R. & R. 237; 2 Cl. & F. 567, n.; 15 R. R. 737, it had been laid down that "no sentence or Act of any foreign country or any state can dissolve an English marriage a vinculo matrimonii for grounds on which it is not liable to be dissolved a vinculo matrimonii in England." But this decision was overruled in Harvey v. Farnie, ubi supra, and it was pointed out in the judgment of the Court of Appeal in that case (6 P. D. 35) that the Scotch divorce a vinculo, on the ground of the husband's adultery, which in R. v. Lolley was held to be invalid in England, was that of persons whose marriage had not only been solemnized in England, but whose domicil at the time of the divorce was English, so that the rule as above laid down in R. v. Lolley went much further than, and was not necessary to support, the actual decision in that case. See also Le Mesurier v. Le Mesurier [1895] App. Cas. 517 (ante, p. 1179), where R. v. Lolley was considered. 4. That the former marriage was absolutely null and void by reason of the consanguinity or affinity of the parties (ante, p. 1176), or because of the incapacity of one or both of the parties to contract the marriage by reason of a prior subsisting marriage; Dalrymple v. Dalrymple, 2 Hagg. Consist. Rep. 54: R. v. Millis, 10 Cl. & F. 534; or of non-age or lunacy (ante, pp. 22, 23), or that the former marriage was declared to be void by the sentence of a court of competent jurisdiction. 24 & 25 Vict. c. 100, s. 57. The corresponding clause of 1 Jac. 1, c. 11, s. 3 (rep.), was held not to extend to the sentence of an ecclesiastical court in a cause of jactitation; Duchess of Kingston's case, 20 St. Tr. 355; 2 Sm. L. C. (11th ed.) 731, 739 (see ante, p. 364); and even sentences within this clause of the Act may be impeached on the part of the crown, upon the ground of fraud or collusion. Id. It has been pointed out (ante, p. 1176) that it is not enough for the defence to prove the first marriage voidable. (a) SECT. 2. COMMON NUISANCE. Common Law. Every person is guilty of a misdemeanor at common law, known as common nuisance, who (a) does an act not warranted by law, or (b) omits to discharge a legal duty, if the effect of the act or omission is to endanger the life, health, property, morals, or comfort of the public, or to obstruct the public in the exercise or enjoyment of rights common to all his Majesty's subjects. 2 Chit. Cr. L. 565; 1 Hawk. c. 75, Steph. Dig. Cr. L. (6th ed.) p. 140: Hubert v. Groves, 1 Esp. 147, and earlier cases there collected: Wilkes v. Hungerford Market Co., 2 Bing. N. C. 281: Barber v. Penley [1893] 2 Ch. 447. It is immaterial whether the annoyance arises from noise, stench, unwholesomeness, or interference with public comfort or convenience. See Att.-Gen. v. Keymer Brick & Tile Co., 67 J. P. Rep. 431. If the legal duty does not exist at common law, and a particular (a) In the U.S. it has been held no defence to a charge of bigamy that the defendant by his religion was under an obligation to commit polygamy. See Reynolds v. U.S. [1878] 98 U.S. 145, where a woman was held to have been rightly convicted of bigamy. But if the first marriage was non-Christian, a second marriage would not be bigamy (see ante, p. 1173). penalty is imposed by the statute creating the duty, the remedy by indictment for common nuisance would seem to be excluded. Bulbrook v. Goodere, 3 Burr. 1768, 1770; and cf. Saunders v. Holborn District Board [1895] 1 Q. B. 64; 61 L. J. (Q. B.) 101. The object with which the act or omission is done or made is immaterial if the probable result is to affect injuriously, in any of the ways above stated, the public (R. v. Moore, 3 B. & Ad. 184; 37 R. R. 383: R. v. Carlisle, 6 C. & P. 636: Barber v. Penley [1893] 2 Ch. 447) or any appreciable part of it (R. v. Lloyd, 4 Esp. 200), and if the effect is such, the nuisance cannot be legalized by long continuance. Dewell v. Saunders, Cro. Jac. 490. It is only in this respect, and in the quantum of annoyance, that public differs from private nuisance. Many forms of nuisance can now be punished summarily under statutes or bye-laws, but with few, if any, exceptions the remedy by indictment is preserved. See 52 & 53 Vict. c. 63, s. 33 (ante, p. 170). Some acts which have been treated as nuisances are difficult to classify at all-i.e., the offences of eavesdropping; 1 Hawk. c. 61, s. 4; Burn's Justice (30th ed.), tit. "Eavesdropping"; being a common scold (communis rixatrix), 1 Hawk. c. 61, ss. 4, 15; 1 Russ. Cr. (6th ed.) 752; 4 Bl. Comm. 109; night-walking; 2 Hawk. c. 10, s. 58; refusal by a common innkeeper to admit traveller when he has accommodation. R. v. Rymer, 2 Q. B. D. 136; 46 L. J. (M. C.) 108: R. v. Ivens, 7 C. & P. 213: R. v. Sprague, 63 J. P. 233 (Surrey Quarter Sessions); R. v. Smith [1901] 65 J. P. 521; and see 1 Russ. Cr. (6th ed.) 740. Keeping booths and stages for rope-dancers and the like, or unlicensed stage plays, are not nuisances per se, but only as they draw together great numbers of people or coaches and sharpers thither; 1 Hawk. c. 75, s. 7: R. v. Betterton, cas. temp. Holt, 538; 5 Mod. 142: Barber v. Penley [1893] 2 Ch. 447, 449-i.e., they may be indictable as disorderly houses (post, p. 1194), or as causing obstruction and nuisance to a highway (post, p. 1210; and see Bellamy v. Wells, 39 W. R. 158; 7 T. L. R. 135). Public nuisances which are indictable may be thus classified :— (a) Interference with comfort, enjoyment, or health; infra. (c) Acts injurious to public morals or decency (post, p. 1188). (e) Interference with public rights of passage by land or water (a) NUISANCES TO PUBLIC COMFORT, ENJOYMENT, OR HEALTH. Statutes. 1 & 2 G. 4, c. 41 (Steam Engine Furnaces Act, 1821), s. 1-Costs of prosecution.]-Whereas great inconvenience has arisen, and a great degree of injury has been and is now sustained by his Majesty's subjects, in various parts of the United Empire, from the improper construction as well as from the negligent use of furnaces employed in the working of engines by steam: and whereas by law every such nuisance, being of a public nature, is abateable as such by indictment; but the expense attending the prosecution thereof has deterred parties suffering thereby from seeking the remedy given by law: be it therefore enacted, etc., that it shall and may be lawful for the court by which judgment ought to be pronounced in case of conviction on any such indictment to award such costs as shall be deemed proper and reasonable to the prosecutor or prosecutors, to be paid by the party or parties so convicted as aforesaid, such award to be made either before or at the time of pronouncing final judgment, as to the court may seem fit. Sect. 2-Order to prevent repetition of nuisance.]—If it shall appear to the court by which judgment ought to be pronounced, in case of conviction on any such indictment, that the grievance may be remedied by altering the construction of the furnace so employed in the working of engines by steam, it shall be lawful for the court, without the consent of the prosecutor, to make such order touching the premises, as shall be by the said court thought expedient for preventing the nuisance in future, before passing final sentence upon the defendant or defendants so convicted. Sect. 3-Exemptions from the Act.]-Provided always, that the provisions of this Act, as far as they relate to the payment of costs and the alteration of furnaces, shall not extend or be construed to extend to the owners, or proprietors, or occupiers of any furnaces of steam-engines erected solely for the purpose of working mines of different descriptions, or employed solely in the smelting of ores and minerals, or in the manufacturing of the produce of such ores or minerals, on or immediately adjoining the premises where they are raised. 38 & 39 Vict. c. 55 (Public Health Act, 1875), s. 91.]-Definition of nuisances to be summarily dealt with under the Act. Sect. 111.]-The provisions of this Act relating to nuisances shall be deemed to be in addition to, and not to abridge or affect, any right remedy or proceeding under any other provision of this Act or under any other Act, or at law or in equity. Provided that no person shall be punished for the same offence both under the provisions of this Act relating to nuisances, and under any other law or enactment. [Cf. 52 & 53 Vict. c. 63, s. 33 (ante, p. 170). Provisions similar to those of ss. 91, 111, are contained in the Public Health (London) Act, 1891 (54 & 55 Vict. c. 76), s. 138.] Indictment for carrying on an Offensive Trade. (Common Law.) Middlesex, to wit:-The jurors for our lord the King upon their oath present, that J. S., on the first day of June, in the year of our Lord at the parish of B., in the county of M., near unto divers public streets, being the King's common highways, and also near unto the dwellinghouses of divers liege subjects of our said lord the King there situate and being, unlawfully and injuriously did make, erect, and set up, and did cause and procure to be made, erected, and set up, a certain furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts and that the said J. S., on the day and year aforesaid, and on divers other days* and times between that day and the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, unlawfully and injuriously did boil, and cause and procure to be boiled, in the said boiler, divers large quantities of tripe and other entrails and offal of beasts; by reason of which said premises, divers noisome (see R. v. White, 1 Burr. 333), and offensive [and "unwholesome" this word is not essential (R. v. White, supra)] smokes, smells, and stenches, during the time aforesaid, were from thence emitted and issued, so that the air then and there was and yet is greatly filled and impregnated with the said smokes, smells, and stenches, and was and is rendered and become, and was and is corrupted, offensive, and uncomfortable [and unwholesome], to the great damage and common nuisance of all the liege subjects of our said lord the King there inhabiting, being, and residing, and going, returning, and passing through the said streets and highways; and against the peace of our lord the King, his crown and dignity. (2nd Count, for continuing the nuisance.)—And the jurors aforesaid, upon their oath aforesaid, do further present, that the said J. S.,' on the said first day of June, in the year aforesaid, and from that day until the day of the taking of this inquisition, at the parish aforesaid, in the county aforesaid, a certain other furnace and boiler, for the purpose of boiling tripe and other entrails and offal of beasts, before that time made, erected, and set up by certain persons to the jurors aforesaid unknown, unlawfully and injuriously did continue and yet doth continue; and that the said J. S., on the said first day of June, in the year aforesaid, and on divers other days, etc., as in the first count from the asterisk to the end. Since 14 & 15 Vict. c. 100, s. 24 (ante, pp. 54, 85), the conclusion in commune nocumentum is not essential. R. v. Holmes, Dears. 207; 22 L. J. (M. C.) 122; 6 Cox, 216. See the following precedents: for using a shop in a public market as a slaughter-house, Cro. Circ. Comp. 301, and see 4 Went. 224; and R. v. Watts, 2 C. & P. 486; 31 R. R. 686;-for erecting a manufactory for hartshorn, Cro. Circ. Comp. 311;--for erecting a privy near the highway, 3 Went. 225; -for making sulphuric acid near a highway, R. v. White, 1 Burr. 333;— for polluting water, R. v. Medley, 6 C. & P. 292;-for placing putrid carrion near the highway, 4 Went. 213;-for keeping a corpse unburied, R. v. Vann, 2 Den. 331 (see post, p. 1207);—for keeping animals (dogs and fowls) to the annoyance of the public by their noise or the unwholesomeness of their kennels or coops; for keeping hogs near a public street and feeding them with offa, Cro. Circ. Comp. 305, and see 2 Ld. Raym. 1163;-for bringing a horse diseased with glanders into a public place, to the danger of infecting the King's subjects, R. v. Henson, Dears. 24;-for exposing in the public streets a person infected with small-pox or any infectious disease, R. v. Vantandillo, 4 M. & Sel. 73; 16 R. R. 389: Metropolitan Asylums Managers v. Hill, 6 App. Cas. 193, 204, Lord Blackburn. Incautious inoculation for small-pox was indictable. R. v. Burnett, 4 M. & Sel. 272. Inoculation is now absolutely forbidden. 30 & 31 Vict. c. 84, s. 32. Burning arsenic so as to emit poisonous fumes is indictable. R. v. Garland, 5 Cox, 165: and see the Alkali Works Act, 1881 (44 & 45 Vict. c. 37) and 1892 (55 & 56 Vict. c. 30). Misdemeanor at common law: fine or imprisonment, without hard labour (ante, pp. 238, 240), or both; and judgment for prostration or abatement if the nuisance is alleged and proved to be then continuing. See R. v. Incledon, 13 East, 164. 12 & 13 Vict. c. 45, s. 18, by which any order of quarter sessions may be removed into the High Court (K. B. D.) and enforced as a rule of court, does not apply to an order of quarter sessions to abate a nuisance made after the trial of an indictment for such nuisance. R. v. Bateman, 8 E. & B. 584; 27 L. J. (M. C.) 95. Evidence. Prove that the defendant erected the boiler in question, or that he continued it after being erected by some other person; prove that he used it for the purposes alleged in the indictment; prove that the smoke or smell arising from it was either injurious to health, or so offensive as to detract sensibly from the enjoyment of life and property in its neighbourhood; see R. v. White, 1 Burr. 333; it is not necessary that the smells produced by it should be injurious to health, it is sufficient if they be offensive to the senses; R. v. Neil, 2 C. & P. 485; 31 R. R. 685: Malton Local Board v. Malton Farmers' Trading Co., 4 Ex. D. 302; 49 L. J. (M. C.) 90; Bishop Auckland Local Board v. Bishop Auckland Iron Co., 10 Q. B. D. 138. Prove also that it is in a populous neighbourhood, or near a highway; R. v. Pappineau, 2 Str. 686; for its being a nuisance depends in a great measure upon the number of houses and the concourse of people in its vicinity; and which is a matter of fact to be determined by the jury. R. v. White (ubi supra). As to the quantum of annoyance necessary to justify proceedings, see St. Helens Smelting Co. v. Tipping, 11 H. L. C. 642; 11 Eng. Rep. 1483; 35 L. J. (Q. B.) 66. Nuisance by noise, if sufficiently great, is indictable (see Walker v. Brewster, L. R. 5 Eq. 25: Bellamy v. Wells, 39 W. R. 158: 7 T. L. R. 135: Christie v. Davey [1893] 1 Ch. 316), unless made in exercise of statutory powers and without negligence. Harrison v. Southwark and Vauxhall W. W. Co. [1891] 2 Ch. 409: Colwell v. Mayor, etc., of St. Pancras [1904] 1 Ch. 707; 68 J. P. Rep. 286. A distinction has been drawn between quiet and noisy neighbourhoods in considering whether the quantum of noise is sufficient to justify legal proceedings. Sturges v. Bridgman, 11 Ch. D. 852; 48 L. J. (Ch.) 875. It has been held that the defendant may prove that the business complained of as a nuisance was set up before the houses were built, or the roads constructed. R. v. Cross, 2 C. & P. 483; 31 R. R. 684. But in Hole v. Barlow, as reported in 27 L. J. (C. P.) 208, Byles, J., said that "it used to be thought that if a man knew there was a nuisance, and went and lived near it, he could not recover, because it was said it is he that goes to the nuisance, and not the nuisance to him. That used to be thought 100 years ago to be the law. That, however, is not the law now." But proof of its long continuance may justify a finding that it is not a nuisance in fact. Id. In R. v. Russell, 6 B. & C. 566; 9 D. & R. 566; 5 L. J. (K. B.) 221; 30 R. R. 432, it was said if a private person who goes to a nuisance may maintain an action in respect of it, it is difficult to see why, where the public go to a nuisance, an indictment may not be sustained for its continuance or in a neighbourhood where there were already established other trades, etc., emitting smells extremely offensive or insalubrious, and which smells were not perceptibly increased by the alleged nuisance in question. R. v. Neville, Peake (3rd ed.), 125; 3 R. R. 662: R. v. Watts, M. & M. 281. It is no defence to say that the alleged nuisance has existed for a number of years for no length of time will legalize a public nuisance. Dewell v. Saunders, Cro. Jac. 490: R. v. Cross, ubi supra: and see Weld v. Hornby, 7 East, 195, 199, Ellenborough, C.J.: Bliss v. Hall, 4 Bing. N. C. 183; 7 Rep. Crim. Law Commissioners, 59; Steph. Dig. Cr. L. (6th ed.) 140, n.. In R. v. Russell, ubi supra, it was said that in judging of a public nuisance the public good it does might in some cases, where the public health was not concerned, be taken into consideration, to see if the public benefit outweighed the public annoyance; but this doctrine was overruled in R. v. Ward, 4 A. & E. 384; 6 Nev. & M. 38; 5 L. J. (K. B.) 221, where it was held to be no answer to an indictment for a nuisance in a harbour, by erecting an embankment, that although the work was in some degree a hindrance to navigation, it was advantageous in a greater degree to the other uses of the |