
    *The People against Sergeant.
    The defendant was found guilty by the jury, at the Cayuga general sessions, of a nuisance in keeping two billiard tables for the purpose of playing billiards in the village of Auburn. The indictment was at common law, The proof was, that the tables were kept in a room over Bennett’s . _ . A store, the defendant having the care of them. Witnesses stated that they had known playing for money once; that they had known playing for beer; but it was usual to plav tor the rub; that is to say, the use of the tables, which was one shilling; that it was not a common practice to play for liquor; and this was always objected to by the defendant when he knew it; and he had interfered and prevented it; that there was no bar kept in the billiard room ; and the playing occasioned no disturbance, the game being a quiet one. There was a bar kept in a grocery two stories below; but the defendant was not interested in it; though he occasionally brought up liquor, on request, for the players. Persons under 18 years of age were not allowed to play, and 11 o’clock P.M. was the regular hour of closing. More or less persons resorted to the tables each day, when they necessarily went through the store.
    
      Keeping a ing any noise neighborhood, a5d . with011* allowing any bets on the 18 “nub sauce, unless era, where it ® ute.
    It is not a nuisance at. common law.
    Playing the rub to determine which party shall pay for the use of the table, is not gaining.
    
      The court below charged against the defendant; but suspended judgment, with a view to obtain the opinion of this court, on the above case, whether the facts constituted a nuisance at common law.
    
      P. Bronson, for the defendant,
    denied that the facts made out a nuisance. He admitted that a common gaming house was indictable as a public nuisance, (4 Bl. Com. 166, 7,) because it is an offence against the public. It is doing a thing which annoys people generally. (4 Burn. J. 418.) But he insisted that merely playing for sport, is not gaming within the meaning of the law. This *is an indictment founded on the common law. It cannot be supported by the statute which .declares a tavern keeper guilty of nuisance in merely keeping a billiard table. (1 R. L. 178.) The common law declares, that playing even at cards, dice or other game of chance, merely for the purpose of recreation, and the better to fit a person for business, and without any view to inordinate gain, is innocent. (Bac. Abr. Gaming, 2 Chit. Cr. L. 436, note.) If this be so as to games of chance, a fortiori is it so as to billiards, which is a game of skill. The principle on which common gaming houses are declared public nuisances is, that they tempt to idleness ; and are apt to draw together great numbers of disorderly persons, which cannot but be inconvenient for the neighborhood. (Bac. Abr. Gaming.) The mere playing at billiards, or any game of skill, can have no such tendency. The prosecutor should have proved that gaming was practiced at these tables, or else that were such noises and r ' .j disturbances as to annoy the neighborhood. These would render any place a nuisance.
    
      Tatcott, (attorney general,) contra.
   Curia.

This was an indictment at the common law. The statute 33 Hen. 8, c. 9. s. 11, has not been enacted in this state; but if it had, the indictment is not founded upon any statute; and we are only to inquire how the matter stood at common law. Keeping a gaming table for one’s profit, was made penal by the English statute, and a penalty of 40s. imposed. This shows that such an act was not, in itself, criminal at the common law. Something more must be shown. Ho disorderly conduct is in this instance proved against the defendant. He allowed no noises which disturbed the neighborhood; and no betting; but discountenanced the most trifling wagers. The only fact upon which the indictment can rest, is the loser of the rub paying for the use of the table. A house kept even for games of chance, conducted for mere recreation, is not criminal at common law. Such is not a gaming house within the common law of nuisance. (Williams, J., Gaming '"'and Gaming houses, Bac. Abr. Gaming, (A.) Billiards is a game of skill; and, of course, is farther without the law. It may be ruinous, if parties bet; but a billiard house where no betting is allowed, and where there is no disturbance, cannot be a nuisance, unless it be a tavern, where, by statute, the mere keeping of a table is made so. Paying for the table by the rub, is not gaming within the meaning of the law which makes the house a nuisance. Here is hardly a shadow of gain by either party. Illegal gaming implies gain and loss between the parties by betting, such as would excite a spirit of cupidity. Experience having shown that this leads to idleness and waste, riot and intemperance, the common law has wisely pronounced it pernicious ; and condemned the gambling house as a common nuisance. (1 Hawk. P. C. ch. 75, s. 6; 10 Mod. 336.) The case before us does not come within the principle; and we are °P™on that the indictment was not sustained by the proof. 
      
       gee Banner v. Albion, 5 Hill, 121
      A public inn, where any instrument or device for gambling is used and kept as such, either by the landlord, or any other person by bis permission, however orderly the house may be in other respects, is a public nuisance at common law; and all persons resorting to such house, for the purpose oí gambling, are, in the eye of the law, persons of ill-fame. Butler's case, 1 City Hall Rec. 66.
      A grocery licensed in the city of Eew York, is an inn or tavern; and, td keep a shuffle-board, and permit persons to play in such grocery, “ is an of-fence against the people of this state,” by statute. Ouscadden’e case, 2 City Hall Rec. 53.
      See "Waterman’s Archbold’s Or. Pr. & PL, pp. 609, 610, 611.
     