Sivut kuvina

a manufactory for making spirit of sulphur, vitriol, and aqua fortis, has been held indictable. White's case, 1 Burr. 333. So a tannery where skins are steeped in water, by which the neighboring air is corrupted. Pappineau's case, 2 Str. 686.

Proof of particular nuisances-corrupting the waters of public rivers.) In Medley's case, 6 C. and P. 292, the chairman, deputy-chairman, superintendent, and engineer of the Equitable Gas Company were found guilty on an indictinent for conveying the refuse of gas into the Thames, whereby the fish were destroyed, and the water was rendered unfit for drink, &c. Lord Denman, C. J., told the jury, that the question for them was, whether the special acts of the company amounted to a nuisance. See this case in another point, post, p. 746.

Proof of particular nuisances-railways-steam-engines,&c.] Where an act of parliament gave a company power to make a railway, and another act gave unqualified power to use locomotive steam-engines on the railway, and the railway was constructed in some parts within five yards of a highway ; upon an indictment for a nuisance, stating that horses passing along the highway were terrified by the engines, it was held that ihis interference with the rights of the public must be presumed to have been sanctioned by the legislature, and that the benefit derived by the public from the railway showed that there was nothing unreasonable in

act of parliament giving the powers. Pease's case, 4 B. and Ad. 30 (a). But when the defendant, the proprietor of a colliery, without the authority of an act of parliament, made a railway from his colliery to a sea-port town, upon the turnpike way, which it narrowed in some places, so that there was not room for two carriages to pass, although he gave the public (paying a toll) the use of the railway, yet it was held that the facility thereby afforded to traffic was not such a convenience as justified the obstruction of the highway. Morris's case, 1 B. and Ad. 441 (6).

The proceedings in indictments for nuisances by steam-engines are regulated by statute 1 & 2 Geo. 4, c. 41. By sec. 1, the court by which judgment ought to be pronounced in case of a conviction upon any such indictment (viz. for a nuisance arising from the improper construction or negligent use of furnaces employed in the working of steam-engines), is authorized to award such costs as shall be deemed proper and reasonable to the prosecutor, such award to be made before or at the time of pronouncing final judgment. And by the second section, if it shall appear to the court by which judgment ought to be pronounced, that the grievance may be remedied by altering the construction of the furnace, it shall be lawful, without the consent of the prosecutor, to make such order touching the premises as shall by the court be thought expedient for preventing the nuisance in future, before passing final sentence. By the third section the act is not to extend to furnaces erected for the purposes of working mines.

*Proof of particular nuisancesacts tending to produce public (*743 ] disorder-acts of public indecency.] Common stages for rope-dancers, and common gaming-houses, are nuisances in the eye of the law, not only be

(a) Eng. Com. L. Rep. xxiv. 17. (6) Id. xx. 421.

cause they are great temptations to idleness, but because they are apt to draw together great numbers of disorderly persons, to the inconvenience of the neighborhood. Hawk. P. C. b. 1, c. 75, s. 6. So collecting to gether a number of persons in a field, for the purpose of pigeon-shooting, to the disturbance of the neighborhood, is a public nuisance. Moore's case, 3 B. and Ad. 184 (a), see this case more fully, post, p. 746.

It is upon this same principle that many of the acts after-mentioned have been held to be public nuisances.

What outrages public decency, and is injurious to public morals, is indictable as a misdemeanor (1). Hawk. P. Č. b. 1, c. 75, s. 4; 1 Russell, 302. Thus bathing in the open sea, where the party can be distinctly seen from the neighboring houses, is an indictable offence. Crunden's case, 2 Camp. 89; Sedley's case, Sid. 168.

Proof of particular nuisancesdisorderly inns.] Every one, at common law, is entitled to keep a public inn, (but if it be an ale-house, he comes within the statute concerning ale-houses ;) and may be indicted and fined as guilty of a public nuisance, if he usually harbor thieves, or suffer frequent disorders in his house, or take exorbitant prices, or refuse to receive a traveler as a guest into his house, or to find himn victuals, upon the tender of a reasonable price. Hawk. P. C. b. 1, c. 78, s. 1, 2. It is said also, that setting up a new inn, where there is already a sufficient number of ancient and well-governed inns, is a nuisance. Id. 3 Bac. Ab. Inns, (A.). 1 Russell, 298 (2).

Proof of particular nuisances-gaming-houses.] In Dixon's case, 10 Modi. 336, it was held that the keeping of a gaming-house was an offence at common law as a nuisance. The keeping a common gaminghouse is an indictable offence, for it not only is an encouragement to idleness, cheating, and other corrupt practices, but it tends to produce public disorder by congregating numbers of people. Hawk. P. C. b. 1, c. 75, s. 6; 1 Russell, 299. A feme covert may be convicted of this offence. Hawk. P. C. b. 1, c. 92, s. 30. Keeping a common gaming-house, and for lucre and hire unlawfully causing and procuring divers evil-disposed persons to frequent and come to play together a certain game called rouge et noir, and permitting the said idle and evil-disposed persons to remain, playing at the said game, for divers large and excessive sums of money, is a sufficient statement of an offence indictable at common law. Rogier's case, 1 B. and C. 272 (6): and per Holroyd, J., it would have been sufficient merely to have alleged that the defendant kept a common gaminglouse. Ibid.

So in Mason's case, 1 Leach, 548, Grose, J., seemed to be of opinion that the keeping of a common gaming-house might be described generally. See also Taylor's case, 3 B. and C. 502 (c). [ *744 ] *It seems that the keeping of a cockpit is not only an indictable

(1) Knowles o. The State, 3 Day's Cas. 103.

(2) As to disorderly houses, 1 Wheeler's C. C. 290. May be proved by general reputation. Rathbone's case, 1 Rogers' Rec. 27. But see Commonwealth v. Stewart, 18. & R. 342. The keeping of a disorderly house must be laid as a common nuisance. Hunter o. The Commonwealth,

2 S. and R. 298.

(a) Eng. Com. L. Rep. xxiv. 52. (b) Id. við. 75. (©) Id. x. 166.

offence at common law, but such places are considered gaming-houses within the statute 32 Hen. 8, c. 9. Hawk. P. C. b. 1, c. 92, s. 92.

The proceedings against persons keeping gaming-houses, bawdy-houses, or disorderly houses, are facilitated by the statute 25 Geo. 2, c. 36, by the eighth section of which it is enacted, that any person who shall appear, act, or behav

as the master or mistress, or as the person having the care, government, or inanagement of any bawdy-house, gaming-house, or other disorderly house, shall be deemed and 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. By section 9, inhabitants of the parish or place, though bound by recognizance, may give evidence upon the prosecution. By section 10, no indictment shall be removed by certiorari. This clause does not prevent the crown from removing the indictment. Davies's case, 5 T. R. 626.

After an indictment has been preferred by a private prosecutor, the court will allow any other person to go on with it even against the consent of the prosecutor. Wood's case, 3 B. and Ad. 657 (a).

Proof of particular nuisancesbawdy-houses.] The keeping of a bawdy-house is a common nuisance, both on the ground of its corrupting public morals, and of its endangering the public peace, by drawing together dissolute persons (1). Hawk. P. C. b. 1, c. 74, s. 1; 5 Bac. Ab. Nuisances, (A); 1 Russell, 299. A feme covert is punishable for this offence as much as if she were sole. Ibid. Williams's case, 1 Salk. 383. And a lodger, who keeps only a single room for the use of a bawdry, is indictable for keeping a bawdy-house ; see Pierson's case, 2 Lord Raym. 1197; but the bare solicitation of chastity is not indictable. Hawk.P.C. b. I, c. 74, s. 1 (2).

Though the charge in the indictment is general, yet evidence may be given of particular facts, and of the particular time of these facts, see Clarke v. Periam, 2 Atk. 339, it being, in fact, a cumulative offence, vide ante, p. 82. It is not necessary to prove who frequents the house, which in many cases it might be impossible to do, but if unknown persons are proved to have been there, conducting themselves in a disorderly manner, it will maintain the indictment. J'Anson v. Stuart, 1 T. R. 754; 1 Russell, 302.

When the house is described as being situated in a particular parish, this being matter of description, must be proved as laid.

The proceedings in prosecutions against bawdy-houses are facilitated by the statute 25 Geo. 2, c. 36, supra.

Proof of particular nuisances-play-houses, &c.] Play-houses having been originally instituted for the laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may become so by drawing *to- [ *745 ) gether numbers of people, to the inconvenience of the neighborhood (3). Hawk. P. C. b. 1, c. 75, s. 7, see 2 B. and Ad. 189 (6).

(1) Darling v. Hubbell, 9 Conn. 350. Letting a house to a woman of ill fame, knowing her to be such, is an indictable offence at common law. Commonwealth v. Harrington, 3 Pick. 26. See Brooks v. The State, 2 Yerger, 482.

(2) Contra, State o. Avery, 7 Conn. 267.
(3) People v. Baldwin, 1 Wheeler's C. C.281.

(a) Eng. Com. L. Rep. xxiii. 154. (6) Id. xxiii. 53.

By the 25 Geo. 2, c. 36, any house, room, garden, or other place kept for public dancing, music, or other public entertainment of the like kind, in the cities of London or Westminster, or within twenty miles thereof, without a license from the magistrates, shall be deemed a disorderly house, and the keeper is subjected to the penalty of £100, and is otherwise punishable as the law directs, in cases of disorderly houses.

A room used for public music or dancing is within the statute, although it is not exclusively used for those purposes, and although no money be taken for admission ; but the mere accidental or occasional use of a room for either or both of those purposes, will not be within the act. Per Lord Lyndhurst, C. B. Gregory v. Tuffs, 6 C. and P. 271 (a). · See also Gregory v. Tavernor, Ibid. 280 (6).

Proof of particular nuisances-gunpowder, &c.] Things likely to be productive of injury to the persons of those residing in the neighborhood, are nuisances, as the erecting of gunpowder mills, or the keeping a gunpowder magazine near a town (1). Williams's case, 4 Burn's Justice, 758: Taylor's case, 2 Str. 1167; and see 12 Geo. 3, c. 61. So by the 10 Wm. 3, c. 7, the making, selling, or exposing to sale any fireworks, or throwing or firing them into any public street, or highway is declared to be a common nuisance.

Proof of particular nuisances-dangerous animals.] Suffering fierce and dangerous animals, as a fierce bull-dog, which is used to bite people, to go at large, is an indictable offence. 4 Burn's Justice, 578. But where the animal is not of such a description as in general, from its ferocity, to endanger the persons of those it meets, in order to maintain an indictment, it must be shown that the owner was aware of the ferocity of that particular animal. 2 Ld. Raym. 1582.

Proof of particular nuisances-contagion and unwholesome provisions.] It is an indictable offence to expose a person having a contagious disease, as the small-pox, in public. Vantandillo's case, 4 M. and S. 73; Burnett's case, Id. 272. So it is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells. Dixon's case, 3 M. and S. 11.

Proof of particular nuisanceseaves dropping, common scold.] Eaves-droppers, or such as listen under walls or windows, or the eaves of houses, to hear discourses, and thereupon frame slanderous and mischievous tales, are common nuisances, and indictable, and may be punished by fine, and finding sureties for their good behavior (2). 4 Bl. Com. 167 ; Burn's Justice, Eaves Droppers ; i Russell, 302.

So a common scold is indictable as a common nuisance, and upon [ *746 ] *conviction may be fined or imprisoned, or put into the duckingstool (3). Hawk. P. C. b. I, c. 75, s. 14; 4 Bl. Com. 168. The par

(1) People o. Sands, 1 Johns. 78. Case of Hamilton and al., 2 Rogers' Rec. 46. (2) State o. Williams, 2 Tenn. Rep. 108.

(3) Case of Greenwault and al., 4 Rogers’ 174. Field's case, 6 Id. 90. James v. The Commonwealth, 12 S. & R. 220. But the punishment by the ducking-stool cannot be inAlicted in Pennsylvania. Ibid.

(a) Eng. Com. L. Rep. xxv. 393. () Id. 397.

ticulars need not be set forth in the indictment. Hawk. P. C. b. 2, c. 25, s. 59; nor is it necessary to prove the particular expressions used, it is sufficient to give in evidence generally that the defendant is always scolding. Per Buller, J. J'Anson v. Stuart, 1 T. R. 754.

Proof of the liability of the defendant.] A man may be guilty of a nuisance by the act of his agent or servant. Thus it has been ruled that the directors of a gas company are liable for an act done by their superintendant and engineer, under a general authority to manage their works, though they are personally ignorant of the particular plan adopted, and though such plan be a departure from the original and understood method, which the directors had no reason to suppose discontinued. Medley's case, 6 C. and P. 292 (a); see this case, ante, p. 742.

The indictment charged the defendant with keeping certain enclosed lands near the king's highway, for the purpose of persons frequenting the same to practise rifle shooting, and to shoot at pigeons with fire-arms; and that he unlawfully and injuriously caused divers persons to meet there for that purpose, and suffered and caused a great number of idle and disorderly persons armed with fire-arms, to meet in the highways, &c., near the said enclosed grounds, discharging fire-arms, making a great noise, &c., by which the king's subjects were disturbed and put in peril. At the trial it was proved that the defendant had converted his premises, which were situate at Bayswater, in the county of Middlesex, near a public highway there, into a shooting-ground, where persons came to shoot with rifles at a target, and also at pigeons; and that as the pigeons which were fired at frequently escaped, persons collected outside of the ground, and in the neighboring fields to shoot at them as they strayed, causing a great noise and disturbance, and doing mischief by the shot. It was held, that the evidence supported the allegation that the defendant caused such persons to assemble, discharging fire-arms, &c., inasmuch as their so doing was a probable consequence of his keeping ground for shooting pigeons in such a place. Moore's case, 3 B. and Ad. 184 (b).

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 land, he is liable to an indictment for such nuisance being continued or created during the term. So he is, if he let a building which requires particular care to prevent the occupation from being a nuisance, and the nuisance occur for want of such care on the part of the tenant.

If a party buy the reversion during a tenancy, and the tenant afterwards, during his term, erect a nuisance, the reversioner is not liable for it; but if such reversioner re-let, or having an opportunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continuance. Per Litlledale, J. *And such purchaser [ *717 ] is liable to be indicted for the continuing of the nuisance, if the original reversioner would have been liable, though the purchaser bas had no opportunity of putting an end to the tenant's interest, or abating the nui

Pedley's case, 1 Ad. and E. 822 (c).


Punishment and abatement of the nuisance.] The punishment imposed by the law on a person convicted of a nuisance is fine and impris

(a) Eng. Com. L. Rep. xxv. 403. (b) Id. xxiii. 52. (©) Id. xxviii. 220.

« EdellinenJatka »