direct.

That interest now must be added to the principal, to increase the sum that is to be lent out to the poor inhabitants. The corporation claim an allowance of the 211. distributed at 10s. per head; this advice was far from being proper. The intention of these charities was to assist the industrious poor, by lending them money to go on with their callings. But the giving them such small sums as 10s. a piece, was an encouragement to make them idle; however, as this money has been disposed of among the poor, and as it was only a mistake of judgment in the corporation, they must have an allowance for it. But for the future this method of putting out this money to strangers, upon good secu rity, and distributing the interest among the poor, must not be continued. The 901. paid to the prosecutor for his costs, upon his consenting that the decree should be reversed, must not be allowed.

money

This was a commission that there was a foundation for; it was to compel the corporation to lend out this money in small sums to the poor, according to the directions of the charities. The commissioners decreed that the should be lent out in that manner. They ordered indeed that the corporation should pay the costs of this commission; and that perhaps was more than they could justify. Exceptions were taken to this decree, but instead of arguing them, the corporation and prosecutor came to an agreement, that the prosecutor should have this 901. for his costs, and that the decree should be reversed this was certainly wrong, both in the cor poration and the prosecutor. There is no instance of costs in these cases being directed to be paid out of the charity-money, unless where the bill is brought to establish a charity. He did not think the circumstances strong enough to take the money out of the hands of the

corporation,

corporation, and to place it in other trustees; nor was he inclined to take the money into the court. But the circumstances are strong enough, to direct that the corporation shall pay the costs of this suit. The information was made necessary by what they did. The disposal of the 901. was a gross misbehaviour; nor have they lent any part of the 590l. to the purposes for which the charity was given ever since the year 1725. And decreed accordingly.

SECT. II.

Of Interest when chargeable.

If it is quite uncertain from the words of a will, whe- 2 Atk. 328. ther the testator intended that the capital or the interest,

or produce of it, should pass; the court will not confine it to the interest, or produce.

If the executors of a charitable bequest jointly concern Dake, 67. themselves in the estate, and one of them misemploys the bequest, and dies; the survivor is liable for the whole; but if he did not act, it is otherwise. If they detain money in their hands, bequeathed to charitable uses, they are liable to damages, which will be the interest due for the time; this is now fixed by the court at 41. per

cent.

1738.

And it has been held that such interest commences, 1 Atk. 356. Att. v. Hayes, in all charity legacies, from the testator's death: though this must be understood where the testator himself made no limitation of time for payment of the legacy; and whether the legacy be in suit or no, still the same interest accrues. But it is now the established practice for interest to be chargeable on all legacies from one year next after the testator's death, unless otherwise directed thereby,

CHAP.

CHAP. VI.

OF NUISANCE.

Bl.Com. 166.

1 Haw. P. C. c. 75.

THE establishment of hospitals for the sick in different neighbourhoods, and even the establishment of a neighbourhood in the vicinity of any hospital, has not unfrequently suggested the question, whether hospitals were nuisances? Common nuisances are a species of offence or of injury against the public order and economical 2 Rol. Abr. 83. regimen of the state, being either the doing of a thing to the annoyance of all the king's subjects, or the neglecting to do a thing which the common good requires. Nuisance, nocumentum, or annoyance, signifies any thing 8 Bl.Com. 216. that worketh hurt, inconvenience, or damage, and the common law gives a very summary remedy by abatement or removal of it. Common nuisances are such inconvenient or troublesome offences, as annoy the whole community in general, and not merely some particular person: and therefore are indictable only, and not actionable; as it would be unreasonable to multiply suits by giving every man a separate right of action, for what damnifies him in common only with the rest of his fellow-subjects.

Ibid. 5.

Haw. P. C.

c. 75.

4 Bl. Com. 166.

How far the election of an hospital in a populous neighbourhood can be indictable as a nuisance, is a quese tion easily answered by the fact of many hospitals for the sick, and for even contagious disorders, in the centre and in the vicinity of the metropolis of London, without any evil consequences having been ever known to arise from them; the precaution taken in the management of them,

and

and their being every-where separated from the immediate line of public passage-way, at a distance too great for any exhalations to be felt, contribute to reduce the idea of a nuisance to a bare apprehension; and to show how far they are removed from any of the definitions abovementioned for fear, however reasonable, will not create s Atk. 21,726, a nuisance.

750.

1752.

Baines v.

Baker.

But this question was urged upon the court with peculiar force at the time of the proposed establishment of an hospital to relieve one of the severest and most contagious of human afflictions in the year 1752. The original founders of the hospital for the small-pox purchased Amb. 158. the lease of the house and gardens, thentofore occupied as a place of diversion and refreshment, and known by the sign of Sir John Oldcastle, in Cold-bath Fields. They were proceeding to convert the premises to the purposes designed, when a bill of injunction was filed against them to stay the building of such an hospital, it being very near the houses of several tenants of the plaintiff. The infectiousness of the distemper, and the terror it oc casioned in the neighbourhood, were insisted on: also that the lessee for years, under whom the defendants claim, held the estate of the plaintiff; and in the lease was an express covenant against the house being turned to a brewhouse, which would annoy the neighbourhood. It was said that an affidavit was filed, shewing that several tenants of the plaintiff had given him notice to quit; but the lord-chancellor did not suffer it to be read, but took it up on hearing the counsel for the motion.

2 Roll. Abr. 139, 140; 1 Lut. 69; Haw. P. C. ch. 75. s. 11. were cited: where it was held to be a common nuisance to divide a house in a town for poor people, which might increase infection in time of plague.

Lord Hardwicke, chancellor, declined making any

order, declaring himself of opinion, that it was a charity likely to prove of great advantage to mankind; and said, that such an hospital should not be far from town, because those who are attacked with that disorder in the natural way may not be in a condition to be carried far. Two things are to be considered.

1. Whether it is a nuisance at common law?

2. If it is, whether a public or a private nuisance? As to the covenant in the lease, there is no foundation for the motion on that; for it is not a general covenant against a nuisances, but particularly against a brewhouse. It comes to the general question. Cases are as cited. There was lately an indictment at the summer assizes, in Essex, 1750, against Frewen, for such an hospital: the defendant was acquitted. This cannot be called a private nuisance; if any, it is a public nuisance: the former is to one person only, as building against lights; nuisance, ad vicinatum, is a public nuisance.

Bills of this sort are founded on being nuisance at common law. If a public nuisance, it should be an information in the name of the Attorney-general, and then it would be for his consideration whether he would file such an information or not; and that was the case for stopping a way behind the Exchange in the city. Lord King recommended it to the Attorney-general to prefer an information in the King's Bench, to try whether it was a nuisance or not. If the cases cited were law, query, how far they would extend to all the hospitals in this town?--Motion rejected,

CHAP.