and there is, therefore, no offense. Then, as to the Foreign Enlistment Act, there is no allegation that these ships were to be used for war. On the face of the contract it is provided that if any alteration is required for war purposes, the alteration is to be made by and at the expense of the purchasers; we have nothing to do with such alterations. Stuart, in reply: The proposition that the discovery might subject us to a pecuniary penalty has been admitted by the plaintiff. There is a distinct allegation that a false certificate was produced, as to the argument that a corporation is incapable of committing a crime, the bill alleges that it has done so; and even if a corporation can not be punished in the manner applicable to individuals, it can be fined. But even

if the demurrer failed as to the corporation, so far as it is the demurrer of Willcox and Howell it must be good.

MAY, 22. -The VICE-CHANCELLOR said that he had thought it right to peruse the whole of the papers, because, as the demurrer was of very great length, it was almost impossible to give any opinion upon the case unless the whole were read through. There were a number of small points against the demurrer (the arguments on these points are not reported), but he had thought it more proper to look at the principal case, so far as it constituted a demurrer to the greater portion of the bill. One part of the bill, which the defendants had made a subject of demurrer, was the interrogatory whether the city of Palermo was in the island of Sicily. The vice-chancellor could not imagine how the defendants, by answering this question, could expose themselves to pains and penalties. But the principal questions were, first, whether, by answering, the demurring defendants might not expose themselves to the pains and penalties under the Ship Registry Act; and next, whether the company, by answering, might not expose themselves to pains and penalties under the Foreign Enlistment Act, by having supplied foreigners with vessels of war. On the first point, there did not appear to him to be any ground for the demurrer. A fraud might have been committed on the act, but none such was charged by the bill; there might have been an irregularity, but he could not perceive anything charging the company with fraud. As to the second portion of the demurrer, relating to the Foreign Enlistment Act, it must be observed that two gentlemen, one Mr. Wellington Howell, the secretary of the company, were sued by name; but his Honor understood that this was only for the purpose of discovery, and that it was not intended to proceed against them personally; and the question came to this, whether the bill asked anything, the discovery of which might subject the company to pains and penalties, from which they might protect themselves by demurrer. It was principally argued that the company were subject to indictment. No doubt, in some cases, such as the not repairing

a bridge or non-compliance with the orders of justices, a corporation might be so liable, but those were cases of a limited nature and not inconsistent with the law of England, which laid down that a corporation could not be indicted for crime. Since this case has been argued his Honor had consulted a learned judge who had coincided with him in the opinion he had expressed. His opinion therefore was, that under the Foreign Enlistment Act the company could not be indicted. The language of the act confirmed him in this view. The act referred to individuals, and those of the male sex; the word "he" was used in the second, third, sixth, seventh and eighth sections. The act referred to private persons only, and was intended to prevent them from assisting foreigners at the risk of embroiling this country with other nations, and hazarding its peace. Upon these grounds his Honor thought the act did not apply to persons filling a corporate capacity. Demurrer overruled.

MUNICIPAL CORPORATION-INDICTMENT FOR NUISANCE.

PEOPLE v. CORPORATION OF ALBANY.

[11 Wend. 539.]

In the Supreme Court of New York, May, 1834.

Municipal Corporation-Not Liable for not Going Beyond Its Powers - Nulsance. A corporation was indicted for nuisance in suffering a basin in the river running past the city to become foul and offensive. The court instructed the jury that the corporation was bound to abate a nuisance arising from the basin being foul, even if in doing so it should be necessary to cut down or remove a bulkhead. The corporation had no right either by its charter or by statute to remove the bulkhead. Held, that the instruction was erroneous.

ERROR from the General Sessions of Albany.

The mayor, aldermen and commonalty of the city of Albany were indicted for neglecting to remove a nuisance; they being charged with permitting and suffering the basin in the Hudson River, at the termination of the Erie Canal to be foul, filled and choked up with mud, rubbish, and dead carcasses of animals; whereby the citizens were not only deprived of the benefit and advantage of using the water for the convenience of themselves and families, but the mud, etc., became offensive and nauseous, corrupting the water, and causing noisome and unwholesome smells, infesting the air to the damage and common nuisance of the citizens residing in the vicinity and those passing and repassing the basin. The duty of cleansing the basin was charged upon the corpora

tion, and it was alleged that they had been used and accustomed to cleanse the same, but that from, etc., until, etc., they did not do so, but on the contrary, permitted and suffered the basin, alleged to be a common water-course to be foul, filled and choked up. The corpora

tion put in a plea of not guilty, and the cause was tried at the general sessions. On the trial it was proved, on the part of the prosecution, that there were deposits of ground in the basin which remained uncovered and exposed, from which offensive stenches arose; that the water did not flow in and through the basin as it had been wont to do, and was unfit for drinking or culinary purposes; that the stenches arising from the basin were offensive; and that the condition of the basin was such as to be injurious to the health of persons living in the vicinity thereof. On cross-examination of the witnesses it appeared that the bulkhead, at the foot of the basin, or the east end of Hamilton Street, was the cause of the nuisance complained of, and that the only mode of abating and effectually removing it, would be to remove the bulkhead, or to open a space in the same large enough for the free flow of the waters of the Hudson; that the bulkhead was erected by a joint stock company, under the authority of an act of the Legislature, with the consent of the corporation of the city, without which assent the bulkhead was not authorized by the act of the Legislature to be erected. The counsel for the corporation insisted that the evidence was not sufficient to warrant a conviction, and requested the court to charge the jury; first, that an indictment for a nuisance could not be sustained against the defendant in their corporate capacity for acts of omission; that if it had been shown that it was the duty of the corporation to abate and remove the nuisance, the individual officers to whom that duty appertained ought to have been presented and not the corporation; second, that the basin, although within the jurisdiction of the city, being part of the Hudson River, the corporation as commissioners of highways, are not bound to remove obstructions in it, nor subject to indictment for omitting to remove the same; third, that if the jury should find that the nuisance in question, if any, was created by a joint stock company, under the authority of an act of the Legislature by the erection of the bulkhead at the foot of the basin, that then the work or erection being authorized by a statute of the State, the corporation are not liable to this indictment; and fourth, that the corproation were not authorized, and if authorized, were not bound to remove the bulkhead at their own expense, and that the joint stock company which made the erection were bound to remove it, if it was the cause of the nuisance. The Court of General Sessions refused so to charge the jury, and on the contrary thereof, delivered their opinion that the charter of the city of Albany giving to the corporation the power to prevent and remove nuisances, it became their duty to pre

vent and remove them, and that if the jury were satisfied of the existence of the nuisance complained of, the corporation were liable to be convicted; that it was not an answer to the indictment that a joint stock company had placed the obstruction called the bulkhead in the river, by virtue of an act of the Legislature, because the corporation had assented to the erection of such bulkhead, and were so far a party to the erection; that the safety and preservation of the public health was a paramount law, and that it was the duty of the corporation to abate the nuisance, even if in so doing it should be necessary to cut down or remove the bulkhead. To which charge of the court and refusal to charge as requested by the defendant's counsel, the defendants excepted. The jury found a verdict of guilty against the defendants, who sued out a writ of error upon the judgment entered upon such verdict.

J. McKown, for the corporation.

E. Livingston (District Attorney of Albany) for the people.

By the Court, NELSON, J. The defendants were indicted and convicted of neglecting to do an act in which the public are deeply interested, and which it is supposed belonged to them, as a part of their duty, under their charter. By the charter, they are, among other things, empowered "to abate or remove any nuisances on any street or wharf, or on the lot or inclosure of any person,' ""to prevent all obstructions in the river, near or opposite to such wharves, docks or ships." "And generally to make all such rules, by-laws, and regulations for the good order and government of the city and the commerce and trade thereof, as they may deem expedient, not repugnant to the constitution. and laws of this State." These provisions are extracted from the law of 1826; but the powers they convey always belonged to the city.2 Since 1808 the jurisdiction of the Common Council of Albany has extended to the middle or main channel of the Hudson River, that being then established as the easterly bounds of the city. In 1823, certain commissioners were authorized to construct a basin in the Hudson River within the bounds of the city, and opposite to the docks fronting the harbor, extending from the State arsenal to the foot of Hamilton Street, for the convenience of the city, and the accommodation of the river and canal navigation. The land covered by the water of the basin has been conveyed by the State by letters patent to the commissioners. The construction of the basin has been completed at a heavy expense to the proprietors, and meets the most sanguine expectations of its projectors. The sixth section of the act of 1828,3 by which the act of 1826 is amended, makes it lawful for the corporation of Albany

to order and direct the excavating, deepening, or cleansing any part of the basin in front of any pier lot, or any part of the Hudson River, in front of any wharf or pier lot. The expense of which shall be apportioned upon the lots benefited, and remain a lien until paid.

There can be no doubt the corporation have the legal power to remove the cause of the nuisance complained of, if that can be effected by deepening and cleansing the basin; and I apprehend, it is possible to distinguish, in reference to the subject in question, between their power and their duty. The former constitutes a part of the mass of corporate power which they have sought for the promotion of the public good; the execution of which is not at their option. They are bound to execute them when demanded by the public interest. The means put within their reach for the purpose are ample and exclusively under their control. It is well settled that when a corporation or an individual are bound to repair a public highway or navigable river, they are liable to indictment for the neglect of their duty. An indictment and an information are the only remedies to which the public can resort for a redress of their grievances in this respect. If an individual has suffered a particular injury he may recover his loss by an action on the case.1 The definition of a nuisance confirms the above principle. A common nuisance, says Hawkins, seems to be an offense against the public, either by doing a thing which tends to the annoyance of all the king's subjects, or by neglecting to do a thing which the common good requires.2 The bill of exceptions discloses, I think, that it was practicable, though perhaps at considerable expense, so to deepen and cleanse the basin in question so as to remove the cause of the nuisance. The point was not as fully investigated on the trial as it should have been, and I admit is left open to criticism; yet the scope of the testimony given leads to the conclusion above stated. The bill states that there could be no effectual or permanent relief from the grievance complained of, unless the bulkhead, at the south end of the basin is cut away; but may not the vigilant attention of the corporation in cleansing the basin, answer the same end? If an object so important as the health and comfort of the population in that part of the city can thus be attained, there is no good reason why this duty, in this respect, should not be rigorously enforced. The whole expense falls upon the owners of the pier lots, to which, no doubt, they would cheerfully submit, rather than risk the ultimate remedy referred to. It would be a public calamity seriously to impair the existing advantages to commerce and navigation derived from the

11 Hawk. Pl. Cr. 76, 369; 2 Chitty's Cr. Law 333, 352, 353, 603, 604, 605; 3 Burns' J., 217; 5 Burr. 2700; Cowp. 86; 4 Bla. Com. 167.

2 1 Hawk. 360; 4 Bla. Com. 166.