of trade, in the upper part of the stream (); or in short to do any act therein, that in its consequences must necessarily tend to the prejudice of one's neighbour. So closely does the law of England enforce that excellent rule of gospel-morality, of "doing to others, as we would they should do unto ourselves." as to market. 2. As to incorporeal hereditaments, the law carries 2. Of nusance itself with the same equity. If I have a way, annexed to hereditaments. to incorporeal my estate, across another's land, and he obstructs me in Instances, and, the use of it, either by totally stopping it, or putting logs amongst others, across it, or ploughing over it, it is a nusance: for in the first case I cannot enjoy my right at all, and in the latter I cannot enjoy it so commodiously as I ought (m) (9). Also, if I am entitled to hold a fair or market, and another person sets up a fair or market so near mine that he does me a prejudice, it is a nusance to the freehold which I have in my market or fair (n). But in order to make this out to be a nusance, it is necessary, 1. That my market or fair be the elder, otherwise the nusance lies at my own door. 2. That the market be erected within the third part of twenty miles from mine. For Sir Matthew Hale (0) construes the dieta, or reasonable day's journey mentioned by Bracton (p), to be twenty miles; as indeed it is usually understood, not only in our own law (q), but also in the civil (r), from which we probably borrowed it. So that if the new market be not within seven miles of the old one, it is no *nusance; for it is held reasonable that [*219 ] every man should have a market within one third of a day's journey from his own home; that, the day being divided into three parts, he may spend one part in going, another in returning, and the third in transacting his ne cessary business there. If such market or fair be on the same day with mine, it is prima facie a nusance to mine, and there needs no proof of it, but the law will intend it to be so; but if it be on any other day, it may be a nusance; though whether it is so or not, cannot be intended or preAs to a ferry. sumed, but I must make proof of it to the jury. If a ferry is erected on a river, so near another ancient ferry as to draw away its custom, it is a nusance to the owner of the old one. For where there is a ferry by prescription, the owner is bound to keep it always in repair, and readiness, for the ease of all the king's subjects, otherwise he may be grievously amerced (s); it would be therefore extremely hard, if a new ferry were suffered to share his profits, which does not also share his burthen. But where the reason ceases, the law also ceases with it; therefore it is no nusance to erect a mill so near mine, as to draw away the custom, unless the miller also intercepts the water. Neither is it a nusance to set up any trade, or a school, in neighbourhood or rivalship with another; for by such emulation the public are like to be gainers; and, if the new mill or school occasion a damage to the old one, it is damnum absque injuria (t) (10). Where no nusance. Instances, as setting up a mill, or a trade, or a school, in rivalship. II. Remedies for nusance. No remedy private, unless for private wrong. Instance. II. Let us next attend to the remedies, which the law has given for this injury of nusance. And here I must premise that the law gives no private remedy for anything but a private wrong. Therefore no action lies for a public or common nusance, but an indictment only; because the damage being common to all the king's subjects, no one can assign his particular proportion of it; or if he (s) 2 Roll. Abr. 140. (10) The non-removal of the subject matter of tithe, after the same shall have been duly set out, is considered a nusance. See 8 T. R. 72. Shallcross v. Jowle, 13 East, 201. Mayes v. Willett, 3 Esp. N. P. C. 31. Newman v. Morgan, 10 East, 5. Halliwellod v. (t) Hale on F. N. B. 184. Trappes, 2 Taunt, 55. Facey v. Hurdom, 3 B. & C. 213. 5 D. &. R. 68. And the action lies not only in respect of not taking away grain and corn, but also lambs and calves after set out. Body v. Johnson, 2 Selw. 1121, edit. 7. And see Kemp v. Filewood, 11 East, 358. could, it would be extremely hard, if every subject in the kingdom were allowed to harass the offender with separate actions. For this reason, no person natural or corporate, can have an action for a public nusance, or punish it; but only the king in his public capacity of supreme [*220] governor, and pater-familias of the kingdom (u). Yet Exception this rule admits of one exception; where a private person where a public nusance may suffers some extraordinary damage, beyond the rest of occasion private injury. the king's subjects, by a public nusance; in which case he shall have a private satisfaction by action. As if, by Instances. means of a ditch dug across a public way, which is a common nusance, a man or his horse suffer any injury by falling therein; there, for this particular damage, which is not common to others, the party shall have his action (w) (11). Also if a man hath abated, or removed, a Where a man nusance which offended him, (as we may remember it was he has no stated in the first chapter of this book, that the party action. injured hath a right to do,) in this case he is entitled to no action (x). For he had choice of two remedies; either Reason, without suit, by abating it himself, by his own mere act and authority; or by suit, in which he may both recover damages, and remove it by the aid of the law; but having made his election of one remedy, he is totally precluded from the other. (u) Vaugh. 341, 342. (w) Co. Litt. 56. 5 Rep. 73. (11) But see Butterfield v. Forrester, 11 East, 60. The plaintiff must also have used common caution, and therefore where it was proved that he suffered from his unskilful driving, he could not recover. Flower v. Adam, 2 Taunt. 314. The particular injury must be direct. Bull. N. P. 26. As where the plaintiff could not make the same journey as many times in the day as before the obstruction he could. Greasley v. Codling, 2 Bing. 263. So where the de fendant, dwelling in a public street, (x) 9 Rep. 55. kept open an area, into which the abates nusauce Of remedies. 1. By action on the case. Continuance incurs exemplary damages. The remedies by suit are, 1. By action on the case for damages; in which the party injured shall only recover a satisfaction for the injury sustained; but cannot thereby remove the nusance. Indeed every continuance of a nusance is held to be a fresh one (y); and therefore a fresh action will lie, and very exemplary damages will probably be given, if, after one verdict against him, the defendant has the hardiness to continue it (12). Yet the (y) 2 Leon. pl. 129. Cro. Eliz. 402. (12) The plea to this action is "not guilty." For more as to nusance, see Com. Dig. title Action upon the Case for Nusance. Wherever the plea of "not guilty" occurs for adoption, whether in civil or in criminal matters, the subsequent finding by the jury of guilty or of not guilty is only a finding that the party is fineable or not fineable on account of the act, with the commission of which he is charged. The question, whilst it may admit, is worthy, of much discussion, since if the validity of this position were made evident, as it should seem it may, juries may feel themselves reinstated in their proper and original functions, namely, to determine, not the mere question of moral dereliction, but whether, under all the circumstances under which it took place, it should draw down the penalties of the law upon the head of the accused. A former note adverts to the question; but as it is one proper to another place, it is inexpedient that I should say more upon this plea, than hint my own notion as to its extent and meaning. See vol. i. p. 7, n. (3). In the former note, to which reference is made, the adducing authorities for this view of the meaning of the word " guilt" is mentioned. But the general subject of the fourth volume, namely, the criminal law, appears to be the proper occasion for more detailed observations upon this word; and that volume not falling within my engagement in respect of this edition, I feel that were the derivation and meaning treated at length here, it would justly be deemed misplaced. It may be sufficient to observe, that my researches satisfied me of the general correctness of the conclusion as to the meaning of the word “ guilt" now offered. And when Johnson derives the word from gylt, Saxon, and admits voc. guilt. that "it originally signified the fine or mulct paid for an offence, and afterwards the offence itself," the inquiry naturally suggested itself as to when and how the transition was made. This inquiry was attempted many years ago, and it was proposed to publish, "A short Disquisition upon the true Meaning of the Words GUILTY and VERDICT; tending to show that it is not only the Obligation of Juries, upon their solemn Oaths, to inquire whether the Accused shall have committed the Facts charged, but also that it is their exclusive Office to determine whether, by having committed them, the Accused shall have incurred the Punishment annexed by law to the crime." At the present period such a disqui founders of the law of England did not rely upon probabilities merely, in order to give relief to the injured. They have therefore provided two other actions; the Two actions assise of nusance, and the writ of quod permittat pros- nant of freebrought by teternere: which not only give the plaintiff satisfaction for hold. his injury past, but also strike at the root and remove the cause itself, the nusance that occasioned the injury. These two actions however can only be brought by the tenant of the freehold; so that a lessee for years is confined to his action upon the case (≈). (z) Finch, L. 280. sition might well find readers; and it may be hoped that jurors may in time be induced to give the question their most serious consideration. Inquiries were pursued through the laboured but instructive pages of Junius, Skinner, and Spelman. The following etymologies may be weighed by those disposed to think the question worth further discussion : “Voce giltie. guiltie. Reus, gilt, guilt, reatus. A. S. gylt. gÿltig. A. S. zıldan gyldan. est reddere, solvere. Al. gelten, gilten. D. gielde. B. gelden. undequoque vett. Flandris geldeman dicebatur debitor qui Danis gieldener. Atque ita giltig vel giltie proprie dicetur qui culpam commissam tenetur solvere vel ære vel in corpore. Teut. interim gelden Helvigius deduxita , redemet." To the present purpose, an extract from Blount's Law Dictionary and Glossary, may also assist to satisfy the reader that there is, at least, some foundation for the observations submitted. "Gild is also a compensation or mulct for a fault. Quicquid in amore in alterum furatum habent in duos Geldos componere fuciat. From hence weregeld is the price of a man, orfgeld the price I am aware that into the misty |