Duck v. Chief Burgess , 7 Watts 181 ( 1838 )

Per Curiam.

The plaintiff declared generally, in the words of the by-law, that the defendant had annoyed the public with a collection of “stale, putrid or stinking fat, grease or other matter,” without more circumstance at all. But it is not sufficient in an indictment or popular action, which this resembles, to lay the offence in the very words of the statute, unless they expressly serve to allege the very fact with all necessary additions, and without a grain of uncertainty or ambiguity. Thus for instance, an indictment on the statute of usury, in which it is set forth that the defendant took more than five in the hundred, is bad if it do not set forth also how much. Hawk., b. 2, ch. 25, sect. 111. The special circumstances necessary to individuate the offence must be stated distributively, and not disjunctively; for to say the defendant did the act or caused it to be done, is to say he committed one of two offences without charging him particularly with either. Hawk., b. 2, ch. 25, sect. 58. Here it is not said what the offensive matter was; or what was its state or condition. It may have been fat, or grease, or other matter, but it could not be all three; and it may have been stale, and then it would be only unpleasant, or putrid, and then it would be unwholesome, or stinking, and then it would be nauseous. In these particulars the cause of action is utterly deficient.

Judgment affirmed.