CHAPTER VIII.

Nuisance.

▲ PRIVATE nuisance, as distinguished from a common or public nuisance, which will fall under the class of criminal offences, may be defined an injury or annoyance to the person or property of an individual.

If a man build a house so near to mine that his roof overhang my roof and throw the water off his roof upon mine, this is a private nuisance, for which an action will lie. Likewise to erect a house or other building so near mine that it obstructs my light and windows is a nuisance. But in this case it is necessary the windows be ancient, that is, have subsisted there a long time without interruption, otherwise there is no remedy. An uninterrupted enjoyment for twenty years is sufficient to support an action on the case for this disturbance of it. But a right thus acquired must be limited in degree by the use made of it; a person by the use of a portion of a stream for twenty years does not thereby acquire a right to the use of the whole, or any quantity larger than that proportion; or by the enjoyment of light and air through a small window, to the same enjoyment through one of a larger size.

If an ancient window has been completely blocked up above twenty years, it loses its privilege, 3 Camp. 514; and even the presumption of right from twenty years' uninterrupted enjoyment was excluded by the custom of London, which entitled every citizen to build upon an ancient foundation as high as he pleases. But this custom is now abolished.

If I have, by prescription or otherwise, a right of way annexed to my estate across another's land, and he obstruct me in the use of it, either by totally stopping it, or putting logs across it, or ploughing over it, it is a nuisance; 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 to do.

To keep hogs near one's house, or to exercise any offensive trade as a tanner, tallow-melter, soap-boiler, or the like, are all nuisances, for which an individual has remedy by action.

So, also, is it a nuisance if life be made uncomfortable by the apprehension of danger, as by keeping great quantities of gunpowder near dwelling-houses, 2 Str. 1167. And, in the Duke of Northumberland v. Clowes, where defendant employed a steamengine in his business as a printer, which produced a continual noise and vibration in the plaintiff's apartments, which adjoined the premises of the defendant, it was held a nuisance. In Watson v. Clement a verdict on similar principles was given.

In 1872, an act (35 & 36 V. c. 61) was passed by which it was provided that no person should use any steam-whistle or steamtrumpet for the purpose of summoning or dismissing workmen or persons employed without the sanction of the authority for the time being empowered to execute the Nuisance Removal Acts, under a penalty of £5, and a fine of 40s. for every day during which the offence continues.

All offences against this act are to be prosecuted and recorded in England in manner directed by 11 & 12 V. c. 43, and acts amending the same.

or grass.

It is a nuisance to erect a smelting-house for lead so near the land of another that the vapour or smoke kills or injures his corn It is a nuisance to stop or divert water that runs to another's meadow or mill; to corrupt or poison a watercourse; to erect a dye-house or lime-pit in the upper part of the stream; or, in short, to do any act that tends to the prejudice of a neighbour.

But depriving one of a mere matter of pleasure, as of a fine prospect, by building a wall or the like,this, as it abridges nothing really necessary or convenient, is not an injury for which there is remedy at law.

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 nuisance to the freehold which I have in my market or fair.

But, in order to make this out a nuisance, it is necessary,-1. That my market or fair be the elder, otherwise the nuisance lies at my own door. 2. That the new market be erected within the third part of twenty miles from mine. For Sir Matthew Hale construes the reasonable day's journey, mentioned by Bracton, to be twenty miles. So that if the new market be not within seven miles of the old one, it is no nuisance; for it is held reasonable that every man should have a market within one-third of a day's journey from his home; that, the day being divided into three parts, he may spend one part in going, another in returning, and a third in transacting his necessary business there.

If a ferry be erected on a river so near another ancient ferry as to draw away its custom, it is a nuisance to the old one; for where there is a ferry by prescription, the owner is bound to keep it always in repair and readiness, with expert men and reasonable toll, for neglect of which he is liable to punishment by indictment; it would, therefore, be hard if another ferry were to share the profits which does not share the liabilities.

But where there is no prescriptive right, there can be no exclusive privilege. So, it is no nuisance to erect a mill so near mine as to draw away the custom, unless the miller also intercept the water. Neither is it a nuisance to set up any trade or school in a neighbourhood in rivalship with another; for, by such competition, the public is benefited; or if the new mill or school

occasion a damage to the old one, it is a loss without legal compensation.

CHAPTER IX.

Negligence.

INDIVIDUALS are not only required to refrain from what the law prohibits, but are also required, under peculiar circumstances, to do acts, the omission of which may cause loss or detriment to others. Negligence or folly may be productive of injury, for which the party injured may bring an action on the case. Every man ought to take care that he does not injure his neighbour; and, therefore, when a man receives any hurt either in his person or property through the default of another, whether by doing some act, or by neglect of any duty, though the same was not wilful, yet if it be occasioned by negligence, the law gives him this action to recover damages for the injuries sustained; as where the defendant, by uncocking his gun, accidentally wounded the plaintiff, who was standing by to see him do it; or where a man retains an attorney to conduct a cause, and he, by some omission, loses it, and thereby injures his client; or, when a person bound to clean a ditch, suffers it to become so foul, that his neighbour's land is overflowed, and injured. In such cases it is no defence for the defendant to allege that the injury was involuntary on his part, or that, by proper attention, the person who received the injury might have avoided it; but if the injury was occasioned by the plaintiff's own neglect, the action is not maintainable.

PART VI.

CRIMES AND PUNISHMENTS.

We have now arrived at the last and more important division of the Laws of England, embracing the consideration of those delinquencies which, from their aggravated character, or more dangerous influence on the well-being of the community, are made the subject of criminal punishment. For the repression of private injuries, the law has mostly provided only retribution or compensation in damages; but such atonement would be an inadequate and dispro

portionate check on offences which endanger the person and life, as well as the dwellings and property of individuals: except, however, in their greater enormity, and the different mode of procedure, there is no substantive distinction between public and private wrongs. Every private offence, when openly committed, is, in some degree, a crime against the public, by its evil example, and tendency to disturb that peace, order, and security, upon the due maintenance of which social happiness depends; consequently, the classification of offences into private injuries and public crimes, refers only to gradations of turpitude, the first of which is adequately restrained by individual prosecution, the latter requiring the strong arm of the magistrate, and the terror of a more public and ignominious infliction.

Above forty years have elapsed since public attention was first forcibly directed to the improvement of penal administration. Among the earlier legislative reformers may be reckoned Sir Samuel Romilly, Michael Angelo Taylor, and Sir James Macintosh, from whose exertions resulted a mitigation in capital punishments, the abolition of the pillory, the whipping of females, and the rescinding, in part, the barbarous exhibitions and posthumous consequences of high treason. In 1825 Sir Robert Peel introduced the Jury Act, which consolidated and amended sixty-five statutes. This beneficial act was followed by others for improving the discipline of prisons, and secondary punishments; for consolidating and amending the criminal law by lessening the number of capital offences, and simplifying judicial procedure, and for giving greater efficacy and precision to the punishment of delinquents. Next was Lord Lansdowne's act for consolidating and better defining the law relative to offences against the person, including homicide, bigamy, rape, abduction, and assaults. The laws applying to offences against the coin and the Mint were reformed in 1832, under the auspices of Lord Auckland and Mr. Herries. In the same year

and in the following, bills were introduced and carried by Mr. Ewart and Mr. Lennard, for abolishing capital punishment for cattle and sheep-stealing, and stealing in a dwelling-house. Subsequently to these, several statutes were introduced under the auspices of Lord Campbell effecting salutary reforms in civil and criminal justice; namely, the act already mentioned for improving the law of libel, and the act for the abolition of deodands, and for providing compensation to sufferers in cases of homicide.

Lord Brougham, although last noticed, ranks among the early reformers both of the civil and criminal law; and it was to his persevering endeavours that the appointment of the commissioners on criminal law may be attributed, to whose elaborate and protracted inquiries may be ascribed the legal amendments in criminal law about to be noticed.

In the first parliamentary session of the present reign a series of eight criminal statutes, forming 1 V. c. 84, to 1 V. c. 91, was

introduced by Lord John Russell, effecting sundry important changes, the general design of which appears to have been to bring the criminal administration of the country into more perfect harmony with the state of morals, public sentiment, and popular intelligence. The main scope of these acts is more correctly to define offences against the persons and dwellings of individuals; to regulate, and, as respects the length of duration, mitigate the infliction of transportation, solitary confinement, and imprisonment; and, further, to lessen the number of capital punishments in certain specified cases, as for forgery of every description; for remaining riotously assembled one hour after reading the riot act; for rescuing prisoners committed for, or convicted of murder; for seduc ing soldiers and sailors from their allegiance; for administering unlawful oaths; for escaping a second time from the Penitentiary at Millbank; for carrying away persons into slavery from the coast of Africa; and for assembling armed to protect the landing of smuggled goods, or the rescuing of such goods, or maliciously shooting at the revenue officers: for all these offences the capital punishment is mitigated to transportation for life, or not less than fifteen years, or imprisonment not exceeding three years. A nicer graduation is also prescribed in the adjudication of secondary punishments, according to the degree of violence or terror by which the crime is aggravated. The absolute infliction of a fixed and unmitigable punishment to a whole class of crimes has been found, in practice, neither so successful as had been anticipated, nor in accordance with criminal equity and the moral sense of the community; a wider interval has been left between the maxima and minima of judgments; so as better to enable the courts to apportion punishment according to accompanying circumstances and the different shades of depravity in offenders.

By the 4 & 5 V. c 56, the punishment of death for rape was abolished, and transportation for life substituted. By the same act capital punishments have been abolished for the following offences namely, embezzlement by a servant of the Bank of England or South Sea Company; for fraudulently using old deed stamps and other stamps, or for forging the stamp upon gold and silver plate in order to avoid paying the legal duties; for returning from transportation, and for riotously demolishing churches, chapels, and other enumerated buildings; in place of death punishment for these offences, transportation for life, or a term of years, or imprisonment for not less than three years, is substituted; and the offenders must be tried at the assize-court, not at the quarter sessions.

By these changes the crimes punishable with death were reduced to these:-1, treason; 2, murder; 3, attempt to murder, accompanied with actual injury to the person; 4, the burning of buildings or ships, with danger to human life, and under defined circumstances; 5, piracy, accompanied with acts endangering life;