racecourse, in an enclosure to which the public have as free access as himself (m). The Act (n) is directed against the owner or occupier of a place used for betting, and not against persons resorting thereto for the purpose of betting (0); but it will be sufficient "occupation" if the defendant uses the place with the knowledge and assent of the real occupier of the premises (p). A bona-fide club, although it may be intended that betting should be carried on in the club-house between the members, but not with non-members, is not a house used for betting within the meaning of this Act (r). But it will be otherwise where the club consists partly of bookmakers and partly of members who go there to bet with such bookmakers and not with each other (s). And the office of a newspaper, which invited persons to enter upon a coupon competition" and to pay a small sum for guessing the winners of horse-races upon the understanding that those successful should receive prizes, was held to be within the Act (t).

The fact that the entrance of a peace officer is obstructed, or that the place is found provided with means of gaming, is evidence that the house is a common gaming-house. Heavy penalties are imposed for such obstruction, and also upon any persons found in the house if they refuse their names and addresses, or give them falsely (u).

Further, by the Licensing Consolidation Act, 1910, if any licensed victualler suffers any gaming or unlawful game on his premises, or keeps or uses them in contravention of the Betting Act, 1853, or suffers them to be so used, he is liable to penalties not exceeding for the first offence £10 and for the second offence £20 (w).

(m) Powell v. The Kempton Park Racecourse Company, Lim. [1899] App. Cas. 143; 68 L. J. Q. B. 392. See, however, R. v. Humphrey, [1898] 1 Q. B. 875.

(n) 16 & 17 Vict. c. 119.

(0) Snow v. Hill, [1885] 14 Q. B. D. 588; 54 L. J. M. C. 95.

(p) R. v. Deaville, [1903] 1 K. B. 468; 72 L. J. K. B. 272.

(r) Downes v. Johnson, [1895] 2 Q. B. 203; 64 L. J. M. C. 238.

(s) R. v. Corrie, [1904] 68 J. P. 294; Jackson v. Roth, [1919] 1 K. B. 102. (t) R. v. Stoddart, [1901] 1 K. B. 177; 70 L. J. Q. B. 189.

(u) 17 & 18 Vict. c. 38.

(20) 10 Edw. VII. & 1 Geo. V. c. 24, s. 79.

It has been made a misdemeanour, punishable by imprisonment with hard labour for three months, or a fine of £100, or both―(1) For the purpose of making a profit to send to a person known to be an infant any advertisement, letter, &c., inviting him to bet or to apply for information as to betting, racing, &c., or to borrow money (x); or (2) without the sanction of any Court, to solicit, for the purpose of making a profit, an infant to make an affidavit in connection with any loan (y). If the letter, &c., inviting to bet is sent to an infant at a university or school, the sender is to be deemed to have known of his infancy unless he proves that he had reasonable grounds for believing the contrary; and there is the same presumption of knowledge of infancy in the case of a letter inviting an infant to borrow money to whatever place it may be addressed (z).

COMMON OR PUBLIC NUISANCES.

A common or public nuisance is an unlawful act or an omission to discharge a legal duty, which act or omission endangers the lives, safety, health, property, or comfort of the public, or by which the public are obstructed in the exercise or enjoyment of any right common to all the King's subjects. It will be seen therefore that such public nuisances consist of acts either of commission or of omission, that is, causing something not authorised by law to be done which annoys the community generally, or neglecting to do something which a legal duty and the common good require. Public nuisances are opposed to private nuisances, which annoy particular individuals only-that is, to which all persons are not liable to be exposed (a). The distinction is one based on the extent of the operation of the evil and not one relating to the class of evil; inasmuch as all kinds of nuisances which when injurious to private persons are action

(r) 55 Vict. c. 4, ss. 1, 2.

(y) Ibid. s. 4.

(z) Ibid. s. 3; 63 & 64 Vict. c. 51, s. 5.

(a) Archbold, 1247. R. v. Byers, [1907] 71 J. P., at p. 207.

able as private nuisances, when detrimental to the public welfare are punishable on prosecution as public nuisances. For instance, the obstruction of a public highway, in however remote a district, and although it may only lead to one or two houses, is a public nuisance, because every member of the public has a right to use the road, though few may desire to do so; whereas, on the other hand, a weir or dam in a nonnavigable river, by which fish are prevented from running up the river, only amounts to a private nuisance to the owners of land on the banks of the river, though they may be many hundreds in number (b).

Common nuisances are indictable at common law as misdemeanours, but many, perhaps most, of them are prohibited by various statutes. They do not give rise to civil action by every one who is subjected to the common annoyance. But if any one can prove that he has sustained from the public nuisance a particular damage or injury other than and beyond the general injury to the public, and that such damage is direct and substantial, he may pursue his civil remedy and obtain compensation or an injunction (c). Conversely, private nuisances are actionable only, and are not indictable. Another course of proceeding is sometimes available in the case of nuisances, namely, abatement or removal of the nuisance without legal proceedings. In private nuisances this is commonly allowed to be done by the party aggrieved. In the case of public nuisances a private individual cannot resort to this course unless the nuisance does him a special injury, and then only so far as is necessary to exercise his right (d).

A County Council or Urban District Council may remove obstructions to or encroachments upon highways vested in them (e).

Urban or Rural District Councils are empowered to require a person by whose act or default a nuisance arises or

(b) Leconfield v. Lonsdale, [1870] L. R. 5 C. P. 657; 39 L. J. C. P. 305. (c) Benjamin v. Storr, [1874] L. R. 9 C. P. 400; 43 L. J. C. P. 162.

(d) Dimes v. Petley, [1850] 15 Q. B. 276; Ford v. Harrow Urban Council, [1903] 88 L. T. 394.

(e) Reynolds v. Urban District Council of Presteign, [1896] 1 Q. B. 604; 65 L. J. Q. B. 400.

continues to abate the same within a specified time, and to execute such works as may be necessary for that purpose (f). If this requirement is not complied with complaint may be made to the justices, and an order obtained to abate the nuisance and imposing a penalty (g). If the order is disobeyed, further penalties are incurred, and power is given to the sanitary authority to abate the nuisance, and recover from the offender any expense occasioned thereby (h).

The principal classes of public nuisances will be briefly noticed (i):

(i) Nuisances to highways, bridges, and public navigable rivers. These annoyances may be either positive, by actual obstruction; or negative, by want of reparation. In the latter case, only those persons are liable whose legal duty it is to keep the roads, &c., in repair (k). The former class consists of a variety of offences-for example, laying rubbish on the road, or digging trenches in it; assembling or attracting a crowd (1); or diverting part of a public navigable river, or obstructing the navigation.

In cases of this kind the real object of the proceedings is to obtain the removal of an obstruction or to enforce the duty to repair, and not to punish the defendant. It is therefore usual to postpone sentence to enable the defendant to do his duty in this respect, and then to inflict a nominal fine. The Court may, if it thinks fit, give judgment for the prostration or removal of an obstruction and the sheriff will then remove it (m). Upon a prosecution for the non-repair or obstruction of a highway, public bridge, or navigable river,

(f) 38 & 39 Vict. c. 55, s. 9.

(g) Ibid. s. 96.

(h) Ibid. s. 98.

(1) The following is a useful classification of nuisances (v. Archbold, 1247): (i) Nuisances to bridges, highways, etc.; (ii) Nuisances to public health or comfort; (iii) Nuisances to public safety (see examples of "miscellaneous nuisances," post, p. 122); (iv) Nuisances to public morals or decency (including indecent conduct, disorderly houses, etc.); (v) Nuisances in respect of corpses.

(k) 5 & 6 Will. IV. c. 50, and other statutes cited, Archbold, 1284.

(1) Barber v. Penley, [1893] 2 Ch. 447; 62 L. J. Ch. 623; R. v. Carlile, [1834] 6 C. & P. 636.

(m) Bagshaw v. Buxton Local Board, [1875] 1 C. D., at p. 224; 45 L. J. Ch. 260.

either the prosecutor or the defendant may be ordered to pay costs to the other as in civil proceedings (n).

(ii) Carrying on offensive or dangerous trades or manufactures.-Manufactures which are injurious to the health, or so offensive to the senses as to detract sensibly from the enjoyment of life and property in their neighbourhood, are nuisances; and it is no defence that the public benefit outweighs the public annoyance (0). And, even though a noxious trade has already been established in a place remote from habitations and public roads, and persons come and build near, or a new road is made, an indictment for a nuisance will nevertheless lie (p). The presence of other nuisances will not justify one of them (r), and no length of time will legitimate a public nuisance, but the consideration of time may sometimes concur with other circumstances to prevent the character of nuisance from attaching. Where, for example, a neighbourhood has long been devoted to offensive trades an indictment will not lie for setting up another similar trade unless the public inconvenience is greatly increased (s).

The manufacture, sale, carrying, and importation of gunpowder, nitro-glycerine, and other explosive substances are regulated by the Explosives Act, 1875 (38 & 39 Vict. c. 17), which contains stringent regulations as to the carrying on of those trades.

The navigation of aircraft over certain areas may be prohibited by a Secretary of State, and the infringement of such a prohibition, except in the case of necessity, is punishable on conviction on indictment or summarily by imprisonment for six months or a fine of £200, or by both (t).

The fact that a nuisance has been created by works carried on under statutory powers affords no defence unless the statute either expressly sanctions the nuisance or authorises or directs

(n) 8 Edw. VII. c. 15, s. 9, sub-s. 3.

(0) R. v. Ward, [1836] 5 L. J. K. B. 221.

(p) Hole v. Barlow, [1858], 4 C. B. (N. S.), at p. 336; 27 L. J. C. P. 208. (r) R. v. Neil, [1826] 2 C. & P. 485.

(s) R. v. Watts, M. & M., 281; R. v. Neville, Peake (3rd ed.), 125.

(t) 1 & 2 Geo. V. c. 4; see also 2 & 3 Geo. V. c. 22.