which it was appropriated or that due and ordinary care was not used in keeping the powder. If so, it appears to me to be too broad a rule to adopt that fifty barrels of gunpowder, kept in a proper house near dwelling-houses and near a public street shall, per se, be deemed a public nuisance. Such circumstances may exist as to make it a nuisance; but those circumstances must be stated upon the indictment.1 The English statute and the statute of this State, regulating the manner of keeping and carrying gunpowder, are not declaratory acts but contain new provisions and restrictions which afford an inference that the common law stood in need of some aid to guard against the evils apprehended from the keeping of gunpowder.2

The second count in the indictment is still more clearly defective than the first and needs only to be stated to show that no crime is there charged against the defendants. The allegation it contains is substantially that the defendants caused to be carried through the common and public street in the town of Brooklyn, two casks of gunpowder in a cart the wheels of which were bound with iron. The manner in which they were secured or the quantity of powder contained in the casks is not stated. The sympathy of the law for the fears of mankind would be great indeed, if the allegation contained in this count would constitute a public nuisance. There is nothing stated from which the court can intend the existence of real danger. My opinion, therefore, is that judgment must be arrested.

LIVINGSTON, J. Whether a powder house, near private dwellings and a public highway be a common nuisance is the only question on the first count in this indictment. I say powder house because although the building is not described as such, it may fairly be presumed from the indictment to have been erected and maintained for no other purpose. If it had been a dwelling or any edifice in itself improper for keeping this article it would have been so stated. In addition to this the fact of its being a brick building, constructed for the storing of powder and secured by conductors, and every other usual guard against accident, has come to my knowledge in such a way as will justify my now taking notice of it.

On

This is the second indictment tried before me for this nuisance. the first trial it appeared that the store was strong, built of most suitable material, and well defended against every probable danger; nor was there any pretense of its being negligently or improvidently kept. The right of manufacturing and vending an article so essential to public defence and of such extensive private consumption, will not be denied. From this must follow the right of storing it either for sale or

11 Burr. 337.

2 4 Bla. Com. 168.

until it be wanted for national or other purposes. The only difficulty is to say how and where it shall be placed; here no other rule can be prescribed but by the Legislature without excluding its use altogether, than that of keeping it anywhere, at the option of its owner; providing the lives of the surrounding or passing inhabitants, be not thereby exposed to probable danger, either from the place or manner of keeping it. If mere possible injury be a ground for a prosecution it will amount to a total proscription of the commodity, unless in very small quantities indeed; for who can say that lives may not be lost or houses destroyed, by an explosion of the hundredth part of the quantity which is alleged to have been stored in this building; and yet because such an event be not impossible, a shopkeeper at Brooklyn would hardly incur the penalties of a nuisance, by keeping a reasonable quantity at a time, to retail, though more real danger is to be apprehended from such practice than from much larger quantities in a powder magazine. In the latter place it is only visited in the day and by persons who will use more than common precaution from the very circumstance of there being more than an ordinary quantity collected in one spot and as they will inevitably be the first and certain victims of an explosion.

Except when thus visited there can be but little or no danger. It is never approached by fire and from the effects of lightning it is protected by its rods. A safer mode of keeping this article than in a building thus constructed, can not well be devised; but if it be not permitted to place them near to any dwellings, or highways, which by the by, is not a very definite term, who would be at the expense of their erection? If a desert spot, at a great distance from any habitation and road, must be selected, the additional expense of transportation and danger of robbery will deter every one from providing such repositories; the consequence of which will be, that it must be kept in houses or places less safe to those in its vicinity.

The danger of a magazine's exploding when properly built anp secured, is remote indeed; so much so that a jury of Queens County, by whom the first traverse was tried, after a very long examination, acquitted the defendants on that very ground; for only one witness was produced who had ever heard of that event, and that but once. On the trial of the second indictment, by a jury from Kings County, that point was not submitted to them, because a majority of the court determined, as a question of law, that a powder house thus situated, however built or maintained, was a nuisance, so that the fact of its erection was alone before them. I was well satisfied myself from the former investigation, that the probability of an explosion was too remote to justify the apprehensions which many of the witnesses, who lived in the neighborhood, Seemed very honestly to entertain. The jury who acquitted the defend2 DEFENCES.

45

ants were of the same opinion, though many of them must frequently have passed the noxious building on their way to and from the New York market. This opinion acquires some strength from the silence of our books, and as there does not appear among the various printed forms of indictments a single precedent to suit the present case. The district attorney produced none, and those to which he referred only established, what was not denied, that animals which it is lawful to keep, and which are not nuisances per se, may under certain circumstances become so. Thus, bulls, dogs and many other beasts, if particularly Vicious or dangerous and carelessly kept, are regarded as common nuisances. Precisely on this footing stand powder houses. Of themselves they are innoxious although not distant from mansions and highways, unless negligently secured or attended.

The only case1 which bears the semblance of an authority was decided at nisi prius; for that of Rex v. Taylor, does not state where or how the powder house was kept. And whether the house whose owner was indicted, was a private dwelling or one erected for the purpose, and well secured, does not sufficiently appear. The point resolved however was not that a powder magazine was not, in itself a nuisance, but that to render it such, there must be "apparent danger or mischief already done," for as Lord Holt well remarks, "though gunpowder be a necessary thing, and for the defence of the kingdom, yet if it be kept in such a place as is dangerous to the inhabitants, or passengers, it will be a nuisance." This is a rule too reasonable not to commend our ready assent, and if the jury had passed on this point there would be no hardship in rendering judgment on the verdict; but they were told by me in compliance with the unanimous opinion of the magistrates who sat in the oyer and terminer, that a powder-house was ipso facto a nuisance, and not a witness was examined to show the apparent danger of the one in question. The transaction having passed exactly as is here stated, it would be folly to suppose, contrary to what I know to be the truth that the defendants were convicted upon the probable danger to which the public were exposed, especially when the form of the indictment is not such as necessarily to lead to this conclusion. The mere laying a thing to be ad commune nocumentum is not sufficient, but the court must examine, says Mr. Justice Fowler, whether the fact laid implies a nuisance.

If the rule of Lord Holt, and which is here adopted, be not a safe one, it is better that the Legislature should interfere than to put these buildings under the unlimited control of a jury of the vicinage, who, however honest, will be more or less influenced by imaginary fears which artful

men will not fail to cherish and increase. Both in England and in this country such interference has taken place, which furnishes a pretty strong argument against powder-houses being nuisances at common law. By the statute 12 George III.,' the making, keeping and transporting of gunpowder is regulated under heavy and various penalties. This act which has not declared any of the offenses therein enumerated a common nuisance, also directs that powder-houses should be erected of the same materials of which this is composed.

The only act we have relating to this matter is confined in its operation to the city of New York; the Legislature not having thought proper to extend its provisions to other districts of the State. This statute prescribes penalties for keeping more than a certain quantity in any one place in the city, except in the public magazine at Freshwater or in a different manner than is here enjoined, and regulates the manner of its carriage through the city; but also omits making any of the offenses common nuisances. It is not hence contended that keeping this article in a powder-house properly constructed may not, in cases of gross negligence, become dangerous, and a nuisance; but that the storing of it in this way, is lawful in itself, and not in every instance a nuisance, on account of the building being in the neighborhood of dwelling-houses or contiguous to a highway.

The only difficulty I feel in this cause arises from the manner in which it is brought before us and not from any intricacy in the real question, which from what passed at the trial, I know it was the intention of both parties to submit. But besides the answers already given to the argument drawn from a probability that the jury proceeded on the ground of negligence, there is another which is suggested by a palpable defect in the indictment. It states that the defendants did "unlawfully receive and keep and yet do keep in their house fifty barrels of gunpowder" which is the only alleged cause of the hazard complained of. Now if it be not unlawful as has been shown, to store gunpowder in this way we can not give judgment against the defendants, without recognizing a principle which must end in the demolition of every powder-magazine in the State. It is essential that every indictment of this kind, when the principal act is lawful, should state with precision, what has rendered it otherwise, that is from what causes arise the dangers which it is contemplated to suppress. In this instance, the prosecutor ought to have alleged a want of care or some negligence in the manner of its storing or keeping; because whether a lawful act becomes a nuisance in a particular way or in consequence of inattention, is oftentimes a question of law on which a defendant is

1 ch. 61.

not obliged to acquiesce in the opinion of a jury. But of the judg ment of the court he will be debarred, if bills may be drawn in this general way and every defect supplied by presumptions (which in this case are directly against the truth), that every thing was proved necessary to constitute a nuisance. I take no notice of the second count because no attempt was made to support it.

My opinion is that it is not unlawful except in the city of New York to keep gunpowder in a magazine properly constructed and secured, though the same be near to dwelling-houses and a public street; but that if by negligence or want of care it becomes dangerous, the owner may be indicted; and further that such negligence being the gist of the offense, should appear of record, so that the grounds on which a jury proceed may not be matter of conjecture, but be tested by the acts laid in the indictment. No negligence or want of care being stated, and knowing judicially that none was proved, I am of opinion that judgment must be arrested.

KENT, C. J. The first count in the indictment merely charges that the defendant kept fifty barrels of gunpowder in a certain house in Brooklyn near dwelling-houses and near the public street. It does not state the manner in which the house and powder were kept, and the validity of the count depends upon this general question, whether fifty barrels of powder kept in a house near dwelling-houses and a public street, is per se a nuisance. There is no allegation that the house or powder were carelessly kept, and we must consider the case as if it were kept with the greatest discretion and security. The indictment can not be extended by inference or implication. The only question is, whether the facts laid imply a common nuisance. I am clearly of opinion that they do not, and that a powder house near dwelling-houses may or may not be a nuisance, according to circumstances, and which circumstances must be explicitly stated in the indictment, so that the defendants may be prepared to meet them, and so that the court may judge of their force.1

The books contain very few cases on the subject. There is an anonymous case in 12 Modern,2 and said to have been decided before Holt, C. J., at nisi prius on an indictment for keeping several barrels of gunpowder in a house in Brentford, till they could be conveniently sent to London. The indictment is not given and we can not, therefore, know under what circumstances the powder was charged to have been kept; but from the temporary deposit of it we may infer that it was not deposited in a house well prepared for its reception. In that case Holt is said to have ruled, that to support the indictment there must be apparent danger or mis