Second count. into scandal, infamy, and disgrace, touching his conduct relative to his taking the said inquisition on the said M. C.; and that H. S. W. of L. printer, falsely and maliciously devising and intending to asperse, stigmatize, and vilify the character of the said J. B. in the execution of his office of coroner, in the taking such inquisition as aforesaid, and by means thereof (as much as in him the said H. S. W. lay) to bring the said J. B. into extreme scandal, infamy, disgrace, hatred, and contempt, with all the liege subject of our said present Lord the King, afterwards, to wit, on &c. with force arms, at L. aforesaid, to wit, at the parish of &c. in the city of L. aforesaid, a certain false, malicious, and scandalous libel of and concerning the said J. B. being coroner as aforesaid, in a certain newspaper entitled, &c. by way of letter, did unlawfully, wickedly, and maliciously print and publish, and did cause and procure to be printed and published; which said last mentioned false, malicious, and scandalous libel, by way of letter, of and concerning the said J. B. coroner as aforesaid, is as follows; that is to say, "To the printer of," &c. (here set out the libel with the necessary inuendoes.) And the jurors, &c. that the said J. B. being greatly aggrieved, injured, and unjustly censured and oppressed, on account of the false, feigned, malicious, and scandalous libel, so printed and published aforesaid, in the said newspaper above mentioned, in order to prevent and put a stop to any future libels being published in the newspapers against him the said J. B. touching the said inquisition, and to notify to the public his intention to bring to justice the author, printers, and publishers, of the said malicious and scandalous libels, afterwards, to wit, on &c. did cause and procure an advertisement, in and under the name of him the said J. B. to be inserted and published in a certain newspaper entitled, &c. which said advertisement is as follows: to wit, &c. (here set out the advertisement.) And the jurors, &c. that the said H. S. W. in further prosecution of his most wicked intents and purposes, and in order further maliciously and wickedly to stigmatize, vilify, and scandalize the said J. B. afterwards, to wit, on. &c. with force and arms, at L. to wit, at the parish of &c. in the city of L. aforesaid, a certain other false, wicked, malicious, and scandalous libel of and concerning the said J. B. so being coroner as aforesaid, in a certain other newspaper, entitled "The Public Advertiser, No. 10242, Monday, August 31, 1767;" by way of letter, did unlawfully, wickedly, and maliciously print and publish, and did cause and procure to be printed and published; which said last mentioned false, wicked, malicious, and scandalous libel, by way of letter, of and concerning the said J. B. coroner as aforesaid, is as follows; that is to say, &c. (here set out the second libel); thereby most wickedly and scandalously insinuating and endeavouring to make it be believed as if the said J. B. in the execution of the important office of coroner, had not acted consistent with justice; against the peace, &c. (Second count the same, not setting forth the inquisition.) And the jurors, &c. that on &c. the said J. B. then being coroner of our said Sovereign Lord the King, of the city of L. in due form of law, and according to the duty of his office as coroner of the said city of L. at L. to wit, at the parish of &c. in the city of L. aforesaid, did take a certain inquisition, on view of the body of M. C. then late apprentice to P. Q. and then lying dead in St. B.'s hospital, in the parish of &c. in the city of L. aforesaid, and within the jurisdiction of the said J. B. as coroner of the said city of L. And that the said H. S. W. maliciously, devising and intending to represent, insinuate, and make it be believed and thought that the said J. B. had acted with passion and injustice in the execution of his office as coroner upon the said last mentioned inquisition, and unjustly to impeach and censure the conduct and behaviour of the said J. B. upon such last mentioned inquisition, and thereby to bring the said J. B. into great scandal, infamy, and contempt with all the liege subjects of our said Sovereign Lord the King, afterwards, to wit, on &c. at L. aforesaid, to wit, at the parish of &c. in the city of L. aforesaid, a certain other false, wicked, and malicious libel, entitled, &c. did unlawfully, wickedly, and maliciously utter and publish, and did cause and procure to be uttered and published, in which said last mentioned false, wicked, and scandalous libel, of and concerning the said J. B. the coroner aforesaid, is contained false, feigned, wicked, scandalous, and malicious matters, of and concerning the said J. B. as such coroner as aforesaid; that is to say (here insert the libel the first charged in the first count to have been published by H. S. W.) in contempt, &c. to the great damage, &c. to the evil, &c. and against the peace, &c. (Here add a fourth count, in same manner, for publishing the libel last mentioned in the first count.) That B. B. late of N. in the county of N. cordwainer, being Indictment for a a person of a wicked, and malicious mind and disposition, and libel, by hanging unlawfully, wickedly, and maliciously devising, contriving, and the prosecutor intending to injure, oppress, aggrieve, and vilify the good name, fame, in effigy. credit, and reputation, of G. H. surgeon, and to bring him into great scandal, infamy, contempt, ridicule, and disgrace, on &c. at &c. aforesaid, did unlawfully, wickedly, and maliciously make, and cause to be made, a certain gibbet, and also a certain effigy or figure, intended to represent the said G. H. the said effigy or figure having in one of its hands a certain instrument, commonly called a clyster pipe, and in the other of its hands a parchment label, with the letters G. H. inscribed on it; and afterwards, to wit, on the same day and year aforesaid, at N. aforesaid, in the county aforesaid, unlawfully, wickedly, and maliciously erected, set up, and fixed, and caused and procured to be set up, erected, and fixed, the said gibbet or gallows in and upon a certain piece of ground near to a certain common King's highway, there commonly called the London-road, passing through the town of N. aforesaid, in the county aforesaid, and kept and continued, and caused and procured to be kept and continued, the said gibbet so there erected, set up and fixed as aforesaid, for a long space of time, to wit, for the space of three days then next following, and during that time, to wit, on the day and year aforesaid, and on every day between that day and the day of the said month of then next following, at N. aforesaid, in the county aforesaid, unlawfully and wickedly, and maliciously hung up and suspended, and caused and procured to be hung up and suspended, the said effigy or figure so having in one of its said hands the said clyster pipe, and in the other the said label, so intended to represent the said G. H. to and upon the said gibbet, and kept and continued, and caused and procured to be kept and continued, the said effigy or figure intended to represent the said G. H. as aforesaid, so hung up and suspended as aforesaid, for a long space of time, to wit, for the space of twelve hours on each of those respective days, and during those times on those respective days, there unlawfully, wickedly, and maliciously published and exposed the said gibbet, with the said effigy or figure, so intended to represent the said G. H. as aforesaid, thereto suspended, to the sight and view of divers and very many of the liege subjects of our said Lord the King, passing and repassing in and along the common King's highway aforesaid, to the great scandal, infamy, ridicule, and disgrace of the said G. H. and against the peace, &c. Indictment for a That A. B. late of &c. wickedly and maliciously contriving and Jibel on a lady intending to injure, defame, disgrace, and vilify the memory, reputadeceased, accus- tion, and character of E. D. late of &c. widow, deceased, relict of ing her of incon- M. J. D. esquire, late of &c. also deceased, and to bring the family tinence. Indictable nuisance, what. and descendants of the said E. D. into great scandal, infamy, and contempt, (t) and to cause it to be believed that the said E. D. in her life-time, was a person of depraved, vicious, and lewd mind and disposition and incontinent behaviour, and destitute of conjugal affection and fidelity towards her said husband, the said M. J. D. and that the said E. D. had led a wicked, profligate, and adulterous course of life, and had been continually from the time of her marriage with the said M. J. D. till near the time of her decease, addicted to promiscuous and adulterous intercourse with divers menial servants in the service of her the said E. D. on &c. at &c. wickedly, maliciously, and unlawfully did print and publish, and cause to be printed and published in a certain newspaper called and entitled, &c. a certain false, scandalous, and malicious libel, of and concerning her the said E. D. (here set forth the libel with the necessary inuendoes) to the great disgrace and scandal of the memory, reputation, and character of the said E. D. and against the peace, (u) &c. § 17. NUISANCES. A common nuisance is an offence against the public, either by doing a thing which tends to the annoyance of all the King's subjects, or by neglecting to do a thing which it is the duty of the party to do, and which the public good requires. The principal cases of nuisance consist 1. In omitting to repair Public Highways or Bridges. 3. In carrying on unwholesome Occupations near to Public (t) Those words in italics form a necessary allegation of the indictmeut for libelling a deceased person; the King v. Topham, 4 T. R. 126. (u) The excitement to the relations of the deceased to break the peace, is the very gist of an indictment for libelling a person who is no longer alive to feel or resent the injury; Ibid. 1. Nuisance by omitting to repair public highways and bridges.--The consideration of prosecutions for the nonrepair of highways and bridges differs essentially from that of other parts of the criminal law; for though in form they are criminal proceedings, in practice they are usually resorted to as modes of trying disputed questions of liability to repair. The more intricate questions of liability are rarely brought before the Court of Quarter Sessions for disposal, as, in such cases, the indictment or presentment may always be removed by either party into the Court of King's Bench, and tried at nisi prius; but it may be useful to give here a general outline of the law on the subject. bridges. And, first, it may be proper to observe that no prosecu- What are public tion in any form can be sustained for the omission to ways and repair any way or bridge but such as is public, as the omission to repair a private way, and even its positive obstruction, not being a common nuisance, is only the ground of a civil action. It often, therefore, becomes a question whether the way or bridge in respect of which a prosecution is instituted is public or private. On this question it is indisputable that all ways, whether for carriages, horses, or foot passengers, leading to a market town, or beyond it, or from town to town, are properly called highways. (v) But a way to a private house, or perhaps even a village terminating there, or leading to the common fields of a town, and it is said, even to a parish church, is only a way for a particular class of persons, and therefore not public. (w) And Lord Tenterden, in a recent case, said that he had great difficulty in conceiving that there can be a public highway which is not a thoroughfare, as the public at large cannot be in the use of it. (x) All bridges built in highways, by whomsoever erected, and dedicated to the public, are public bridges; but if a bridge be used by the public only in time of flood, and be shut at other times, it will only be public for such purpose, and at such period. (y) At common law, the obligation to repair all highways Obligation to lies on the parishes through which they pass; each being repair highways liable to repair such portions of road as are situate in its and bridges. (v) Co. Lit. 56. (a) (w) Hawk. b. 1. c. 76. s. 1. (x) Wood v. Veale, 1 B. and A. 454. (y) The King v. the inhabitants of Northampton, 2 M. and S. 262; the King v. the Marquis of Buckingham, 4 Campb. 189. Modes of prose⚫ cution. respective limits. (z) And, at common law, a like obligation belongs to counties to repair all public bridges within their boundaries, which obligation has been holden to extend not merely to the bridge itself, but to the road for three hundred feet on each side, probably arising from the difficulty of ascertaining the precise termination of the arches. (a) And whenever a road is opened and used by the public, or a bridge built which is so accepted and used, the liability to repair attaches on the parish in the first case, and on the county in the last; and this, even though the bridge be erected by trustees under an act of parliament authorising them to employ their tolls in the repair of bridges. (b) But though, thus, prima facie these obligations belong to parishes and counties, they may be removed by shewing that other bodies or individuals are bound to repair, either by prescription, which is a duty commencing before the time of Richard the First; or by reason of the tenure of adjacent lands. They cannot, however, by any agreement with individuals exonerate themselves from the discharge of their public duty. (c) Nor even do the statutes for the regulation of turnpike roads destroy the common law liability of parishes; and it is no excuse for parishioners indicted at common law for not repairing highways, that they have done their full work required by the statute, which only gives a cumulative remedy. (d) We have already seen that a public way out of repair may be presented by a justice and that such presentment, when formally made, has all the force of an indictment; but this does not affect the common-law remedy of indicting, which may be adopted by any person on behalf of the public. Where the grand jury of a county repeatedly refuse to find a bill against a county for the non-repair of of a dilapidated bridge, the Court of King's Bench will grant an information against the county; but that court will not allow this extraordinary remedy unless it appears to be absolutely necessary for the purposes of justice. (e) Such a rule was, however, recently granted against the county (a) The King v. the Inhabitants of the West Riding of Yorkshire, 7 East, 588; 5 Taunt. 284. (b) The King v. the Inhabitants of Oxfordshire, 4 B. and C. 194. (e) The King v. Steyning, Sayer, 92. (z) Hawk. b. 1. c. 76. s. 5. |