bitants, as they should think proper; they followed this method, and distributed 211. part of the interest, among 42 of the poor inhabitants, at 10s. per head. Under a commission for charitable uses, they were compelled to lend out the whole again in small parts, agreeable to the bequest, and the corporation to pay the costs of the commission; they took exceptions to this decree, which were never argued, they agreeing to pay the prosecutor out of the 5901. in their hands, 901. for his costs, and so he consented that the decree should be reversed.

The present information was filed, praying for interest as long as the money remained in the hands of the corporation, and to have other trustees appointed.

The following was the substance of Lord-chancellor Hardwicke's decree. That some part of the money was to be lent without interest, other parts with half interest, and other parts at full interest. The first of these is a good charity, in that it is a means of encouragement to set the poor on work; the second of these is good in proportion; but how it is a charity to lend money to the poor at full interest, he could not find. At first the corporation complied with the trusts. And considering the money was to be lent to the poor in such small sums, it is no wonder there was a loss; and if the whole had been lost in that way, the corporation would not have been answerable. As to the method they took to make up the deficiency, he did not know that a better method could be taken. But from the time they made up the whole, they kept the money in their own hands, and therefore it is prayed that they may account for it with interest; with this interest they ought to be chargeable : and there is no ground to stop the interest at the time of putting in their answer, though they thereby declare, that they are willing to account for it, as the court shall

direct.

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 security, 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.

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 money 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 corporation 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- 2Atk. 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 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.

Duke, 67.

1736.

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.

СНАР,

CHAP. VI.

OF NUISANCE.

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 Bl.Com. 166. 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.

1 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 question 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 3 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 occasioned 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 up on hearing the counsel for the motion.

it

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