"With regard to nuisances we have, in section 151 and section 152, (192, 193, post), drawn a line between such nuisances as are and such as are not to be regarded as criminal offences. It seems to us anomalous and objectionable upon all grounds that the law should in any way countenance the proposition that it is a criminal offence not to repair a highway when the liability to do so is disputed in perfect good faith. Nuisances which endanger the life, safety, or health of the public stand on a different footing."

66

By the present law, when a civil right such as a right of way is claimed by one private person and denied by another, the mode to try the question is by an action. But when the right is claimed by the public, who are not competent to bring an action, the only mode of trying the question is by an indictment or information, which is, in form, the same as an indictment or information for a crime. But it was very early determined that, though it was in form a prosecution for a crime, yet that, as it involved a remedy for a civil right, the Crown's pardon could not be pleaded in bar: see 3 Inst 237. And the legislature, so recently as in the statute 40 and 41 V. c. 14, (allowing defendant to be a witness) again recognized the distinction."

"The existing remedy in such cases is not convenient, but it is not within our province to suggest any amendment."-Imp. Comm. Rep.

Indictment.

.

and on divers other days and times as well before as afterwards, at ... (set forth the nuisance) (the defendant will be entitled to particulars. R. v. Purwood, 3 Ad. & El. 815, sections 611, 629, post) and the same nuisance so as aforesaid done, doth yet continue and suffer to remain to the great damage and common nuisance of all the liege subjects of Her Majesty. And the jurors aforesaid present that the said A. B. on the day and year aforesaid did commit a common nuisance which endangered the lives, safety, health, property or comfort (as the case may be) of the public (or by which the public are obstructed in the exercise or enjoyment of a right common to all Her Majesty's subjects, to wit, the right of) to the great damage and

common nuisance of all the subjects of Her Majesty. Special forms in 3 Burn, loc. cit.; R. v. Lister, Dears. & B. 209; R. v. Mutters, L. & C. 491, Saunder's Precedents, 192,

et. seq.

PENALTY FOR COMMON NUISANCE. (New).

192. 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.

See under preceding section. The words in italics are new law. They are in contradiction with the definition given in the preceding section.

NUISANCES OF A PARTICULAR CHARACTER. (New).

193. 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 annotation under section 191, ante.

SELLING THINGS UNFIT FOR FOOD. (New).

194. 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' imprisonment.

Fine, section 958. A common law misdemeanour: see Shillito v. Thompson, 1 Q. B. D. 12; 1 Russ. 169, and cases there cited. The offence is already covered by chapter 107, R. S. C.: Form, 2 Chit. 555.

COMMON BAWDY HOUSE DEFINED. (New).

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

COMMON GAMING HOUSE DEFined. (New).

196. 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, in 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 against whom the game is managed, or against whom the other players stake, play or bet. 8-9 V. c. 109, s. 2 (Imp.).

Every place where gaming in stocks is carried on is a gaming house: ss. 198 and 201, post, and notes thereunder; see Jenks v. Turpin, 13 Q. B. D. 505.

COMMON BETTING HOUSE DEFINED.

197. 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. 16-17 V. c. 119 (Imp.).

See Doggett v. Catterns, 19 C. B. N. S. 765; Haigh v. Sheffield, L. R. 10 Q. B. 102; R. v. Preedy, 17 Cox, 433; Whitehurst v. Fincher, 17 Cox, 70; Davis v. Stephenson, 17 Cox, 73; Snow v. Hill, 15 Cox, 737, 14 Q. B. D. 588; Caminada v. Hulton, 17 Cox, 307; Hornsby v. Raggett, 17 Cox,

428.

BAWDY-HOUSE, COMMON GAMING OR BETTING-HOUSE, PUNISHMENT. (New).

198. 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. 25 Geo. II. c. 36, s. 8. 16-17 V. c. 119. 17-18 V. c. 38 (Imp.). A common law misdemeanour. Ss. 9 & 10 of chapter 158, R. S. C., "an Act respecting Gaming Houses," as to evidence in such cases, are unrepealed. Fine, s. 958. S. 207, post, also provides for the offence of keeping a disorderly house.

Section 575, post, as to search warrants; ss. 702, 703, as to evidence in such cases, and ss. 783 & 784, as to summary trial.

Husband and wife may be indicted together: R. v. Williams, 1 Salk. 383; R. v. Dixon, 10 Mod. 335; R. v. Warren, 16 O. R. 590. See R. v. Crawshaw, Bell, 303; R. v. Barrett, L. & C. 263; R. v. Rogier, 1 D & R. 284; Jenks v. Turpin, 13 Q. B. D. 505; R. v. McNamara, 20 O. R. 489; R. v. Stannard, L. & C. 349; R. v. Newton, 11 Ont. P. R. 101; R. v. Rice, Warb. Lead. Cas. 101, as to what is a bawdy house, or a common gaming house.

PLAYING OR LOOKING ON IN GAMING-HOUSE.

199. Every one who plays or looks on while any other person is playing in a common gaming-house is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding one hundred dollars and not less than twenty dollars, and in default of payment to two months' imprisonment. R. S. C. c. 158, s. 6.

See. R. v. Murphy, 17 O. R. 201

OBSTRUCTING PEACE OFFICER ENTERING GAMING-HOUSE.

200. Every one is guilty of an offence and liable, on summary conviction before two justices of the peace, to a penalty not exceeding one hundred dollars, and to six months' imprisonment, with or without hard labour, who—

(a) Wilfully prevents any constable or other officer duly authorized to enter any disorderly house, as mentioned in section one hundred and ninetyeight, from entering the same or any part thereof; or

(b) Obstructs or delays any such constable or officer in so entering; or

(e) By any bolt, chain or other contrivance secures any external or internal door of, or means of access to, any common gaming-house so authorized to be entered; or

(d) Uses any means or contrivance whatsoever for the purpose of preventing, obstructing or delaying the entry of any constable or officer, authorized as aforesaid, into any such disorderly house or any part thereof. R. S. C. c. 158,

GAMING IN STOCKS AND MERCHANDISE.

201. Every one is guilty of an indictable offence and liable to five years' imprisonment, and to a fine of five hundred dollars, who, with the intent to make gain or profit by the rise or fall in price of any stock of any incorporated or unincorporated company or undertaking, either in Canada or elsewhere, or of any goods, wares or merchandise

(a) Without the bona fide intention of acquiring any such shares, goods, wares or merchandise, or of selling the same, as the case may be, makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the sale or purchase of any such shares of stock, goods, wares or merchandise; or

(b) Makes or signs, or authorizes to be made or signed, any contract or agreement, oral or written, purporting to be for the sale or purchase of any such shares of stock, goods, wares or merchandise in respect of which no delivery of the thing sold or purchased is made or received, and without the bona fide intention to make or receive such delivery.

2. But it is not an offence if the broker of the purchaser receives delivery on his behalf, of the article sold, notwithstanding that such broker retains or pledges the same as security for the advance of the purchase money or any part thereof.

3. Every office or place of business wherein is carried on the business of making or signing, or procuring to be made or signed, or negotiating or bargaining for the making or signing of such contracts of sale or purchase as are prohibited in this section is a common gaming-house, and every one who as principal or agent occupies, uses, manages or maintains the same is the keeper of a common gaming-house. 51 V. c. 42. ss. 1 & 3,

This is a re-enactment of the Act against bucket shops. See section 704, post, as to evidence.

FREQUENTING PLACES WHERE GAMING IN STOCKS IS CARried on.

202. Every one is guilty of an indictable offence and liable to one year's imprisonment who habitually frequents any office or place wherein the making or signing, or procuring to be made or signed, or the negotiating or bargaining for the making or signing, of such contracts of sale or purchase as are mentioned in the section next preceding is carried on. 51 V. c. 42, s. 1. S-8. 2.

Fine, section 958.

GAMBLING IN PUBLIC CONVEYANCES.

203. Every one is guilty of an indictable offence and liable to one year's imprisonment who

(a) In any railway car or steamboat, used as a public conveyance for passengers, by means of any game of cards, dice or other instrument of gambling, or by any device of like character, obtains from any other person any money, chattel, valuable security or property; or

(b) Attempts to commit such offence by actually engaging any person in any such game with intent to obtain money or other valuable thing from him.