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Where a police constable, on being sent for at a late hour of the night to clear a beer-house, did so, and told one of the persons on leaving the house to go away, who refused and used threatening language, and cut the constable with a knife; Williams, J., held that the constable was justified in laying hands on the party to remove him. The prisoner, who was indicted for cutting with intent, &c., was found guilty. Hems' case, 7 C. and P. 312 (a).

The prisoner was indicted for cutting, &c. with intent to murder, and also with intent to do grievous bodily harm. It appeared that a constable having a warrant to arrest the prisoner, gave it to his son, who, in attempting to take the prisoner into custody was stabbed by him with a knife which he happened to have in his hand at the time, the constable then being in sight but a quarter of a mile off; Parke, B., held that the arrest was illegal, and that the prisoner must be acquitted. Patience's case, 7 C. & P. 775 (b).

The prisoner asked permission at the house of the prosecutor to take some ashes, which he was allowed to do, but as he was coming out, the prosecutor's apprentice saw a copper tea-kettle among the ashes in the prisoner's basket, and told the prosecutor. The latter laid hold of the prisoner to secure hini on the charge of stealing the tea-kettle, and in the

*737 ] scuffle both fell, when the prisoner cut the *prosecutor with a knife. Alderson, B., held this to be a wounding within the recent statute, provided the jury were satisfied that the prisoner had stolen the kettle, as the prosecutor then had a right to apprehend him. Price's case, 8 C. and P. 282 (c)

Proof of the intent-principalsaiding and abetting.) Where sereral persons are engaged in the commission of a felony, and one of them commits an offence within the statute, a question arises how far the others are to be considered as sharing in his guilt. Where three persons, engaged in committing a felony, were surprised by the watchmen, and two of them made their escape, and the third afterwards, in attempting to make his escape in a different direction, cut the watchmen ; upon an indictment, charging both him and one of the other prisoners (Richardson,) with an offence under the 43 Geo. 3, Graham, B., directed the jury, that if the prisoners came with the same illegal purpose, and both determined to resist, the act of one would fix guilt upon both, and that it might have been part of the plan to take different ways. The prisoners were found guilty; but on a case reserved, the judges were of opinion that there was no evidence against Richardson. White's case, Russ. and Ry. 99 (d).

Two private watchmen, seeing the prisoner and another person with their carts loaded with apples, went to them, intending, as soon as they could get assistance, to secure them; one walking at the side of each of the men. The other man wounded the watchman near him.

The prisoner being indicted for this offence, under the 9 Geo. 4, it was held that the jury must be satisfied that he and the other man had not only gone out with a common purpose of stealing apples, but also of resisting with violence any attempt to apprehend them. Collison's case, 4 C. and P. 565(e)

(@) Eng. Com. L. Rep. xxxii. 522. (6) Id. 730. (c) Id. xxxiv. 390. (d) 1 Eng. C. C.

99. («) Eng. Com. L. Rep. xix. 529.

It is not necessary, in order to convict the prisoner, that he should appear to be the person who actually fired the shot. In an indictment, on the 43 Geo. 3, the three first counts stated, in the usual form, that J. S. did shoot at A. B., and went on to state that M. and N. were present aiding and abetting. The three last counts stated that an unknown person did shoot at A. B., &c., and that J. S. and M. N. were present aiding and abetting the said unknown person in the felony aforesaid, to do and commit, and were then and there knowing of and privy to the commission of the said felony, against the statute, &c.; but they omitted to charge them with being feloniously present, &c. There was no evidence to show that J. S. was the person who fired. It was objected that the prisoners could not be convicted on the first set of counts, because the jury had negatived the firing by J. S.; nor on the second set, because the word “feloniously” was omitted. Graham, B., said that the objection was founded upon a supposed difference in the act of shooting, &c., and the being present, &c., at it; whereas the act of parliament had made no degrees, no difference of offence, and that the plain meaning and necessary construction of the act was, that if the parties were present, knowing, &c., they and every one of them *shot, and that the charge of feloniously shoot- [ *738 ) ing applied to every one of them. The prisoners being convicted, all the judges thought that the conviction was right. Towle's case, Russ. and Ry. 314 (a).

Where A. was charged under the 7 Wm. 4 and 1 Vict. c. 85, s. 2, with inflicting an injury dangerous to life, with intent to murder, and B. was charged with aiding and abetting him; Patteson, J., held that it was essential, in order to make out the charge as to B., that B. should have been aware of A.'s intention to commit murder. Cruse's case, 8 C. and P. 541 (b).

Impeding persons endeavoring to escape from wrecks.] The present seems to be the most appropriate head under which to place the following provision.

By the 7 Wm. 4 and 1 Vict. c. 89, s. 7, whosoever shall by force prevent or impede any person endeavoring to save his life from any ship or vessel which shall be in distress, or wrecked, stranded, or cast on shore, whether he shall be on board or shall have quitted the same, shall be guilty of felony, and being convicted thereof shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such offender, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years.”

For the other clauses of the above act, see ante, p. 622.

(a) 1 Eng. C. C. 314. (6) Eng. Com. L. Rep. xxxiv. 522.

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A public or common nuisance is such an inconvenient or troublesome offence as annoys the whole community in general, and not merely some particular person ; and therefore this is indictable only, and not actionable. 4 BI. Com. 167.

Proof of the public nature of the nuisance.] The existence of the matter as a public nuisance depends upon the number of persons annoyed, and is a fact to be judged of by the jury. White's case, 1 Burr. 337. Thus where a tinman was indicted for the noise made by him in carrying on his trade, and it appeard that it only affected the inhabitants of three sets of chambers in Clifford's Inn, and that the noise might be partly excluded by shutting the windows; Lord Ellenborough ruled that the indictment could not be maintained, as the annoyance, if any thing, was a private nuisance. Lloyd's case, 4 Esp. 200. But a nuisance near the highway, whereby the air thereabouts is corrupted, is a public nuisance. Pappineau's case, 2 Str. 686.

Making great noises in the night, as with a speaking-trumpet, has been held to be an indictable offence, if done to the disturbance of the neighborhood. Smith's case, 1 Sır. 704. So keeping dogs which make noises in the night, is said to be indictable. 2 Chitty's Cr. Law, 647.

So the keeping of hogs in a town is not only a nuisance by statute (2 W. & M. sess. 2, c. 8, s. 20) but also at cominon law. Wigg's case, 2 Ld. Raym. 1163.

It is now settled that the circumstance, that the thing complained of furnishes upon the whole, a greater convenience to the public than it takes away, is no answer to an indictment for a nuisance; see ante, p. 517 (1)..

Proof of the degree of annoyance which will constitute a public nuisance.] It is a matter of some difficulty to define the degree of annoyance which is necessary to constitute a public nuisance. Upon an indictment for a nuisance, in making great quantities of offensive liquors

(1) Resp. o. Caldwell, 1 Dall. 150. Hart & al. o. The Mayor, &c. of Albany, 9 Wend. 571, 582

near the king's highway, it appeared in evidence that the smell was not only intolerably offensive, but also noxious and hurtful, giving many persons headaches. It was held, that it was not necessary that the smell should be unwholesome, but that it was *enough if it rendered [ *740 ] the enjoyment of life and properly uncomfortable. White's case, 1 Burr.

So it is said that the carrying on of an offensive trade is indictable, where it is destructive of the health of the neighborhood, or renders the houses untenantable or uncomfortable (1). Davey's case, 5 Esp. 217. So it was ruled, by Abbott, C. J., in the case of an indictment for carrying on the trade of a varnish maker, that it was not necessary that a public nuisance should be injurious to health ; that if there were smells offensive to the senses, it was enough, as the neighborhood had a right to pure and fresh air. Neil's case, 2 C. and P. 485 (a) (2).

Proofwith regard to situation.] A question of considerable difficulty frequently presents itself, as to the legality of carrying on an offensive trade in the neighborhood of similar establishments, and as to the length of time legalizing such a nuisance. Where the defendant set up the business of a melter of tallow in a neighborhood where other manufactories were established, which emitted disagreeable and noxious smells, it was ruled that he was not liable to be indicted for a nuisance, unless the annoyance was much increased by the new manufactory. B. Nevill's case, Peake, 91. And it has also been ruled, that a person cannot be indicted for continuing a noxious trade which has been carried on in the same place for nearly fifty years. S. Neville's case, Peake, 93. But upon this case it has been observed, that it seems hardly reconcileable to the doctrine, that no length of time can legalize a public nuisance, although it may supply an answer to an action by a private individual. 1 Russ. 297 ; vide post, p. 741. It should seem, continues the same writer, that, in judging whether a thing is a public nuisance or not, the public good it does may, in some cases, where the public health is not concerned, be taken into consideration, to see if it outweighs the public annoyance. With regard to offensive works, though they may have been originally established under circumstances which would prima facie protect them against a prosecution for a nuisance, it seems that a wilful neglect to adopt established improvements which would make them less offensive, may be indictable. 1 Russell, 297.

In a late case, of an indictment for carrying on the business of a horseboiler, it appeared that the trade had been carried on for many years before the defendants came to the premises; but its extent was much greater under them. For the defendants, it was shown that the neighborhood was full of horse-boilers and other noxious trades, and evidence was given of the trade being carried on in an improved manner. Lord Tenterden observing, that there was no doubt that this trade was in its nature a nuisance, said, that, considering the manner in which the neighborhood had always been occupied, it would not be a nuisance, unless it occasioned more inconvenience as it was carried on by the defendants than it had done before. He left it therefore to the jury to say whether

(1) Prout's case, 4 Rogers' Rec. 87.
(2) Case of Lynet & al., 6 Rogers' Rec. 61.

(a) Eng. Com. L. Rep. xii. 226.

there was any increase of the nuisance; if, in consequence of the alleged improvements in the mode of conducting the business, there was [ *741 ] *no, increase of annoyance, though the business itself had increased, the defendants were entitled to an acquittal; if the annoyance had increased, this was an indictable nuisance, and the defendants must be convicted. Watts' case, Moo. and Mal. N. P. C. 281 (a).

If a noxious trade is already established in a place, remote from habitations and public roads, and persons afterwards come and build houses within the reach of its noxious effects; or if a public road be made so near it, that the carrying on of the trade becomes a nuisance to the persons using the road ; in those cases, the party is entitled to continue his trade, because it was legal before the erecting of the houses in the one case, and the making of the road in the other. Per Abbott, C. J.; Cross's case, 2 C. and P. 483 (b).

Proofwith regard to length of time.] No length of time will legitimate a nuisance; and it is immaterial how long the practice has prevailed (1). Though twenty years user may bind the right of an individual, yet the public have a right to demand the suppression of a nuisance, though of longer standing. Weld v. Hornby, 7 East, 199. Thus upon an indictment for continuing a stell fishery across the river at Carlisle, though it appeared that it had been established for a vast number of years, yet Mr. Justice Buller held that it continued unlawful, and gave judgment that it should be abated. Case cited by Lord Ellenborough, 3 Campb. 227. So it is a public nuisance to place a woodstack in the street of a town before a house, though it is the ancient usage of the town, and leaves sufficient room for passengers, for it is against law to prescribe for a nuisance. Fowler v. Sanders, Cro. Jac. 446. In one case, however, Lord Ellenborough ruled, that length of time and acquiescence might excuse what might otherwise be a common nuisance. Upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used as a market for the sale of clothes for above twenty years, and that the defendant put the bags there for the purpose

of sale. Under these circumstances, Lord Ellenborough said, that after twenty years' acquiescence, and it appearing to all the world that there was a market or fair kept at the place, he could not hold a man to be criminal who came there under a belief that it was such a fair or market legally instituted. Smith's case, 4 Esp. 111.

Proof of particular nuisances-particular trades. Certain trades, producing noxious and offensive smells, have been held to be nuisances, when carried on in a populous neighborhood, as making candles in a town by boiling stinking stuff, which annoys the whole neighborhood with stenches. Tohayle's case, cited Cro. Car. 510; but see 2 Roll. Ab. 139; Hawk. P. C. b. 1, c. 75, s. 10. And it seems that a brewhouse erected in such an inconvenient place that the business cannot be carried on without greatly incommoding the neighborhood, may be indicted as a common nuisance; and so in the case of a glass-house or swine-yard. Hawk. [ *742 ] P. C. b. 1, c. 75. *s. 10; Wigg's case, 2 Lord Raym. 1163. So

(1) Mills o. Hall, 9 Wend. 315.
(a) Eng. Com. Law Rep. xxii. 307. (6) Id. xii. 226.

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