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belonging thereto, on the terms of paying a recompense for the use thereof, and to detain such gunpowder and barrels, as is hereinafter given to persons searching under a warrant of a justice of the peace; and such seizure shall be for his, her, or their own use, on conviction of the offender or offenders.

XXIII. [Justices to issue a warrant to search for powder made, kept, or carried contrary to this act; searchers to seize all which they find, and remove it.]

be recover

XXVI. And be it further enacted, that all penalties Penalties created by this act, shall be recoverable before two or more and forfei justices of the peace for the county or other division in which tures how to the offence shall be committed, on proof of the offence, by ed and apthe oath or oaths of one or more credible witness or wit- plied. nesses, or on confession of the offender; and one moiety of each penalty shall belong to his majesty, his heirs or successors, and the other moiety thereof to the informer or informers prosecuting for the same; and, where the penalty shall be pecuniary, in case of non-payment, it shall be levied by distress and sale of the offender's goods and chattels, by warrant under the hands and seals of such justices; and the overplus of the money raised, after deducting the penalty, and the expenses of the distress and sale, shall be rendered to the owner; and for want of sufficient distress, the offender shall be sent, by such justices, to the house of correction, there to be kept to hard labour for any time not exceeding six months, nor less than three months, as such justices shall think most proper.

XXVII. [Prosecution to be commenced within fourteen days after seizure. General issue. Treble costs.] XXVIII. [Limitation of actions.-Six months.]

Note. As to the proper form of a conviction on the 18th section of this act, see R. v. Smith, 5 M. & S. 133. It seems, that erecting gunpowder mills, or keeping gunpowder magazines near a town, is a nuisance by the common law, for which an indictment or information will lie I Russ. 297, note (o). Not only dangerous but offensive trades and manufactures may be public nuisances. Thus a candle manufactory, a brewhouse, a glass house, or a swine yard, may be indicted as nuisances, if placed in inconvenient situations; that is to say, so near either to dwelling-houses or the highway as to be a reasonable cause of offence to the neigh

bourhood: 1 Haw. P. C. c. 32, s. 10; 1 Russ. 196. And it is not necessary to support an indictment for a nuisance, that the smells from the place or manufactory indicted should be unwholsome; it is sufficient if they be offensive to the senses: R. v. White & Ward, 1 Burr. 337; R. v. Neil, C. & P. 485. And, though it appears to have been ruled, that a person cannot be indicted for setting up a noxious manufactory, where other offensive trades have been long borne with, unless the inconvenience to the public be greatly increased, R. v. Neville, Peake, 91; yet, in a late case it is said, that the presence of other nuisances will

not justify any one of them; and one is not the less subject to prosecution because others are culpable per Lord Tenterden, 2 C. & P. 485. But, if a certain 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 to it, that the carrying on of the trade becomes a nuisance to the persons using the road; in those cases the party will be entitled to continue his trade, because his trade was legal before the erection of the

From 25th

March, 1698, no person

shall make, sell, &c.. squibs,

houses in the one case, and the making of the road in the other: R. v. Cross, 2 C. & P. 484. No length of time will legalize a public nuisance: 3 Camp. 227. All common nuisances are regularly punishable by fine and imprisonment; but as the removal of the nuisance is usually the end of the indictment, the court will adapt the judgment to the nature of the case. Where the nuisance, therefore, is stated in the indictment to be coutinuing, and does in fact exist at the time of the judgment, the defendant may be adjudged to remove it at his own costs: 1 Russ. 305.

Fire Works, &c.

9 & 10 Will. 3, c. 7.

I. Whereas much mischief hath lately happened by throwing, casting, and firing off squibs, serpents, rockets, and other fire-works; some persons having thereby lost their lives, others their eyes, others have had their lives in great danger, and several other damages have been sustained by many persons, and much more may thereby happen, if not speedily prevented; for remedy whereof for the future, be it enacted, &c. that from and after the 25th day of March, 1698, it shall not be lawful for any person or persons, of what age, sex, degree, or quality soever, to make or cause whatsoever to be made, or to sell, or utter, or offer, or expose to sale, any squibs, rockets, serpents, or other fire-works, or any cases, moulds, or other implements, for the making any rockets, ser- such squibs, serpents, rockets, or other fire-works, or for any person or persons to permit or suffer any squibs, serpents, rockets, or other fire-works, to be cast, thrown, or fired from, out of, or in his, her, or their house, or houses, lodgings, or habitations, or from, out of, or in any part or place thereto belonging or adjoining, into any public street, highway, road, or passage, or for any person or persons, of what degree, quality, or age, soever, to throw, cast, or fire, or to be aiding or assisting in the throwing, casting, or firing of any squibs, serpents, rockets, or other fire-works, in or into any public street, house, shop, river, highway, road, or passage, and that every such offence shall be, and is hereby adjudged to be, a common nuisance.

pents, &c.

or cases,

moulds, &c.

Court may award costs

II. [Penalty of five pounds on persons throwing or firing squibs, or suffering them, &c., to be thrown or fired from their houses. Forfeitures to be levied by distress and applied to the use of the poor.]

III. [Offender not paying forfeiture to be committed to the house of correction, and kept to hard labour.]

Steam-Engines.

1 & 2 Geo. 4, c. 41.

for pre

I. Whereas great inconvenience has arisen, and a great Court may degree of injury has been and is now sustained by his make order majesty's subjects, in various parts of the united empire, venting the from the improper construction as well as from the negli- nuisance. gent use of furnaces employed in the working of engines by steam; and whereas by law every such nuisance, being of a public nature, is abateable as such by indictment; but the expense attending the prosecution thereof has deterred parties suffering thereby from seeking the remedy given by law be it therefore enacted, &c., that it shall and may be lawful for the court by which judgment ought to be pronounced in case of conviction on any such indictment to award such costs as shall be deemed proper and reasonable to the prosecutor or prosecutors, to be paid by the party or parties so convicted as aforesaid, such award to be made either before or at the time of pronouncing final judgment, as to the court may seem fit.

II. And be it further enacted, that if it shall appear to the court by which judgment ought to be pronounced, in case of conviction on any such indictment, that the grievance may be remedied by altering the construction of the furnace so employed in the working of engines by steam, it shall be lawful to the court, without the consent of the prosecutor, to make such order touching the premises, as shall be by the said court thought expedient for preventing the nuisance in future, before passing final sentence upon the defendant or defendants so convicted.

furnaces,

III. Provided always, and be it enacted, that the provi- Not to exsions of this act, as far as they relate to the payment of tend to costs, and the alteration of furnaces, shall not extend or be owners of construed to extend to the owners, or proprietors, or occu- erected solepiers of any furnaces of steam-engines erected solely for the ly for workpurpose of working mines of different descriptions, or em- ing mines. ployed solely in the smelting of ores and minerals, or in the manufacturing of the produce of such ores or minerals on or immediately adjoining the premises where they are raised.

IV. And be it further enacted, that this act shall com- Commencemence and take effect from and after the first day of Sep- ment of act. tember, 1821.

4. NUISANCES TO HIGHWAYS, TURNPIKES, AND BRIDGES.

13 Geo. 3, c. 78.

I. to VI. [Relate to the appointment of surveyors, &c.]
VI. And be it further enacted, that no tree, bush, or

No tree, bush, or

shrub. alowed to

grow or

in 15 feet of the centre

Highways. shrub, shall be permitted to stand or grow in any highway, within the distance of fifteen feet from the centre thereof (except for ornament or shelter to the house, buildstand with- ing, or court-yard, of the owner thereof), or hereafter to be planted within the distance aforesaid; but the same shall of the high respectively be cut down, grubbed up, and carried away, by the owner or occupier of the land or soil where the same doth or shall stand or grow, within ten days after notice to him, her, or them, or his, her, or their, steward or agent, given by the said surveyors, or any of them, on pain of forture of 10s. feiting, for every neglect, the sum of ten shillings.

way;

on forfei

by the

owners.

Hedges and trees, adjoining to highways,

manner, to

be cut and pruned.

VII. And be it further enacted, that the possessors of the land next adjoining to every highway shall cut, prune, and plash their hedges, and also cut down, or prune and by whom, lop, the trees growing in or near such hedges or other and in what fences (except those trees planted for ornament or shelter, as aforesaid), in such manner that the highways shall not be prejudiced by the shade thereof respectively, and that the sun and wind may not be excluded from such highway, to the damage thereof; and that, if such possessor shall not, within ten days after notice given by the surveyor for that purpose, cut, prune, and plash such hedges, and cut down, or prune and lop, such trees, in manner aforesaid, it shall and may be lawful for the surveyor, and he is hereby required, to make complaint thereof to some justice of the peace of the limit where such highway shall be, who shall summon the possessor of the said lands to appear before the justices at some special sessions for that limit, to answer to the said complaint; and, if it shall appear to the justices, at such special sessions, that such possessor had not complied with the requisites of this act, it shall and may be lawful for the said justices, upon hearing the survey or and the possessor of such land, or his agent (or, in default of his appearance, upon having due proof of the service of such summons), and, considering the circumstances of the case, to order such hedges to be cut, plashed, and pruned, and such trees to be cut down or pruned in such manner as may best answer the purposes aforesaid; and, if the possessor of such lands shall not obey such order within ten days after it shall have been made, and he shall have had due notice thereof, he shall forfeit the sum of two shillings for every twenty-four feet in length of such hedge, which shall be so neglected to be cut and plashed, and the sum of two shillings for every tree which shall be so neglected to be cut down, or pruned and lopped; and the surveyor, in case of such default made by the possessor, shall and is hereby required to cut, prune, and plash such hedges, and to cut down, or prune and lop, such trees, in the manner directed by such order; and such possessor shall be charged with and pay, over and above the said penalties, the charges and expenses of doing the same, or,

in default thereof, such charges and expenses shall be le. Highways. vied, together with the said forfeitures, upon his or her goods and chattels, by warrant from a justice of peace, in such manner as is authorized for forfeitures incurred by virtue of this act.

cient ditch

where cart

VIII. And be it further enacted, that ditches, drains, Occupiers or watercourses, of a sufficient depth and breadth, for the of lands: hall keeping all highways dry, and conveying the water from make suffithe same, shall be made, scoured, cleansed, and kept open, es, drains, and sufficient trunks, tunnels, plats, or bridges, shall be or water. made and laid where any cartways, horseways, or foot- courses, and lay sufficient ways, lead out of the said highways into the lands or trunks, grounds adjoining thereto, by the occupier or occupiers of plats, or such lands or grounds; and every person or persons who bridges, shall occupy any lands or grounds adjoining to or lying near such highway, through which the water hath used to lead out of pass from the said highway, shall, and is hereby required, highways from time to time, as often as occasion shall be, to open, lands: they cleanse, and scour, the ditches, watercourses, or drains, shall forfeit, for such water to pass without obstruction; and that every for every person making default in any of the matters or things afore- offence, 10s. said, after ten days' notice to him, her, or them, given of the same, by the said surveyor, shall, for every such offence, forfeit the sum of ten shillings.

per

ways, &c.

into such

ont of ditches, &c.,

feit 10s.

IX. And be it further enacted, that if any person or Persons sons shall lay, in any highway, any stone, timber, straw, timber, laying stone, dung, or other matter, or, in making, scouring, or cleans- straw, &c. ing the ditches or watercourses, shall permit the soil or in any highearth dug out of such ditches, drains, or watercourses, to way, or soil remain in such highway, in such manner as to obstruct or prejudice the same, for the space of five days after notice shall, for thereof given by the surveyor of the highways, every per- every of son or persons offending in any of the said cases shall, for fence, forevery such offence, forfeit and pay the sum of ten shillings. X. And be it further enacted, that if any stone or timber, Stone, timber, hay, or any hay, straw, stubble, or other matter, for the making of manure, or on any other pretence whatsoever, not tole. laid within rated by this act, shall be laid in any highway within the 15 feet of distance of fifteen feet from the centre thereof, and shall centre of highway, not, within five days after notice given by the surveyor, or and not resome person aggrieved thereby, be removed, it shall and moved in may be lawful for the owner or possessor of the lands ad- five days jacent, or any other person or persons whomsoever, by given, the order from some justice of the peace, to clear the said high- owner of the ways, by removing the said stone, timber, hay, straw, adjacent dung, or other matter, and to have, take, and dispose of lands may the same to his and their own use.

straw, &c.

after notice

remove and
dispose of
the same
to his own

XI. And, for preventing obstructions in the said highways, be it enacted, that if any person shall wilfully set, use. place, or leave, any waggon, cart, or other carriage, or any

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