
    The State vs. W. Purse.
    in an indictment for erecting or keeping a house, which is nuisance to the neighborhood, two things only are necessary to be stated: — 1st. 'That from the nature of the establishment it may be an annoyance ; and, 2dly. That from its situation it has actually become so.
    A house, which from the purposes for which it is used, or the situation in which it is placed, may not be a nuisance, may become so by negligence in keeping it: when that is the ground for prosecution, it must be so laid m the indictment.
    This indictment was tried in the City Court of Charleston, and was in the following words: — “ The Jurors present, that William Púrse, a resident of the City of Charleston, on the first day of January, in the year of our Lord, one thousand eight hundred and twenty-six, at St. Michael’s Alley, in the City of Charleston and within the jurisdiction of this Court, unlawfully and injuriously, a certain building called a necessary house, before that time erected near and adjacent to the public street or lane, called St. Michael’s Alley, did continue, and from the first day o> Japticry till the day of taking this inquisition, still doth continue the said building, near and adjacent to the public street or lane, called St. Michael’s Alley, whereby tbe bous-es of persons living in the said street were filled with noxious and unwholesome smells from the said building, and the air was greatly corrupted by tbe stench of the said building, to tbe great damage and common nuisance of the inhabitants residing in the said street, and also of all persons along the said street, going, passing, and returning, and against the peace and dignity of the same State aforesaid.”
    A motion was made to quash this indictment, and granted by his honour, the Recorder, for the following reasons:
    The Recorder. It will be observed, that it makes but the single question, whether the erection of such a build-ilig near the street, be, or be not a nuisance ?• I thought that there could be no argument in the affirmative — that, its location alone was harmless, though it might be rendered otherwise by a variety of circumstances, such as from its leading to a public exposure of the person, contra bonos mores ; by being so badly built as to overflow, or so badly kept as to become offensive to the passengers, neighbours, &c.; but as this would constitute the gist of the offence, they should have been stated in the indictment, if they were relied on. This principle I thought clearly laid down in the case of the People vs. Sands, 1 Johns. 78; and in the following cases, decided by our own Courts; State vs. Wilson & Strange, 2 Const. Rep. Mills Ed. 135, when itwas held, that whateverwas necessaryto warrant a conviction must be alleged in the indictment— as félonice, murdravit in murder: felonice cepit et aspor-tavit in larceny. So in the State vs. Rustling, 2 Nott& M’Cord, 560, in every indictment for a particular offence the manner of its commission should be accurately stated. So in the State vs. Wimberly, January term, 1825, itwas held that the special manner of the whole fact should be set forth in the indictment with such certainty that the offence may judicially appear to the Court. So in Bro-bant, ads. State, January term, 1825, the Court say, it is proper when there is any doubt about the manner in which the offence was committed, to lay as many counts in the indictment as will embrace all the variety of circumstances. As this indictment contained not one circumstance which, in my opinion, constituted an offence, I thought it my duty to quash it.
    
      Petigru, attorney-general, appealed, and moved to reverse the judgment of the Recorder, on the ground that the indictment did sufficiently set out the offence. •
   Curia per

Nott, J.

I concur with the Recorder in opinion, that whatever is necessarv to constitute the o'f-fence must be set out in the indictment; but it does not appear to me to be strictly applicable to this case. The erection of any building which, from its disagreeable odour or noxious effluvia, is offensive or unwholesome, may be a nuisance, 4 Blk. Com. 167 j 1 Russell, 428-9; 9 Coke, 57; but whether it actually is, or is not so, must depend upon circumstances. A house that would be a nuisance in one place, will not be so in another. Thus, for instance, it is said that a brew house, glass house, chandler’s shop, or stye for swine, set up in such part of a town as to incommode the neighborhood, are nuisances. 5 Bacon Tit. Nuisance A. But neither of these would be nuisances, if erected in the country, or such part of a town that nobody would be annoyed by them. It appears to me, therefore, that two things only are necessary to constitute the offence. First, that from the nature of the establishment, it may be an annoyance ; and, secondly, that from its situation it has actually become so. Those two things, therefore, is all that are necessary to set out in the indictment. A house, which from the purposes for which it is used, or the situation in which it is placed, may not be a nuisance, may become so from the negligent and filthy state in which it is kept, and when that is the ground for prosecution it must be laid in the indictment. The allegation in the present instance is, that the defendant has erected a building (which must be necessarily more or less offensive) in such a part of the town as to incommode all the neighborhood. It is not because it is negligently kept that it has become so; but that however it may be kept, the effect would, from the situation in which*it is placed, be the same. It was, therefore, a question for the Jury to determine, and not for the Court; and that appears manifest from the ground of defence relied on in this Court. It is said, that the residence of the defendant is in a thickly settled part of the town, where it is impossible for him to erect such a building on any part of his lot, but that some of his neigh-bours must be offended; and that he could select no spot less inconvenient to them than the one which he has chosen. Clustering together in a crowded town, necessarily brings with it many inconveniences — a scolding woman, clamorous servants, and crying..,childrgn, are sometimes a great annoyance ; but these are the penalties which a person must pay for a city life. Much also depends upon habit and education. The narrow lanes and streets of a town are offensive to a person who has always been accustomed to the. free and unconfined air of the country.— Even the fashionable etiquette of a town is irksome to a person who has been accustomed to indulge in the fami<-liar and unrestrained intercourse of a country life. What, therefore, would be a nuisance to one person, would be no inconvenience to another. What would be a nuisance in one situation of life, would in another be the necessary result of a combination of circumstances not to be avoided. These are considerations which must generally constitute a part of every «jase of this sort. Now, whether the defendants in this case has been guilty of unnecessarily erecting a building in a situation which is offensive to a neighborhood, or whether the inconvenience which they experience is the necessary result of circumstances which are beyond his co.ntroul, is the question submitted for consideration, and that is a question which belonged to the Jury to determine, and not to the Court. I am of opinion, therefore, that the decision ought tobe reversed, and the cause tried on its merits.

Judgment reversed.  