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kind of insult, a verdict was given for £500 damages; and the court of Common Pleas, in a motion for a new trial, refused to reduce them, though the plaintiff had sustained no actual pecuniary injury, 5 Taunt. 442.

To prevent trifling and vexatious actions of trespass, it is provided by statute, that, where the jury who try an action of trespass give less damages than £5, the plaintiff shall be allowed no costs unless the action were brought to try a right, or the trespass were wilful and malicious, 23 & 24 V. c. 126, s. 34. Some former statutes provided that where the damages were under 40s. the plaintiff should recover no more costs than damages.

Every trespass is deemed wilful where the defendant has notice, and is forewarned not to come upon the land; as every trespass is malicious where the intent of the defendant plainly appears to be to harass and distress the plaintiff; and, in such cases, the judge is bound by statute to certify accordingly, which entitles the plaintiff to FULL costs, whatever may be the amount of damage, or the rank and qualification of the defendant.

A more summary proceeding than by action against trespassers is provided by the Game Act, 1 & 2 W. 4, c. 32, which enacts, that any person trespassing in the daytime in pursuit of game, or woodcocks, snipes, quails, landrails, or coneys, shall, on conviction before a justice of the peace, forfeit any sum not exceeding £2, with the costs of conviction; and if any persons, to the number of five, or more together, commit a trespass in like manner, each shall forfeit £5, with costs of conviction. Such trespassers not quitting the ground when required, or refusing to give their address, may be arrested and taken before a magistrate, and, on conviction, be fined not exceeding £5. See further, 6 & 7 Will. 4, c. 65; 7 & 8 V. c. 29; 25 & 26 V. c. 114.

CHAPTER VII.

Malicious Prosecution.

A PERSON may be severely injured in his person, property, or reputation, by malicious indictments or prosecutions being preferred against him, for which there is no ground but the malice or knavery of the plaintiff: the remedy for this species of injury is by an action on the case.

The grounds of an action for a malicious prosecution are, the falsehood of the charge, the malice of the defendant, either express or implied, want of probable cause, and the injury sustained by the plaintiff, by reason of the malicious prosecution, either in his person by imprisonment, his reputation by the scandal, or in his property by the expense.

Although it is not actionable to commence a civil suit, without just cause, since it is a mere claim of right; and the defendant, in case of a nonsuit or verdict against the plaintiff, is entitled to costs; yet the law allows an action to be maintained for maliciously arresting or holding a party to bail, either where there is not any debt due, or where the party is held to bail for a larger sum than is justly due.

A plaintiff is bound to accept from a defendant in custody the debt and costs, when tendered in satisfaction of his debt, and to sign an authority to the sheriff to discharge the defendant out of custody and an action on the case will lie against a plaintiff for having maliciously refused so to do. And the refusal to sign the discharge is sufficient evidence of malice, in the absence of circumstances to rebut the presumption.

The abolition (in most cases) of imprisonment for debt has, however, deprived this of much of its practical importance.

An action will lie for maliciously procuring a man to be made a bankrupt.

Where there is reasonable ground for prosecution, and no malice appear, an action is not maintainable. So, a captain in the navy was accused by his superior of neglect of duty, and having been tried by a court-martial, was honourably acquitted: in this case, it was held an action for malicious prosecution could not be mainBut an action lies for tained, Sutton v. Johnston, 1 T. R. 493.

an inferior against his superior military officer (both being under martial law), who imprisons him for disobedience to an order made under colour, but not within the scope, of military authority, although the imprisonment be followed by a trial by court-martial. 4 Taunt. 57.

Where two or more persons combine to prefer an indictment charging any one without foundation, or otherwise conspiring to injure an individual, an action of conspiracy may be brought for compensation in damages.

As prosecutions for criminal offences are for the benefit of the public, and no one would be induced to pursue an offender for a criminal charge if he were liable to an action on an acquittal, the courts in general discourage actions for malicious prosecution, unless the malice of the prosecutor, as well as the innocence of the party accused, be obvious. But it has been remarked that juries in such actions are very apt to find for the plaintiff, if he appear to have been in fact innocent, whether the defendant had or had not reasonable ground for supposing him to have been guilty.

CHAPTER VIII.

Nuisance.

A 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. Bat 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 steam-engine 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.

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 or grass. 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 disproportionate 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 ignominous 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

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