port. See also the observations of Jessel, M.R., on R. v. Russell, in Att.Gen. v. Terry, L. R. 9 Ch. 423, 426, n: and see Att.-Gen. v. L. N. W. R. [1900] 2 Q. B. 78: R. v. Morris, 1 B. & Ad. 441: R. v. Tindall, 1 Nev. & P. 719; 6 A. & E. 143; 6 L. J. (M. C.) 97 : R. v. Randall, C. & Mar. 496: R. v. Betts, 16 Q. B. 1022: R. v. Train, 2 B. & S. 640; 31 L. J. (M. C.) 169; 9 Cox, 180. A statute may, however, authorize and legalize acts which would otherwise amount to a nuisance. Defendants were authorized by Act of Parliament to make a railway, which ran by the side of a highway, and to use locomotives upon the railway. Horses upon the highway were frightened by the locomotives, but it was held, by the Court of King's Bench, that the defendants were not liable to be indicted for a nuisance, as the Act of Parliament had given them unqualified authority to use the locomotives. R. v. Pease, 4 B. & Ad. 30 ; 2 L. J. (M. C.) 26; 38 R. R. 207. The authority of R. v. Pease was impugned by Bramwell, B., in Powell v. Fall, 5 Q. B. D. 597, but appears to be fully established by the decisions of the House of Lords in Hammersmith, etc., Rail. Co. v. Brand, L. R. 4 H. L. 171, and London, Brighton and South Coast Rail. Co. v. Truman, 11 App. Cas. 45: Withington Local Board v. Mayor, etc., of Manchester [1893] 2 Ch. 19: Att.-Gen. v. Mayor, etc., of Nottingham [1904] 1 Ch. 673. But the statutory authority will not protect those who have it unless (1) it is given specifically or by necessary implication (Metrop. Asylums Managers v. Hill, 6 App. Cas. 193, and cases above cited: Canadian Pacific Rail. Co. v. Parke [1899] App. Cas. 535); and (2) the manner of doing it follows the authority of the statute, and avoids causing a nuisance if it can be avoided by reasonable care. London, Brighton and South Coast Rail. Co. v. Truman, 11 App. Cas. 45; Beven, Negligence (2nd ed.), 345; Hardcastle on Statutes (3rd ed.), 278. It is not unusual for a statute expressly to reserve liability to indictment for nuisance. This is done as to gasworks by the Gas Works Clauses Acts, 1847 (10 & 11 Vict. c. 15, s. 29) and 1871 (34 & 35 Vict. c. 41, s. 9). See Att.-Gen. v. Gas Light and Coke Co., 7 Ch. D. 217: Jordeson v. Hull Gas Co. [1899] 2 Ch. 217; 68 L. J. (Ch.) 457: and as to electric lighting authorities by their provisional orders or special Acts, see Colwell v. Mayor, etc., of St. Pancras [1904] 1 Ch. 707; and as to the use of locomotives on highways by 24 & 25 Vict. c. 70, s. 13; 28 & 29 Vict. c. 83, s. 12 (post, p. 1214); and as to alkali works by 44 & 45 Vict. c. 37, s. 1, and 55 & 56 Vict. c. 30.

The provisions for summary prosecution of nuisances under the Public Health Act, 1875, do not take away the remedy by indictment. 38 & 39 Vict. c. 55, s. 111 (ante, p. 1182); 54 & 55 Vict. c. 76, s. 138 (London): Att.-Gen. v. Logan [1891] 2 Q. B. 100. A summary conviction for causing noxious effluvia by a trade process has been held inadmissible in favour of the Crown on a subsequent indictment at common law for the same offence. R. v. Fairrie, 8 Cox, 66.

It was laid down in Hole v. Barlow, 4 C. B. (N. S.) 334; 27 L. J. (C. P.) 208, that an action does not lie for the reasonable use of a lawful trade in a convenient place, although it may annoy another. But this case was overruled by Bamford v. Turnley, 3 B. & S. 62, 66; 31 L. J. (Q. B.) 286 (Ex. Ch.). See also Cavey v. Leadbitter, 13 C. B. (N. S.) 470; 32 L. J. (C. P.) 104: St. Helens Smelting Co. (Limited) v. Tipping, 11 H. L. C. 642: Shotts Iron Co. v. Inglis, 7 App. Cas. 518: Att.-Gen. v. Cole [1901] 1 Ch. 205. These decisions appear to apply equally to indictments.

Where works are so carried on as to be a nuisance, it is no answer to an indictment against the master for the nuisance, that he did not personally superintend the works, and that he had given express orders to the workmen that they should be carried on in a mode which, if

A.C.P.

75

followed, would have prevented their causing a nuisance. R. v. Stephens, L. R. 1 Q. B. 702; 35 L. J. (Q. B.) 251; 7 B. & S. 510; 11 Cox, 340. It was, however, held that an employer was not criminally responsible for a smoke nuisance caused by his servant using a furnace in a negligent manner, and that the employer could not be convicted under such circumstances of an offence under the Smoke Nuisance (Metropolis) Act (16 & 17 Vict. c. 128), s. 1 (rep.). Chisholm v. Doulton, 22 Q. B. D. 736 ; 58 L. J. (M. C.) 133 (and see ante, p. 33). That Act is repealed and superseded by 54 & 55 Vict. c. 76, s. 23.

Indictment for selling Food unfit for Human Consumption.

(Common Law.)

A precedent for this will be found in R. v. Dixon, 3 M. & Sel. 11; 15 R. R. 381. The offence is now usually dealt with summarily under ss. 116–119 of the Public Health Act, 1875 (38 & 39 Vict. c. 55), and in London under s. 47 Under the latter section the deof the Public Health (London) Act, 1891. fendant can elect to be indicted (see 42 & 43 Vict. c. 49, s. 17, ante, p. 6). For a precedent of such indictment, see R. v. Dennis [1894] 2 Q. B. 458 (C. C. R.). To expose for sale, or to have possession of, with intent to sell, meat unfit for food, is a nuisance at common law; Shillito v. Thompson, 1 Q. B. D. 12; 45 L. J. (M. C.) 18, and cases collected ante, p. 1163; and if death results from eating such meat, the seller may be indicted for manslaughter. R. v. Stevenson, 2 F. & F. 106: R. v. Kempson, 28 L. J. Newsp. 477 (ante, p. 798). It may be questioned whether the offence is a public nuisance or a common law cheat, as to which see ante, pp. 618-620, and R. v. Roebuck, Dears. & B. 24; 25 L. J. (M. C.) 101 (ante, p. 612). If the latter, knowledge of the condition of the food is essential.

(b) ACTS INJURIOUS TO PUBLIC SAFETY.

Common Law.

Under this head fall such cases as keeping a fierce and unruly bull in a field crossed by a public footway, Cro. Circ. Comp. 310; keeping a ferocious dog unmuzzled, Cro. Circ. Comp. 311; baiting a bull in the highway, 4 Went. 213; keeping naphtha in a populous place in such quantities as to cause terror or danger, R. v. Lister, D. & B. 209; 26 L. J. (M. C.) 196: see, too, Williams v. H. E. I. C., 3 East, 192; 6 R. R. 589; keeping gunpowder or other explosives in dangerous proximity to streets or houses, 1 Russ. Cr. (6th ed.) 734, n.: R. v. Taylor, 2 Str. 1167; allowing a house near a highway to be ruinous, R. v. Watts, 1 Salk. 357: R. v. Watson, 2 Ld. Raym. 856; having an unfenced excavation near a highway, Hardcastle v. South Yorks. Ry. Co., 4 H. & N. 67: Barnes v. Ward, 9 C. B. 392. Negligently blasting stone in a quarry, and thereby projecting large pieces of stone so as to endanger the safety of persons in houses and on the highways adjoining the quarry, is a misdemeanor indictable at common law. R. v. Mutters, L. & C. 491; 34 L. J. (M. C.) 22. As to allowing a quarry near a highway to be unfenced, see Hounsell v. Smith, 7 C. B. (N. S.) 731; 29 L. J. (C. P.) 203: R. v. Clerk of Assize of Oxford Circuit [1897] 1 Q. B. 370; 18 Cox, 518. The making and selling of fireworks or throwing them about in the street was declared a common nuisance by 9 & 10 W. 3, c. 7 (rep.). R. v. Bennett, Bell, 1; 28 L. J. (M. C.)

27; 8 Cox, 74. The manufacture is now regulated by the Explosives Act, 1875, and lighting them in a street is summarily punishable under s. 80 of that Act, but apparently without prejudice to a remedy by indictment where a nuisance is created. (See post, p. 1188.) In R. v. Meade [1903] 19 T. L. R. 540, Wills, J., held an indictment good which contained a count for going abroad in a public street armed without lawful occasion so as to be a nuisance and terror to the public (and see ante, p. 1107).

Statutes.

Storage of petroleum.]-The Petroleum Acts, 1871 (34 & 35 Vict. c. 105), 1879 (42 & 43 Vict. c. 47), and 1881 (44 & 45 Vict. c. 67), which are to be read together, provide numerous penalties summarily recoverable for breach of their regulations as to storage, carriage, etc., of inflammable substances. The penalties are for the most part recoverable summarily (see 34 & 35 Vict. c. 105, s. 15), but s. 18 of the Act of 1871 provides "that nothing in this Act contained shall be deemed to exempt any person from any penalty to which he would otherwise be subject in respect of a nuisance." In the case of petroleum, etc., for the use of light locomotives, the Acts apply only subject to Home Office regulations under 59 & 60 Vict. c. 36, s. 5. See Statutory Rules and Orders Revised (ed. 1904), vol. 8, tit. Locomotive," p. 3.

Storage of explosives.]-The Explosives Act, 1875 (38 & 39 Vict. c. 17), is "An Act to amend the law with respect to manufacturing, keeping, selling, carrying, and importing gunpowder, nitro-glycerine, and other explosive substances," and contains a variety of regulations on all these subjects, enforcing them by forfeitures and pecuniary penalties, with the alternative of imprisonment. In order to give a complete view of the subject, it would be necessary to insert the whole statute; but as the branch of law to which it relates is not likely, excepting in few cases, to form the subject of inquiry on indictment, as it may generally be enforced by courts of summary jurisdiction, it has not been thought desirable to do more than insert the following sections, which show when offences against the Act may, and when they must, be prosecuted by indictment.

38 & 39 Vict. c. 17, s. 91.]-Every offence under this Act may be prosecuted, and every penalty under this Act may be recovered, and all explosives and ingredients liable to be forfeited under this Act may be forfeited either on indictment or before a court of summary jurisdiction, in manner directed by the Summary Jurisdiction Acts. Provided that the penalty imposed by a court of summary jurisdiction shall not exceed one hundred pounds exclusive of costs, and exclusive of any forfeiture or penalty in lieu of forfeiture, and the term of imprisonment imposed by any such court shall not exceed one month.

...

Sect. 92. Election to be tried on indictment.]-Where a person is accused before a court of summary jurisdiction of any offence under this Act, the penalty for which offence as assigned by this Act, exclusive of forfeiture, exceeds one hundred pounds, the accused may, on appearing before the court of summary jurisdiction, declare that he objects to being tried for such offence by a court of summary jurisdiction, and thereupon the court of summary jurisdiction may deal with the case in all respects as if the accused were charged with an indictable offence, and not an offence punishable on summary conviction, and the offence may be prosecuted

on indictment accordingly. [See R. v. Chambers, 65 L. J. (M. C.) 214; 18 Cox, 401, ante, p. 1162.]

Sect 102.... This Act shall not exempt any person from any indictment or other proceeding for a nuisance, or for an offence which is indictable at common law, or by any Act of Parliament other than this Act, so that no person be punished twice for the same offence. [See 52 & 53 Vict. c. 63, s. 33, ante, p. 170.]

When proceedings are taken before any court against any person in respect of any offence under this Act which is also an offence at common law, or by some Act of Parliament other than this Act, the court may direct that, instead of such proceedings being continued, proceedings shall be taken for indicting such person at common law or under some Act of Parliament other than this Act.

(c) ACTS INJURIOUS TO PUBLIC DECENCY, MORALS, or order.

OPEN AND NOTORIOUS LEWDNESS.

Common Law.

It is a misdemeanor indictable at common law publicly to expose the naked person. R. v. Sedley, 17 St. Tr. 155, n.; 1 Sid. 168; 1 Keb. 620; and see 1 East, P. C. p. 3: R. v. Gallard, 1 Sess. Cas. 231: R. v. Newcastle-on-Tyne Justices, 1 B. & Ad. 933: R. v. Rowed, 3 Q. B. 180; 11 L. J. (M. C.) 74 (see ante, p. 926).

An indecent exposure, though in a place of public resort, if visible only by one person, is not indictable as a common nuisance. R. v. Webb, 1 Den. 338; 18 L. J. (M. C.) 39; 2 C. & K. 933; 3 Cox, 183: R. v. Watson, 2 Cor, 376: see R. v. Elliott, L. & C. 103: R. v. Farrell, 9 Cox, 446 (C. C. R. Ir.). An omnibus is a public place sufficient to support the indictment. R. v. Holmes, Dears. 207; 22 L. J. (M. C.) 122. In R. v. Orchard, 2 Cox, 248, an enclosed urinal, to which the public had free access, in a public market, was held not to be a public place. But in R. v. Harris, L. R. 1 C. C. R. 282; 40 L. J. (M. C.) 67, Bovill, C.J., said that he could not think that all the facts had been stated in the report of R. v. Orchard, and that he could not understand that case as reported. In R. v. Harris, ubi supra, it was held, that an urinal open to the public and approached by a gate opening from a public footpath, but built in compartments, is such a public place as to make an act of indecency committed in the urinal and witnessed by two persons an indictable nuisance. It is not necessary that the exposure should be made in a place open to the public; it is sufficient if it be made where a number of persons may be offended by it, and several see it. R. v. Thallman, L. & C. 326; 33 L. J. (M. C.) 58; 9 Cox, 388. The prisoner was convicted of indecently exposing his person to divers subjects of the Queen in a certain public place, upon evidence showing that the place in question was out of sight of the public footpath, but was a place to which the prisoner had gone with several little girls, though without any legal right to go there, and was a place to which persons were in the habit of going without any strict legal right so to do, and that persons so going were never in any way hindered or interfered with. On a case reserved, the court held that the conviction was correct, and that the jury were justified in finding that the place was public. R. v. Wellard, 14 Q. B. D. 63; 54 L. J. (M. C.)

14. Semble, that the offence of indecent exposure of the person may be indictable if committed before several persons, even if the place be not public. Id. (a). Men who bathe without any screen or covering, so near to a public footpath that exposure of their persons must necessarily occur, are guilty of an indictable nuisance. R. v. Reed, 12 Cox, 1, Cockburn, C.J.; and see 41 & 42 Vict. c. 14, s. 11. Nor is it any defence that there has been, so long as living memory extends, an usage so as to bathe at the place, and that there has been no exposure beyond what is necessarily incidental to such bathing. Id. See also R. v. Crunden, 2 Camp. 89; 11 R. R. 671.

As to obscene libels and exhibitions, see post, p. 1190.

Indictment against a Man for publicly exposing his Naked Person. (Common Law.)

Middlesex, to wit:-The jurors for our lord the King upon their oath present, that J. S., being a scandalous and evil-disposed person, and devising, contriving, and intending the morals of divers liege subjects of our lord the King to debauch and corrupt, on the first day of June, in the year of our Lord on a certain public and common highway situate in the parish of in the county of M., in the presence of divers liege subjects of our said lord the King then there being, and within sight and view of divers other liege subjects through and on the said highway then there passing and repassing, unlawfully, wickedly, and scandalously did expose to the view of the said persons so present, and so passing and repassing as aforesaid, the body and person of him the said J. S. naked and uncovered, for a long space of time, to wit, for the space of one hour; to the great scandal of the said liege subjects of our said lord the King, to the manifest corruption of their morals, in contempt of our said lord the King and his laws, to the evil example of all others in the like case offending, and against the peace of our lord the King, his crown and dignity. The allegation that the offence was committed "within sight and view of divers liege subjects," etc., appears to be necessary. See R. v. Webb, 1 Den. 338; 2 C. & K. 933; 18 L. J. (M. C.) 39; 3 Cox, 183. The indictment need not conclude in commune nocumentum. R. v. Holmes, Dears. 207; 22 L. J. (M. C.) 122; 6 Cox, 216; and see 14 & 15 Vict. c. 100, s. 25 (ante, pp. 54, 86).

Misdemeanor at common law: fine or imprisonment (with or without hard labour, 14 & 15 Vict. c. 100, s. 29, ante, p. 238), or both.

The offence is now usually punished summarily under s. 4 of the Vagrancy Act, 1824 (5 G. 4, c. 83), where the intent is to insult any female; and cf. 2 & 3 Vict. c. 47, s. 54 (12) ; 10 & 11 Vict. c. 89, s. 28 (which is applied to urban districts by 38 & 39 Vict. c. 55, s. 171); and 41 & 42 Vict. c. 14, s. 11.

Evidence.

Prove the place to be public, (a) the exposure to be deliberate, and that it took place in the view of several persons.

(a) In R. v. Madercine [1899] 20 N. S. W. Rep. (Law), 36, on a case reserved, it was held that exposure of the person on the verandah of a private house, in the presence of a number of children, was indictable at common law, and it seems to have been considered that the word "public" in the indictment was unnecessary. The court relied on the dicta of the judges in R. v. Wellard, and on R. v. Bunyan, 1 Cox, 74, where a conviction took place on evidence that two persons had locked themselves in a room in a public-house, and had been seen behaving indecently through the window of another room by a servant, who fetched a constable.