sight and view of divers of the liege subjects, in the said public place passing and being, divers such practices as aforesaid, the Court of Queen's Bench arrested the judgment on the ground that the indictment did not state so distinct and specific a charge as on legal principles was sufficient. (h) So where a count alleged that A. in a certain public place did lay his hands on the private parts of B., with intent to stir up in his own mind and B.'s mind unnatural and sodomitical desires and inclinations, and to incite B. to the committing with A. divers unnatural and sodomitical acts, and that B. in the said public place did permit A. so to lay his hands, and was then aiding and assisting A. in the said acts, with the like intent; the count was held bad for not describing an incitement to commit a felony in proper terms.(i)

In one case it was held to be an indictable offence for a man to undress himself on the beach and to bathe in the sea near inhabited houses, from which he might be distinctly seen; although the houses had been recently erected, and, until their erection, it had been usual for men to bathe in great numbers at the place in question. M'Donald, C. B., ruled, that whatever place becomes the habitation of civilized men, there the laws of decency must be enforced.(k) And to show a being of unnatural and monstrous shape for money is a misdemeanor.(7)

By the 20 & 21 Vict. c. 83, justices are empowered to issue a warrant to search for any obscene books, papers, writings, prints, pictures, drawings or other representations kept in any house, &c., for the purpose of sale or distribution, exhibi*452] tion for the purpose of gain, lending upon hire, or being otherwise published for the purpose of gain, if any of such articles are of such a description that the publication of them would be a misdemeanor; and if any such articles are found the justices may order them, except such as may be necessary as evidence in some further proceeding, to be destroyed.

A count which charges the keeping obscene prints with intent to utter them is bad, as it alleges no act done; but a count which charges the procuring obscene prints with the like intent is good, as procuring is an act done (m)

By the 14 & 15 Vict. c. 100, s. 29, whenever any person shall be convicted of any public and indecent exposure of the person, or any public selling or exposing for public sale or to public view of any obscene book, print, picture, or other indecent exhibition, the Court may sentence the offender to be imprisoned for any term now warranted by law, and also to be kept to hard labor during the whole or any part of such term of imprisonment.

street.

An indictment charged the prisoner with having, in a house situate in a public street, exposed divers filthy, offensive, and disgusting pictures in the windows of the house, in such a position as to attract the attention of persons passing along the The defendant was a herbalist, and had exhibited in his shop-window in the High Street at Chatham two large colored pictures of the size of life, each of them representing the half length of a man naked to the waist, and one of them covered with sores. There was no indecency, but the effect was disgusting to the last degree. The other represented a cure. He had done this to exhibit the effect of a medicine he vended. Willes, J., held that there was no doubt that the exhibition of the picture in a highway was a nuisance.(mm)

Eaves droppers, or such as listen under walls or windows, or the eaves of a (h) Reg. v. Rowed, 3 Q. B. 180 (43 E. C. L. R.).

(i) Reg. v. Orchard, 3 Cox C. C. 248, Cresswell and Erle, JJ.

(k) Rex v. Crunden, 2 Campb. 89. And the Court of King's Bench, when the defendant was brought up for judgment, expressed a clear opinion that the offence imputed to him was a misdemeanor, and that he had been properly convicted. In Rex v. Sir Charles Sedley, Sid. 168, 1 Keb. 620, s. c., the defendant being indicted for showing himself naked from a balcony in Covent Garden to a great multitude of people, confessed the indictment; and was sentenced to pay a fine of 2000 marks, to be imprisoned a week, and to give security for his good behavior for three years.

(1) Harring v. Walrond, 2 Cha. Ca. 110, the case of a monstrous child that died, and was embalmed to be kept for show, but was ordered by the Lord Chancellor to be buried (cited in Burn's Just. tit. Nuisance). See per Pollock, C. B., contra in Reg. v. Webb, 2 C. & K. 938 (61 E. C. L. R.).

(m) Reg. v. Dugdale, Dears. C. C. R. 64, ante, p. 86.

(mm) Reg. v. Grey, 4 F. & F. 73.

house, to hearken after discourse, and thereupon to frame slanderous and mischievous tales. are a common nuisance, and presentable at the Court Leet; or are indictable at the sessions, and punishable by fine and finding sureties for their good behavior.(n)

A common scold, communis rixatrix (for our law confines it to the feminine gender), is a public nuisance to her neighborhood, and may be indicted for the offence; and, upon conviction, punished by being place in a certain engine of correction called the trebucket, or cucking stool. (0) And she may be convicted without setting forth the particulars in the indictment;(p) though the offence must be set forth in technical words, and with convenient certainty; and the indictment must conclude not only against the peace, but to the common nuisance of divers of his Majesty's liege subjects.(g) It is not necessary to give in evidence the particular expressions used; it is sufficient to prove generally that the defendant is always scolding.(r)

A defendant was convicted on an indictment for making great noises in the night with a speaking trumpet, to the disturbance of the neighborhood: which the Court held to be a nuisance.(s)

The exposing in public places persons infected with contagious disorders, so that the infection may be communicated, is a nuisance, and has been already treated of in a preceding chapter (1)

It is said that a mastiff going in the street unmuzzled, from the ferocity of his nature being dangerous and cause of terror to his Majesty's subjects, seems

to be a common nuisance; and that, *consequently, the owner may dicted for suffering him to go at large.(u)

be in- [*453 There are also some offences which are declared to be nuisances by the enactments of particular statutes, and where a statute declares a particular thing to be a common nuisance, it is indictable as such. An Act of Parliament prohibited the erection of any building within ten feet of a road, and declared that if any such building should be erected, it should be deemed a common nuisance. By another clause, justices were empowered to convict the proprietor and occupier of such building; it was held that the party who erected a building contrary to the Act might be indicted for a nuisance.(v)

The 23 & 24 Vict. c. 139, s. 8, prohibits the sale of fireworks without a license, and sec. 9 imposes a penalty on persons throwing fireworks in any thoroughfare or public place.

By the 10 & 11 Will. 3, c. 17, all lotteries are declared to be public nuisances; and all grants, patents, and licenses, for such lotteries to be against law. But for

(n) 4 Blac. Com. 167, 168; Burn's Just. tit. Eaves Droppers.

(9) 1 Hawk. P. C. c. 75, s. 14; 4 Blac. Com. 168; Burn's Just. tit. Nuisance, III. Cuck, or guck, in the Saxon language (according to Lord Coke) signifies to scold or brawl; taken from the bird cuckhow, or guckhaw; and ing in that language signifies water, because a scolding woman, when placed in this stool, was for her punishment soused in the water: 3 Inst. 219.

(p) 2 Hawk. P. C. c.

25, s. 59.

(7) Rex v. Cooper, 2 Str. 1246.

(7) By Buller, J., in J'Anson v. Stuart, 1 T. R. 754.

(8) Rex v. Smith, 1 Str. 704. And see a precedent of an indictment for keeping dogs which made noises in the night: 2 Chit. Crim. Law 647.

(t) Ante, p. 167, et seq.

() Burn's Just. tit. Nuisance, 1. And see a precedent of an indictment for this offence: 3 Chit. Crim. Law 643. It should be observed, however, that the offence seems to be stated too generally in the authority from which the text is taken. To permit a furious mastiff or bull-dog to go at large and unmuzzled may be a nuisance; but those dogs are frequently quiet and gentle in their habits, except when incited by their owners; and it can hardly be said to be a nuisance to permit them to go at large and unmuzzled, because some of their breed are ferocious.

(v) Rex v. Gregory, 5 B. & Ad. 555 (27 E. C. L. R.). See this case as to the meaning of the term "building," in such an Act.

1 James v. Comm., 12 Serg. & R. 220. So a common brawler: Comm. v. Foley, 99 Mass. 497, or a common drunkard: Comm. v. Conley, 1 Allen 6.

many years it was found convenient to the government to raise money by the means of them; and accordingly different state lottery Acts were passed to license and regulate offices for lotteries. (w) But the 42 Geo. 3, c. 119, declares all games or lotteries, called Little-goes, to be public nuisances, and provides for their suppress ion; and also imposes heavy penalties upon persons keeping offices, &c., for lotteries not authorized by Parliament.(x) An indictment lies on sec. 1 of each of these

Acts for keeping a lottery.(xx)

It is laid down in the books that any one may pull down, or otherwise destroy, a common nuisance; and it is said that if any one, whose estate is, or may be, prejudiced by a private nuisance, may justify the entering into another's ground and pulling down and destroying such nuisance, surely it cannot but follow à fortiori that any one may lawfully destroy a common nuisance.(y) And it is also said that it seems that in a plea justifying the removal of a nuisance, the party need not show that he did as little damage as might be ;(z) but this may, perhaps, be doubted, as, even where there is a judgment to abate a nuisance, it is only to abate so much of the thing as makes it a nuisance.(zz)1

It has since been held, that if there be a nuisance in a highway a private indi vidual cannot of his own authority abate it, unless it does him special injury, and he can only interfere with it as far as is necessary to exercise his right of passing *454] along the highway, and he cannot justify doing any damage to the property of the *person who has improperly placed the nuisance in the highway, if, avoiding it, he might have passed on with reasonable convenience. (a)

It is also stated as the better opinion, that the Court of King's Bench may, by a mandatory writ, prohibit a nuisance, and order that it shall be abated; and that the party disobeying such writ will be subject to an attachment.(b) Such writs appear to have been granted in some cases; and the proceeding in one case was that the judges, upon view, ordered a record to be made of the nuisance, and sending for the offender, ordered him to enter into a recognizance not to proceed; but he refusing to comply, the Court committed him for the contempt, issuing a writ to the sheriff on the record made to abate the building, and ordered the offender to be indicted for the nuisance.(c)

But the more usual course of proceeding in cases of nuisances is by indictment, in which the nuisance should be described according to the circumstances; and it should be stated to be continuing, if that be the fact.(d). An indictment for carry

(w) See the Acts collected, Burn's Just. tit. Gaming, III.

(x) The 6 & 7 Will. 4, c. 66, imposes penalties on advertising foreign or illegal lotteries; and by the 8 & 9 Vict. c. 74, they must be sued for by the law officers of the crown. (xx) Reg. v. Crawshaw, Bell C. C. 303. As to lotteries within the 42 Geo. 3, c. 119, s.

2, see Morris v. Blackman, 2 H. & C. 912.
(y) 1 Hawk. P. C. c. 75, s. 12; Bac. Abr. tit. Nuisance (C.).
(z) Id. Ibid.

(zz) Post, p. 456.

(a) Dimes v. Petley, 15 Q. B. 276 (69 E. C. L. R.); Mayor of Colchester v. Brooke, 7 Q. B. 339 (53 E. C. L. R.); Bateman v. Bluck, 18 Q. B. 870 (83 E. C. L. R.). And see Ellis v. The London and S. W. R. Co., 2 H. & N. 424.

(b) Bac. Abr. tit. Nuisance (C.).

(c) Rex v. Hall, 1 Mod. 76; 1 Vent. 169, s. c. And Hale, C. J., mentioned another case in 8 Car. 1, of a writ to prohibit a bowling-alley erected near St. Dunstan's church. (d) Rex v. Stead, 8 T. R. 142; otherwise there will not be judgment to abate it.

1 Hart v. Mayor of Albany, 9 Wend. 571; Gates v. Blincoe, 2 Dana 158. If a party in abating a nuisance does more injury to another than is necessary to effect the legitimate object, he is liable to an action: Ibid. The destruction of a building in which disorderly. persons assemble for unlawful purposes, cannot be justified as the abatement of a nuisance; nor can an assault upon one who resists the destruction of his property for such a cause be justified; for it is not the house, but the disorderly conduct permitted in it, that constitutes the nuisance: Gray v. Ayres, 7 Dana 375. A house of ill-fame is a nuisance, but its destruction is unlawful: Ely v. Niagara County, 36 N. Y. 297. Where it is the wrongful use of a building that constitutes a nuisance, the remedy is to stop such use, not tear down or demolish the building: Barclay v. Comm., 1 Casey 503.

A judgment that a nuisance be abated will only be rendered when it is alleged that the nuisance is continued at the finding of the indictment: State v. Noyes, 10 Foster

ing on offensive works may state them to be carried on at such a parish. It is not necessary to state that they were carried on in a town or village; (e) stating them to be carried on near a common King's highway, and near the dwelling-houses of several persons, to the common nuisance of passengers and of the inhabitants, is sufficient it need not be stated how near the highway or houses they were carried on.(f) The offence should formerly have been charged to be done ad commune nocumentum, "to the common nuisance of all the liege subjects," &c.(g) But the want of such a conclusion is cured by the 14 & 15 Vict. c. 100, s. 24.(h) In some cases it is no defence to show that the premises, out of which the nuisance arises, are in the occupation of a tenant, for the receipt of the rent is an upholding of the nuisance.

If the owner of land erect a building which is a nuisance, or of which the occupation is likely to produce a nuisance, and let the land, he is liable to an indictment for such nuisance being continued or created during the term. So he is if he let a building, which requires particular care to prevent the occupation from being a nuisance, and the nuisance occur for want of such care on the part of the tenant. If a man purchase premises with a nuisance upon them, though there be a demise for a term at the time of the purchase, so that the purchaser has no opportunity of removing the nuisance, yet by purchasing the reversion he makes himself liable for the nuisance. But if, after the reversion is *purchased,

the nuisance be erected by the occupier, the reversioner incurs no liability; [*455 yet in such a case, if there were only a tenancy from year to year, or any short period, and the landlord choose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable.(k) Where, therefore, the defendant was in the receipt of the rents of some dwelling-houses, let for short periods to tenants, and two privies and a sink belonging to them were used in common by the occupiers of the houses; it did not appear whether any of the present tenants commenced occupying the houses before the defendant began to receive the rents; but the privies and sink were used by the tenants of those premises before his time; there was no distinct proof of any actual demise of the privies and sink, but they had regularly been cleansed by the persons occupying the houses, until the time of the nuisance, when the cleansing had been neglected; the nuisance had arisen since the defendant began to receive the rents; it was held that the defendant was liable to be indicted for the nuisance. (7) This case underwent great consideration in a recent case where the Court said, "If Rex v. Pedley is to be considered as a case, in which the defendant was held liable because he had demised the buildings when the nuisance existed; or because he had relet them after the user of the buildings had created a nuisance; or because he had undertaken the cleansing and had not performed it; we think the judgment right. But if it is to be taken as a decision that a landlord is responsible for the act of his tenant in creating a nuisance, by the manner in which he uses the premises demised; we think it goes beyond the principle to be found in any previously decided cases, and cannot assent to it;" for, "if a landlord lets premises, not in themselves a nuisance, but which may or may not be used by the tenant so as to become a nuisance, and it is entirely at the option of the tenant so to use them or not, and the landlord receives the same benefit whether they are so used or not, the landlord cannot be made responsible for the acts of the tenant; and à fortiori he would not be liable if he had taken an obligation from the tenant not to use them so as to create a nuisance, even without reserving a right to enter and abate a nuisance if created."(m)

(9) Vin. Abr. tit. Indictment (Q), Nuisance, 13; Prat v. Stearn, Cro. Jac. 382; Rex v. Hayward, Cro. Eliz. 148; Anon., 1 Ventr. 26; 2 Roll. Abr. 83; 1 Hawk. P. C. c. 75, ss. 3, 4, 5. And see Bac. Abr. tit. Nuisance (B.); Rex v. Reynell, 6 East 315. (h) Reg. v. Holmes, Dears. C. C. 207.

(i) Rex v. Pedley, 1 A. & E. 822 (28 E. C. L. R.); 3 N. & M. 627. See Russell v. Shenton, 3 Q. B. 449 (43 E. C. L. R.). The duty of cleansing and repairing drains and sewers, is prima facie that of the occupier, and does not devolve on the owner merely as such. (k) Per Littledale, J., Ibid. (1) Rex v. Pedley, supra.

(m) Per Curiam, Rich v. Basterfield, 4 C. B. 783 (56 E. C. L. R.), where it was held that

Where a dangerous grating had existed over the area of a house for five years, and the rent for it had been paid quarterly, but there was no further evidence of the terms of the holding; it was held that the landlord was liable for an accident caused by the state of the grating, on the ground that his permitting the tenant to remain in occupation year after year, without taking steps for the termination of the tenancy, is equivalent to a new letting at the end of each year.(mm) Error is pending on this judgment, and, as it did not appear that the defendant had any knowledge of the nuisance, the decision seems very questionable.

It is no defence for a master or employer that a nuisance is caused by the acts of his servants, if such acts are done in the course of their employment; for if persons for their own advantage employ servants to conduct works, they are answerable for what is done by those servants.(n)

It will be no excuse for the defendant that the nuisance, for which he is indicted, has been in existence for a great length of *time, as, however twenty years' *456] acquiescence may bind parties whose private rights only are affected, yet the public have an interest in the suppression of public nuisances though of longer standing.(0) It has been held that a party could not defend the putting his woodstack in the street before his house, on the ground that it was according to the ancient usage in the town, leaving sufficient room for passengers; for it is against law to prescribe for a nuisance, (p) And Lord Ellenborough, C. J., said, in one case, "It is immaterial how long the practice may have prevailed, for no length of time will legitimate a nuisance. The stell fishery across the river at Carlisle had been established for a vast number of years, but Buller, J., held that it continued unlawful, and gave judgment that it should be abated."(q) But in some cases length of time may concur with other circumstances in preventing an obstruction from having the character of a nuisance: as where, upon an indictment for obstructing a highway by depositing bags of clothes there, it appeared that the place had been used for a market for the sale of clothes for above twenty years, and that the defendant put the bags there for the purpose of sale; Lord Ellenborough, C. J., said, that after twenty years' acquiescence, it appearing to all the world that there was a fair or market kept at the place, he could not hold a man to be criminal who came there under the belief that it was such a fair or market, legally instituted.(r)1

If the indictment be so general that it does not convey sufficient information to the defendant to enable him to prepare his defence, the Court will order the prosecutor to give the defendant a particular of the several acts of nuisance he intends

a landlord, who let a shop with a chimney in it to a tenant who made fires, the smoke from which issued from the chimney, and caused a nuisance, was not responsible for it. It has since been held that an action lies against a person who lets premises with a ruinous chimney upon them, which afterwards falls and injures an adjoining building, on the ground that if the wrong causing the injury arises from the nonfeasance or misfeasance of the lessor, the party suffering the injury may sue him: Todd v. Flight, 7 C. B. N. S. 377 (97 E. C. L. R.). See Reg. v. Barrett, supra, p. 449.

(mm) Ganby v. Jubber, 5 B. & S. 78 (117 E. C. L. R.).

(n) Rex v. Medley, 6 C & P. 292 (25 E. C. L. R.), Lord Denman, C. J. See ante, p. 169.

(0) Weld v. Hornby, 7 East 199; and see post, sec. 3.

(p) Fowler v. Sanders, Cro. Jac. 446. In Dewell v. Sanders, Cro. Jac. 490, the Court referred to this case as deciding that "none can prescribe to make a common nuisance, for it cannot have a lawful beginning by license or otherwise, being an offence at common law;" and per Montague, C. J., "Neither the King nor the lord of a manor can give any liberty to erect a common nuisance."

(9) Rex v. Cross, 3 Camp. 227.

(r) Rex v. Smith and others, 4 Esp. 111. See Bliss v. Hall, 4 B. N. C. 183 (33 E. C. L. R.); Rex v. Montague, 4 B. & C. 598 (10 E. C. L. R.), post, 531.

1 Mills v. Hall et al., 9 Wend. 215. No length of time renders a nuisance lawful, or estops the state from abating it, and punishing the person who creates such a nuisance: Elkins v. State, 3 Humph. 543.

A party cannot defend an indictment for nuisance by showing its continued existence for such a length of time as would establish a prescription against individuals: People v. Cunningham, 1 Denio 524.