Definition
"To the common nuisance" or "to the common grievance." A Latin phrase used in common law pleading to describe acts or conditions that cause harm not to a specific individual but to the public at large. The phrase appears most characteristically in indictments and writs charging public nuisance, where it served as a formal averment that the defendant's conduct injured the community generally rather than any single identifiable person.
Why It Matters in Research
This phrase functions primarily as a term of art in historical pleading, not as a substantive legal concept in its own right. Researchers encountering it in older indictments, writs, or case reports should understand it as a signal that the underlying cause of action is public nuisance — a materially different legal theory from private nuisance, with different standing requirements, remedies, and procedural postures.
The phrase appears with diminishing frequency after the procedural reforms of the nineteenth century. Common law pleading gave way to code pleading in American jurisdictions beginning in the mid-1800s, and the formal Latin averments that characterized earlier criminal and civil pleadings largely disappeared. A researcher reading pre-reform indictments for offenses such as obstructing highways, maintaining disorderly houses, or polluting common water sources will encounter this phrase as a near-formulaic inclusion. Its presence confirms the public nature of the charged nuisance and was legally significant: omitting or misstating such an averment could be grounds for demurrer or arrest of judgment in the strict pleading era.
The phrase also connects to the distinction between nuisance per se and nuisance in fact. Indictments using ad commune nocumentum typically charged conduct that was nuisance in fact — that is, something harmful in its circumstances rather than inherently unlawful — making the averment of common injury a load-bearing element of the charging instrument rather than mere surplusage.
Modern legal research will rarely require working knowledge of the phrase itself, but researchers tracing the history of public nuisance doctrine, environmental law antecedents, or criminal law pleading practice will find it a reliable marker in primary sources.
Historical Dictionary Support
Bouvier's entry is brief: it translates the phrase as "to the common nuisance (or grievance)" and attributes the usage to Tayler — a reference to the early nineteenth-century practice literature on pleading. This brevity is telling. Historical dictionaries treat the phrase as self-explanatory to any reader trained in Latin pleading forms, requiring only translation rather than doctrinal elaboration. The phrase was so routine in indictments for public nuisance that no extended definition was thought necessary.
What the historical sources do not address, and what modern researchers should note, is the precise pleading function the phrase performed. It was not merely descriptive but formally constitutive: the averment that conduct was ad commune nocumentum established the jurisdictional and substantive basis for prosecuting it as a public wrong. The absence of extended treatment in Bouvier reflects the assumption of a reader already fluent in common law pleading conventions — an assumption that does not hold for most contemporary researchers.
Jurisdictional Note
The phrase belongs to the English common law pleading tradition and carried into American colonial and early republic practice. Its usage was effectively uniform across common law jurisdictions because it was a pleading formula, not a substantive rule subject to local variation. Jurisdictions that adopted field Code pleading reforms (beginning with New York in 1848) abandoned Latin pleading formulae, including this one, in favor of plain-statement requirements.