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her sister had not been much in the information, was placed by the habit of walking out.

To questions from Lord Ellenborough, she said, that she had no reason to believe that the Key, in Chandos-street, was a house of ill fame before she went out with her sister to buy linen for the journey to Bath. They only saw one man there, and no beds were ordered; they were shown into a sitting-room, and she thought that the brothel was a family hotel.

Mr. Topping addressed the jury on behalf of the defendant, pressing all the topics in his favour allowed by the case, and particularly the facility with which he had gained the favour of the lady.

After a short charge from Lord Ellenborough, the jury found a verdict for the plaintiff-Damages 5001.

NUISANCE AND TRESPASS.

The King v. Tinkler and Mountford. This was an inquiry which took place before a special Bench of Magistrates assembled at Guildford on Saturday last, Lord Middleton in the chair, relative to the seizure of 16,576lbs. of gunpowder, at the Chilwell powder-mills, of which mills the defendants are proprietors, on the 8th and 9th instant. The inquiry was one of great interest and importance to the town of Guildford, and its neighbourhood; and more especially to those persons residing in the vicinity of Messrs. Tinkler and Mountford's works, and occupied the Magistrates during the whole of Saturday and Monday last. The powder, when seized by the constables employed under

them in a hop-kiln, belonging to a gentleman named Ryde, in the neighbourhood, where it remained from the time the seizure was made, under the care of a trusty guard, to await the decision of the magistrates. Mr. Cowley and Mr. Beerings now appeared as counsel, in support of the information, and Mr. Nolan, for the defendants. The information, which was founded on the act of the 12th year of the King, entitled "an act for regulating the making, keeping, and carrying of gunpowder by the makers thereof," (the 7th section of which provides that no greater quantity of gunpowder in a finished state, or in a state of process, shall be kept in any gunpowdermill, or places belonging or adjoining thereto, at any one time, than is necessary for carrying on the said works; and that any excess above such necessary quantity shall be liable to seizure and forfeiture, and the proprietor of such mills be further liable to a penalty of 2s. per lb. upon every lb. of powder so forfeited,) having been read, and which information charged the defendants with having the abovementioned quantity of powder, namely 16,576lbs. in their works, contrary to the regulations of the act, unlawfully, and to the imminent danger, hazard, and peril of the neighbourhood ; and the defendants having pleaded not guilty to the charge,

Mr. Cowley proceeded to address the Bench in support of the information. After adverting to the importance of the question which he had now to submit to the consideration of the Bench, one involving nothing less in it

than

than the safety of the property and even the lives of the inhabitants of the town of Guildford and its neighbourhood, observed, that, looking at the amount of powder seized, he was persuaded he should have but little difficulty in showing to the Bench that what had been called the nervous fears of the complainants on this occasion, was at least not fears with out foundation. As little difficulty should he have in showing that for a length of time past, these gentlemen, the defendants, had, from a love of lucre, been carrying on their trade, negligent entirely negligent of the safety of their neighbours and of the public, and in open defiance of the provisions of the Act of Parliament upon which the present information was founded, and on the 7th section of which he should on this occasion principally rely. The manufacture of powder was not only a necessary one, but a politic one; and further, the Legislature had made it a legal one. At the same time, aware of the dangerous nature of it, they had surrounded it with precautions ; and the act in question, the 12th of the King, was in fact a precautionary act. Notwithstanding all the precautions which could be taken, however, explosions would frequently occur. And in the manufactory of the defendants, two such events had occurred within the last five years. The object of the present act was to render these unavoidable accidents as little dangerous as possible. To effect this object, one of its provisions was, that attached to every powder manufactory there should be a magazine, or store

house, in which to deposit the powder as fast as finished, there to remain till called for by the consumer. A further provision of the act was, that there should be buildings of a certain description and construction, called charge-houses, to which the powder, whilst in the different states of process, should be received, so that not more than 40lbs. of finished powder should be in any building where there was machiThis was innery at one time. tended to prevent the explosion of a large quantity. These were some of the provisions of this act. He understood it was to-day to be contended, that the Chilworth mills were ancient mills, erected long before the passing of this act, and not liable to its regulations. He (Mr. Cowley) must deny that position. He had looked over the various acts of parliament on the subject, and he certainly found exceptions in favour of some private mills in Sussex, mentioned by name, and exemptions relative to his Majesty's works, but in none did he find any mention made of the Chilworth-mills; but allowing it had been so, none of the mills in question were exempted from having a magazine. Yet the defendants had been going on for years without one: and, if suffered to go on, must still do so without that necessary safeguard for the public. They would never be allowed to erect a magazine, because they were in a situation where they ought not to have one. this reason they carried on their business without one, hiding their powder in holes and corners; so that instead of having only 40 or 50lbs,

For

50lbs. of powder in a place liable to explosion, they had accumulated 16,000lbs. which might all explode in an instant, and spread ruin and destruction around. The charge against the defendants now was, for having this accumulation of powder stowed in improper places. The 16,576lbs. had been taken away, and he had now to contend was forfeited. Besides this quantity, the seizing officer left behind him 1600lbs. of finished powder, which he ought also to have taken, as well as a quantity in process in every part of the works, amounting to several cwt.; all of which, he submitted, was, strictly speaking, forfeited, had they taken any account of it. The quantity seized and brought away, he should be able to show, by contradictory evidence, was an excess above that allowed by act of Parliament. He now had to ask of the Bench the forfeiture of it, and the penalty of 25. per lb. upon it. He should prove, that excessive quantities of finished powder, which should have been deposited no where but in a magazine, were found in places the most dangerous and exposed, in the midst of machinery in the corning-house, dusting-house, drying-house, and even in a building within a few feet of the stoveplaces, where none but the small quantity immediately in process should be deposited.

After the examination of witnesses, and hearing the pleadings on both sides, the Court retired for about 10 minutes, when they eturned, and Lord Middleton declared their opinion to be, that 7,616lbs. of the powder were for feited; and upon which quantity VOL. LVIII.

the defendants were also liable to a penalty, amounting to a further sum of 7601. 12s. The 7,616lbs. they were to select from the finished powder, and the remainder seized was to be returned.

Lancaster Assizes, Sept. 5.Thompson v. Harris.―This was an action to abate a nuisance.

Mr. Scarlet stated the case. The plaintiff is a cheesemonger, and the defendant a farrier, in the town of Preston. A new street was lately built in that town, called Lune-street, composed of respectable houses, and inhabited by respectable people. Among these were a clergyman, an attorney, the plaintiff, and several other individuals of wealth and consideration in the place. The defendant likewise purchased a portion ofthe ground in the vicinity of this street, and built upon it, as he had a right to do. He built first a small house for keeping a cow, about 8 yards from the back court of the plaintiff. To this erection the plaintiff could have no possible objection, and he made none; but he was rather surprised when in April last he saw a chimney rising over this cow-house, and still more surprised and annoyed when smoke began to issue from it, and hammers to play within it; in short, when he saw the cowhouse converted into a smithy, involving his premises in smoke and stunning his family with noise. Nothing could be conceived a greater annoyance than the incessant din of this forge, or the volumes of smoke that issue from it, blackening every thing around it, and forcing the plaintiff to have the linen exposed to dry in his T

yard

sible to their deafening roar, but the plaintiff in the former case, as strangers in the latter, must feel the annoyance intolerable. Till it could be proved that sinoke, noise, and dust, in their most offensive degrees, and brought as near as possible to a man's dwelling, were not a nuisance, so long must a smithy situate like the one in question be declared a nuisance, and entitle the plaintiff to a verdict. He asked no damages-he merely asked a verdict, to remove the annoyance of which he so justly complained.

The learned Counsel then call. ed several witnesses to prove the cuisance, both of the plaintiff's own family and from among his neighbours. His servant deposed, that the clothes hung out to dry in the yard were often so covered with smoke and dust that it was necessary to wash them over again, and that she was frequently oblig

yard, often to be washed over again, and his windows shut when he would choose to have them open. There could be no doubt that the law would consider such a building so placed and so used as a nuisance. Every man has a right to enjoy his own property, but he must use it with a reference to the rights of others. Society could not exist without such a principle. Society is held together in a sort of compromise of mutual restraint and compensation. If a man, in the exercise of his rights of property, builds his house and establishes himself in a particular situation, no other man has a right to destroy his comforts, or to molest his possession, by bringing an offensive trade into his immediate neighbourhood. If, on the other hand, the offensive trade is established first, no man has a right to order its removal. The only question in law is the priority of establish-ed to shut the windows to exclude ment; and it either abates the nuisance, or permits its continuance according to this principle. The law does not consult a man's whims, or caprices, or imaginary wants; but it allows no invasion of his real substantial comforts, nor any exercise of the rights of property, however just in other respects, that diminishes them. There could be no doubt from the evidence he would produce that the plaintiff was seriously aggrieved: several of the other inhabitants of the street likewise felt the injury as their own. The defendant, accustomed to such noises, might not be so sensible of the disturbance they give, as those who reside near the falls of Niagara are said not to be at all sen

such offensive annoyances. She stated farther, that the noise was intolerable, and often made the floor and windows shake. Several of Mr. Thompson's neighbours confirmed this statement, and added their own complaints to his.

Mr. Williams, for the defendant, denied that this smithy could be termed in law a nuisance. He would bring witnesses to prove that they did not consider it as a nuisance; that the noise was by no means what it was represented to be, and that fewer coals, coals of a better quality, and yielding less smoke, were burnt in this smithy than on any kitchen or parlour fire of the neighbourhood. This insignificant smithy had been dignified with the name of forge,

and

and the noise of this forge had been talked of as if Vulcan and his swarthy brothers incessantly plied their thundering hammers within it; but it would surprise the jury, when he showed them that all this mighty noise was produced, not by a congregation of giants, but by the nerveless arm of a boy of 14. When the noise and the smoke of this little smithy were made the subject of complaint, it was forgotten that there were in the small town of Preston, and within 800 yards of the plaintiff's house, no less than nine steam engines, and four foundries, which really did send forth volumes of sound and smoke that were formidable and annoying. These, indeed, might with some propriety be declared nuisances but it was difficult to describe what a nuisance was in law, or to determine that degree of discomfort which amounted to one. Much would depend upon what people considered as the essentials of their comfort or enjoyments. Some thought a fine prospect necessary to their enjoyments; and according to them it would be a nuisance to cut down a tree in your park that added to the beauty of their landscape, or to build a wall that obstructed in the least their view; some would declare a school a nuisance, because it had noisy boys; others a joiner's shop; others a steam-engine, and so on. But when people determine to live in towns, they must submit to the inconvenience of towns; they are not to expect, amid the noise and smoke and dust of a manufacturing place, the same quietness and retirement as in the country; they must not

hope to enjoy in Manchester or Preston the same good air as on the site of Lancaster-castle or the top of Skiddaw. The learned counsel called several witnesses for the defendant, with the design of showing that the smithy was not considered as a nuisancethat the noise was not distressing

that fewer coals, and coals of a better quality, were burnt in it than in many private houses-that the plaintiff himself did not consider it as a grievance necessary to be remedied by law, till the defendant had refused to oblige him by allowing him to fix his joists in defendant's wall-and that the foundries and steam-engines of the town were nuisances which, if the plaintiff allowed, took away all ground of complaint against this trifling smithy. It appeared much in favour of the plaintiff that all the witnesses called to disprove the offensive nature of the smoke and noise lived at a greater distance from the smithy than himself, or those whose evidence he adduced in his support.

The learned Judge, in addressing the jury, and summing up the evidence, explained to them fully the state of the law respecting nuisances. It proceeded upon this principle-that no man in the exercise of his own rights of property was entitled to endanger the security or diminish the enjoyment of his neighbour in the lawful use of his. A nuisance in law was not what affected the possession and enjoyment of property through the medium of a man's whims, caprices, fancies, or imaginary wants, but what destroyed or diminished his real, rational, and substantial comforts, such as bringing

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