keeper offers to furnish him with a proper room for that purpose. (1) Attached to the defendant's hotel and under the same roof was a bar entered by a separate door. The prosecutor who lived near at hand went into the bar with a dog, and was refused refreshment. He had been told by the defendant not to bring his dog as it was an annoyance to his guests. It was held that the defendant could not be convicted; first, because the refreshment bar was not an inn; secondly, because the prosecutor was not a traveller; and thirdly, because the defendant had reasonable grounds for his refusal. (m) It is no defence to an indictment for not receiving a traveller that he did not tender a reasonable sum for his entertainment, if no objection be made on that ground: nor that the guest was travelling on a Sunday; nor that it was at a late hour of the night after the innkeeper and his family were gone to bed; for an innkeeper is bound to admit a traveller at whatever hour of the night he may arrive; nor that the guest refused to tell his name and abode, as the innkeeper has no right to insist upon knowing them; but if the guest be drunk or behave in an indecent or improper manner, the innkeeper is not bound to receive him. (n) If an innkeeper use the trade of an alehouse, as many innkeepers do, the inn. will be within the statutes made concerning ale and beer-houses. (0) The keeping a bawdy-house (p),2 is a common nuisance, as it endan(7) Fell v. Knight, 8 M. & W. 269. (m) R. v. Rymer, 2 Q. B. D. 136. (n) R. v. Ivens, 7 C. & P. 213. Coleridge, J. In the preceding case, Lord Abinger, C. B., said, notwithstanding R. v. Ivens, I am inclined to think that the declaration is bad for want of an allegation of a tender of the amount to which the innkeeper would be reasonably entitled for the entertainment furnished to his guest; it is not sufficient for the plaintiff to allege that he was willing to pay; he should state further that he offered to pay. There may be cases where a tender may be dispensed with; as, for instance, where a man shuts up his doors or windows so that no tender can be made; but I rather think these facts ought to be stated in the indictment or declaration; and I have, therefore, some doubt as to the complete correctness of the judgment in the case cited.' In 39 Hen. 6, 19, Danby said an innkeeper is not bound to give provender to the horse of his guest until he is paid in the hand; for the law does not compel him to put trust in his guest for the payment, which fully supports Lord Abinger's opinion. See Hawthorn v. Hammond, 1 C. & K. 404, where the plaintiff had knocked at an inn door for some minutes in the night without obtaining admission; and Parke, B., left it to the jury whether the defendant heard the noise, and if so, whether she ought to have concluded that the person knocking required to be admitted as a guest or was a drunken person, who had come there to make a disturbance.1 (0) Burn's Just. tit. Alchouses, where those statutes are collected. Before the 5 & 6 Edw. 6, c. 25 (repealed, 9 Geo. 4, c. 61), it was lawful for any one to keep an alehouse without licence, for it was a means of livelihood which any one was free to follow. But if it was so kept as to be disorderly, it was indictable as a nuisance. 1 Salk. 45. 1 Hawk. P. C. c. 78, s. 52, in marg. Dalt. c. 56, Blackerby, 170, Burn's Just. tit. Alehouses, 1 Bac. Abr. tit. Inns, &c. (A.). See (p) By 34 & 35 Vict. c. 112 (The Prevention of Crimes Act 1871), s. 11, Every person who occupies or keeps a brothel, and knowingly lodges, or knowingly harbours, thieves, or reputed thieves, or knowingly permits, or knowingly suffers them to meet or assemble therein, or knowingly allows the deposit of goods therein, having reasonable cause for believing them to be stolen, shall be guilty of an offence against this Act, and be liable to a penalty not exceeding ten pounds, and, in default of payment, to be imprisoned for a period not exceeding four months, with or without hard labour, and the Court before which he AMERICAN NOTES. 1 The guest's right to remain or to be received depends upon his good behaviour. S. v. Steel, 106 N. C. 766; 19 Am. St. Rep. 573; C. v. Power, 7 Met. 596; 41 Am. D. 465. 2 See S. v. Wright, 6 Jones (Law), 25 S. v. Powers, 36 Conn. 77; Brockway v. P., 2 Hill, 558. gers the public peace by drawing together dissolute and debauched persons; and also has an apparent tendency to corrupt the manners of both sexes, by such an open profession of lewdness. (q) And it has been adjudged that this is an offence of which a feme covert may be guilty as well as if she were sole, and that she, together with her husband, may be convicted of it; for the keeping the house does not necessarily import property, but may signify that share of government which the wife has in a family as well as the husband; and in this she is presumed to have a considerable part, as those matters are usually managed by the intrigues of her sex. (r) If a person be only a lodger, and have but a single room, yet if she make use of it to accommodate people in the way of a bawdy-house, it will be a keeping of a bawdy-house as much as if she had a whole house. (s) But an indictment cannot be maintained against a person for being a common bawd, and procuring men and women to meet together to commit fornication: the indictment should be for keeping a bawdy-house. (t) For the bare solicitation of chastity is not indictable, but cognizable only in the Ecclesiastical Courts. (u) All common gaming-houses are nuisances in the eye of the law, being detrimental to the public, as they promote cheating and other corrupt practices; and incite to idleness and avaricious ways of gaining property, great numbers whose time might otherwise be employed for the good of the community. (v) And the keeping a common gaming-house, and for lucre and gain unlawfully causing and procuring divers idle and evil-disposed persons to frequent and come to play together at a game called 'rouge et noir,' and permitting the said idle. and evil-disposed persons to remain playing at the same game for divers large and excessive sums of money, is an indictable offence at common law. (w) It has also been adjudged, that it is an offence for which a feme covert may be indicted: for, as she may be concerned in acts of bawdry, as has been observed above, so she may be active in promoting gaming, and furnishing the guests with conveniences for that purpose. (x) As an indictment for keeping a gaming-house is an indictment for a public nuisance, and not for any matter in the (v) Bac. Abr. tit. Nuisances (A.). 1 Hawk. P. C. c. 76, s. 6. R. v. Dixon, 10 Mod. 336. See 2 & 3 Vict. c. 47, s. 48. (w) R. v. Rogier, 1 B. & C. 272. 2 D. & R. 431. And Holroyd, J., said, that in his opinion it would have been sufficient merely to have alleged, that the defendants kept a common gaming-house. And see R. v. Taylor, 3 B. & C. 502. (x) R. v. Dixon, Trin. 2 Geo. 1. Bac. Abr. tit. Nuisances (A.). 10 Mod. 335. 1 Hawk. P. C. c. 92, s. 30, and see ante, p. 152. AMERICAN NOTES. 1 As to bowling alleys in America, see C. v. Goding, 3 Metc. 130; Bloomhuff v. S., 8 Blackf. 205; S. v. Hale, 3 Vroom, 158. As to gaming houses see S. v. Door, Charl. 1; P. v. Jackson, 3 Denio, 101. Bishop i. s. 1136. 2 In America it would seem that lucre need not be the motive of the keeping. See Bishop i. ss. 1086, 1112, 1137. nature of a private injury, if the prosecutor forbears bringing the case to trial, another person may proceed with the indictment. (y) There are certain penalties imposed by statutes upon the offence of keeping a common gaming-house; (2) and by 3 Geo. 4, c. 114, hard labour may be added to any imprisonment which the Court may award. (a) An indictment against a defendant for that he did keep a common, ill-governed, and disorderly house, and in the said house for his lucre, &c., certain persons of ill-name, &c., to frequent and come together, did cause and procure, and the said persons in the said house to remain fighting of cocks, boxing, playing at cudgels, and misbehaving themselves, did permit, has been held to be good. (b) And it seems that the keeping of a cockpit is not only an indictable offence at common law, but that a cockpit is considered as a gaming-house within the 33 Hen. 8, c. 9, s. 11 (c) which imposes a penalty of forty shillings per day upon such houses; and therefore, on a conviction on an indictment at common law, the Court will measure the fine by inflicting forty shillings for each day, according to the number of days such cockpit was kept open. (d) It seems to be the better opinion that playhouses, having been originally instituted with a laudable design of recommending virtue to the imitation of the people, and exposing vice and folly, are not nuisances in their own nature, but may only become such by accident; as where they draw together such numbers of coaches or people, &c., as prove generally inconvenient to the places adjacent; or, when they pervert their original institution by recommending vicious and loose characters, under beautiful colours, to the imitation of the people, and make a jest of things commendable, serious, and useful. (e) (y) R. v. Wood, 3 B. & Ad. 657. See R. v. Oldfield, ibid. note (a). R. v. Fielden, ibid.; R. v. Constable, ibid. (z) 1 Hawk. P. C. c. 92, s. 14, et seq. And see 25 Geo. 2, c. 36, s. 5; 42 Geo. 3, c. 119. And see post, p. 754, as to Lotteries and Little-goes. (a) See the section, ante, p. 81. (c) This statute is partly repealed by the 8 & 9 Vict. c. 109, but it is not easy to say how much. See 26 & 27 Vict. c. 125. (d) R. v. Howell, 3 Keb. 510. 1 Hawk. P. C. c. 92, s. 29. See 2 & 3 Vict. c. 47, s. 47. 1 (e) Bac. Abr. tit. Nuisances (A.). Hawk. P. C. c. 75, s. 7. And as to the performance of an obscene play, see ante, p. 618. See also the 2 & 3 Vict. c. 47, s. 46, which gives power to enter unlicensed theatres, and subjects persons letting houses, &c., for the purpose of being used as unlicensed theatres to a penalty of not more than £20, or two months' imprisonment; and subjects persons performing or being therein without lawful excuse, to a penalty of 40s. and a conviction under the Act is not to exempt the owner, keeper, or manager of any such house from any penalty for keeping a disorderly house, or for the nuisance thereby occasioned. The Act extends By to the Metropolitan police districts. It seems also to be the better opinion, that all common stages for rope-dancers, &c., are nuisances, not only because they are great temptations to idleness, but also because they are apt to draw together numbers of disorderly persons, which cannot but be very inconvenient to the neighbourhood. (ƒ) By the 42 & 43 Vict., ch. 18, s. 6, 'Any person who shall be the owner or lessee in possession of any open or enclosed land or place for which a licence for horse-racing is required under this Act" [i. e. within a radius of ten miles from Charing Cross], and upon which, any horse race shall be held after Mar. 25, 1880, without such licence having been obtained, shall be guilty of a misdemeanor, and on conviction thereof shall be punishable for every such offence with fine or imprisonment at the discretion of the court, such fine not to be less than £5 or more than £25, and such imprisonment not to be less than one month or more than three months.' violin played by a person on an elevated platform, but no money was taken for admission, it was held that the case was within the Act. Gregory v. Tuffs, 6 C. & P. 271 ; 4 Tyrw. 820; Gregory v. Tavernor, 6 C. & P. 280. On an indictment for unlawfully keeping a room for public music and dancing within twenty miles of London and Westminster without a licence, it was proved that nightly entertainments were there given when music and dancing took place, the public being admitted on paying money at the door. There were often from 200 to 300 visitors, who conducted themselves in an orderly manner, and no impropriety of conduct was permitted or practised: the Recorder held, that this room required a licence under the Act, and that, after this proof, it lay on the defendant to prove that it was licensed. R. v. Wolf, 3 Cox, C. C. 578. The defendant kept a skating rink in which in the evening dance music was played during the skating. It was held that he might be convicted under the Act of keeping a place for public entertainment of a like kind to music and dancing without a licence. R. v. Tucker, 2 Q. B. D. 417. And so where the owner of a building allowed it gratuitously to be used for the performance of stage plays, to which the public were admitted on payment, for the benefit of a charity, he was held to be rightly convicted of keeping a house for the public performance of stage plays without a licence. Shelley v. Bethell, 12 Q. B. D. 11. The proceedings in respect of prosecutions against persons keeping bawdy-houses,1 gaming-houses, or other disorderly houses, are facilitated keeping such house, &c., without a licence, liable to a penalty of £100, and otherwise punishable as the law directs in cases of disorderly houses. In the first place, the house or room must be kept with the defendant's knowledge; secondly, it must be kept for the purposes prohibited by the statute; there must be something like an habitual keeping of it, which however need not be at stated intervals; thirdly, it must be public, to which all persons have a right to go, whether gratuitously or on payment of money, no matter whether paid to the defendant or not, if he knows of the payment. Per Parke, B., Marks v. Benjamin, 5 M. & W. 564. Where, therefore, the defendant was a publican, and music, dancing, and masquerades had occasionally been held at his house, where, from its vicinity to the Great Synagogue, Jewish marriages were frequently celebrated, but no money was taken at the door or elsewhere by the defendant for admission, and the rooms were let to a dancing-master, and to other persons, who sold tickets and received money for admission at the door; but there was no direct evidence that the defendant knew of this practice; it was held, that there was evidence for the jury of keeping the house for the purposes mentioned in the Act. Marks v. Benjamin, supra. A mere temporary or occasional use of a room for music and dancing is not a keeping it within this Act, but the room need not be kept exclusively for those purposes, nor need money be taken at the door. Where, therefore, the defendant kept a public house, and on repeated occasions, during a space of three or four months, the tap-room was frequented at night by numbers of sailors, soldiers, boys, and prostitutes, who danced there to a (f) Bac. Abr. tit. Nuisances (A.). 1 Hawk. P. C. c. 75, s. 6. And see ante, p. 555 n.), as to stage players being indicted for a riot and unlawful assembly. AMERICAN NOTE. 1 Although a bawdy-house may be the wife's separate property, yet if the husband lives with her, knowing what takes place, he may be convicted of keeping the house. See Bishop, vol. i. s. 1084. by the 25 Geo. 2, c. 36, by which it is enacted, that if two inhabitants of any parish or place, paying scot and lot, give notice in writing to the constable, of any person keeping a bawdy-house, gaming-house, or any other disorderly house, in such parish or place, the constable shall go with such inhabitants to a justice, and shall, upon such inhabitants making oath before the justice that they believe the contents of the notice to be true, and entering into a recognizance in twenty pounds each to give material evidence against the person for such offence, enter into a recognizance in the sum of thirty pounds to prosecute with effect at the next sessions or assizes as to the justice shall seem meet. And provision is also made for the payment by the overseers of the charges of prosecution to the constable, and ten pounds on conviction to each of the two inhabitants. (g) The person keeping such bawdyhouse, &c., is also to be bound over to appear at the sessions or assizes. (h) Sec. 8, reciting that by reason of the many subtile and crafty contrivances of persons keeping bawdy-houses, &c., it is difficult to prove who is the real owner or keeper, enacts, 'that any person who shall appear, act, or behave as master or mistress, or as the person having the care, government, or management, of any bawdy-house, gaminghouse, or other disorderly house, shall be deemed and taken to be the keeper thereof, and shall be liable to be prosecuted and punished as such, notwithstanding he or she shall not, in fact, be the real owner or keeper thereof.' By sec. 9, any person may give evidence upon such prosecution, though an inhabitant of the parish or place, and though he may have entered into the before-mentioned recognizance. By sec. 10, no indictment shall be removed by certiorari, but shall be tried at the same sessions or assizes where it shall have been preferred (unless the Court shall think proper, upon cause shown, to adjourn the same), notwithstanding any such writ or allowance. This clause does not restrain the Crown from removing the indictment by certiorari; there being nothing in the Act to show that the legislature intended that the Crown should be bound by it. (i) And where an indictment for keeping a disorderly house has been removed from the sessions into the Central Criminal Court under the 4 & 5 Will. 4, c. 36, s. 16, either by the prosecutor or defendant, the opposite party may remove it into the Court of Queen's Bench. (j) But the power of that Court to grant a certiorari at the defendant's instance to remove an indictment for keeping such a house found at the Middlesex Sessions, is taken away by the 25 Geo. 2, c. 36, s. 10, whether the prosecution be under that Act or in the ordinary course. (k) It is said that any number of persons may be included in the same indictment for keeping different disorderly houses, (1) stating that they 'severally' kept, &c., such houses; (m) but it is usual in practice to (g) Sec. 4. See Burgess v. Boetefeur, 7 M. & G. 481, an action on this section. (h) See the 58 Geo. 3, c. 70, s. 7, by which a copy of the notice served on the constable is also to be served on one of the overseers, and the overseers may enter into a recognizance, and prosecute instead of the constable. (i) R. v. Davies, 5 T. & R. 626. (j) R. v. Brier, 14 Q. B. 568. (k) R. v. Sanders, 9 Q. B. 235. () As to an indictment for keeping a disorderly house, or gambling-house, not being preferred without previous authorization, see ante, p. 2. (m) 2 Hale, 174, where it is said, "It is common experience at this day that twenty persons may be indicted for keeping disorderly houses or bawdy-houses; and they are daily convicted upon such indictments, |