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were sought to be made liable, as having voted in favour of 1862. the resolutions sanctioning the tramway; and the books of

The QUEEN the vestry, containing the various resolutions, were put in v. for that purpose. The contract, sealed with the corporate, and Others. seal of the vestry and signed by Train, was also put in. As regarded the vestry, there was no other proof of complicity, nor as regarded Train was there any other, except that he had been seen often looking at the tramway while in course of formation. There was no proof of personal directions or orders, that having been left to the foreman.

The tramway was laid on the metalled part of the roadway, which was of a good width, allowing sufficient for the passing and repassing of carriages in both directions.

Witnesses were then called on behalf of the prosecution as to the nature of the tramway, and the objections made against it, as interfering with the traffic and causing danger to the public.

The objections stated by the witnesses on behalf of the prosecution were—that it was not possible to keep the flanges level with the road; that the stone part was worn away, while the iron flanges remained ; that thus the repair of the road would be interfered with, not the level of the surface constantly varying; and the action of wheels passing from the iron flanges off on the lower and softer materials, tending to make deeper cuts and ruts in the road, and thus wear it more away, and that the iron flanges themselves were unsafe for horses and carriages; the horses, whether ridden or driven, being liable to slip on the irons, and the carriages either clinging to the flanges, if going along them, or being jolted if going across them.

Evidence of accidents caused by horses being frightened by the omnibuses used on the tramway was excluded (a).

(a) As that would be the ground of another indictment for a nuisance against the parties running the om

nibuses, as in the case of Bray's Truction Engine, vide Watkins v. Reddin, Vol. II., p. 629.


1862. Mr. Greig, clerk of the peace for the county of Surrey, The Queen

the prosecutor, was one of the first witnesses called. He

said he prosecuted not in his public but in his private and Others., capacity. The tramway ran along the front of Surrey

Lodge, the official residence of the clerk of the peace. There were sixteen feet between the edge of the road (on his side of it) and the tramway. Driving from Westminster Bridge, on his proper side, he almost always found it necessary to go on the tramway, and his wheels clung to the flanges, so that it was difficult to get off; going in the other direction, towards London Bridge, he crossed the tramway at right angles, and he always suffered from severe wrenches. He had not had any accidents himself, but he had seen traces of accidents. He had seen cabs, &c., damaged with their wheels off, on the sides of the tramway. And he had known horses to slip on the tramway. The witness went on to say that he considered the tramway " at times dangerous, and always inconvenient,” to the general traffic.

He was cross-examined as to iron gutters by the side of the streets in the city, to which he admitted the wheels sometimes clung, but he said they were not so liable to get into the gutters.

Many other witnesses were called in support of the case for the prosecution, and to prove that accidents continually arose from the use of the tramway. It appeared that persons avoided the highway from apprehension of danger.

In the course of this evidence,

The jury declared they were satisfied that the tramway was a nuisance to the highway, as being dangerous to the public, using the highway with horses and carriages.

Bovill said he had a host of witnesses to prove that there was no danger.

ERLE, C. J. (to the jury).—You are satisfied that it

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obstructs, to a substantial degree (a), the ordinary use of the highway with horses and carriages), so as to render it unsafe and inconvenient.

The jury said that they were, and that they were satisfied partly from personal experience.

Erle, C. J.—You mean both unsafe and inconvenient.
The jury said they did.

ERLE, C. J.-And your opinion would not be altered by the evidence of any number of witnesses who might be called to prove that they had used the road without danger ?

The jury said it would not.

ERLE, C. J.—The jury have answered the questions I have put to them (and which I had intended to leave to them at the close of the whole of the evidence) in such a way as to dispose of the case. No doubt most persons would pass along the road without sustaining any accident; but if the proportion were proved to be 99 out of 100 passengers passing without accident, it would make no difference as to the legal right of the hundredth passenger to complain of the nuisance. The very fear of danger, if reasonable, may be a nuisance.,

Bovill objected that there was no evidence against the defendant Train, no personal participation, by orders or directions, having been proved.

ERLE, C. J.-He is proved to have entered into a contract to lay down the tramway, and is also proved to have been present, from time to time, while it was making. In misdemeanor all are principals. No one can doubt that there is evidence enough to have made him, in felony, liable as an accessory before the fact, and (under the

(a) That is, the obstruction being substantial. This is very different from the question, whether the

nuisance is substantial. See R. v. Betts, 16 Q. B. 1022; R. v. Russell, 3 E. & B. 912.




TRAIN and Others,

recent act) as a principal likewise. Every act done in pursuance of the contract would make him liable, supposing the carrying of it out to be criminal. And there is no doubt that the contract was carried out, and that the tramway was laid down in pursuance of it.

Bovill then raised the question of law, that without at all trenching on the doctrine (a) that if there is a nuisance to a highway, it cannot be excused as a mere balance of inconvenience; there is this to be considered, that the authorities in whom the highway is vested may have a right to set apart a portion of the highway for the use of passengers by a particular class of vehicles, just as portions of it are set apart for the use of foot passengers and passengers with horses and carriages, and that it was a question of what is a reasonable and convenient use or arrangement of the highway; and that was a question for the jury.

Lush and Ballantine, Serjt., for the other defendants, the members of the vestry and their surveyor.

The members of the vestry are not liable personally and individually, for the only act proved against them is the contract entered into by them, not personally, nor signed by them separately and individually, but only sealed with their corporate seal as a vestry. Then, even if liable at all personally, they are not so criminally, as they would not be civilly for acts done while acting gratuitously on behalf of the public. Then as to the surveyor, be having acted by their orders, he is not liable.

Chambers cited Queen v. Scott (6), as showing that the members of the vestry were personally liable.

Erle, C. J.-Criminally, all who co-operate in a common purpose are principals. And as Train is implicated by entering into the contract, so are the vestry by entering

(a) The Queen v. Betts, 16 Q.B. (6) 3 Q. B. 315. Rep. 1022.



TRAIN and Others.

into it, and sanctioning the nuisance. As regards the questions of law, however, they may be reserved.

Lush, on the part of the vestry, objected to a verdict of guilty.

Chambers doubted whether, in a criminal case, leave could, by consent, be reserved to enter a verdict of guilty.

Lush. That does not apply in a case like this, not really criminal, and on the civil side (a).

ERLE, C. J., thought that it did not apply to such misdemeanors, and suggested that the entry of the verdict could be suspended until the next Assizes (6), and to this

Chambers assented, as regarded the members of the vestry, but not as regarded the principal defendant, Train, and his foreman, as against whom he pressed for a verdict of guilty.

ERLE, C. J.-On the main question I am bound to administer the law according to the legal rights of the public as they now exist, and which are thus aptly defined in the language of pleading-to pass and repass, on foot and with horses and carriages, at their free will and pleasure, over the said highway, i. e. over every part of it at their free will and pleasure. Every obstruction which, to a substantial degree, renders the exercise of that right unsafe or inconvenient, is a violation of that right. And I think the authority of parliament is necessary to legalize such a dealing with the highway, as deprives any class of passengers, whether on foot or with horses and carriages, of the use of any part of it. The vestry, no doubt, have some power over the highway, but, in my judgment, it is entirely subject to the existing rights of the public, and

(a) Vide Vol. II., p. 498, and R. v. Russell, 3 E. & B. 942.

(6) This course could always, in substance, be taken, whether in felony or misdemeanor, the Judge

respiting sentence until the next
Assizes, to consult his brethren.
Several such cases can be found in
Coke. And see also Leach's Crown

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