It has been said that in judging of a public nuisance, the public good it does might, in some cases, where the public health was not concerned, be taken in consideration, in order to see if the public annoyance was outweighed by the public benefit derived; (1) but this doctrine was overruled in Ward's case, where it was held to be no answer to an indictment for a nuisance in a harbor, by erecting an embankment, that although the work was in some degree a bindrance to navigation it was advantageous in a greater degree to the other uses of the port. (2)

No length of time will legalize a nuisance. (3)

192. Common nuisances which are criminal.—Every one is guilty of an indictable offence and liable to one year's imprisonment or a fine, who commits any common nuisance which endangers the lives, safety or health of the public, or which occasions injury to the person of any individual.

Under the general definition contained in article 191 there must, — in order to constitute a common nuisance,-be either an unlawful act done or a legal duty omitted, which unlawful act or unlawful omission endangers public, life, safety, health, property, or comfort, or obstructs the public in the exercise or enjoyment of a common right.

When we take Articles 191, 192, and 193, and read them together, we find that common nuisances, as therein dealt with, divide themselves into two classes, namely, I, those which are dangerous to the lives, safety or health of the public, and, 2, those which are not dangerous to the lives, safety, or health of the public, although they may interfere with or even endanger public comfort or property, or obstruct the public in exercising or enjoying a common right.

With regard to the first of these two classes,-a common nuisance of a nature to endanger the lives, safety or health of the public,—it is criminal in itself, and is so treated in article 192, which makes it an indictable offence; but with regard to the second class,- those which are not of a nature to endanger the lives, etc., of the public,-it seems that none of them is to be treated as a criminal offence, except when occasioning actual injury to the person of some individual; and, then being,-(under the general definition in article 191),-a common nuisance, (though not criminal, in itself, because not in its nature dangerous to public life, safety, or health), it becomes an indictable offence by the terms of article 19, which makes every common nuisance, (not, in itself. dangerous to public life, safety or health), a criminal offence if it occasions injury to the person of any individual. In other words, all common nuisances, which are in themselves dangerous to public life, safety or health, are indictable offences, and all other common nuisances become indictable and punishable when they occasion actual injury to the person of any individual.

Article 192 must not be taken to mean that an act which occasions injury to the person of any individual is thereby constituted a common nuisance. As any one, who makes but a cursory examination of it, will readily see, the article does not say so. On the contrary it deals, disjunctively, but distinctly, with two different classes of common nuisance; and if we were to take out from the article the words,-" which endangers the lives safety or health of the public, "or,"―the article would still be complete and would read as follows:

66

Every one is guilty of an indictable offence, and liable to one years imprison"ment or a fine, who commits any common nuisance which occasions injury to "the person of any individual."

If, on the other hand, we were totake out from the article the words " or which

(1) R. v. Russell, 6 B. & C. 566.

(2) R. v. Morris, 1 B. & Ad. 441; R, v. Randall, C. & Mar. 496.

(3) R. v. Cross, 3 Camp. 227; S. v. Rankin, 3 S. C. 438, 16 Am. R. 737; 1 Bish New Cr. L. Com, s. 1078a.

"occasions injury to the person of any individual," the article would, in that case also, be complete and would read as follows:

"Every one is guilty of an indictable offence, and liable to one year imprison"ment or a fine, who commits any common nuisance which endangers the lives, safety or health of the public."

There are thus two separate and distinct offences dealt with by this article 192. In each there is a common nuisance, and each must conform to and fulfil the essential elements of a common nuisance as defined, in a general way, by article 91; but one is and must be a common nuisance which in its nature endangers public life, safety or health; while the other is and must be a common nuisance which, (not being in itself dangerous to public life, safety or health), has occasioned injury to some individual.

193. Common nuisances which are not criminal.-Any one convicted upon any indictment or information for any common nuisance other than those mentioned in the preceding section, shall not be deemed to have committed a criminal offence; but all such proceedings or judgments may be taken and had as heretofore to abate or remedy the mischief done by such nuisance to the public right.

See comments under article 191 and 192.

194. Selling articles unfit for human food.—Every one is guilty of an indictable offence and liable to one year's imprisonment who knowingly and wilfully exposes for sale, or has in his possession with intent to sell, for human food articles which he knows to be unfit for human food.

2. Every one who is convicted of this offence after a previous conviction for the same crime shall be liable to two years' imprison

ment.

See "The Adulteration Act" chapter 107 R.S.C., and its amendments 51 Vie, c. 24, and 53 Vic., c. 26.

DISORDERLY HOUSES DEFINED.

195. Common bawdy house.-A common bawdy house is a house, room, set of rooms or place of any kind kept for purposes of prostitution.

196. Common gaming-house.(1)—A common gaming-house is—

(a.) a house, room or place kept by any person for gain, to which persons resort for the purpose of playing at any game of chance; or

(b) a house, room or place kept or used for playing therein at any game of chance, or any mixed game of chance and skill, which

(i.) a bank is kept by one or more of the players exclusively of the others; or

(ii) in which any game is played the chances of which are not alike favourable to all the players, including among the players, the banker or other person by whom the game is managed, or

(1) See article 201 sub. sec. 3, post, which makes a Bucket shop a common gaming-house.

against whom the game is managed, or against whom the other players stakes, play or bet.

197. Common betting-house,—A common betting-house is a house, office, room or other place

(a.) opened, kept or used for the purpose of betting between persons resorting thereto and—

(i.) the owner, occupier, or keeper thereof;

(ii.) any person using the same:

(iii) any person procured or employed by, or acting for or on behalf of any such person;

(iv.) any person having the care or management, or in any manner conducting the business thereof; or

(b.) opened, kept or used for the purpose of any money or valuable thing being received by or on behalf of any such person as aforesaid, as or for the consideration

(i.) for any assurance or undertaking, express or implied, to pay or give thereafter any money or valuable thing on any event or contingency of or relating to any horse-race or other race, fight, game or sport; or

(ii.) for securing the paying or giving by some other person of any money or valuable thing on any such event or contingency.

198. Keeping a disorderly house. Every one is guilty of an indictable offence and liable to one year's imprisonment who keeps any disorderly house, that is to say, any common bawdy-house, common gaming-house or common betting-house, as herein before defined.

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

Article 207 (j) post, renders a keeper of a disorderly house liable also as a vagrant to summary punishment.

Bawdy-house.-Another definition of a bawdy-house different in words though not in effect from that contained in Articie 195 is "any place whether of "habitation or temporary sojourn, kept open to the public, either generally or "under restrictions, for licentious commerce between the sexes;" (1) and

house of ill-fame kept for the resort and convenience of lewd people of both sexes" (2). Coke says, "Although adultery and fornication be punishable by the ecclesiastical law, yet the keeping of a house of bawdry, or stews, or brothel"house being as it were a common nuisance is punishable by the common law; "and is the cause of many mischiefs, not only to the overthrow of the bodies and wasting of their livelihoods, but to the endangering of their souls. (3)

(1) 1 Bish, New Cr. L. Com. 1083.

(2) Bouv. Law Dict., Bawdy-house; Harwood v. P. 26 N. Y. 190. (3) 3 Inst. 205.

If a lodger let her apartment for the purpose of indiscriminate prostitution, it is as much a bawdy-house as if she held the whole house. (1)

It is not necessary that there should be evidence of any indecency or disorderly conduct perceptible from the outside of the house. (2)

The keeper of a bawdy-house may be a man or a woman; and a married woman may be indicted for the offence either alone or with her husband. (3)

The gist of the offence appears to consist in the allurement which the place holds out to a miscellaneous and common bawdry corrupting to public morals. By way of comparison and illustration it has been said that as an inn is for all travellers, so a bawdy-house is for all persons lewdly inclined. Generally, though not necessarily,-it supplies the girls, who may either dwell in the house, or visit it with or without the men accompanying, for the evil practice. (4)

Searching suspected gaming-houses &c.—Places suspected of being gaming-houses &c. may be searched under the provisions of Article 575, which is as follows:

"If the chief constable or deputy chief constable of any city or town, or other officer authorized to act in his absence, reports in writing to any of the commissioners of police or mayor of such city or town, or to the police magistrate of any town, that there are good grounds for believing, and that he does believe, that any house, room or place within the said city or town is kept or used as a common gaming or betting-house as defined in Part XIV., sections one hundred and ninety-six and one hundred and ninety-seven, or is used for the purpose of carrying on a lottery, or for the sale of lottery tickets, contrary to the provisions of Part XV., section two hundred and five, whether admission thereto is limited to those possessed of entrance keys or otherwise, the said commissioners or commissioner, or mayor, or the said police magistrate, may by order in writing authorize the chief constable, deputy chief constable, or other ollicer as aforesaid, to enter any such house, room or place, with such constables as are deemed requisite by the chief constable, deputy chief constable or other officer,—and, if necessary, to use force for the purpose of effecting such entry, whether by breaking open doors or otherwise, and to take into custody all persons who are found therein, and to seize, as the case may be, 1, all tables and instruments of gaming, and all moneys and securities for money, or, 2, all instruments or devices for the carrying on of such lottery, and all lottery tickets found in such house or premises.

2. The chief constable, deputy chief constable or other officer making such entry, in obedience to any such order, may, with the assistance of one or more constables, search all parts of the house, room or place which he has so entered, where he suspects that tables or instruments of gaming or betting, or any instruments or devices for the carrying on of such lottery or any lottery tickets, are concealed, and all persons whom he finds in such house or premises, and seize all tables and instruments of gaming, or any such instruments or devices or lottery tickets as aforesaid, which he so finds.

3. The police magistrate or other justice of the peace before whom any person is taken by virtue of an order or warrant under this section, may direct any cards, dice, balls, counters, tables or other instruments of gaming, used in playing any game, and seized under this Act in any place used as a common gaming-house, or any such instruments or devices for the carrying on of a lottery, or any such lottery tickets as aforesaid, to be forthwith destroyed, and any money or securities seized under this section shall be forfeited to the Crown for the public uses of Canada.

"

4. The expression chief constable' includes chief of police, city morshal or other head of the police force of any city, town or place.

(1) R. v. Pierson, 2 Ld. Raym. 1197; 1 Salk. 382.

(2) R. v. Rice, L. R., 1 C. C. R. 21; 35 L. J. (M. C.) 93; Sylvester v. S. 42 Tex. 496.

(3) R. v. Williams, 10 Mod. 63; 1 Salk. 384; C. v. Cheney, 114 Mass. 281;

1 Bish. New Cr. L. Com. 1084.

(4) King v. P. 83 N. Y. 587.

5. The expression deputy chief constable' includes deputy chief of police, deputy or assistant city marshal or other deputy head of the police force of any city, town or place, and the expression police magistrate' includes stipendiary magistrates."

Sections 9 and 10 of the R. S. C., chap. 158, (which are unrepealed), empower a police magistrate to swear and examine, when brought before him, any persons found in any gaming house entered and searched under the provisions of article 575. These sections are as follows:

"The police magistrate, mayor or justice of the peace, before whom any person is brought who has been found in any house, room or place, entered in pursuance of any warrant or order issued under this Act, may require any such person to be examined on oath and to give evidence touching any unlawful gaming in such house, room or place, or touching any act done for the purpose of preventing, obstructing or delaiyng the entry into such house, room or place, or any part thereof, of any constable or officer authorized as aforesaid; and no person so required to be examined as a witness shall be excused from being so examined when brought before such police magistrate, mayor or justice of the peace, or from being so examined at any subsequent time by or before the police magistrate or mayor or any justice of the peace, or by or before any court, on any proceeding, or on the trial of any indictment, information, action or suit in anywise relating to such unlawful gaming or any such acts as aforesaid, or from answering any question put to him touching the matters aforesaid, on the ground that his evidence will tend to criminate himself; and any such person so required to be examined as a witness who refuses to make oath accordingly, or to answer any such question, shall be subject to be dealt with in all respects as any person appearing as a witness before any justice or court in obedience to a summons or subpoena and refusing without lawful cause or excuse to be sworn or to give evidence, may, by law, be dealt with; but nothing in this section shall render any offender, under the sixth section of this Act, liable on his trial to examination hereunder."

Every person so required to be examined as a witness, who, upon such examination, makes true disclosure; to the best of his knowledge, of all things as to which he is examined shall receive from the judge, justice of the peace, magistrate, examiner or other judicial officer before whom such proceeding is had, a certificate in writing to that effect, and shall be freed from all criminal prosecutions and penal actions, and from all penalties, forfeitures and punishments to which he has become liable for anything done before that time in respect of the matters regarding which he has been examined; but such certificate shall not be effectual for the purpose aforesaid, unless it states that such witness made a true disclosure in respect to all things as to which he was examined; and any action, indictment or proceedings pending or brought in any court against such witness, in respect of any act of gaming regarding which he was so examined, shall be staved. upon the production and proof of such certificate, and upon summary application to the court in which such action, indictment or proceeding is pending, or any judge thereof, or any judge of any of the superior courts of any province."

Evidence of a place being a common gaming house.-On this point there are special provisions contained in articles 702 and 703, post, which are as follows:

When any cards, dice, balls, counters, tables or other instruments of gaming used in playing any unlawful game are found in any house, room o place suspected to be used as a common gaming-house, and entered under a warrant or order issued under this Act, or about the person of any of those who are found therein, it shall be prima facie evidenee, on the trial of a prosecution under section one hundred and ninety-eight, that such house, room or place is used as a common gaming-house, and that the persons found in the room or place where such tables or instruments of gaming are found were playing therein although no play was actually going on in the presence of the chief constable, deputy chief constable or other officer entering the same under a