. 686. (i) Rex v. Pappineau, supra, 9 Co. 53. Godb. 221.

(j) Co. Ent. 92 b.

(k) Rex v. Stead, 8 T. R. 142. A strong

opinion was intimated upon the point when
the same case was previously brought be-
fore the court in another shape. Rex v. the
Justices of Yorkshire, 7 T. R. 468.

(1) Rex v. Dewsnap and another, 16
East, 194.

An order may

court for the alteration of the furnace.

such award to be made either before or at the time of pronouncing final judgment, as to the Court may seem fit."

By sec. 2, if it shall appear to the Court by which judgment be made by the ought to be pronounced that the grievance may be remedied by altering the construction of the furnace, it shall be lawful for the Court, without the consent of the prosecutor, 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.

But these provisions are not to extend to furnaces of engines for working mines, &c.

Of nuisances

ways.

The statute then enacts, that the provisions contained in it, as far as they relate to the payment of costs and the alteration of furnaces, shall not extend to the owners or occupiers of any furnaces of steam engines, erected solely for the purpose of working mines of different descriptions, or employed solely in the 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. (m)

SECT. II.

Of Nuisances to Public Highways.

In treating of nuisances to public highways, we may consider, in the to public high- 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.

What is a public highway.

Highway is said to be the genus of all public ways; (n) of which there are three kinds: a footway; a foot and horseway, which is also a pack and prime-way; and a foot, horse and cart way. (0) 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. (p) But a way to a parishchurch, 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. (q) But in a late case, (r) where a public footway was described as leading to a parish church, no objection was made on the ground that there could not be a public way to a church. In one case, a very learned judge said, he had great difficulty in conceiving that there can be a public

(m) Sec. 3.

(n) Reg. v. Saintiff, 6 Mod. 255.
(0) Co. Lit. 56 a.

(p) Id. Ibid. 1 Hawk. P. C. c. 76. s. 1.
Bac. Abr. tit. 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 description was sufficient.
Allen v. Ormond, 8 East, 4.

(9) 1 Hawk. P. C. c. 76, s. 1. So by

Hale, C. J., in Austin's case, 1 Vent. 189. A way leading to any market town, and common for all travellers, and communicating with any great road, is a highway: but if it lead only to a church, or to a house or village, or to fields, it is a private way.

(r) Rex v. Marchioness of Downshire, 4 A & E. 232. 5 N. & M. 662. See also Williams's case, 5 Co 72 b. 2 Roll. 84, pl. 15. Rex v. Reynell, 6 East, 315.