(718) For bringing a horse infected with the glanders into a public place.(b) First count.

That James Henson, late of Melton Mowbray, in the County of Leicester, laborer, on the first day of June, in the year of our Lord at Melton Mowbray aforesaid, in the county aforesaid, was possessed of a certain mare, which said mare was then and there infected with a contagious, infectious, and dangerous disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there knew, and the said James Henson well knowing the premises afterwards, and whilst the said mare was so infected as aforesaid, on the day and year aforesaid, with force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlawfully, wilfully, wickedly, and injuriously did bring and cause to be brought, the said mare so infected as aforesaid, into and along a certain open public way and place, on which then of right, were divers citizens of said state, then going, passing, and staying, and amidst and among divers citizens of said state, who were then and there in the said public way and place, to the great danger of infecting with the said contagious, infectious, and dangerous disease called the glanders, the citizens of said state, who on the said day and time, were in and near the said public way and place, to the damage and common nuisance of all the said citizens of said state; to the evil example of all others in the like case offending, and against the peace, &c. (Conclude as in book 1, chap. 3.)

Second count.

And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the day and year aforesaid, at Melton Mowbray aforesaid, in the county aforesaid, the said James Henson was possessed of a certain other mare, which said last-mentioned mare was then and there infected with a contagious, infectious, and dangerous disease, to wit, a disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there well knew, and that the said James Henson, well knowing the premises last aforesaid, and whilst the said last-mentioned mare was so infected as aforesaid, on the day and year aforesaid, with force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlawfully, wickedly, and injuriously, did bring and cause to be brought, the said lastmentioned mare so infected, as aforesaid, into a certain fair called the Melton Mowbray Whitsun Fair, during the period when the citizens of said state were then and there holding the said fair, which was then and there public and open to all the citizens of said state, for the purpose of buying and selling horses, and other cattle therein, and that the said James Henson, well knowing the premises, as last aforesaid, then and there kept, and continued to keep the said mare so infected, as aforesaid, for a long space of time, to wit, for the space of one hour, then next following, and in which said fair then, of right, were divers horses and other cattle of certain citizens of said state, then and there passing and being, by means of which said several lastmentioned premises, the said last-mentioned horses and other cattle so passing, and being along and in the said fair, became and were liable to be infected by the contagious, infectious, and dangerous disease with which the said mare of the said James Henson was so infected, as aforesaid; to the damage and common nuisance of the citizens of said state, frequenting the said fair, and using the same for the purpose of buying and selling horses, and other cattle therein, to the evil example of all others in the like case offending, and against the peace, &c. (Conclude as in book 1, chap. 3.)

(b) See R. v. Henson, Pearce, C. C. 24; 18 Eng. Law and Eq. Rep. 107.

Third count.

And the jurors aforesaid, upon their oath aforesaid, do further present, that afterwards, to wit, on the day and year aforesaid, at Melton Mowbray aforesaid, in the county aforesaid, the said James Henson was possessed of a certain other mare, which last-mentioned mare was then and there infected with a contagious, infectious, and dangerous disease, to wit, a disease called the glanders, which disease was then and there communicable to man, as the said J. H. then and there well knew, and that the said James Henson, well knowing the last-mentioned premises, afterwards and whilst the said lastmentioned mare was so infected as aforesaid, on the day and year aforesaid, with force and arms at Melton Mowbray aforesaid, in the county aforesaid, unlawfully and injuriously did bring and cause to be brought, the said lastmentioned mare so infected as aforesaid, into a certain open and public way and place, called the Burton End, in Melton Mowbray aforesaid, in which public way and place there were divers other horses and other cattle of certain citizens of said state, then and there passing and being, and that the said James Henson, well knowing the premises aforesaid, then and there kept and continued the said mare of which the said James Henson was so possessed, as last aforesaid, and which was then and there so infected as aforesaid, for a long space of time, to wit, for the space of one hour then next following, during all which time, there were divers other horses and other cattle of certain citizens of said state, then and there passing and being, by means of which said several last-mentioned premises, the said horses and other cattle so passing and being along and in the said open and public way and place, became and were liable to be infected by the contagious, infectious, and dangerous disease, with which the said mare of the said James Henson was so infected as aforesaid; to the damage and common nuisance of the citizens of said state, then having horses and other cattle in the said open and public way and place, to the evil example of all others in the like case offending, and against the peace, &c. (Conclude as in book 1, chap. 3.)

(719) Against owner of land for erecting offensive buildings.(n) That the defendant on, &c., at a certain place commonly called Diamond Alley, near unto divers public streets and dwelling-houses, unlawfully did

(n) R. v. Pedley, 1 A. & E. 822. The second count charged the defendant with continuing the necessary and sink before that time made, &c., by persons unknown, and laid the nuisance as before. The third count charged that the defendant near, &c. (as before), did put, place and leave and did cause and procure to be put, placed and left, divers large quantities of ordure, &c. The fourth count charged the defendant with permitting and suffering the nuisance (as in the third count, except that the nuisance was said to be created by persons unknown) to remain. On the trial before Ld. Denman C. J., it was proved that the defendant was in the receipt of the rents of twelve dwelling-houses, which were let for short periods to tenants, and that two necessary houses and a sink belonging to them, were used in common by the persons occupying the dwelling-houses. It did not appear whether any of the present tenants commenced occupying the dwelling-houses before the defendant began to receive the rents; but the necessary houses and sink were constructed and used by the tenants of those premises before his time. There was no distinct proof of any actual demise, of the necessary houses and sink, but they had regularly been cleansed by the persons occupying the dwelling-houses, until the time of the nuisance, when the cleansing had been neglected. The nuisance had arisen since the defendant began to receive the rents. The only method of draining the places from which the nuisance proceeded, would be to cut through a close belonging to the defendant. Some evidence was given to show an implied admission by the defendant that he himself was bound to do the cleansing. The jury, under the direction of the chief justice, found a verdict of guilty; subject to a motion for setting aside the verdict and entering an acquittal.

The conviction was sustained by the court, it being ruled generally that if the owner

make, erect and set up two buildings called necessary houses, for the common use of divers persons residing in and frequenting Diamond Alley, and did also make and cause to be made a certain open sink for the reception of ordure, &c., and then and there, and on divers other days and times between, &c., divers persons residing in and frequenting Diamond Alley, did resort to and use, and yet do resort to and use the said necessary houses, and did place and leave, and cause to be placed and left, in the said open sink, divers large quantities of ordure, &c., by reason of which, &c. (stating the nuisance resulting).

(720) For keeping a privy in a street. (nn)

That C. W., late of, &c., yeoman, on, &c., and from that day until the day of finding this inquisition, at, &c., unlawfully and obstinately did keep and maintain and yet doth keep and maintain, near one of the public streets in the said city, to wit, High or Market Street, and also near the dwelling-house of C. B. and A. T. and of divers other citizens of the said city there situate, a certain privy or house of office, and from the filth and human excrement therein contained divers fetid, nauseous, hurtful, pernicious and unwholesome smells, on the days and times aforesaid did and still do arise and proceed, whereby the air there was and still is corrupted, infetid and infected, and the health of the said C. B. and A. T., and divers other good citizens of this commonwealth there inhabiting, residing and passing, has been and still is endangered and impaired, to the great damage and common nuisance, &c., there inhabiting, residing and passing, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(721) For keeping a privy near an adjoining house.(0)

That W. R., late of, &c., yeoman, on, &c., and from that day until the finding of this inquisition, at, &c., did keep and maintain, and yet doth keep and maintain, unlawfully and obstinately, near the dwelling-house of divers citizens of the state there situate and adjoining the dwelling-house of one P., a certain privy or house of office, so filled with filth, dung and human excrement, that the same flowed, issued and came, and yet doth flow, issue and come through the walls of and into the said dwelling-house so adjoining as aforesaid, and by reason whereof divers fetid, noisome and unwholesome smells during the time aforesaid, did and yet doth arise, and the air thereby was and still is greatly corrupted and infected, to the great damage and common nuisance of all the liege subjects of this state thereabouts resident, to the evil example, &c., against, &c. (Conclude as in book 1, chap. 3.)

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, and that the same principle extended to cases where he lets 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. It was declared by Littledale J., that if a party buy a 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 relet, or having an opportunity to determine the tenancy, omit to do so, allowing the nuisance to continue, he is liable for such continuance, and that such purchaser 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.

(nn) This form has been sustained in Philadelphia.

(0) Drawn in 1789 by Mr. Bradford, then attorney-general of Pennsylvania.

543

(722) Disorderly house, &c. Form used in New York.

said house, for

That A. B., late of, &c., laborer, on, &c., and on divers other days and times between that day and the day of the taking of this inquisition, at the city and ward and in the county aforesaid, did keep and maintain, and yet keep and maintain, a certain common, ill-governed and disorderly house, and in own lucre and gain, certain persons, as well men as women, of evil name and fame, and of dishonest conversation, to frequent and come together, then and on the said other days and times, there unlawfully and wilfully did cause and procure, and the said men and women, in said house, at unlawful times, as well in the night as in the day, then and on the said other days and times, there to be and remain, drinking, tippling, gambling, whoring and misbehaving themselves, unlawfully and wilfully did permit, and yet permit, to the great damage and common nuisance of the people of the State of New York, there inhabiting, residing and passing, to the evil example, &c., and against, &c. (Conclude as in book 1, chap. 3.)

(723) Second count. Gaming-house, &c.

That the said A. B., afterwards, to wit, on the said day of in the year aforesaid, and on divers other days and times as aforesaid, with force and arms, at the ward, city and county aforesaid, a certain common gaming-house, there situate, for lucre and gain, unlawfully and injuriously did keep and maintain, and in the said common gaming-house, there unlawfully and injuriously did cause and procure divers idle and ill-disposed persons to be and remain in the said common gaming-house, and to game together, and play at cards, dice and billiards (adding other games, &c.) for money, on the said day of in the year one thousand eight hundred and aforesaid, and on the said other days and times, there did unlawfully and injuriously procure, permit and suffer; and the said persons, in the said common gaming-house, there on the aforesaid, and on the said other days and times, by such procurement, permission and sufferance of the said A. B., did game together and play at cards, dice and billiards (as above) for money, to the great damage and common nuisance of all the people of the State of New York, and against, &c. (Conclude as in book 1, chap. 3.)

day of

(724) Disorderly house. Form in use in Massachusetts.

That A. B., of Boston aforesaid, yeoman, on, &c., at, &c., and on divers other days and times, as well before as since, did keep and maintain a certain common house of ill fame there situate, resorted to for the purpose of prostitution and lewdness; and in said house, for own lucre and gain, certain persons, whose names to said jurors as yet are not known, as well men as women, of evil name and fame and of dishonest conversation, to frequent and come together then, and on the said other days and times, there unlawfully and wilfully did cause and procure, and the said men and women in said house at unlawful times, as well in the night as in the day, then and on said other days and times, there to be and remain whoring (insert other acts of disorder, as the facts may be), and otherwise misbehaving themselves, unlawfully and wilfully did permit and suffer, to the great injury and common nuisance, &c., against, &c., and contrary, &c. (Conclude as in book 1, chap. 3.)

544

(725) For keeping a common bawdy house in Massachusetts.(p)

That A. B., of, &c., laborer, on, &c., and on divers other days and times as well before as afterwards, to the day of taking this inquisition, at, &c., a certain common house of ill fame, unlawfully and wickedly did keep and maintain; and the said house, for the sake of lucre and gain, divers evil-disposed persons, as well men as women, and common prostitutes, on the days and times aforesaid, as well in the night as in the day, there unlawfully and wickedly did receive and entertain; and in which house the said evil-disposed persons and common prostitutes, by the consent and procurement of the said A. B., on the days and times aforesaid, there did commit whoredom and fornication; whereby divers unlawful assemblies, riots, affrays, disturbances and violations of the peace of the said commonwealth, and lewd offences, in the same house, on the days and times aforesaid, as well in the night as in the day, were there committed and perpetrated; to the great damage and common nuisance, &c., in manifest destruction and subversion of, and against good morals and good manners, and against, &c. (q) (Conclude as in book 1, chap. 3.)

(726) Against keeper of house of ill-fame. Rev. Stat. Mass., chap. 130, § 8. St. 1849, chap. 84. (a)

That C. D., late, &c., on, &c., at B. aforesaid, in the county aforesaid, and on divers other days and times between that day and the day of the finding of this indictment, at B. aforesaid, in the county aforesaid, did keep a certain house of ill fame, then and there resorted to for the purpose of public prostitution and lewdness; against, &c. (Conclude as in book 1, chap. 3.)

(727) Keeping brothel in Hamilton County, under Ohio stat.

That A. B., on the first day of September, in the year of our Lord one thousand eight hundred and fifty-three, in the County of Hamilton aforesaid, did unlawfully keep a brothel, otherwise called a house of ill-fame, by then and there keeping therein divers, to wit, five female persons, whose names are to the jurors aforesaid unknown, for the purpose of prostitution, and by then and there suffering divers, to wit, five other female persons, whose names are to the jurors aforesaid unknown, to resort thereto for the purpose of prostitution. (b)

(728) Keeping disorderly tavern, under Ohio stat.

That A. B., on the fourth day of March, in the year of our Lord one

(p) 2 Chit. 40; Cro. C. C. 302 (8th ed.) See note (b) 2 Chit. 40, where it is said that this is the common printed form used in England. "It is not necessary," says Mr. Davis, Prec. 193, "to state particulars; as the names of those who frequented the house; 2 Burr. 1832; 1 T. R. 752, 754. But evidence of particular instances of illicit intercourse may be given in evidence under the general charge. If the person be only a lodger and make use of her room for disorderly purposes, she would be responsible." See ante, 705, n.; Wh. C. L. § 2382.

(9) This count is sustained in Jennings v. Com., 17 Pick. 81; and it was held that the common law misdemeanor it specified did not merge in the offence created by stat. 1793, c. 59, s. 8. A second count accompanied it of the same structure, with the exception of the omission of the averment of lucre. Whether or no this averment was essential it was not necessary to decide, as there was already one clearly good count with which to support the verdict. I apprehend, however, that the averment can be safely dispensed with in those cases where the evidence does not support it, as the non-acceptance of money certainly does not lessen the outrage committed on the morals and peace of the community.

(a) This was sustained in Com. v. Ashley, 2 Gray; see Th. & H. Prec. 329. (b) Warren's C. L. 340.