which will solve them all, is this-that in such impositions or deceits, where common prudence may guard persons against the suffering from them, the offense is not indictable, but the party is left to his civil remedy for the redress of the injury that has been done him; but where false weights and measures are used, or false tokens produced, or such methods taken to cheat and deceive, as people cannot, by any ordinary care or prudence be guarded against, there it is an offense indictable. R. v. Wheatly, 2 Burr, 1125, 1 Wm. Bl. 273, 1 B. & H. 1-n, B. 97, 5 L. 100.

Acc. Obtaining credit by lies. C. v. Warren, § 4.

(Eng. King's Bench, 1775.) Selling Inferior for Standard. The defendant was found guilty of "knowingly exposing for sale and selling a gold chain, under the sterling alloy, as and for gold of the true standard weight." On motion in arrest of judgment, LORD MANSFIELD, C. J., said: "The question is, whether the exposing wrought gold to sale under the standard, is indictable at common law? It is certainly an imposition, but I incline to think it is one of those frauds only which a man's own common prudence ought to be sufficient to guard him against, and which therefore is not indictable, but the party injured is left to his civil remedy." R. v. Bower, 1 Cowper 323.

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$ 17. Nuisance.

(Va. General Ct., 1828.) Stagnant Pond Defiling the Air. Indictment for nuisance in erecting a mill-dam on Little creek, whereby the waters were rendered stagnant and the air impure, "to the great damage, and common nuisance of all the good citizens of this commonwealth, not only there residing and inhabiting, but also going, returning, passing, and repassing by the neighborhood of the said pond." Defendant demurred, and the case was adjourned to this court for difficulty and novelty. "To constitute a public nuisance, the act done, or duty omitted, must affect injuriously some thing or right in which the community, as a body politic, have a common interest; and the facts producing this injury, and connecting it with such special public right or interest, must be both alleged and proved. To carry this matter further would obliterate every line that now marks the difference between public and private wrongs. It ought to be alleged and proved, that the obstructions placed in Little creek, in the county of Nottoway, produced a stagnation of the waters thereof, in or near a public highway, or some other place in which the públic have such special interest. The general conclusion, that the stagnation of the said waters does injure all the citizens of the commonwealth will not cure the want of such special averment, because the facts stated do not warrant that conclusion." Per DANIEL, J. Demurrer sustained. C. v. Webb, 6 Rand. 726, F. 7.

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For other cases of private nuisance see "Nuisance."

(Eng. King's Bench, 1802.) Tin-shop Near Inn. The defendant, a tinman, was indicted for a nuisance, from the noise made in carrying on his trade. The prosecutors were attorneys in Clifford's Inn. From the evidence, it appeared that the noise affected only three. numbers, 14, 15, and 16, of that inn. LORD ELLENBOROUGH said, that, upon this evidence, the indictment could not be sustained; and that it was, if anything, a private nuisance. It was confined to the inhabitants of three numbers of Clifford's Inn only; it did not even extend to the rest of the society, and could be avoided by shutting the windows; it was therefore not of sufficiently general extent to support an indictment. Defendant was acquitted. R. v. Lloyd, 4 Espinasse 200.

(Eng. King's Bench, 1801.) Failure to Repair Road. The defendants were indicted for the non-repair of a road. The jury found specially, that the road had been laid out under an act of parliament (31 G. 3), for the use of nine parishes, and that it was made the duty of the defendants, as inhabitants of six of the parishes, to keep the road in repair, which duty they had neglected. Whether this was an indictable offense, THE COURT said, that however convenient it might be that the defendants should be indicted, there was no legal ground on which this indictment could be supported. That the known rule was, that those matters only that concerned the public, were the subject of an indictment. That the road in question being described to be a private road, did not concern the public, nor was of a public nature, but merely concerned the individuals who had a right to use it. That the question was not varied by the circumstance that many individuals were liable to repair, or that many others were entitled to the benefit of it. And they also held, that the fact that the road was set out under a public act, did not make the non-repair of it indictable. Judgment for defendants. R. v. Richards, 8 Term 634, Ke. 2. Compare R. V. Pocock, § 11.

§ 18. Disturbing Public Peace, Safety, or Comfort.

(Eng. King's Bench, 1765.) Entry without Breach of Peace. Rule to show cause why an indictment for breaking and entering premises not a dwelling house and unlawfully keeping the owner out should not be quashed. WILMOT, J. No doubt, an indictment will lie at common law for a forcible entry, though they are generally brought on the acts of parliament. On the acts of parliament, it is necessary to state the nature of the estate, because there must be restitution; but they may be brought at common law. Here the words "force and arms" are not applied to the whole; but if they were applied to the whole, yet it ought to be such an actual force as implies a breach of the peace, and makes an indictable offense. And this I take to be the rule, "that it ought to appear

upon the face of the indictment to be an indictable offense.' Here indeed are sixteen defendants. But the number of the defendants makes no difference, in itself; no riot, or unlawful assembly, or anything of that kind is charged. It ought to amount to an actual breach of the peace indictable, in order to support an indictment. For, otherwise, it is only a matter of civil complaint. And this ought to appear upon the face of the indictment. Per CURIAM, unanimously, rule made absolute. R. v. Bake, 3 Burr. 1731, B. 103.

(Eng. King's Bench, 1815.) Exposing to Smallpox. After conviction on indictment for inoculating two children with smallpox and sending them along the highway to the common injury, etc., defendant moved in arrest of judgment that this was no offense. LORD ELLENBOROUGH, C. J. The indictment lays it to be unlawfully and injuriously, and to make that out it must be shown that what was done was in the manner of doing it incautious, and likely to affect the health of others. The words "unlawfully" and "injuriously" preclude all legal cause of excuse. And though inoculation. for the smallpox may be practiced lawfully and innocently, yet it must be under such guards as not to endanger the public health by communicating this infectious disease. DAMPIER, J. The charge amounts to this, that the defendant, after inoculating the children, unlawfully exposed them, while infected with the disease, in the public street to the danger of the public health. LEBLANC, J., in passing sentence observed that the introduction of vaccination did not render the practice of inoculation for the smallpox unlawful, but that in all times it was unlawful, and an indictable offense, to expose persons infected with contagious disorders, and therefore liable to communicate them to the public, in a public place of resort. The defendant was sentenced to six months' imprisonment. R. v. Burnett, 4 Maule & Sel. 272, B. 104.

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(Mass. Sup. Judicial Ct., 1829.) Causing a Woman to Have a Fit, by standing in the highway near the house defendant knew she was in, and shooting a wild goose, well knowing her nervous disorder and that the noise would give her a fit, was held to be an indictable offense. Defendant contended that, as the disease was incurable and inveterate, and he was doing a lawful act, no offense was charged. PARKER, C. J. If the indictment were for a nuisance, the authorities cited by the defendant's counsel would clearly show that it could not be sustained; for the most that could be made of it would be a private nuisance, for which an action on the case only would lie. But we think the offense described is a misdemeanor, and not a nuisance. It was a wanton act of mischief, necessarily injurious to the person aggrieved, after full notice of the consequences, and a request to desist. The jury have found that the act was maliciously done. Judgment on the verdict. C. v. Wing, 9 Pick. 1, 19 Am. Dec. 347, B. 119.

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(New York Sup. Ct., 1846.) Selling Lottery Tickets. Indictment for unlawfully maintaining a room where lottery tickets are sold. The people brought error on the judgment for defendant on demurrer. BRONSON, C. J. We have not enacted the statute 33 H. 8, c. 9, §11, against gaming-houses. (See 1 Hawk. P. C. 721, Curwood's Ed.) Still, I have no doubt that the keeping of a common gaming-house is indictable at the common law. (King v. Rogier, 1 B. & C. 272; People v. Sergeant, 8 Cowen 139.) It is illegal, because it draws together evil-disposed persons, encourages excessive gaming, idleness, cheating, and other corrupt practices, and tends to public disorder. Nothing is more likely to happen at such places than breaches of the public peace. (1 Hawk. P. C. 693, § 6; Roscoe, Cr. Ev. 663, ed. of '36; 1 Russ. on Cr. 299, ed. of '36; 3 Chit. Cr. L. 6/3, note, ed. of '19; Arch. Cr. Pl. 600, ed. of '40.) But it is not so of a house or room for the illegal sale of lottery tickets. Men do not congregate at such places. On the contrary, they go in one at a time, and the business is transacted behind screens and in corners, where there is no witness. There is enough of evil in it, but no tendency to breaches of the public peace. It is true that an unauthorized lottery is a public nuisance. (1 R. S. 665, § 26.) But a place for the sale of tickets is not a lottery. Keeping an office or other place for registering tickets in an unauthorized lottery is expressly forbidden (§ 34); but there is no prohibition against keeping an office or place for the sale of tickets. I see no principle on which the first count can be supported. ** Judgment affirmed. P. v. Jackson, 3 Denio 101, 45 Am. Dec. 449, B. 121.

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(Va. Gen. Ct., 1852.) Shooting Dog on Porch. Defendant was convicted of wickedly, mischievously, and maliciously entering the close of one Pugh, and while standing on the porch of Pugh's house, shooting and killing his dog, against the protest and to the terror and dismay of Nancy Pugh, against the peace and dignity of the commonwealth, whereby she and her daughters, being alone, became alarmed, and in consequence sick. He moved in arrest of judgment, on the ground that no offense was charged at common law or under the statutes. The court said, mere breaking the close, though in contemplation of law with force and arms, was no crime; but affirmed the judgment, because entering the dwelling house in a violent manner, and there killing the domestic animals of the householder, with dangerous weapons, to the terror of the members of the family in the house, was such an aggravated trespass as to be a misdemeanor at common law. "No trespass could be aggravated beyond the wrongs of a private injury, and swell into the magnitude of a crime against the public peace, if the facts stated in the record do not amount to a misdemeanor. Per LOMAX, J., citing R. v. Storrs, 3 Burrows 1698, and R. v. Bathurst. Henderson v. C., 8 Grat. 708, 56 Am. Dec. 160, F. 6, Kn. 5.

(Me. Sup. Judicial Ct., 1821.) Throwing the Body of a Child into the River was held an indictable offense on motion in arrest of judgment. The court said: "We have no doubt upon this subject, and do not hesitate a moment to pronounce the indictment to be good and sufficient, and that there must be sentence against the prisoner. From our childhood we all have been accustomed to pay a reverential respect to the sepulchres of our fathers, and to attach a character of sacredness to the grounds dedicated and enclosed as the cemeteries of the dead. Hence, before the late statute of Massachusetts was enacted, it was an offense at common law to dig up the bodies of those who had been buried, for the purpose of dissection. It is an outrage upon the public feelings, and torturing to the afflicted relatives of the deceased. If it be a crime thus to disturb the ashes of the dead, it must also be a crime to deprive them of a decent burial, by a disgraceful exposure, or disposal of the body contrary to usages so long sanctioned, and which are so grateful to the wounded hearts of friends and mourners. If a dead body may be thrown into a river, it may be cast into a street; if the body of a child, so the body of an adult, male or female. Good morals, decency, our best feelings, the law of the land,-all forbid such proceedings." Kanavan's Case, 1 Gr. (1 Me.) 226, B. 115.

$19. Corrupting Public Morals.

(Eng. Queen's Bench, 1708.) Publishing an Obscene Book called The Fifteen Plagues of a Maidenhead was the basis of an information for libel, and on motion in arrest of judgment, that it was not punishable in the temporal courts, HOLT, C. J., was so strong with the objection that the prosecutor never stirred it again. R. v. Read, stated in argument, 2 Strange 789.

(Eng. King's Bench, 1714.) Indictment for Publishing "Venus in the Cloister," an obscene book intended to corrupt the public morals. After conviction defendant moved in arrest of judgment, relying on R. v. Read. The attorney general argued that destroying the public morals is destroying the public peace and order, which the government is ordained to keep. "Chief Justice Hale used to say, Christianity is part of the law, and why not morality too? I do not insist that every immoral act is indictable, such as telling a lie, or the like; but if it is destructive of morality in general, if it does, or may, affect all the king's subjects, it then is an offense of a public nature. And upon this distinction it is, that particular acts of fornication are not punishable in the temporal courts, and bawdy-houses are. In Sir Charles Sedley's case it was said, that this court is the custom morum of the king's subjects. 1 Sid. 168." FORTESCUE, J. I own this is a great offense, but I know of no law by which we can punish it. Common law is com