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By the 25 Geo. 2, c. 36, 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 or Westminster, or within twenty miles thereof, without a license from the magistrates, shall be deemed a disorderly house, and the keeper is subjected to the penalty of £100, and is otherwise punishable as the law directs, in cases of disorderly houses.
money be of a room Per Lord
A room used for public music or dancing is within the statute, although it is not exclusively used for those purposes, and although no taken for admission; but the mere accidental or occasional use for either or both of those purposes, will not be within the act. Lyndhurst, C. B. Gregory Gregory v. Tuffs, 6 C. and P. 271 (a). Gregory v. Tavernor, Ibid. 280 (b).
Proof of particular nuisances-gunpowder, &c.] Things likely to be productive of injury to the persons of those residing in the neighborhood, are nuisances, as the erecting of gunpowder mills, or the keeping a gunpowder magazine near a town (1). Williams's case, 4 Burn's Justice, 758: Taylor's case, 2 Str. 1167; and see 12 Geo. 3, c. 61. So by the
10 Wm. 3, c. 7, the making, selling, or exposing to sale any fireworks, or throwing or firing them into any public street, or highway is declared to be a common nuisance.
Proof of particular nuisances-dangerous animals.] Suffering fierce and dangerous animals, as a fierce bull-dog, which is used to bite people, to go at large, is an indictable offence. 4 Burn's Justice, 578. But where the animal is not of such a description as in general, from its ferocity, to endanger the persons of those it meets, in order to maintain an indictment, it must be shown that the owner was aware of the ferocity of that particular animal. 2 Ld. Raym. 1582.
Proof of particular nuisances-contagion and unwholesome provisions.] It is an indictable offence to expose a person having a contagious disease, as the small-pox, in public. Vantandillo's case, 4 M. and S. 73; Burnett's case, Id. 272. So it is a nuisance for a common dealer in provisions to sell unwholesome food, or to mix noxious ingredients in the provisions which he sells. Dixon's case, 3 M. and S. 11.
Proof of particular nuisances-eaves dropping, common scold.] Eaves-droppers, or such as listen under walls or windows, or the eaves of houses, to hear discourses, and thereupon frame slanderous and mischievous tales, are common nuisances, and indictable, and may be punished by fine, and finding sureties for their good behavior (2). 4 Bl. Com. 167; Burn's Justice, Eaves Droppers; I Russell, 302.
So a common scold is indictable as a common nuisance, and upon [*746] *conviction may be fined or imprisoned, or put into the duckingstool (3). Hawk. P. C. b. 1, c. 75, s. 14; 4 Bl. Com. 168. The par
(1) People v. Sands, 1 Johns. 78. Case of Hamilton and al., 2 Rogers' Rec. 46. (2) State v. Williams, 2 Tenn. Rep. 108.
(3) Case of Greenwault and al., 4 Rogers' 174. Field's case, 6 Id. 90. James v. The Commonwealth, 12 S. & R. 220. But the punishment by the ducking-stool cannot be inflicted in Pennsylvania. Ibid.
(a) Eng. Com. L. Rep. xxv. 393. (b) Id. 397.
ticulars need not be set forth in the indictment. Hawk. P. C. b. 2, c. 25, s. 59; nor is it necessary to prove the particular expressions used, it is sufficient to give in evidence generally that the defendant is always scolding. Per Buller, J. J'Anson v. Stuart, 1 T. R. 754.
Proof of the liability of the defendant.] A man may be guilty of a nuisance by the act of his agent or servant. Thus it has been ruled that the directors of a gas company are liable for an act done by their superintendant and engineer, under a general authority to manage their works, though they are personally ignorant of the particular plan adopted, and though such plan be a departure from the original and understood method, which the directors had no reason to suppose discontinued. Medley's case, 6 C. and P. 292 (a); see this case, ante, p. 742.
The indictment charged the defendant with keeping certain enclosed lands near the king's highway, for the purpose of persons frequenting the same to practise rifle shooting, and to shoot at pigeons with fire-arms; and that he unlawfully and injuriously caused divers persons to meet there for that purpose, and suffered and caused a great number of idle and disorderly persons armed with fire-arms, to meet in the highways, &c., near the said enclosed grounds, discharging fire-arms, making a great noise, &c., by which the king's subjects were disturbed and put in peril. At the trial it was proved that the defendant had converted his premises, which were situate at Bayswater, in the county of Middlesex, near a public highway there, into a shooting-ground, where persons came to shoot with rifles at a target, and also at pigeons; and that as the pigeons which were fired at frequently escaped, persons collected outside of the ground, and in the neighboring fields to shoot at them as they strayed, causing a great noise and disturbance, and doing mischief by the shot. It was held, that the evidence supported the allegation that the defendant caused such persons to assemble, discharging fire-arms, &c., inasmuch as their so doing was a probable consequence of his keeping ground for shooting pigeons in such a place. Moore's case, 3 B. and Ad. 184 (b).
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 party buy the reversion during a tenancy, and the tenant afterwards, during his term, erect a nuisance, the reversioner is not liable for it; but if such reversioner re-let, or having an opportunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continuance. Per Littledale, J. *And such purchaser [ *747 ] is liable to be indicted for the continuing of the nuisance, if the original reversioner would have been liable, though the purchaser has had no opportunity of putting an end to the tenant's interest, or abating the nuisance. Pedley's case, 1 Ad. and E. 822 (c).
Punishment and abatement of the nuisance.] The punishment imposed by the law on a person convicted of a nuisance is fine and impris
(a) Eng. Com. L. Rep. xxv. 403. (b) Id. xxiii. 52. (c) Id. xxviii. 220.
onment; but as the removal of the nuisance is of course the object of the indictment, the court will adapt the judgment to the circumstances of the case. If the nuisance, therefore, is alleged in the indictment to be still continuing, the judgment of the court may be, that the defendant shall remove it at his own cost. 1 Hawk. c. 75, s. 14. But where the existence of the nuisance is not averred in the indictment, then the judgment of abatement would not be proper; for it would be absurd to give judgment to abate a thing which does not appear to exist. Stead's case, 8 T. R. 142; and see R. v. Justices of Yorkshire, 7 T. R. 468. And where the court are satisfied that the nuisance is effectually removed before judgment is prayed upon the indictment, they will in that case also refuse to give judgment to abate it., Incledon's case, 13 East, 127. When judgment of abatement is given, it is only to remove or pull down so much of the thing that actually causes the nuisance; as, if a house be built too high, the judgment is to pull down only so much of it as is too high. And the like where the defendant is convicted of a nuisance in carrying on an offensive trade, in which case the judgment is not to pull down the building where the trade is carried on, but only to prevent the defendant from using it again for the purpose of the offensive trade. Pappineau's case, 1 Str. 686; see 9 Co. 53; Co. Ent. 92, b.
Where a defendant had entered into a recognizance to appear at the assizes, and plead to an indictment for a nuisance, and at the time of the assizes he was on the continent in ill health; the nuisance having been abated, and the prosecutor being willing to consent to an acquittal; Patteson, J., after conferring with Erskine, J., under these circumstances, allowed a verdict of not guilty to be taken. Macmichael's case, 8 C. and P. 755 (a).
See further, titles Bridges, Highways.
Statutes.] The offence of taking or administering unlawful oaths is provided against by the 37 Geo. 3, c. 123, and 52 Geo. 3, c. 104.
By the former of these statutes (sec. 1,) it is enacted, "that any person or persons who shall in any manner or form whatsoever, administer, or cause to be administered, or be aiding or assisting at, or present at, and consenting to the administering or taking of any oath or engagement, purporting or intended to bind the person taking the same, to engage in any mutinous or seditious purpose, or to disturb the public peace, or to be of
(a) Eng. Com. L. Rep. xxxiv. 621.
any association, society, or confederacy, formed for any such purpose; or to obey the order or commands of any committee or body of men not lawfully constituted, or of any leader or commander, or other person not having authority by law for that purpose; or not to inform or give evidence against any associated confederate or other person; or not to reveal or discover any unlawful combination or confedracy; or not to reveal or discover any illegal act done, or to be done; or not to reveal or discover any illegal oath or engagement, which may have been administered or tendered to, or taken by such person or persons, or to or by any other person or persons, or the import of any such oath or engagement, shall, on conviction, be adjudged guilty of felony, and be transported for any term not exceeding seven years, and every person who shall take such oath or engagement, not being compelled thereto," is subject to the same punishment. See Mark's case, 3 East, 157.
By the 52 Geo. 3, c. 104, s. 1, "every person who shall in any manner or form whatsoever administer, or cause to be administered, or be aiding or assisting at the administering of any oath or engagement, *purporting or intending to bind the person taking the same to [ *749 ] commit any treason, or murder, or any felony punishable by law with death, shall, on conviction, be adjudged guilty of felony, [and suffer death as a felon, without benefit of clergy,] and every person who shall take any such oath or engagement, not being compelled thereto, shall, on conviction, be adjudged guilty of felony, and be transported for life, or for such term of years as the court shall adjudge."
Now by the 7 Wm. 4 and 1 Vict. c. 91, after reciting so much of the above section as relates to the administering of the oaths therein mentioned, and also the third section of the same act, see post, p. 750, it is enacted, "that if any person shall, after the commencement of this act, be convicted of any of the offences hereinbefore mentioned, such person shall not suffer death, or have sentence of death awarded against him or her for the same, but shall be liable, at the discretion of the court, to be transported beyond the seas for the term of the natural life of such person, or for any term not less than fifteen years, or to be imprisoned for any term not exceeding three years."
By s. 2, in cases of imprisonment, the court may award hard labor and solitary confinement. See a similar clause, ante, p. 333.
The statutes are not confined to oaths administered with a seditious or mutinous intent. Ball's case, 6 C. and P. 563 (a); Brodribb's case, Id. 571 (b). And it is sufficient to aver that the oath was administered, not to give evidence against a person belonging to an association of persons associated to do "a certain illegal act." Brodribb's case, ubi sup.
Proof of the oath.] With regard to what is to be considered an oath within these statutes, it is enacted by the 37 Geo. 3, c. 123, s. 5, that any engagement or obligation whatsoever in the nature of an oath, and by 52 Geo. 3, c. 104, s. 6, that any engagement or obligation whatsoever in the nature of an oath, purporting or intending to bind the person taking the same to commit any treason or murder, or any felony punishable by law with death, shall be deemed an oath within the intent and meaning of those statutes, in whatever form or manner the same shall be ad
(a) Eng. Com. L. Rep. xxv. 545. (b) Id. 549.
ministered or taken, and whether the same shall be actually administered by any person or persons to any other person or persons, or taken by any person or persons, without any administration thereof by any other person or persons.
It is not necessary in the indictment to set forth the words of the oath or engagement, the purport or some material part thereof is sufficient. 37 Geo. 3, c. 123, s. 4; 52 Geo. 3, c. 104, s. 5; Moore's case, 6 East, 419, (n.) Parol evidence may be given of the oath, though the party administering it appeared to read it from a paper, to produce which no notice has been given. Moor's case, ubi sup. ante, p. 10. And where the terms of the oath are ambiguous, evidence of the declarations of the party administering it, made at the time, is admissible, to show the meaning of those terms. Id.
[*750] *If the book on which the oath was administered, was not the Testament, it is immaterial, if the party taking the oath believes himself to be under a binding engagement. Brodribb's case, 6 C. and P. 571 (a); Loveless' case, 1 Moo. and Rob. 349; 6 C. and P. 596 (b).
Where the prisoners were indicted under the 37 Geo. 3, Williams, B., said, that with regard to the oath contemplated by the act of parliament, it was not required to be of a formal nature, but that it was sufficient if it was intended to operate as an oath, and was so understood by the party taking it. The precise form of the oath was not material, and the act provided against any evasions of its intentions by declaring, (sec. 5,) that any engagement or obligation whatever, in the nature of an oath, should be deemed an oath within the intent and meaning of the act, in whatever form or manner the same should be administered or taken. Loveless' case, 1 Moo. and Rob. 349; 6 C. and P. 596.
Proof of aiding and assisting.] Who shall be deemed persons aiding and assisting in the administration of unlawful oaths, is declared by the third section of the 37 Geo. 3, c. 123, which enacts that persons aiding or assisting in, or present and consenting to the administering or taking of any oath or engagement before mentioned in that act, and persons causing any such oath or engagement to be administered or taken, though not present at the administering or taking thereof, shall be deemed principal offenders, and tried as such, although the person or persons who actually administered such oath or engagement, if any such there be, shall not have been tried or convicted. The statute 52 Geo. 3, c. 104, contains a similar provision, (sec. 3). See ante, p. 749.
Proof for prisoner-disclosure of facts.] In order to escape the penalties of these statutes, it is not sufficient for the prisoner merely to prove that he took the oath or engagement by compulsion, but in order to establish that defence, he must show that he has complied with the requisitions of the statutes, by the earlier of which (sec. 2,) it is enacted, that compulsion shall not justify or excuse any person taking such oath or engagement, unless he or she shall within four days after the taking thereof, if not prevented by actual force or sickness, and then within four days after the hindrance produced by such force or sickness shall cease, declare the same, together with the whole of what he or she knows.
(a) Eng. Com. L. Rep. xxv. 549. (b) Id. 557.