16 Ala. 144 | Ala. | 1849
The indictment charges that the nub sanee for the erection of which the defendant was convicted is continuing, and the only question raised is, whether the judgment prescribing the manner of its abatement is legal. After the recovery of the fine assessed by. the verdict, the judgment proceeds thus, “ and it is further ordered by the court, that the nuisance be abated forthwith at the costs of the defendant, and the sheriff is charged with the execution of this order.” This is certainly a judicial sentence, and in effect, is precisely the same as if the sheriff had been commanded in totidem verbis to abate the nuisance, and the defendant been .charged with the cost of abatement.
All common nuisances are punishable by fine and imprisonment, and as its removal is usually the chief, end of the indictment where it is stated to be continuing, and does in fact exist at the time of the judgment, the defendant may be commanded by the judgment to remove it at his own costs. Only so much of the thing, as- causes the nuisance ought to be removed. In Rex v. Stead, 8 T. Rep. 142, Lord Kenyon said, “ when a defendant is indicted for an existing nuisance, it is usual to state the nuisance and its continuance down to the time of taking the inquisition; it was so stated in Rex v. Pappineau, et ad hime exist'd, and in such cases, the j udgment should be that the nuisance be abated. But in this case it does not appear in the indictment that the nuisance was then in exis
There is- certainly much force in the arguments of the counsel for the plaintiff in error, that the sheriff’ cannot know what part of the erection complained of, is a nuisance, or whether so much- of it has not been removed by the defendant himself as is indictable. To- this we may add that the defendant has the right to- select the- mode of abatement and the persons by whom it shall be executed with a view to economy, and thus-save as far as may be, the costs incident to such- a service by an executive officer of the law.
We have no discretion which authorises us to sustain the-