#### THE STATE v. EZEKIEL MATHEWS.

One who entertains strangers only occasionally, although he receives compensation for it, is not an inn-keeper; and if on such occasions, gambling, drinking and fighting take place, he is not indictable as the keeper of a disorderly house.

The defendant was indicted for, that he “ unlawfully did keep and maintain a certain common ill-governed and disorderly house; and in the said house certain pérsons of evil name and fame, and of dishonest-and immoral conversation, then, &c., and on other days and times, then and there, unlawfully and willingly did cause and procure to frequent arid come together, and the said persons in the said house of him, the said E. M., at unlawful times, as well as in the night as in the day, then, &c., to be and remain drinking, tipling, gaming and misbehaving themselves, unlawfully and wilfully did permit, and yet doth permit, to the great damage, and common nuisance, &c.”

The plea of not guilty was entered; and on the trial, before Dick, Judge, at Randolph, on the last Circuit, the case was, that the defendant lived in the country, at a distance from a public road, and abo.ut half a mile from any other house; that he was not a tavern-keeper, but that upon two occasions, during the year before the trial, there; *425had been races in his neighbourhood; that for three nights during one of the races, and two during the other, a number of persons had gone to his house; that all.could not be accommodated with beds; and that those who could not be thus accommodated, sat up all night, many of them playing cards and drinking spiritous liquor; and that several assaults and batteries occurred; and that the defendant furnished the company with spirituous liquor and food, and charged them for it.

His Honor charged the jury, that the defendant, by furnishing food and liquor to the company, and taking compensation for it, made himself the keeper of a public house fro tempore: that if there were persons present, who .did not gamble, drink and fight, the law presumed that the gambling, drinking and fighting was an annoyance to them; and that if these disorders took place with the connivance of the defendant, he was guilty. The defendant was convicted, and appealed-

No counsel appeared for the defendant in this Court,

The Attorney-General, for the state.

Daniel, Judge.

Nuisance, nocumentum, or annoyance, signifies any thing that worketh hurt, inconvenience or damage. 3 Bla. Com. 215. Common nuisances are such' inconvenient and troublesome offences as annoy the whole community. They consist in either, the doing of a thing to the annoyance of all the citizens, or the neglecting to do a thing which the common good requires. 4 Bla. Com. 170. The opinion of the Judge, that the defendant was pro tempore a keeper of a public house, inasmuch as. he received pay for his entertainment of those persons that were at his house, is not, in our opinion, correct. If he had been able to have entertained more persons, and any more had called on him, he would have had the power to refuse them entertainment. Whereas a keeper of a public inn could not have refused, without the peril of a suit and an indictment. All and every one of the citizens, have a right to demand entertainment of a public inn-keeper, if they behave themselves, and are willing, and able to pay for their fare. And as all have a right to go there and be *426entertained, they are not to be annoyed there by disorder; and if the inn-keeper permits it, he is subject to be indicted as for a nuisance.

The defendant, therefore, was not in law the keeper of a public house for any time. Nor does the indictment charge him as the keeper of an inn or public house. Those who visited his house on the occasions stated by the witnesses, came not in pursuance of any right on their parts, but of his presumed or express invitation. The law will not imply, that they were annoyed by the entertainment they received, and the evidence not only did not show, that others were annoyed, but repelled the inference that they might have been annoyed. The judge also charged the jury, “ that if gambling and disorder were carried on with the knowledge and countenance of the defendant, he was guilty.” The keeping of a common gaming house is indictable at common law. A common gaming house is a public nuisance, because of the necessary injury to the morals of the community resulting from such an establishment.

But the defendant was not charged, and if charged, could the evidence have made out the charge of being the keeper of a common gaming house ? He is indicted as the keeper-of a common ill-governed, disorderly house. The mere fact that gaming did sometimes occur in his house, does not make it in law an ill-governed and disorderly house. Gaming in private houses is not prohibited by law. The act of 1801 makes it a misdemeanor to game in a house of public entertainment or a tavern, but not in a private house. We think the judge erred in his charge: first, in supposing the facts proved, constituted the defendant a keeper of a public house pro tempore. Secondly, in telling the jury, that gambling there, with the knowledge and connivance of the defendant, made him guilty as charged in the indictment. The defendant’s conduct, it must be admitted, was reprehensible in a moral point of view, but every breach of morals is not indictable. We are of opinion, that there must be a new trial.

Pek Curiam. Judgment reversed.