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GAMING, GAMING HOUSES, &c. IDLERS, &c.

VOL. VII. is an indictable offence at common law: 2. It seems that an CH. 206. indictment would be good, merely charging the deft. with Art. 2. keeping a common gaming house. Rex v. Rogier, &c.

Con.

ART. 3.

Con.

2 Nott & Mc

6

8. A still house or distillery, is such an out house' as is contemplated by the act of 1816, prohibiting gaming. 2 McCord, 238.

6. Innkeepers entertaining town's people on Sunday. Indictment on Mass. statutes, 1791, ch. 58, s. 3, enacting that no innholder, &c., shall entertain any persons, &c., not being travellers, strangers, or lodgers, &c., on the Lord's Day, (Lord's Day act, March 8, 1792,) on penalty 10s. each person so entertained. Deft. was indicted on this clause. Held, the indictment must state the exact number of persons entertained, and negative their being travellers, strangers, or lodgers, according to the well known rules stated ch. 196, a. 3, and authorities there cited, also, 5 Co. 35; 1 Vent. 272-329; 4 Burr. 2455; 2 Chitty's Cr. Laws, 20-26; 3 p. 672; 10 Mod. 335; 1 East's R. 643; 1 Burr. 148; 1 East's P. C. 166; 1 Stra. 637; 2 Ld. Ray. 1410; 2 Hal. P. C. 182; 2 Pick. R. 139, Commonwealth v. Maxwell.

§ 7. A person who sells liquors to a negro without license, Cord, 280-283. may be indicted and convicted under the act of 1784, for retailing without a license, and under the act of 1817, for trading with a negro without a ticket, for the same act of selling. 8. A person who sells liquor to a negro without license, may be convicted under the act of 1784, for retailing without a license, and under the act of 1817, for trading with a negro without a ticket, both for the same act of selling.

State v. Sonnerkall, 2 Nott & McCord,

280.

ART. 4. 2 con. The indictment charged that the deft. was a comCon. mon, gross and notorious drunkard, and that he, on divers State v. Walk- days and times, got grossly drunk, without charging the offence er, 2 Murph. was open and exposed to public view, so as to become a nusance. Judgment arrested after a verdict of guilty.

229.

ART. 7.
Con.

4 con. Other offences in inns, &c. Grant prosecuted South, an innholder, to recover the penalty given by the seventeenth section of the act concerning inns and taverns, Rev. Law, 284, for taking more than the legal rate for a breakfast, and Grant filed his demand, and otherwise stated how it arose, and how the penalty was incurred. Held, the state of the demand must set out what the lawful rate was, and what the complainant paid, both omitted. It seems he paid the wife of the innkeeper less than fifty cents; but made out his account and charged him that sum, and caused him to be arrested on a justice's warrant and carried before him, and fined $4, the penalty in the act; also charged costs of suit, $4,24. Judgment reversed in the Supreme court, for the defects stated above. South v. Grant, 2 Halsted's Rep. 26-27, A. D. 1823.

CHAPTER CCVII.

LIBELS.

VOL. VII.
Сн. 207.

Art. 4.

Con.

4. Indictment for a libel in a Rhode Island newspaper at 3 Pick. 304Rehoboth in the county of Bristol, in Massachusetts, Feb. 20, 221, Common1822. This paper usually circulated in said county, and in it wealth v. the paper containing the libel was actually received and circu- Blanding. lated. Good evidence of publication in that county, like Rex v. Burdett, 4 B. & A. 95.

R. 168.

5. The general intendment of the law is that a libel is of a malicious character, and it is for the deft. to shew he published it with good motives and justifiable ends, and do this in the manner the law directs. It is immaterial to the character of a Commonlibel, as a public offence, whether the matter of it be true or false. wealth v. Also, Clap's case. The provision in the constitution, securing Clap, 4 Mass. the liberty of the press, was intended to prevent any previous restraints upon publications, and not to affect prosecutions for the abuse of such liberty. As to the truth, see Rex v. Wright, ch. 207, a, 2, s. 4 ; ch. 218, a. 2, s. 15; Lake v. King, ch. 43, a. 4, s. 11; a, 7, s. 8, 20; Thorn v. Blanchard, ch. 63, a. 7, s. 15, and other cases in this chapter; ch. 63, and ch. 218.

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Cord, 248.

§ 6. An indictment for a libel charged the deft. with saying Walsh v. that the prosecutor was worse that the lowest vagabonds,' and State, 2 Mc the words proved were worse than the lowest vagabonds.' A new trial was granted. § 7. To publish the proceedings of a court of justice is not State v. Lebre, an indictable offence unless intended, thereby, to publish slan2 Const. Rep. 809-819. derous charges, and to gratify a malicious purpose, in which case it would be libellous though true. On an indictment for libel, the truth of the word cannot be given in evidence; and 3 Pick. 304; Mass. Act, March, 1827, how qualified.

a p.

§ 7. Indictment for publishing an obscene libel. It is sufficient to give a general description of the libel, and to aver its evil tendency. Several counts; one is good, a general verdict is applied to that. 7.

Mass. Statute, March, 1827, allows the truth to be given in evidence in all prosecutions for libels, but with a proviso that such evidence should not be a justification, unless made to appear, on the trial, that the matter charged as libellous, was published with good motives, and for justifiable ends.

809.

VOL. VII.
Сн. 208.
Art. 7.
Con.

22-26, the

CHAPTER CCVIII.

NUSANCE, BONFIRES, &c.

1. Indictment for not repairing a part of a causeway al2 N. H. Rep. leged to be a public highway, across Hampton Marsh. A nolle prosequi entered. Held, 1. The legislature has power to permit a turnpike corporation to lay out their road on an ancient highway 2. If this be done, the town ceases to be liable to repair where so laid out, and the legislarure can discontinue a highway.

State v. the
Town of
Hampton.

3 Pick. 327

wealth v.

Worcester

2. In an indictment for not repairing a highway, it is not necessary to state the termini: 2. The uses of a way twentyseven years, by the inhabitants of a town where it lies, and of adjoining towns, is not sufficient to establish it on the presumption of an ancient laying out or grant: 3. If used by other towns also, than that in which it lies, it is to be described as a public way, not as a private town way: 2 Pick. R. 51 to 64, Commonwealth v. the Inhabitants of Newbury: cited 11 East. 376; 5 Taunt. 126; 2 Stra. 1004; 1 H. B. 351: see a. 10, s. 23, ch. 79; 12 Johns. R. 222; 5 Mass R. 130: 8 East. 264; 2 Saund. by Wms. 175; 3 Smith's R. 216; 4 Barn. & Ald. 579; 2 do. 662: 1 Price, 248; 3 Taun. 99; 5 D. & E. 269; 3 East. 294; 1 Bos. & P. 400; 13 Johns. R. 495; 14 Mass. R. 49 mostly as to presuming a grant, &c.

§ 3. Indictment for not repairing an ancient highway, included 330, Common- in the turnpike road in Roxbury. Decided, the corporation was bound to repair it, as it took toll therefor, though not all four Turn. Corpo- rods wide; and if the town had repaired, many years, and agreed with the corporation to repair, this was an affair between themselves only. It was located by a committee of the legislature, and accepted by it.

ration.

3 Pick. 408

wealth v.

Low.

§ 4. Indictment for a nusance in erecting a fence on an an413, Common- cient townway in Chelsea. Held, a town may acquire a right of way by grant, and exclusive uninterrupted user by the inhabitants for twenty years unexplained, is evidence of a grant; but such way is a private way, and a nusance on it is not indictable: 2. A public town way can be established only in the mode pre-. scribed by statute 1788, ch. 67, and a record thereof, cannot, as it seems, be presumed from a user, for any length of time. The town may have a way by grant proved or presumed, but it will be a private way, for its inhabitants only, nor will they be bound to repair.

ART. 9. 7. Cases of indictments on the statute 1825, ch. 184. Con. Printers liable, &c.: so a signboard erected before the act was Pick. 41, 42, passed, if continued afterwards, is a new advertisement, by which the penalty of the act is incurred. In an information

168.

thereon for advertising lottery tickets, it is not necessary to allege by name, nor on the trial, to prove by name, what kind of lottery tickets the deft. advertised, nor that they were advertised as being for sale within the county in which the information is filed. p. 42.

VOL. VII.
CH. 208.
Art. 9..
Con.

If the plt., in an action of the case, be charged with in- ART. 11. tending to sell unwholesome provisions, (meat) he must, to Con. prove an injury to his reputation aver, the deft. stated, the plt. 1 Pick. R. 524 knew the meat to be unwholesome.

1-527.

wealth v.

Chapin.

16 con. This was an indictment for creating a nuisance by ART. 12. erecting a dam across Connecticut river, between Northampton Con. and South Hadley. Stated, the river there was a public river, 5 Pick. 199&c. Held, 1. Rivers are navigable as far as the tide ebbs and 205, Commonflows, and no farther: 2. In a navigable river, the right of fishing is common to all the subjects, under such restraints as the government may impose: 3. In a river not navigable, the proprietor of the adjoining land has an exclusive right of fishery in front of it, to the thread of the river, except so for as this right has been qualified by legislative regulations. But this right is limited to the making of fish, and does not carry with it a right to prevent the passage of fish to lakes and ponds, to multiply their species: 4. An indictment at common law does not lie for a nusance, in obstructing the passage of fish, by a dam built across a river not navigable, but only on statute law: 5. The public has an easement for passing in boats, &c., in rivers, which, though not classed with navigable rivers, are, in fact, navigable above the flow and ebb of the tide. See Rivers, ch. 68, Nusances, &c. ch, 74, and the cases therein cited.

$20 con. A court of equity will not correct abuses merely 3 Rand, 63–65. public-does not interfere to prevent public nusances, unless the party asking its aid, can show some private injury is actually sustained, or justly apprehended by him. An injunction had issued to prevent digging down a street, which digging the complainant said was to his private injury. The supreme court of appeals thought it was not, Decree of injunction reversed, and the bill dismissed.

§ 22. Nusances of necessity. A person may, 1. Lay wood in a street, in order to carry it into his house, to lie there a reasonable time: 2. So stones, brick, sand, and other materials for building, provided it be done in the most convenient manner 3. So a merchant, his goods, in order to remove them to Commonhis store in suitable time-but not to sell them. An auctioneer wealth v. Pasmore, 1 Serg. is on the same footing at common law. & R. 217-219.

$23. Injunction to stay, prevent, and to remove nusances. Chancery's power to issue them is founded on the right to restrain the erection or exercise of that, from which, irreparable damage to individuals, or great public injury would ensue.'

Art. 12.
Con.

VOL. VII. Eden, 157, cites 3 Atk. 751. A prohibition lay at common CH. 208. law, to restrain public nusances; but to justify this, or an injunction, there must be some special circumstances in the case. Among other nusances in harbours, are mentioned, the straitening of the port by building too far into the water; 'but this is not, ipso facto, a nusance, unless it be a damage to the port and navigation: in these cases, therefore, it is a question of fact to be found by a jury, whether the building be a nusance or not. Where the building is below the high water mark, it is a purpresture, but not necessarily a nusance.'

1 Mod. 76.

15 East. 594.

16 Ves. 338;

1 Dick. 277; Eden, 163.

Eden, 164; 1
Dick. 164.
ART. 17.
Con.

ART. 4.
Con.
1 N. R. L.

472, s. 36, ch.
29.

ART. 5.

Con.

wealth, v.

Every common trespass is not a foundation for an injunction, where only contingent and temporary but if it continues so long as to become a nusance, the court interferes, and will grant an injunction. The ordinary instance of this jurisdiction, is, where the court interferes to restrain a party from building so near the plt's. house, as to darken his windows, when ancient lights: and the act is in violation of some agreement, expressed or implied: nor is every diminution in the value of the property or premises, a ground for chancery to interpose; nor every species of mischief on which an action on the case lies. The ground is some material injury to the neighbour's dwellinghouse, which requires, on equitable principles, chancery to interpose, to prevent, as well as to remedy the evil.

2. Deft. was indicted on Massachusetts statute 1820, ch. 45, s. 1, for peddling goods not of the produce or manufacture of the United States. Held, the government must prove the goods were of foreign produce or manufacture. Commonwealth v. Samuel, 2 Pick. R. 103.

CHAPTER CCIX.

PRISONS, BREACH OF, &c.

§ 8. The People v. Ross, 12 Johns. 389. Where A, confined in prison, attempts to escape by breaking it, in consequence of which, B, another prisoner escapes, A is guilty of an offence within the 20th section of the act declaring the punishment of crimes.

§ 7. Indictment on Massachusetts statute 1788, ch. 65, s. 6, for pound breach, and held, the illegality of the distress cannot 5 Pick. 514-be shown in defence, and pound breach, or delivering creatures 518, Common- from the pound, is extended to creatures going at large, and impounded on statute 1799, ch. 61. The town voted, neat cattle should not go at large. The objection was, the eight cows impounded, were turned out of a field by its owner, into the highway, where the field driver and pound keeper took them. Adjudged he took them at large.

Beale, Jr.

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