CH. 208. description of a nusance is very general, yet perhaps it is as good a one as can be given in a few words. Art. 12. Indictment for keeping hogs near a public street, Cro. C. C. 533, 534. Also Mass. 4. Prosecutions for carrying on these offensive trades to the nusance of the people have been very unfrequent; the reason probably has been, they have not usually been viewed as nusances, until places have been legally assigned for the exercise of them, and not then if exercised in the places assigned, and if not so, then clearly nusances. So that the remedy for an evil, vague and indefinite in itself, has been simple and plain. 5. With regard to certain trades, as those of a butcher, shoemaker, currier, and tanner, there has been a law ever since the year 1651, forbidding the same man to exercise more than one of them. These four trades, it will be observAct of 1698. ed, include the whole process in producing and working up leather, in doing which there ever has been much room for deception and cheating; for this reason, probably among others, legislators have thought it best not to suffer any one man to have in his hands the whole process, taking off the hide or skin to manufacturing shoes. This law for a long time has been but little regarded, so not reprinted in the late volume of Colony and Province Laws. In 1776, there was an indictment against one Richardson on it, for exercising the mystery of butcher and tanner, quashed. Mass. Act, ART. 11. Unwholesome provisions. Knowingly to sell them is an offence at common law, and the offender may be indicted by that law and fined and imprisoned. This act provides, that if any person shall sell any diseas1785.--Maine ed, corrupted, contagious, or unwholesome provisions, whether Act, ch. 23. for meant or drink, knowing the same, without making it known to the buyer; on conviction in the Sessions or Supreme Judicial Court, punishment, fine, imprisonment, pillory, binding to the good behaviour, any or all of these punishments. Virginia act of 1786. 51 H. III. st. 6.-4 BI. Com. 162. Lofft, 556. 1 W. Bl. 570, Bullbroke v. Goodere. By this act, a part of our common law, selling unwholesome provisions, as corrupted wine, contagious or unwholesome flesh, was made an offence; punishment, fine and imprisonment, and pillory for a second offence,-we practised on this law till 1785. Acts in Mass., 2 M. L. 1001; Maine act, ch. 29, to prevent abuses in distilling strong liquors. ART. 12. Indictment. 1. For every common and public nusance the remedy is by indictment, and therefore one shall not have a private action. § 2. The violation of a public penal law is not indictable The offence was committed contrary to a penal statute, and Lord Mansfield said the punishment must fol as a nusance. low the method which that act prescribes. The deft. cut the plt's. nets and took his fish, and contended that this net &c. was a nusance, and so he had a right to abate; but the court held, this fishing being contrary to statute 1 Ed. I. c. 17, was a public crime, punishable only as the act prescribed. Cн. 208. Art. 12. Webb.-2 3. It is not an offence indictable as a nusance to darken a 1 Ld. Raym. street by enlarging a house or other building. But keeping 737, Rex v. gunpowder in great quantities is a nusance and indictable. Stra. 1167, Held, where it endangered the church and houses where it Rex v. Taywas kept. lor. § 4. The deft. was convicted on an indictment for making 1 Stra. 704, great noises in the night with a speaking trumpet, to the dis- Rex v. Smith. turbance of the neighbourhood. This the court held to be a nusance, and fined the deft. Ch. 5. § 5. The deft. was indicted for intruding upon public pro- 1 Dallas, 150. perty; and held, he could not justify his intrusion by pleading that his entry &c. was beneficial to the public. § 6. The deft. was indicted for a nusance in keeping fifty 1 Johns. R. barrels of gunpowder in a certain house near the dwelling 78, The Peohouses of divers good citizens of the State, and near a certain ple v. Sands. public street &c. Held, these facts so charged did not amount to a nusance; but that it had been otherwise if it had been alleged to have been improvidently and negligently kept. M'Donald. 7. Held, that it is not a nusance indictable, for that the 3 Burr. 1645, deft. converted his house into an hospital for taking in and Rex v. delivering lewd, idle, and disorderly unmarried women, who, when delivered, left their children to be chargeable to the parish. Indictment quashed. Lord Mansfield asked by what law is it criminal to deliver a woman when she is with child? 8. A bare trespass is not indictable, being a mere private 3 Burr. 1698, injury, though laid vi et armis. As where the charge was for unlawfully entering into his yard and digging the ground, and erecting a shed; and unlawfully, and with force and arms. putting out and expelling one Mr. Sweet, the owner, from his possession, and keeping him out of possession, held, only a trespass, for which an action lay and not an indictment. See post, Ch. 211, a. 9. Rex v. Storr & al. kins. 9. The deft. was indicted, for that he with force and arms 3 Burr. 1706, pulled off the thatch of a man's dwelling-house, he being in Rex v. Atpeaceable possession of it. Indictment was quashed, because no nusance, but a mere private trespass, vi et armis, and no actual force laid, do not imply an indictable offence. Taking all these cases together it was plain the court held, that some actual force must be stated in the indictment, some actual breach of the peace, to make the offence indictable. 10. The deft. was indicted for a nusance in keeping a 4 Burr. 2116, house for inoculating for the small-pox. The court refused to Rex v. Sut ton. CH. 208. Crown C. 560. quash the indictment on motion, saying, you must demur to it. But the court will quash on motion in a clear case, as 3 Burr. 1645, 1698. 11. Sundry forms of indictments for nusances: as 1. Comp. 519 to Against a butcher for using his shop as a slaughter-house in a public market: 2. For placing putts in a navigable river &c. : 3. For keeping a disorderly house: 4. For digging a hole in a public street 5. For laying soil in it: 6. For placing empty drays in it, all obstructing it: 7. For erecting a cistern in it: 8. For breaking the sabbath by keeping open shop, (butchers) quare, if indictable at common law: 9. For placing two carts for selling pease in a public street: 10. Two loads of dirt in a common footway: 11. For keeping hogs near a public street: 12. For erecting a furnace with a boiler for boiling tripe and offal &c. : 13. For boiling bullock's blood for making colours 14. For stopping an ancient watercourse, so as to overflow a way: 15. Against scavengers for not cleansing the streets 17. Against inhabitants of a parish for not repairing a way: 18. For continuing a hedge in a way: 19. For not repairing a way: 20. For not repairing &c.: 21. Same. These cases are thus noticed in order to observe that all these twenty-one indictments are at common law, except No. 16, and all without objection except No. 8. Pleas, that certain merchants are bound to repair a way on an indictment for a nusance, and that the inhabitants of the parish at large are not; pleaded by two of the parish for themselves and the rest, except those so bound. Replication, by the king's attorney, said inhabitants ought not to be discharged &c. because bound &c. Held, 5 D. & E. 490, the inhabitants of a whole parish must be indicted in such case, and not of a part of it. The same principle holds in regard to our towns. Pages 54 to 59, Crown. C. Comp., many good rules and cases on this subject, in all of which, (generally noticed above, and Ch. 74,) it is an invariable rule, that the indictment for a nusance, either by doing a thing annoying the king's subjects or neglecting what the common good requires, must state the nusance to be to all the people, &c. or common grievance, or it must appear so to be on the face of the indictment. Hence, whenever it appears in the indictment to be only so to some individuals, as the inhabitants of a town or parish &c., it is not an indictable nusance, but only a ground of action by those injured; nor is this general principle shaken by the decision that a nusance, as want of repairs &c. in a town-way, is indictable, for a town-way is in fact used by all the citizens generally, otherwise perhaps of a private way leading to a mill &c. 2 Burr. 1232, 12. Held, an indictment for a nusance is sufficiently cerRex Higginson. tain, charging the deft. on divers days &c. keeping a certain Indictment against the master of a work-house and a surgeon, for keeping the body of a poor person who died in it to be dissected, 4 Went. 219, 222, 4 coun's. Art. 12. common, ill-governed, and disorderly house; and in it for his CH. 203. lucre, procuring evil and ill-disposed persons of ill name to assemble and remain fighting of cocks, boxing, playing at cudgels, &c. to the common nusance of all the subjects &c. Queen v. 13. House by the highway a nusance. Held, if tenant 1 Salk. 357, at will occupy a house near the highway likely to fall down, Watts. he is indictable; for it is not the title but the occupancy that respects the public, for the house is a nusance as it is, and his continuing it in such falling condition is a nusance, and the public looks to the occupier, and not to the estate. 14. But it is not an indictable nusance, to set one in a foot- 1 Burr. 515, way in a public street in London from day to day to deliver Rex v. Sarout printed bills of the deft's. occupation, whereby it was ob- mon. structed. 687.-1 Co. 148. § 15. Indictment for not repairing a bridge by which the 3 Bac. Abr. inhabitants could not pass that way, to their nusance, is good. So if the act appear to be a common nusance. the indictment may be good, though not laid to the nusance of all &c. 16. Indictments for nusances in a river, in a private way, near a public way,-for selling unwholesome provisions. Formerly there were some questions as to indictments in these cases; but of late years indictments in the forms in the subjoined notes have been sustained, and the defts. convicted on them. In these forms we see the law in the cases. a water 4 Wentw. Notes.-Indictineut for a nusance in a tide river in S. See a. 40.Present, that there now is, and for a time whereof &c. there Cro. C. C. 520, 522. always has been situated in said S-, in said county of E-, a certain navigable river, called South River, flowing from the high sea up into said S, and in which river, from the sea Indictment to the head thereof, all the citizens of the said Commonwealth, for diverting for a time, whereof &c. have been used to pass and repass course runwith their ships, boats, and other vessels, from the sea up to ning into a the head of the said river. And the jurors aforesaid, upon great pond, their oaths, further present, that R. W. on (June 10, 1789,) 222, 224.— with force and arms, did unlawfully erect and build a certain For killing wharf, of the length of 20 feet and breadth of 20 feet, in and sheep in the highway &c. upon the same river, and the same wharf, so erected and built and there in and upon the same river, did continue from that day to by reason whereof the citizens of the said Commonwealth -For erectcould not, during that time, pass with their ships, boats, and ing a necesother vessels, in, upon, and through the same river as they sary house had been wont and ought to do, without great peril and dan- highway, ger; to the great damage and common nusance of all the liege 225, 227, citizens of the said Commonwealth, in and by the same river passing and repassing with their ships, boats, and other vessels, and against the peace of &c. Plea, not guilty, leaving the filth, 224,225. too near the Ch.208. to 17. Indictment for a nusance in a private way.-Present, Art. 12. that on (May 20, 1793,) there was, by the Selectmen of said S-, a private way laid out in said town, leading and extending from which way was afterwards reported by them to said town at a public meeting of the inhabitants thereof, duly notified, warned, and held at the court-house in said S. on the day of 1793, and accepted &c.; and that there was then erected, and standing on land over which the said way was laid out, a small building, improved as a dwelling house, and that E. M. of &c. hath with force and arms at said S- the said building so erected as aforesaid, on said day of May, standing and being in and upon the said way, voluntarily continued in and upon the same way from and thereby entirely obstructed the said private way, to the common nusance of the good people of the Commonwealth and others, especially the inhabitants of said town, in, by, and through the same way &c. &c. Plea, not guilty.-Was a town way for all the inhabitants &c. Indictment for boiling tripe &c. in a street, 6 Wentw. 417. 2 Mor. E. 55, 56, Rex v. White. to 18. Indictment at common law for selling unwholesome provisions, (Jan. 1797,):-present, that J. of &c. on at, had as his property, a certain cow, sick, diseased, and vexed with sores and putrid distempers, by which the flesh of the same cow was rendered putrid and unwholesome, and which cow there on the same 10th day of January the said J. killed, and prepared for selling the flesh of the same for beef; and that the said J. there, the same day, with force and arms, did fraudulently, wickedly, and deceitfully, sell the four quarters of the same cow, so prepared, to one S. G. for, and as good wholesome flesh, he the said J. then and there, well knowing the same to be putrid, diseased, and unwholesome as aforesaid, against the peace and dignity of &c. Plea, not guilty. An indictment, in this case, might have been framed on Massachusetts statute of March 8, 1785, and merely stated the deft. knowing &c. deceitfully &c. sold unwholesome flesh to one S. G. on 19. Indictment for erecting noisome buildings &c. near the highway.-Present, that at, near the king's common highway, there, and near the dwelling houses of several of the inhabitants, the defts. erected two buildings for making noisome, stinking, and offensive liquors; and then and there made fires of sea coal and other things, which sent forth abundance of noisome, offensive, and stinking smoke; and made &c. great quantities of noisome, offensive, and stinking liquors, called acid spirit of sulphur, oil of vitriol, and oil of aqua fortis, whereby, and by reason of which noisome, offensive, and stinking smoke, &c. the air was impregnated with |