
    Commonwealth v. Wentworth.
    [March 17, 1823.]
    It is a public nuisance, and indictable at common law, to place on the foot-¡way of a public street, a stall for the sale of fruit and confectionary, although the .defendant pay rent to the owner of the adjoining premises, for the use of so much of the pavement as is occupied by him.
    Certiorari to the Mayor’s Court to remove an indictment for nuisance. The indictment set forth that the defendant “on the first day of March, 1822, at the city aforesaid, and within the jurisdiction of this court, with force and arms, &c., in the common and public street there, called Delaware South Third street, unlawfully and injuriously did put and place and cause and procure to be then and there put and placed, a stall for the selling and exposing for sale of fruit and confectionary, and the said stall in the said common and public street, on the day and year aforesaid, for the space of six hours, at the city aforesaid, and within the jurisdiction of this court, unlawfully and injuriously did cause to be and remain, whereby the said street and common highway, during the time last aforesaid, was very much obstructed and straitened, so that the good citizens of this commonwealth could not, through the said street and common highway, during the time in that behalf aforesaid, go, return, pass, repass, ride, and labour with their horses, carts, and carriages as they might, and were wont and accustomed to do, to the great damage, hinderance and common nuisance of all the good citizens of this commonwealth, going, returning, passing and repassing in, along and through the said public and common street, to the evil example of all others in like case offending, and against the peace and dignity of the commonwealth of Pennsylvania.”
    
      The case was tried at nisi prius on the 20th November, 1822, and the following special verdict found. — “The jury find tha.t the said street called Delaware Third street, in the city of Philadelphia, is a common and public street and highway of fifty feet in width. That the defendant, on the first day of March, 1822, put and placed on the brick pavement, on the west side of the said public street, between High and Chestnut streets in the said city, a stall three feet in height, three feet in breadth, and eight feet in length, for the selling and exposing to sale of fruit and confectionary, and caused the said stall to be and remain in the said street as aforesaid, on the day and year aforesaid, for the space of six hours; that the defendant paid to the owner of the house adjoining a certain rent; and that the said stall was not placed on the porch or steps of a house. If, upon these facts, the court should be of opinion that the law is with the commonwealth, the jury find the defendant guilty; but if the court be of opinion that the law is with the defendant, then they find for the defendant.”
   Per Curiam.

— Judgment for the commonwealth, and the court order and adjudge that the defendant pay a fine of one dollar and the costs of prosecution.  