of a pretended or disputed title or claim to property from a grantor or vendor out of possession, the facts are specially stated in the indictment. In either case, the charge, being properly made, is supported primâ facie by evidence of the specific facts alleged; as, that the defendant assisted another with money to carry on his cause; or did otherwise bear him out in the whole or part of the expense of the suit; or, induced a third person to do so;1 or, bargained to carry on a suit, in consideration of having part of the thing in dispute ; 2 or purchased the interest of a party in a pending suit ;3 or the like.

§ 182. The defendant, in his defence, may avoid the charge by evidence that the act was justifiable; as, that he already had an interest in the suit, in which he advanced his money, though it were but a contingent interest; or, that he was nearly related by blood or marriage to the party whom he upheld, even though he were but a step-son; 5 or, was related socially, as master or servant; or, that he assisted the party because he was a poor man, and from motives of charity;7 or, that the defendant was interested with others in the general question to be decided, and that they merely contributed to the expense of obtaining a judicial determination of that question.8

6

§ 183. If the defendant is charged with knowingly buying or selling land, held in possession by another under an adverse claim of title, with intent to disturb that possession; the charge may be resisted by evidence, that such possession was

1 1 Hawk, P. C. ch. 83, § 4, 5 ; 1 Russ. on Crimes. 175.

2 Thallhimer v. Brinckerhoff, 3 Cowen, 623; Lathrop v. Amherst Bank, 9 Met. 489.

3 Arden v. Patterson, 5 Johns. Ch. 44.

4 Thallhimer v. Brinckerhoff, 3 Cowen, 623; Williamson v. Henley, 6 Bing. 299; 1 Hawk. P. C. § 12-19; Wickham v. Conklin, 8 Johns. 220. 5 Campbell v. Jones, 4 Wend. 306, 310. If he is heir apparent, it is sufficient, however remotely related. 1 Hawk. P. C. ch. 83, § 20.

61 Hawk. P. C. ch. 83, § 23, 24.

7 Perine v. Dunn, 3 Johns. Ch. 508.

8 Gowen v. Nowell, 1 Greenl. 292; Frost v. Paine, 3 Fairf. 111.

not of a nature to throw any doubt upon the title; as, if it were under a mere quitclaim deed, from a naked possessor or occupant, who claimed no title; or, that the adverse possession was of only a small proportion of the land, and that the entire agreement of sale was made in good faith, and not with the object of transferring a disputed title; 2 or, that the purchase was made for the purpose of confirming his own title; or the like. The party selling is presumed to know of the existence of an adverse possession, if there be any; 4 but this may be rebutted by counter evidence on the part of the defendant.5

1 Jackson v. Hill, 5 Wend. 532; Jackson v. Collins, 3 Cowen, 89.

2 Van Dyck v. Van Beuren, 1 Johns. 345.

8 Wilcox v. Calloway, 1 Wash. 38.

4 Hassenfrats v. Kelly, 13 Johns. 466; Lane v. Shears, 1 Wend. 433; Etheridge v. Cromwell, 8 Wend. 629.

5 Ibid. And see Jackson v. Demont, 9 Johns. 55; Swett v. Poor, 11 Mass. 549, 554.

NUISANCE.

§ 184. COMMON NUISANCES, are a species of offence against the public order and economical regimen of the State; being either the doing of a thing, to the annoyance of all the citizens, or the neglecting to do a thing, which the common good requires. More particularly, it is said to comprehend endangering the public personal safety. or health; or doing, causing, occasioning, promoting, maintaining or continuing what is noisome and offensive, or annoying and vexatious, or plainly hurtful to the public, or is a public outrage against common decency or common morality, or tends plainly and directly to the corruption of the morals, honesty and good habits of the people; the same being without authority or justification by law. Hence it is indictable, as a common nuisance, to carry on an offensive trade or manufacture in a settled neighborhood or place of usual public resort or travel, whether the offence be to the sight, or smell, or hearing; or, to expose the citizens to a contagious disease, as, by carrying an infected person through a frequented street, or opening a hospital in an improper place; or, to make or keep gunpowder in or near a frequented place, without authority therefor; 5 or, to make great noises in the night, by a trumpet, or the like, to the disturbance of the neighborhood; or, to keep a

3

1 1 Hawk. P. C, ch. 75, § 1; 4 Bl. Comm. 166; 1 Russ. on Crimes, 318. 2 Report of Massachusetts Commissioners on Crim. Law, tit. Common Nuisance,

1,

3 Rex v. Pappineau, 1 Stra. 686; Rex v. Neville, 1 Peake, 91; The People v. Cunningham, 1 Denio, 524.

4 Rex v. Vantandillo, 4 M. & S. 73; Rex v. Burnett, 4 M. & S. 272; Anon. 3 Atk. 750.

5 Rex v. Taylor, 2 Stra. 1167; The People v. Sands, 1 Johns. 78. 6 Rex v. Smith, 1 Stra. 704.

3

disorderly house;1 or, a house of ill fame ; or, indecently to expose the person; or, to be guilty of open lewdness and lascivious behavior; or, to be frequently and publicly drunk, and in that state exposed to the public view; or, to be a common scold; or a common eavesdropper; or, to obstruct a public highway. Many of these, and some others, which are also offences by the common law, are forbidden by particular statutes, upon which the prosecutions are ordinarily founded.9

8

§ 185. The indictment for this offence states the facts which form the subject of the charge, alleging it to be to the common nuisance of all the citizens of the State, or Commonwealth. But if the subject be one which in its nature necessarily tends to the injury of all the citizens, such as, obstructing a river described as a public navigable river, or a way described as a public highway, or the like, it is said to be sufficient, without any more particular allegation of common nuisance.10

§ 186. In proof of the charge, evidence must be adduced to show, 1st, that the act complained of was done by the defendant; and this will suffice, though he acted as the agent

1 Rex v. Higginson, 2 Burr. 1232; 13 Pick. 362; The State v. Bertheol, 6 Blackf. 474.

2 1 Hawk. P. C. ch. 74; Id. ch. 75, § 6.

3 Rex v. Sedley, 1 Keb. 620; Sid. 168; Rex v. Crunden, 2 Campb. 89; The State v. Roper, 1 Dev. & Bat. 208.

4 1 Hawk. P. C. ch. 5, §4; 1 Russ. on Crimes, 326; Grisham v. The State, 2 Yerg. 589.

5 Smith v. The State, 1 Humph. 396; The State v. Waller, 3 Murph.

229.

61 Hawk. P. C. ch. 75, § 5, 14; 4 Bl. Comm. 168; 1 Russ. on Crimes,

327.

7 4 Bl. Comm. 168; 1 Russ. on Crimes, 327.

8 4 Bl. Comm. 167; 1 Hawk. P. C. ch. 76.

9 See, for the law of Common Nuisances, Whart. Am. Crim. Law, p. 698706, and cases there cited.

10 1 Hawk. P. C. ch. 75, § 3, 4, 5; 1 Russ. on Crimes, 329.

or servant and by the command of another;1 2d, that it was to the common injury of the public, and not a matter of mere private grievance. And this must be shown as an existing fact, and not by evidence of reputation.2 If the act done or neglected is charged as a common nuisance on the ground that it is offensive, annoying or prejudicial to the citizens, it must be shown to be actually and substantially so; for groundless apprehension is not sufficient; and mere fear, though reasonable, has been said not to create a nuisance; 3 neither is slight, uncertain and rare damage.

§ 187. In the defence, it is of course competent to give evidence of any facts tending to disprove or to justify the charge. But he will not be permitted to show in defence, that the public benefit resulting from his act, is equal to the public inconvenience which arises from it; for this would be permitting a private person to take away a public right, at his discretion, by making a specific compensation.5 But it seems that such evidence may be admitted to the Court, in mitigation of a discretionary fine or penalty. If the charge is for obstructing a public river, by permitting his sunken ship to remain there, the defendant may show that the ship was wrecked and sunken without his fault; and

37.

1 The State v. Bell, 5 Post. 365; The State v. Matthis, 1 Hill, S. C. R.

2 Commonwealth v. Stewart, 1 S. & R. 342; Commonwealth v. Hopkins, 2 Dana, 418.

3 Anon.; 3 Atk. 751, per Ld. Hardwicke. And see 1 Russ. on Crimes, 318; Report Mass. Comms. tit. Common Nuisance, § 2; Rex v. White, 1 Burr. 333.

4 Rex v. Tindall, 6 Ad. & El. 143.

5 Rex v. Ward, 4 Ad. & El. 384 ; overruling Rex v. Russell, 6 B. & C. 566, in which the contrary had been held. And see, acc. Respublica v. Caldwell, 1 Dall. 150.

6 The State v. Bell, 5 Port. 365.

7 Rex v. Watts, 2 Esp. R. 675. Quare, whether it is not requisite for the defendant, in such cases, to show that he has relinquished and abandoned all claim or right of property in the wreck. And see Brown v. Mallett, 5 M. G. & S. 599, 617-620.