of the hazard run, nor the want felt, by the loan, is repug nant neither to the revealed nor natural law.

The common arguments against interest are considered by Rutherforth, in his Institutes; book II. c. 27.

The distinction of the security being void by the English statute, and not by our act, See 1 Smith's laws, 157. referring to 2 Dall. 92.

NOTES ON

BLACKSTONE'S COMMENTARIES.

POINTING OUT VARIATIONS IN THE LAW OF PENNSYLVANIA, FROM THE COMMON AND STATUTE LAW OF ENGLAND, WITH OTHER MATTERS OF A GENERAL NATURE,

III Black. Com. 5.

On the law of nuisances as respects cities, towns, or villages. Premising that I have no particular case in view, I will venture to lay down some principles of law on this head, and to refer to some authorities in support of them. For, when a people come to be informed of their rights and duties, by knowing what the law is in the relations of society, and the use of property, it will go a great way with reasonable men, to induce them to reform abuses and to correct what is wrong. For the purpose therefore of giving a clearer view of the subject, I shall state what I have to say under the following heads.

1. A matter may be a nuisance in a city, town, or village, that would not be a nuisance elsewhere.

When a town is laid out, it is in small portions of ground, with a view to a contiguity of building. Whatever goes to prevent this, or to hinder, goes to delay or defeat the becoming a town. Hence, it follows that no man has a right to use the parcel of ground that he purchases, so as to deprive his neighbour of the enjoyment of that which he has also purchased; and, on which he may meditate to improve; or mean to reside. It is inconsistent with the original purpose

of the grant. Whatever therefore shall discourage the improvement of the town by building; or render residence in it uncomfortable, must be a nuisance. A legal definition of a nuisance therefore is, "that which renders the enjoyment of life and property, uncomfortable." 3 Bur. 337.

It follows that what gives a reasonable cause of apprehension from fire, must be a nuisance. Who would think himself safe with a magazine of gunpowder on an adjoining lot; or even a small quantity uncovered and exposed to accidental sparks from the chimney tops of houses, or to other causes of inflammation. Are combustibles of hay, straw, or materials easily inflammable, not also dangerous? It never was in the contemplation of purchasers in a town that the harvests of the grounds adjoining should be, brought in, and stowed away upon the in-lots; and exposed without cover as in a country situation. It is on this principle that

2. What would not be a nuisance at one degree of improvement in a town, will be a nuisance at another.

Rome not being built in a day, as the proverb is, so the lots of a town will not come all at once to be built upon. And while the buildings are sparse, and distant from each other, they partake, in proportion, of the country. But as the building progresses, the reason ceases, and the indulgence with it. A man on his own farm may erect his own hogsty. But in a town he cannot keep hogs, or erect even a dove cote, or pigeon house, so near my dwelling as to offend by the smell. Either of these is a nuisance. Rol. 141. 9 Coke, 57. 16 Vin. 25. It is on this principle of contiguity of building that

3. What may be a nuisance in one part of the town, will

not in another.

"A soap boiler in Wood street, a Callender man in Bread street; a brew house on Ludgate hill, is a nuisance; for such trades ought not to be in the principal parts of the city, but in the outskirts." 2 Show. 327.

A lime kiln so near my house that the smoke offends, is a nuisance. 9 Coke, 59.

A butcher must confine his shambles to a convenient place, Com. Dig.

"It would be endless to enumerate all the instances of nuisance. The principles on which the law proceeds, is to use your property so as not to injure that of another." 3 Selwyn, 974.

But I go on to state another principle of which all are not aware, viz.

4. That what may be indulged in the hand, or under the management of one person, will be a nuisance in the hand of another. It is on this principle that a crazy man will not be suffered to run abroad, or retain possession of weapons, even though he has stabbed no one; because, the presumption from his insanity is that he will stab, and a reasonable fear or ground of apprehension, will justify the arresting and confining him as a public nuisance. So of a careless man, or a man with careless servants in the use of such things from which danger may arise.

This leads me to speak of remedies in the case of nui-
And,

sance.

1. A man may be called upon to find pledges of the peace, or give security for his good behaviour, whose management even in the use of his own property, becomes dangerous to his neighbours. Preventive justice is the best principle of the law. Præstat cautela quam medela.

2. The person who is injured by having his situation rendered uncomfortable by reason of a nuisance, may enter upon the soil of another, and abate the nuisance; that is, may remove it.

"A person injured by a nuisance, may enter and abate. the nuisance, though on the part not his own ground. 2 Inst.

405.

"A nuisance may be abated, or removed, by those persons who are prejudiced by it. But every man may abate a Common nuisance." 16 Vin. 40.

Any one may break it down." 16 Vin. 46. But,

3. "Justices of the peace have a power of nuisance, by virtue of the statute, 1 Ed. 3. c. 16. by which they are creat

ed to enquire of all public nuisances." Per. Holt, Chief Justice, Mod. 255.

The great remedy is therefore by abatement.

A redress is by action in the case of a private nuisance. But I speak of those which concern the whole, which is a public nuisance, and for which an action does not ly; because the whole are concerned. "Of a common nuisance, none shall have action but shall present it." 16 Vin. 46.

For individual hurt done by a public nuisance, an individual may have action, as from an obstruction in a high-way, or street, against him who has placed the obstruction in the way, or negligently left it there, whereby a particular injury

is sustained.

By the common law, " if a servant keep his master's fire negligently, so that his neighbour's house is burned down, an action lies, 1 Black. 431. And if an action lies on the consummation of the injury, why may not I have security of the peace on giving proof of the negligence which may lead to it?

I am led to this remark, from careless persons going into stables with candles in their hands, at late or early hours; or with segars smoking. This is a just cause of apprehension of danger.

But remedies by action or indictment, out of the question, one great object of the incorporation of a city, town, or village, is a more summary inquiry into nuisances and removal of them. It can by this means, be ascertained with more discretion what might be tolerated for a time or in any place. Relative situations can be taken into view. A stack yard; buildings not closely joining; rubbish from a building carrying up, not wholly obstructing the street; where and how a butcher's shambles may not render uncomfortable, &c. &c. &c.