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Present: Akbar J.
VANCUYLENBERG v. MELDER.
243—M. C. Colombo, 2,109.
Disturb the repose—Making a noise at night—Inhabitants—PoliceOrdinance, I860, s. 90.
Where a person is charged with making a noise so' as to disturbthe repose of the inhabitants of a place, there must be proof thatthe inhabitants of the quarter and not one household only wasdisturbed.
PPEAL from a conviction by the Municipal Magistrate ofColombo.
De Jong, for the appellant.
May 21, 1929. Akbar J.—
The accused in this case was charged with the offence of makinga noise at night so as to disturb the repose of the inhabitants of aplace named Colpetty lane. He was convicted and fined Rs. 50.The only evidence in this case is that of Mr. and Mrs. CollingwoodCarrington. They said that the accused who lived in front of theirhouse carried on the business of loading and unloading lorries,making up of tea cases, and other carpentry works at night. Thecharge is with reference to the night of February 25. The com-plainant and his wife say that the repairs are carried on from 11 atnight till 2 in the morning, and that in consequence they andtheir three children are disturbed at night. The accused has givenevidence and has called two neighbours to prove that they were notdisturbed. I can quite understand Mr. and Mrs. Carrington’sfeelings and wish that the law would allow me to affirm the convic-tion. Unfortunately, however, the law is too clear. It was decided,so long ago as 1879, by Phear, Chief Justice, that the word “ inhabit-ants ” in section 90 of the Police Ordinance, 1865, under which theaccused has been convicted, means the inhabitants of the quarterin which the noise is made and not one individual of it only. Inthat case a Mrs. Young and her baby were disturbed. As Phear
J. said: “ To construe it as the Magistrate has done in sucha way as to give a particular householder a criminal remedy againsthis next neighbour for a grievance with which the other inhabitantswithin more or less proximity are not concerned, is to go beyondthe scope and spirit as well as beyond the words of the law. Each
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1928 occupier of a house or land is always civilly responsible to his'j. adjacent neighbour for the use which he makes of his property to
„,the latter’s annoyance, if the use infringes the maxim Sic utere two
berg v.ut altenum rum laedas and this seems to be sufficient protection
Mdder. under ordinary circumstances for adjacent or conterminousproprietors.”
The words of section 90 are too clear to admit of any doubt.It is not enough to call the inmates of one house only to prove theoffence; the prosecution must call several representative inhabit-ants of the district. This is the same difference which existsbetween a public nuisance and a private nuisance and the reasonwhy only the former is made penal under Chapter XIV. of thePenal Code. In view of the judgment of Phear C.J. which wasquoted to the Municipal Magistrate, I cannot understand how hecame to conviot this accused. The fact that not only Mr. and Mrs.Carrington, but their children too, have been disturbed does notalter the fact that they do not represent the inhabitants of thequarter. The Police have made no effort to call evidence of residentsin the vicinity, and I do not think they should have prosecuted inthis case without getting proper legal advice, in view of the caseI have quoted.
I set aside the conviction and acquit the accused and remitthe fine..
VANCUYLENBERG v. MELDER