created danger to life and property to the degree alleged, they might find a verdict of guilty.(a)

So also, there can be no doubt that to keep such a large quantity of materials for making fireworks in a building near a street and dwelling-houses as is calculated to endanger the lives of the persons passing by and living there, is a common nuisance. (b)

It appears, that persons putting on board a ship an article of a combustible and dangerous nature, without giving due notice of its contents, so as to enable the master to use proper precautions in the stowing of it, will be guilty of a misdemeanor. The case did not come before the Court of King's Bench directly upon its criminal nature: but that Court, in adverting to the conduct imputed to the defendants, declared it to be criminal; and said, "in order to make the putting on board wrongful the defendants must be conusant of the dangerous quality of the article put on board; and if, being so, they yet gave no notice, considering the probable danger thereby occasioned to the lives of those on board, it amounts to a species of delinquency in the persons concerned in so putting such dangerous article. on board, for which they are criminally liable, and punishable as for a misdemeanor at least."(c)

An indictment charged the defendant with keeping certain inclosed lands, near to the King's highway and to certain houses, for the purpose of persons frequenting such grounds, and meeting therein to practice rifle shooting, and to shoot at pigeons with guns, and that he did unlawfully cause divers persons to meet there for that purpose, and did unlawfully suffer and cause a great number of idle and disorderly persons armed with guns to assemble in the streets and highways and other places near the said premises, discharging firearms and making a great noise and disturbance, by means whereof the King's subjects were disturbed and put in peril: the defendant had converted some land, about 100 feet from a public road, into a shooting ground, where persons came to practice with rifles, and to shoot at pigeons; and as the pigeons which were fired at often escaped, it was the custom *442] for idle persons to collect outside the grounds, and in the neighboring* fields to shoot at the birds as they strayed, by which a great noise and disturbance was created; it was objected that the defendant was not responsible, as he neither committed the nuisance in his own person, nor was it his object to induce others to commit it; nor was it a necessary and inevitable consequence of any act of his, being done by persons beyond his control: and those persons being themselves amenable to punishment for it; but it was held that the evidence supported the allegation that the defendant caused such persons to assemble, and that the defendant was liable to be indicted for a nuisance; for if a person collects together a crowd of people to the annoyance of his neighbors, that is a nuisance for which he is answerable; and although it may not be his object to create a nuisance, yet if it be the probable consequence of his act, he is answerable as if it were his actual object: if the experience of mankind must lead any one to expect the result, he will be answerable for it.(d)

All disorderly inns or ale-houses, bawdy-houses, gaming-houses, play-houses, unlicensed or improperly conducted booths and stages for rope-dancers, mountebanks, and the like, are public nuisances, and may therefore be indicted.(e)

The keeper of an inn may, by the common law, be indicted and fined as being guilty of a public nuisance, if he usually harbor theives, or persons of scandalous reputation, or suffer frequent disorders in his house, or take exorbitant prices, or set up a new inn in a place where there is no manner of need of one, to the hindrance of other ancient and well-governed inns, or keep it in a place in respect of

(a) Reg. v. Lister, supra. Pollock, C. B., agreed as to the point of law with the other judges; but thought that the defendants were improperly convicted upon evidence of a dangerous use of the article in mixing it with another article to make a very combustible material.

(b) See Reg. v. Bennett, Bell C. C. 1, post, Manslaughter, · (c) Williams . The East India Company, 3 East 192, 201. (d) Rex v. Moore, 3 B. & Ad. 184 (23 E. C. L. R.).

(e) 4 Blac. Com. 167.

its situation wholly unfit for such a purpose.(ƒ) And it seems also clear that if one who keeps a common inn refuse either to receive a traveller as a guest into his house, or to find him victuals or lodging, upon his tendering him a reasonable price for the same, (g) he is not only liable to render damages to the party in an action, but may also be indicted; and it is also said, that he may be coupelled by the constable of the town to receive and entertain such a person as his guest; and that it is in no way material whether he have any sign before his door or not, if he make it his common business to entertain passengers.(h) But a traveller is not entitled to select a particular apartment, or to insist upon occupying a bedroom for the purpose of sitting up all night, if the innkeeper offers to furnish him with a proper room for that purpose.(i) It is no defence to an indictment for not receiving a traveller that he did not tender a reasonable sum for his entertainment, if no objection be made on that ground: nor that the guest was travelling on a Sunday: nor that it was at a late hour of the night after the innkeeper and his family were gone to bed; for an innkeeper is bound to admit a traveller at whatever hour of the night he may arrive: nor that the guest refused to tell his name and [*443 abode, as the innkeeper had no right to insist upon knowing *them: but if the guest be drunk or behave in an indecent or improper manner, the innkeeper is not bound to receive him.(k) The keeping of an inn is no franchise, but a lawful trade when not exercised to the prejudice of the public; and therefore there is no need of any license or allowance for such erection.() But if an inn use the trade of an alehouse, as almost all innkeepers do, it will be within the statutes made concerning ale and beer houses.(m)

The keeping of a bawdy-house is a common nuisance, as it endangers the public peace by drawing together dissolute and debauched persons; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness.(n) And it has been adjudged that this is an offence of which a feme covert may be guilty as well as if she were sole, and that she, together with her husband, may be convicted of it; for the keeping the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband; and in this she is presumed to have a considerable

(ƒ) 1 Hawk. P. C. c. 78, s. 1. And see in Bac. Abr. tit. Inns, &c. (A.), that as inns from their number and situation may become nuisances, they may be suppressed, and the parties keeping them may at common law be indicted and fined. And see also as to exorbitant prices: Id. (C.) 2.

19.

(h) 1 Hawk. P. C. c. 78, s. 2.

(g) 10 Hen. 7, 8; 39 Hen. 6, 18, (i) Fell v. Knight, 8 M. & W. 269. (k) Rex v. Ivens, 7 C. & P. 213 (32 E. C. L. R.), Coleridge, J. In the preceding case, Lord Abinger, C. B., said, nothwithstanding Rex v. Ivens, "I am inclined to think that the declaration is bad for want of an allegation of a tender of the amount to which the innkeeper would be reasonably entitled for the entertainment furnished to his guest; it is not sufficient for the plaintiff to allege that he was willing to pay; he should state further that he offered to pay. There may be cases where a tender may be dispensed with; as, for instance, where a man shuts up his doors or windows so that no tender can be made; but I rather think these facts ought to be stated in the indictment or declaration; and I have, therefore, some doubt as to the complete correctness of the judgment in the case cited." In 39 Hen. 6, 19, Danby said an innkeeper is not bound to give provender to the horse of his guest until he is paid in the hand; for the law does not compel him to put trust in his guest for the payment-which fully supports Lord Abinger's opinion. See Hawthorn v Hammond, 1 C. & K. 404 (47 E. C. L. R.), where the plaintiff had knocked at an inn door for some minutes in the night without obtaining admission; and Parke, B., left it to the jury whether the defendant heard the noise, and if so, whether she ought to have concluded that the person knocking required to be admitted as a guest or was a drunken person, who had come there to make a disturbance.

(2) Dalt. c. 56; Blackerby 170; Burn. Just. tit. Alehouses; 1 Bac. Abr. tit. Inns, &c. (A.)

(m) Burn's Just. tit. Alehouses, where those statutes are collected. Before the 5 & 6 Edw. 6, c. 25 (repealed, 9 Geo. 4, c. 61), it was lawful for any one to keep an alehouse without license, for it was a means of livelihood which any one was free to follow. But if it was so kept as to be disorderly, it was indictable as a nuisance: 1 Salk. 45; 1 Hawk. P. C. c. 78, s. 52, in marg.

(n) 3 Inst. c. 98, p. 204; 1 Hawk. P. C. c. 74, and c. 75, s. 6; Bac. Abr. tit. Nuisances (A.); Burn's Just. tit. Lewdness and Nuisance.

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part, as those matters are usually managed by the intrigues of her sex.(0) If a person be only a lodger, and have but a single room, yet if she make use of it to accommodate people in the way of a bawdy-house, it will be a keeping of a bawdyhouse as much as if she had a whole house (p) But an indictment cannot be maintained against a person for being a common bawd, and procuring men and women to meet together to commit fornication; the indictment should be for keeping a bawdy-house.(q) For the bare solicitation of chastity is not indictable, but cognizable only in the Ecclesiastical Courts.(r)1

All common gaming-houses are nuisances in the eye of the law, being detrimental *444] to the public, as they promote cheating and other *corrupt practices; and incite to idleness, and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the good of the community.(s) And the keeping a common gaming-house, and for lucre and gain unlawfully causing and procuring divers idle and evil-disposed persons to frequent and come to play together at a game called "rouge et noir," and permitting the said idle and evildisposed persons to remain playing at the same game for divers large and excessive sums of money, is an indictable offence at common law. (t). It has also been adjudged, that it is an offence for which a feme covert may be indicted; for, as she may be concerned in acts of bawdry, as has been observed above, so she may be active in promoting gaming, and furnishing the guests with conveniences for that purpose.(u) As an indictment for keeping a gaming-house is an indictment for at public nuisance, and not for any matter in the nature of a private injury, if the prosecutor forbears bringing the case to trial, another person may proceed with the indictment.(v) In a similar case where a prosecution had been discontinued, the Court directed the attorney-general to proceed.(w) There are certain penalties imposed by statutes upon the offence of keeping a common gaming-house;(x) and by 3 Geo. 4, c. 114, hard labor may be added to any imprisonment which the Court may award. (y)

(0) Reg. v. Williams, 1 Salk. 383, ante, 38.

(p) Rex v. Pierson, 2 Lord Raym. 1197; 1 Salk. 382.

(q) Id. Ibid.

(r) 1 Hawk. P. C. c. 74; Burn's Just. tit. Lewdness.

(8) Bac. Abr. tit. Nuisances (A.); 1 Hawk. P. C. c. 76, s. 6; Rex v. Dixon, 10 Mod. 336. See the 2 & 3 Vict. c. 47, s. 48, as to the power of the police within the metropolitan district to enter into gaming-houses, and the penalties to which the owner, keeper, or manager thereof are liable, and that no person shall be proceeded against both by indictment and also under that Act.

(t) Rex v. Rogier, 1 B. & C. 272 (8 E. C. L. R.); 2 D. & R. 431. that in his opinion it would have been sufficient merely to have auts kept a common gaming-house. And see Rex v. Taylor, L. R.).

And Holroyd, J., said, alleged, that the defendB. & C. 502 (10 E. C.

(u) Rex v. Dixon, Trin. 2 Geo. 1; Bac. Abr. tit. Nuisances (A.); 10 Mod. 335; 1 Hawk. P. C. c. 92, s. 30, and see ante, p. 38.

(v) Rex v. Wood, 3 B. & Ad. 657 (23 E. C. L. R.).

(w) Rex v. Oldfield, Ibid. note (a); Rex v. Fieldén, Ibid. ; Rex v. Constable, Ibid.

(x) 1 Hawk. P. C. c. 92, s. 14, et seq. And see 25 Geo. 2, c. 36, s. 5; 42 Geo. 3, c. 119. And see post, p. 453, as to Lotteries and Little-goes.

(y) See the section, ante, p. 405.

1 To conduct a house so as to disquiet the neighbors, or to carry on its business so as to tend to the corruption of public morals, is a nuisance: People v. Carey, 4 Parker C. R. 238; State v. Wright, 6 Jones (Law) 25. A bawdy-house need not be a dwelling: State v. Powers, 36 Conn. 77.

As to the liability of the landlord, see State v. Williams, 1 Vroom 102; Comm. v. Johnson, 4 Clark 398; Brockway v. People, 2 Hill 558.

A bowling-alley kept for gain or hire is a public nuisance at common law, though gambling be expressly prohibited: Tanner v. Trustees of Albion, 5 Hill 121; Comm. ", Goding, 3 Metc. 130. The keeping in a public house of "a certain common, ill-governed, and disorderly room" and procuring and suffering for lucre disorderly persons to meet and remain therein by night and by day, "drinking, tippling, cursing, swearing, quarrelling, making great noises, rolling bowls, in and at a game commonly called ten-pins," is a public nuisance and is indictable: Bloomhaff v. State, 8 Blackf. 205.

A ten-pin alley is not of itself a public nuisance: State v. Hall, 3 Vroom 158.
For cases upon statutes against gaming, see Windham v. State, 26 Ala. 69; M'Cauley

An indictment against a defendant for that he did keep a common, ill-governed, and disorderly house, and in the said house for his lucre, &c., certain persons of ill-name, &c., to frequent and come together, did cause and procure, and the said persons in the said house to remain fighting of cocks, boxing, playing at cudgels, and misbehaving themselves, did permit, has been held to be good.(z) And it seems that the keeping of a cockpit is not only an indictable offence at common law, but that a cockpit is considered as a gaming-house within the 33 Hen. 8, c. 9, s. 11, (a) which imposes a penalty of forty shillings per day upon such houses; and therefore, on a conviction on an indictment at common law, the Court will measure the fine by inflicting forty shillings for each day, according to the number of days such cockpit was kept open.(b)

It seems to be the better opinion that playhouses, having been originally instituted with a laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, *are not nuisances in their own nature, but may only become such by accident; as, where they draw together such numbers [*445 of coaches or people, &c., as prove generally inconvenient to the places adjacent; or, when they pervert their original institution by recommending vicious and loose characters, under beautiful colors, to the imitation of the people, and make a jest of things commendable, serious, and useful.(c) Theatres are now put under salutory regulations by the 6 & 7 Vict. c. 68. And places of public entertainment in the neighborhood of London, if not properly licensed, are to be deemed disorderly houses by the 25 Geo. 2, c. 36, (d) which, reciting the multitude of places of entertainment for the lower sort of people as a great cause of thefts and robberies, enacts, "that any house, room, garden, or other place, kept for public dancing, music, or other public entertainment of the like kind in the cities of London and Westminster, or within twenty miles thereof," without a license from the last preceding Michaelmas quarter sessions, under the hands and seals of four of the justices, shall be deemed a disorderly house or place." The Act then particularizes the mode of granting the license, makes it lawful for a constable or other person, authorized by warrant of a justice, to enter such house or place, and to seize every person found therein; and makes every person keeping such house, &c., without a license liable to a penalty of £100, and otherwise punishable as the law directs in cases of disorderly houses. (e) In the first place, the house or room must

(2) Rex v. Higginson, 2 Burr. 1233.

(a) This statute is partly repealed by the 8 & 9 Vict. c. 109, but it is not easy to say how much.

(b) Rex v. Howell, 3 Keb. 510; 1 Hawk. P. C. c. 92, s. 29. See the 2 & 3 Vict. c. 47, s. 47, which subjects persons keeping houses, &c., for baiting lions, bears, badgers, cocks, dogs, or other animals to £5 penalty, or a month's imprisonment. The Act extends to the metropolitan police district.

(e) Bac. Abr. tit. Nuisances (A.); 1 Hawk. P. C. c. 75, s. 7. And as to the performance of an obscene play, see ante, p. 335, note (k).

(d) Made perpetual by the 28 Geo. 2, c. 19.

(e) See also 2 & 3 Vict. c. 47, s. 46, which gives power to enter unlicensed theatres, and

v. State, Ibid. 135; Dale v. State, 27 Ibid. 31; Shihagan v. State, 9 Texas 430; Purcell's case, 14 Gratt. 679; Burnett v. State, 30 Ala. 19; Hoffman v. State, Ibid. 532; Wilson v. State, 31 Ibid. 371; Skinner v. State, 30 Ibid. 524; Moore v. State, Ibid. 550; Bentley v. State, 32 Ibid. 596; Reddett v. State, 17 Texas 610; Burden v. State, 25 Ala. 60; Sherrod v. State, Ibid. 78; Lockhart v. State, 10 Texas 275; Rice v. State, Ibid. 545. The statute against gaming "at any faro bank or any other table or bank of the same or like kind, under any denomination whatsoever," includes the game called "thimble, or thimbles and balls:" State v. Red, 7 Rich. 8. The law cannot be evaded by changing the name of a game: Smith v. State, 17 Texas 191. To wager or bet on an unlawful act is indicta

ble: Myers v. State, 3 Sneed 98.

A house in which a faro table is kept for the purpose of common gambling, is per se a nuisance, and it is not necessary to constitute it such, that there should be proof of frequent affrays and disturbances committed there: State v. Door, Charl. 1.

The keeping of a common gaming-house is indictable at common law on account of its tendency to bring together disorderly persons, to promote immorality, and to lead to breaches of the peace: People v. Jackson, 3 Denio 101.

be kept with the defendant's knowledge; secondly, it must be kept for the purposes prohibited by the statute; there must be something like an habitual keeping of it, which however need not be at stated intervals; thirdly, it must be public, to which all persons have a right to go, whether gratuitously or on payment of money, no matter whether paid to the defendants or not, if he knows of the payment.(ƒ) Where, therefore, the defendant was a publican, and music, dancing, and masquerades had occasionally been held at his house, where, from its vicinity to the Great Synagogue, Jewish marriages were frequently celebrated, but no money was taken at the door or elsewhere by the defendant for admission, and the rooms were let to a dancing master, and to other persons, who sold tickets and received money for admission at the door; but there was no direct evidence that the defendant knew of this practice; it was held, that there was evidence for the jury of keeping the house for the purposes mentioned in the Act.(g) A *mere temporary *446] or occasional use of a room for music and dancing is not a keeping it within this Act, but the room need not be kept exclusively for those purposes, nor need money be taken at the door. Where, therefore, the defendant kept a public house, and on repeated occasions, during a space of three or four months, the tap-room was frequented at night by numbers of sailors, soldiers, boys, and prostitutes, who danced there to a violin played by a person on an elevated platform, but no money was taken for admission, it was held that the case was within the Act.(7) On an indictment for unlawfully keeping a room for public music and dancing within twenty miles of London and Westminster without a license, it was proved that nightly entertainments were there given, when music and dancing took place, the public being admitted on paying money at the door. There were often from 200 to 300 visitors, who conducted themselves in an orderly manner, and no impropriety of conduct was permitted or practised: the Recorder held, that this room required a license under the Act, and that, after this proof, it lay on the defendant to prove that it was licensed.(i)

It seems also to be the better opinion, that all common stages for rope-dancers, &c., are nuisances, not only because they are great temptations to idleness, but also because they are apt to draw together numbers of disorderly persons, which cannot but be very inconvenient to the neighborhood.(k)

The proceedings in respect of prosecutions against persons keeping bawdy-houses, gaming-houses, or other disorderly houses, are facilitated by the 25 Geo. 2, c. 36, by which it is enacted, that if two inhabitants of any parish or place, paying scot and lot, give notice in writing to the constable, of any person keeping a bawdy-. house, gaming-house, or any other disorderly house, in such parish or place, the constable shall go with such inhabitants to a justice, and shall, upon such inhabitants making oath before the justice that they believe the contents of the notice to be true, and entering into a recognizance in twenty pounds each to give material evidence against the person for such offence, enter into a recognizance in the sum of thirty pounds to prosecute with effect at the next sessions or assizes as to the justice shall seem meet. And provision is also made for the payment by the overseers of the charges of prosecution to the constable, and ten pounds on convicsubjects persons letting houses, &c., for the purpose of being used as unlicensed theatres to a penalty of not more than £20, or two months' imprisonment; and subjects persons performing or being therein without lawful excuse, to a penalty of 40s.; and a conviction under the Act is not to exempt the owner, keeper, or manager of any such house from any penalty for keeping a disorderly house, or for the nuisance thereby occasioned. The Act extends to the metropolitan police district. By sec. 3 of 25 Geo. 2, c. 36, the Act is not to extend to the theatres in Drury Lane and Covent Garden, or the King's Theatre in the Haymarket; nor to performances and public entertainments carried on under letters patent, or license of the crown, or license of the Lord Chamberlain.

(f) Per Parke, B., Marks v. Benjamin, 5 M. & W. 564.

(g) Marks v. Benjamin, supra.

(h) Gregory v. Tuffs, 6 C. & P. 271 (25 E. C. L. R.); 4 Tyrw. 820; Gregory v. Tavernor, 6 C. & P. 280.

(i) Reg. v. Wolf, 3 Cox C. C. 578.

(k) Bac. Abr. tit. Nuisances (A.); 1 Hawk. P. C. c. 75, s. 6. And see ante, p. 379, note (h), as to stage players being indicted for a riot and unlawful assembly.