
    Stephen v. The Commonwealth.
    November, 1830.
    (Absent Stuart, J.)
    Nuisance — Indictment—Sufficiency after Verdict. — Indictment for a nuisance, caused by a certain mill and mill dam, the property of the defendant, situate near to a common highway, without particular specification or description of the mill, and without expressly alleging that it is in the county wherein the indictment is found: Held, good and sufficient after verdict,
    Stephen was indicted in the ciicuit court of Berkeley for a nuisance. The indictment stated, That the grand jury empaneled for the body of the county of Berkeley, presented, that Stephen, “being possessed of a certain mill and mill dam with their appurtenances, situate near and adjacent to a certain common highway and public road, and the ''dwelling houses of divers of the good citizens of this commonwealth,” did on the 1st July 1828, and on divers days before and since, unlawfully and injuriously permit the water of the mill pond to overflow the adjacent lands, as well of others as his own, and also the public road or highway; by means whereof the land so overflowed, was rendered and kept marshy, and filled and covered with noxious weeds and putrid vegetation, whereby the air became corrupted and infected, to the great damage and common nuisance, not only of the neighbour-ing citizens, but of all the good citizens of the commonwealth &c. Stephen put in a general demurrer to the indictment, and pleaded not guilty. The court overruled the demurrer; and, upon trial of the issue, the jury convicted him, and assessed a nominal fine; for which the court gave judgment against him. And now he applied by petition, to this court for a writ of error.
    Nicholas, for the petitioner,
    endeavoured to maintain that the indictment was not sufficiently certain. The highway is not described; nor is any locality given to the mill or mill dam. There is not even an averment, that the mill and mill dam are in the county. That they are in the county, is only to be inferred from the introductory part of the indictment. If, however, this inference is to be construed into an averment, that they are in the county, still the indictment will be insufficient. It should have given a further description of the mill, so as to identify the same. Suppose Stephen had two mills in the county (as is not an uncommon case) he might, upon this indictment (if it be a good one) have been tried for a nuisance in regard to either; so that the indictment gave him no such certain information of the offence charged, as to enable him to defend himself. The charge is not “plainly and in substance set forth with convenient certainty,” even within the statute curing defects in criminal proceedings, 1 Rev. Code, ch. 169, $ 44, p. 611. But here there was a demurrer to the indictment.
    
      
      See monographic note on "Indictments, Informa-tions and Presentments’1 appended to Boyle v. Com.. 14 Graft. 674.
    
   Sed per curiam,

Writ of error denied.  