into such recognizance to prosecute, then such constable shall enter into the same, and shall prosecute, and shall be entitled to his expenses, to be allowed as in and by the said Act is

directed.

And by 25 G. 2, c. 36, s. 6, upon such constable or other officer entering into such recognizance to prosecute as aforesaid, the said justice of the peace shall forthwith make out his warrant, to bring the person so accused of keeping a bawdy-house, gaming-house, or other disorderly house, before him, and shall bind him or her over to appear at such general or quarter session or assizes, there to answer to such bill of indictment as shall be found against him or her for such offence; and such justice shall and may (if in his discretion he think fit) likewise demand and take security for such person's good behaviour in the mean time, and until such indictment shall be found, heard, and determined, or be returned by the grand jury not to be a true bill.

By sect. 7, if the constable neglect or refuse to go before the justice, or to enter into the recognizance, or if he be wilfully negligent in carrying on the said prosecution, he shall forfeit the sum of £20 to each of such inhabitants so giving notice as aforesaid.

By sect. 8, reciting that "whereas by reason of the many subtle and crafty contrivances of persons keeping bawdy-houses, gaming-houses, or other disorderly houses, it is difficult to prove who is the real owner or keeper thereof, by which means many notorious offenders have escaped punishment," it is enacted. that any person, who shall appear, act or behave him or herself as master or mistress, or as the person having the care, government, or management of any bawdy-house, gaming-house, or other disorderly house, shall be deemed and taken to be the owner thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not in fact be the real owner or keeper thereof.

By sect. 9, any person may give evidence against or for the defendant, notwithstanding his being an inhabitant or parishioner of the said parish or place, or having entered into such recognizance as aforesaid.

Indictment.

Berkshire to wit: The jurors for our Lord the King upon their oath present, that A. B. late of the parish of in the county of Berks aforesaid, labourer, and Elizabeth his wife, on the first day of October, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, 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 did keep

and maintain a certain common ill-governed and disorderly house; and in the said house, for the lucre and gain of him the said A. B., certain persons of evil fame and of dishonest conversation, as well men as women, then and on the said other days and times, there, unlawfully and wilfully did cause and procure to frequent and come together; and the said men and women, in the said house of him the said A. B, at unlawful times, as well in the night as in the day, then and on the said other days and times, there, unlawfully and wilfully did permit, and yet do permit, to be and remain drinking, tipling, whoring, and misbehaving themselves: to the great damage and common nuisance of all the liege subjects of our said Lord the King there inhabiting, being, residing, and passing, 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.

Misdemeanor: fine; or imprisonment, with or without hard labour; 3 G. 4, c. 114; or both.

Evidence.

To maintain this indictment, the prosecutor must prove: 1. That the house is such as is described in the indictment. It is clearly agreed that keeping a bawdy-house is a common nuisance, as it endangers the public peace, by drawing together dissolute and debauched persons; and has also a tendency to corrupt the manners of both sexes, by such an open profession of lewdness. 5 Bac. Abr. "Nuisance," A. Proof that a woman keeps the house for the purpose of her own prostitution only, would not it seems be sufficient to maintain such an indictment; it must be proved to be a house for the common reception of men and women generally, for the purpose of prostitution. If the house is not a bawdy-house, but be disorderly in other respects, the occupier or keeper of it may still be indicted. In R. v. Higginson, 2a Burr. 1232, the indictment was the same as the above form, omitting the words "drinking, tipling, whoring." and substituting for them, "fighting of cocks, boxing, playing at cudgels," and upon motion in arrest of judgment, it was holden a good indictment.

2. That the defendants " appeared, acted, or behaved, as master and mistress, or as the persons having the care, government, or management" of the house. 25 G. 2, c. 36, s. 8, supra. It has been adjudged that a feme covert may be convicted of this offence, in the same manner as if she were sole, and that she may be indicted and convicted with her husband; for the keeping of the house alone 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 share, as these matters are usually managed by the intrigues of her sex. 5 Bac. Abr. Nuisance, A. R. v. Williams, 1 Salk. 384.

3. That the house is locally situated, as described in the indictment.

22. Indictment for carrying on an Offensive Trade near a

Highway.

Same as the form ante, p. 156, to the words] defender of the faith, and on divers other days and times between that day and the day of the taking this inquisition, with force and arms, at the parish aforesaid in the county aforesaid, near unto the dwellinghouses of divers liege subjects of our said Lord the King, and also near unto a certain public and common highway there for all the subjects of our said Lord the King, with coaches, carriages, horses, waggons, carts, goods, chattels, and merchandizes, to go, return and pass at their will and pleasure, did unlawfully and injuriously kill and cause to be killed forty sheep, and the excrements, blood, entrails, and other filth coming from the said sheep, did then and on the said other days and times, there, cause and permit to lie, be, and remain on the said public and common highway for a long space of time, to wit, for the space of one week, whereby divers noisome and unwholesome smells, from the said excrements, blood, entrails, and other filth, then and on the said other days and times there did arise, so that the air was then and on the said other days and times there greatly corrupted and infected: to the great damage and common nuisance, not only of all the liege subjects of our said Lord the King, near the same place inhabiting, being, and residing, but also of all the liege subjects of our said Lord the King, along, by, and through the said public and common highway there going, returning, passing, and repassing, 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. See 4 Went. 224. Where the nuisance is of a permanent nature, it is usual, and indeed prudent, to add a count for continuing it, if you are not certain of being able to prove that the defendant first created it. Misdemeanor: fine or imprisonment, or both.

Evidence.

Prove the nuisance as laid. Erecting buildings near a highway, and near the dwelling-houses of several persons, and there manufacturing the acid spirit of sulphur, whereby the air was impregnated with noisome and offensive smells, which were proved to be noxious and hurtful to the health of the inhabitants, and to have made many of them sick,-was holden to be

a nuisance. R. v. White & Ward, 1 Burr. 333. As to erecting necessary houses near a highway, see R. v. Pedley, 1 Ad. & E. 822; as to nuisances by gas works, see R. v. Medley et al. 6 Car. & P. 292; as to running locomotive engines on a railroad in the vicinity of a common highway, see R. v. Pease et al. 4 B. & Adolph. 30; and as to keeping a shooting ground near the highway, where persons came to shoot at targets and at pigeons, &c. see R. v. Moore, 3 B. & Adolph. 184. But where a tin-man was indicted for carrying on his trade in the neighbourhood of Clifford's Inn, to the common nuisance, &c., and it was proved that the noise he made was a great annoyance to some attornies having chambers at No. 14, 15, and 16 in the Inn, and prevented them attending to their business: Lord Ellenborough, C. J. held that the evidence did not sustain the indictment; the nuisance proved being a private nuisance merely. R. v. Lloyd, 4 Esp. 200. So, where a person was indicted for erecting a coke oven, which threw out great quantities of smoke and vapour, which was proved to be offensive to the inhabitants of the houses in the neighbourhood, but it did not affect their health, or render their houses uninhabitable, or even lower the value of their houses: Heath, J. held that it was not a public nuisance. R. v. Davey et al. 5 Esp. 217. Where a man was indicted for carrying on an offensive trade, but it appeared that it had been carried on at the same place by the defendant, and previously by his father, for nearly 50 years: Lord Kenyon, C. J. directed the jury to acquit him. R. v. Samuel Neville, Peake R. 126. hut see R. v. Cross, 3 Camp. 227. And where, upon an indictment for this offence, it appeared that there had been other manufactories, which emitted disagreeable and noxious smells, carried on in the neighbourhood for many years, and that the defendant had come into the neighbourhood about four years before: Lord Kenyon left it to the jury to say whether the noxious vapour was much increased by this addition of the defendant; and his lordship said, "Where manufactories have been borne with in a neighbourhood for many years, it will operate as a consent of the inhabitants to their being carried on, though the law might have considered them as nuisances, had they been objected to in time; but if another man comes, and by his manufacture renders that which was a little unpleasant before, very disagreeable and uncomfortable, though it would not amount to a nuisance by itself, still he is answerable for it." R. v. Bartholomew Neville, Peake R. 125. Where a man, after building some dwelling-houses, built necessary-houses near the highway, to be used with them, and then let the houses; afterwards these necessary-houses, for want of cleansing, became a nuisance; but it did not appear clearly whether the necessary-houses had been let with the houses, or whether the tenants were under any contract to keep them cleansed, &c. or

not: the Court, however, held that whether that was the case or not, the defendant was liable to this indictment; he made the erection, and the nuisance was the natural consequence of the erection and Littledale, J. said, " If a nuisance be created, and a man purchase the premises with the 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; yet, in such a case, if there were only a tenancy from year to year, or any short period, and the landlord chose to renew the tenancy after the tenant had erected the nuisance, that would make the landlord liable; he is not to let the land, with the nuisance upon it." R. v. Pedley, 1 Ad. & E. 822.

23. Indictment for Obstructing a Highway.

Kent to wit: The jurors for our Lord the King upon their oath present, that from time whereof the memory of man is not to the contrary, there was and yet is a certain common and ancient King's highway, leading from the vill of Tunbridge, in the county of Kent aforesaid, towards and into the vill of Indeley in the said county, used by and for all the liege subjects of our said Lord the King, and his predecessors, with their horses, coaches, carts, and other carriages, to go, return, pass, repass, ride, and labour at their free will and pleasure, without any obstruction, hindrance, or impediment whatsoever: yet that A. B. late of the parish of in the county aforesaid, yeoman, C. D. late of the same place, labourer, and E. F. late of the same place, labourer, on the first day of August, in the seventh year of the reign of our Sovereign Lord William the Fourth, by the grace of God of the United Kingdom of Great Britain and Ireland King, defender of the faith, with force and arms, at the parish aforesaid in the county aforesaid, unlawfully and injuriously did erect and place, and did cause and procure to be erected and placed a certain gate and gate posts in, upon, and across the said King's highway between the said vill of Tunbridge and the said vill of Indeley, to wit, in the parish aforesaid in the county aforesaid, and unlawfully and injuriously did lock, fasten, and chain the said gate unto the said gate posts, and the said gate, so erected and placed, and so locked, fastened, and chained as last aforesaid, from the said first day of August, in the year aforesaid, until the day of the taking of this inquisition, there, unlawfully and injuriously did continue, and still do continue: so that the liege subjects of our said Lord the King, during the time last aforesaid, could not and still cannot go, return, pass, repass, ride, or labour with their horses, coaches,