NUISANCE. 1. What it is, II. How it may be removed. III. How punished. I. WHAT IT IS. 1. A COMMON nuisance seems to be an offence against the public, either by doing a thing which tends to the annoyance of all the commonwealth's citizens, or by neglecting to do a thing which the common good requires. 1 Haw. 197. 4 Bl. Com. 166. 2. Annoyances to the prejudice of particular persons are not punishable by a public prosecution as common nuisances, but are left to be redressed by the private actions of the parties aggrieved by them. 1 Haw. 197. 3. Where note a diversity between a private and a public nuisance: If it is a private nuisance, he shall have his action upon his case, and recover his damages; but if it is a public nuisance, he shall not have his action upon his case, and this the law hath provided for avoiding of multiplicity of suits, for if any one might have an action, all men might have the like; but the law for this common nuisance hath provided an apt remedy, by presentment or indictment, at the suit of the commonwealth, in the behalf of all its citizens; unless any man hath a particular damage, as if he and his horse fall into a ditch made across a highway, whereby he received hurt and loss, there for this special damage, which is not common to others, he shall have an action upon his case. 1 Inst. 56. 4. And from hence it clearly follows, that no indictment for a nuisance can be good, which lays it to the damage of private persons only as, where it accuses a man of surcharging such a common; or of inclosing such a piece of ground, wherein the inhabitants of such a town have a right of common, to the nuisance of all the inhabitants of such a town, or of disturbing a watercourse running to such a mill, to the damage of such a person and his tenants, without saying of all citizens of the commonwealth. 1 Haw. 197. 5. Yet it hath been said, that an indictment of a common scold is good, although it conclude, to the common nuisance of divers, instead of all the commonwealth's citizens; perhaps for this reason (says Mr. Hawkins) because a common scold cannot but be a common nuisance. Ibid. 198. 6. And if the law be so in this case, why should not an indictment, setting forth a nuisance to a way, and expressly and unexceptionably shewing it to be a highway, be good, notwithstanding it conclude, to the nuisance of divers, without saying all the commonwealth's citizens. And 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 alledged were a highway, or only a private way, and therefore that it shall be intended from the conclusion of the indictment, that it was a private way. 1 Haw. 198. 7. There is no doubt but that common bawdy-houses are indictable as common nuisances; and it hath been said that all common stages for rope dancers, and also all'common gaming houses, are nuisances in the eye of the law, not only because they are great temptations to idleness, but also, because they are apt to draw great numbers of dis. orderly persons. 1 Haw. 198. 8. Also, it hath been holden, that a common playhouse may be a nuisance, if it draw together such a number of coaches or people, as prove generally inconvenient to the places adjacent. 1 Haw. 198. 9. Erecting a shed so near a man's house that it stops up his lights is not a nuisance for which an action will lie, unless the house is an ancient house, and the lights ancient lights. 2 Salk. 459. 10. Also, stopping a prospect is not a nuisance. 3 Salk. 247. 11. A gate erected in a highway, where none had been before, is a common nuisance. 1 Haw. 199. 12. A person was indicted for making great noise in the night with a speaking trumpet, to the disturbance of the neighbourhood; and it was held by the court to be a nuisance. Str. 704. 13. Two persons were indicted for making great quantities of nuisance, offensive and stinking liquors, called acid spirit of sulphur, oil of vitriol, and oil of aqua fortis; whereby the air was impregnated with noisome and offensive smells; and it was held by the court to be a nuisance. The word noisome comes in the place of the Latin nocivus ; and means not only disagreeable, but hurtful. And lord Mansfield said, it is not necessary, to constitute the offence, that the smell should be unwholesome; it is enough if it renders the enjoyment of life and property uncomfortable. Burr. 333. 14. A glass house, or swine yard, may be indicted as a nuisance. And, according to Mr. Hawkins, a brew house, and the making candles in a town, so as to make it offensive to the neighbourhood. 1 Haw, 199. 15. If a man has a dog that kills sheep, that is not a public nuisance, but the owner of the dog (knowing thereof) is liable to an action; but if he is ignorant of such quality, he shall not be punished for this killing; and in an action on the case for such killing, the plaintiff shall be required to prove in evidence, that the dog had used to kill sheep. Dyer 25. Het. 171. 16. If a man hath an unruly horse in his stable, and leaves open the door, whereby the horse gets forth and doth mischief, an action lies against the master. 1 Vent. 295. 17. In the case of Buxenden and Sharp. The plaintiff declared, that the defendant kept a bull that used to run at men, but did not say that the defendant knew of this quality; it was adjudged that an action did not lie, unless it did appear that the owner knew of this quality. 2 Salk. 662. II. HOW IT MAY BE REMOVED. 1. It seemeth to be certain that any one may pull down or otherwise destroy a common nuisance, as a new gate, or even a new house erected in a highway, or the like, for if one whose estate is or may be prejudiced by a private nuisance actually erected, as a house hanging over his ground, or stopping his lights, may justify the entering into another's ground, and pulling down and destroying such a nuisance, whether it were erected before or since he came to the estate, it cannot but follow a fortiori, that any one may lawfully destroy a common nuisance. And as the law is now holden, it seems that in a plea, justifying the removal of the nuisance, a man need not shew that he did as little damage as might be. 1 Haw. 199. 2. But although he may remove the nuisance, yet he cannot remove the materials, or convert them to his own use. Dalt. c. 50. III. HOW PUNISHED. 1. It is said that a common scold is punishable after conviction, upon indictment, by being put into the cucking stool. (1 Haw. 200.) Or, vulgarly, the ducking stool. Note. Cuck or guck in the Saxon tongue (according to lord Coke) signifieth to scold or brawl; taken from the bird cuckow, or guckhaw; and ing in that language signifieth water; because a scolding woman was for her punishment sowsed in the water. (3 Inst. 219.) The common people in the northern parts of England, amongst whom the the greatest remains of the ancient Saxon are to be found, pronounce it ducking stool; which perhaps may have sprung from the Belgic or Teutonic ducken, to dive under water; from whence also, probably, we denominate our duck the water fowl; or rather, it is more agreeable to the analogy and progression of languages, to assert, that the substantive duck is the original, and the verb made from thence; as much as to say, that to duck is to do as that fowl does. 3 Burn's Just. 241. 2. And she may be convicted without setting forth the particulars in the indictment. 2 Haw. 227. Nevertheless, the offence must be set forth with convenient certainty; and the indictment must conclude, not only against the peace, but To the common nuisance of divers of the commonwealth's citizens. In the case of K. and Margaret Cooper, she was convicted on an indictment, for being a common and turbulent brawler, and sower of discord amongst her honest and quiet neighbours, so that she hath stirred, moved, and incited divers strifes, controversies, quarrels and disputes amongst his majesty's liege people, against the peace, &c. It was moved in arrest of judgment, that the charge was too general, and did not amount to being either a barrator or common scold, which are the only instances in which a general charge will be sufficient. It was likewise objected, that if the words did amount to a description of a scold, yet it should be laid to be to the common nuisance of her neighbours, for every degree of scolding is not indictable. And the court was of opinion, that the judgment ought to be arrested, on both exceptions; for none of the words here used are the technical words, and it must be laid to be to the common nuisance. Str. 1246. 3. There is no doubt, but whoever is convicted of another nuisance may be fined and imprisoned; and it is said, that one convicted of a nuisance done to the commonwealth's highway may be commanded by the judgment to remove the nuisance at his own costs; and it seemeth to be reasonable, that those who are convicted of any other common nuisance shall also have the like judgment. 1 Haw. 200. Str. 686. 4. And the defendant shall not be allowed to make any objections against the indictment, until he hath pleaded to it. Dalt, c. 66. 5. And the court never admits a person convicted of a nuisance to a small fine, until proof is made of the nuisance being removed. Dalt. c. 66. 6. A master is indictable for a nuisance done by his servant. L. Raym. 264. 7. There are also many other offences declared to be nuisances by particular statutes, which are treated of under the titles to which they respectively belong. General indictment for a nuisance. county, to wit. The jurors, &c. upon their oath present, that A O, late of in the county of yeoman, on the day of in the year and on divers other days and times, as well before as afterwards, with force and arms, at in the said county (here set forth the nuisance) and the same (nuisance) so as aforesaid done, doth yet continue and suffer to remain; to the common nuisance of all the citizens of the said commonwealth, to the evil example of all others in the like case offending, and against the peace and dignity of the commonwealth. Indictment against a butcher for using his shop as a slaughter-house in a public market. county, to wit. day of in the year The jurors for the commonwealth upon their oath present, that H H, late of butcher, on the and on divers other days and times then before, at to wit, in the parish of in aforesaid, in a certain shop of him the said H H, situate and being in a common market there called market (the said market being a common passage for all the citizens of the said commonwealth, with their goods, chattels, and merchandises to go, return, pass and repass, at their free will and pleasure) did unlawfully and injuriously kill and slay, and cause to be killed and slain, ten lambs, and the excrements, blood, entrails, and other filth coming from the said lambs, did then, and on the said other days and times respectively, there cause and permit to lie and remain in the said shop for a long time, to wit, for the space of five hours, on each of those days, whereby divers filthy and unwholesome smells and stenches, from the excrements, blood, entrails, and other filth coming from the lambs aforesaid, then, and on the said other days and times respectively, there did arise, and the air there was thereby greatly corrupted and infected, to the great damage and common nuisance, not only of all the lawful citizens of the said commonweath near there inhabiting and dwelling, but also of all other the citizens of the said commonwealth, in, by, and through the said common market and passage going, returning, passing, repassing, and labouring, to the evil example of all others in the like case offending, and against the peace and dignity of the commonwealth. For an indictment for a nuisance in obstructing a public road, see title ROADS. See other forms of indictments for nuisances in Cro. Cir. Comp. title NUISANCE; and Cro. Cir. Assistant, p. 362, 404. OATHS. 1. Of oaths in general. II. What solemnities may be used instead of oaths. III. Oaths of infidels. I. OF OATHS IN GENERAL. 1. OATH is a corruption of the Saxon word eoth. 3 Inst. 165. 2. It is called a corporal oath, because the person lays his hand upon some part of the scriptures when he takes it. 3 Inst. 165. 3. If the oath be taken on the common prayer book, which hath the epistles and gospels, it is good enough, and perjury upon the statute may be assigned upon this oath. 2 Keb. 314. 4. The words, so help me God, in the common form of an oath, perhaps may have been fi: st used in the very ancient manner of trial by battle in England, or at least are delivered with a peculiar emphasis in that solemnity; wherein the appellee lays his right hand on the book, and with his left hand takes the appellant by the right, and swears to this effect. Hear this, thou who callest thyself John by the name of baptism, whom I hold by the hand, that falsely upon me thou has lied; and for this thou liest, that I, who call myself Thomas by the name of baptism, did not feloniously murder thy father W, by name So help me God (and then he kisses the book and says) and that I will defend against thee by my body, as this court shall award. And so the appellant is sworn in like manner. [Where we observe also the genuine foundation, as it seemeth, of the word lie being still esteemed so great an affront above all others, as, whenever it is pronounced, to cause an immediate affray and bloodshed.] |