or remains in such house, tent or wigwam with the intention of prostituting herself therein; or,

(b.) who, being an Indian woman, prostitutes herself therein; or

(c.) who, being an Indian, keeps, frequents or is found in a disorderly house, tent or wigwam used for any such purpose.

1 ARTICLE 228.

PREVENTING THE BURIAL OF DEAD BODIES AND DISINTERRING THEM.2

3

[Every one commits a misdemeanor who prevents the burial of any dead body, or who, without authority, disinters a dead body, even from laudable motives; or

who, having the means, neglects to bury a dead body which he is legally bound to bury, provided that no one is legally bound to incur a debt for such a purpose; or who buries or otherwise disposes of any dead body on which an inquest ought to be taken, without giving notice to a coroner; or

4

who, being under a legal duty to do so, fails to give notice to a coroner that a body on which an inquest ought to be held is lying unburied, before such body has putrified.

1S. D. Art. 175.

2 [In R. v. Price, L. R. 12 Q. B. D. 247, I held that to burn a dead body instead of burying it was not in itself a misdemeanor, if it was so done as not to amount to a public nuisance. This decision is to a certain extent recognized in R. v. Stephenson (L. R. 13 Q. B. D. 331). There were no means of questioning it.

3 R. v. Vann, 2 Den. C.C. 32. Inquests ought to be held when the coroner on reasonable grounds and in good faith believes that the deceased person's death was of such a nature as would, if true, justify the holding of an inquest; R. v. Stephenson, L. R. 13 Q. B. D. 331. A man is bound to bury his child's body, and, I suppose, his wife's. In R. v. Vann, Lord Campbell said, "A man is bound, if he has the means, to give his child Christian burial." This can hardly be a duty in the case of persons who are not Christians, but probably "Christian" means only decent. It appears from R. v. Stewart, 12 A. & E. 773, 779, that the person under whose roof another person dies is under a legal duty to carry the corpse, decently covered, to the place of burial if there is no one else who is bound to bury it. Draft Code, s. 158.

+1 Russ. Cr. 620 (5th ed.) 7th Rep. C. L. C. pp. 50, 51; and see R. v. Stephenson, L. R. 13 Q. B. D. 331.]

1

Illustrations.

[(1.) 1 A digs up a dead body and sells it for purposes of dissection. This is a misdemeanor.

(2.) 2 A, without the consent of a dissenting congregation, to which a burial ground belonged, or of trustees having the legal estate therein, but with the leave of the person in charge, digs up his mother's coffin in order to bury it in his father's grave in a churchyard some miles off. This is a misdemeanor.

(3.) 3 A, a gaoler, refuses to deliver up for burial the dead body of a prisoner who had died in gaol to the executors, on the ground that the deceased person owed him money. This is a misdemeanor.]

1 [R. v. Lynn, 1 Leach 497.

2 R. v. Sharpe, D. & B. 160.

3 R. v. Scott, 2 Q. B. 248 (in note to R. v. Fox).]

2

CHAPTER XX.

COMMON NUISANCES-DISORDERLY HOUSES-GAMING

-LOTTERIES.

1 ARTICLE 229.

COMMON NUISANCE.

[A COMMON nuisance is an act not warranted by law or an omission to discharge a legal duty, which act or omission obstructs or causes inconvenience or damage to the public in the exercise of rights common to all Her Majesty's subjects. It is immaterial whether the act complained of is convenient to a larger number of the public than it inconveniences, but the fact that the act complained of facilitates the lawful exercise of their rights by part of the public may shew that it is not a nuisance to any of the public.

3

Illustrations.

(1.) An electric telegraph company without legal authority erects a telegraph pole in a permanent manner on the waste at the side of and forming part of a highway, leaving room enough for the use of the highway, and not affecting either the metalled road or the footpath by the side of it. This is a public nuisance, because a small portion of space which the public had a legal right to use is obstructed.

(2.) A tramway laid down on a high road in such a manner as to obstruct to some extent the use of the road by common carriages is a public nuisance, although it may be convenient to a large majority of those who use the road.

5

(3.) The public have a right to use the Tyne as a highway, and to

1 S. D. Art. 176.

2 [1 Hawk. P. C. 692. The question as to the public benefit of the act complained of may arise indirectly. Draft Code, s. 159.

3 R. v. United Kingdom Telegraph Co., 3 F. & F. 73.

4 R. v. Train, 2 B. & S. 640.

5 R v. Russell, 6 B. & C. 566. I think this is the effect of the case, which deserves careful study. It is referred to in R. v. Train, but I doubt whether it is not misunderstood there. Lord Tenterden differed in it from Bayley and Holroyd, JJ. Of the eight]

[anchor ships therein for a reasonable time to take in cargoes of coal. A erects staiths and spouts at which ships moored for the purpose can take in coal, but which prevent ships not lying at them from sailing over part of the waterway where they would otherwise be able to sail. The fact that the arrangement is on the whole convenient with regard to the public use of the river may be considered by the jury in deciding whether the staiths are a nuisance or not.

(4.) The non-repair of a public highway is a public nuisance.

1

(5.) A railway company makes a railway within five yards of an ancient public highway in such a manner that the locomotives frighten the horses of persons using the highway as a carriage road. The railway is made and the locomotives used under Acts of Parliament, which do not require the railroad company to screen the line from the road. This is not a public nuisance because the act done is warranted by law.

3

2 ARTICLE 230.

COMMON NUISANCE A MISDEMEANOR.

Every one who commits any common nuisance is guilty of a misdemeanor.

5

ARTICLE 231.

KEEPING DISORDERLY HOUSES.

Every one who keeps a disorderly house commits a common nuisance.

counsel engaged seven became judges. R. v. Betts, 16 Q. B. 1022, refers to it in a manner which seems to me inadequate. In A. G. v. Terry (L. R. 9 Ch. App. 425) Jessel, M. R., disapproved of R. v. Russell, though he approved of the doctrine which I understand to be laid down in it. The turning point of the case, as I understood it, is that the ships anchored under the spouts had a right to anchor there for a reasonable time to receive cargo, and that the spouts being recognized by statute could not be regarded as in themselves illegal. The question on which the judges differed was whether Bayley, J., had influenced the jury by referring to the collateral advantage of cheapening coal in the London market. The effect of time in legalizing a nuisance is somewhat similar, It has not in itself that effect, but the fact that a given state of things is of very long standing may be evidence that it is not in fact a nuisance; see cases in 1 Russ. Cr. 421 and 442. The view taken by the Criminal Law Commissioners is rather different; see 7th Rep. p. 59.

1 R. v. Pease, 4 B. & Ad. 30.]

2 S. D. Art. 177.

[Cf. Draft Code, ss. i51-2.]

48. D. Art, 178.

5 [Draft Code, s. 154.]

1

[Any person who appears, acts, or behaves as master or mistress, or as the person having the care, government, or management, of any disorderly house, is to be deemed and taken to be the keeper thereof, and is liable to be prosecuted and punished as such, although, in fact, he is not the real owner or keeper thereof.

2 But the owner of a house, conducted as a disorderly house by a person to whom he lets it as a weekly tenant, is not the keeper of the house merely because he knows the use to which it is put, and does not give his tenant notice to quit.

3 ARTICLE 232.

DISORDERLY HOUSES.

The following houses are disorderly houses, that is to say, common bawdy houses, common gaming houses, common betting houses, disorderly places of entertainment.

4 ARTICLE 233.

COMMON BAWDY HOUSES.

5 A common bawdy house is a house or room, or set of rooms, in any house kept for purposes of prostitution. And it is immaterial whether indecent or disorderly conduct is or is not perceptible from the outside.

7 ARTICLE 234.

COMMON GAMING HOUSES.

6

8 A common gaming house is any house, room, or place

1 [25 Geo. 2, c. 36, s. 8; 21 Geo. 3, c. 49, s, 2.

2 R. v. Barrett, L. &. C. 263, and see R. v. Stannard, L. & C. 349, where the whole house was let in parts to different women as weekly tenants.]

3 S. D. Art. 179. See Appendix Note VI.

4 S. D. Art. 180.

5 [1 Russ. Cr. 427, see cases: R. v. Pierson, 2 Lord Raym, 1197; see also Chitty, and 3 Steph. Com. 353, n. Draft Code, s. 155.

R. v. Rice & Wilton, L. R. 1 C. C. R. 21.]

7S. D. Art. 181.

8 [This definition appears to me to be established by the interpretation put by Jenks v. Turpin, L. R. 13 Q. B. D. 505 on, inter alia, 17 & 18 Vict. c. 38, s. 4. The law is discussed at length in the judgments of Sir H. Hawkins and Smith, J.] R. v. Shaw, 4 Man. L. R. 404.