necessary, it seems to me that there is no legal principle in distinguishing between one set of spectators and another - using the word "spectator" in the sense which I have above defined - and I protest with all possible respect against drawing a line which the authorities hitherto have not drawn, which I have given my reasons for thinking there is no legal principle in drawing, and which it will, I think, be very mischievous in practice to draw.

I am of opinion that the three prisoners here must be taken on this evidence to have been spectators of a prize-fight in the above mentioned sense; that the authorities show that such spectators are guilty of assault and that therefore the direction of the chairman was correct and the conviction should be affirmed. It is true that the jury have expressed their opinion that they did not aid or abet, but then, as they found the prisoners guilty, they must be taken to have meant that the prisoners did not do any outward act of aiding or abetting, which, for the reasons I have already given, appears to me immaterial.

Conviction quashed.

OMISSION TO PREVENT CRIME-PERMITTING BAWDY HOUSE IN LEASED PREMISES.

ABRAHAMS v. STATE.

[4 Iowa, 541.]

In the Supreme Court of Iowa, 1857.

1. Permitting Bawdy House-Lessor and Lessee.—Under a statute punishing a lessor of a house who shall knowingly permit his lessee to use the same for the purpose of prostitution and lewdness, a mere failure to interfere or to prosecute so as to prevent the illegal use will not render the lessor liable.

2.

Instructions.-Where a party was indicted for having knowingly permitted his lessee to use the premises for the purpose of prostitution and lewdness, the court instructed the jury as follows: "If the defendant leased the premises for a legal and proper purpose, not knowing that they were to be used for an illegal purpose, but after the lease was executed the lessees kept a place of prostitution and lewdness, and the defendant had knowledge of such illegal use, and took no means to prevent the same, he would be liable to indictment." Held, error.

ERROR to the Des Moines Circuit Court.

The defendant was indicted for having leased a house, knowing that the lessee intended to use the same as a place or resort for the purpose of prostitution and lewdness, and for having knowingly permitted such lessee to use the same for such purpose." It would seem that there was no testimony to sustain the charge, that he leased the house with the knowledge that it would be so used; and that the prosecution relied

for a conviction upon the charge that he knowingly permitted the same. On this subject, the court instructed the jury that if the defendant leased the premises for a legal and proper purpose, not knowing that it was to be used for an illegal purpose; but after the lease was executed, the lessees kept a place of prostitution and lewdness, and the defendant had knowledge of such illegal use, and took no means to prevent same, he would be liable under the indictment. To this instruction defendant excepted, and there being a verdict and judgment of guilty, he now prosecutes this writ of error.

J. C. and B. J. Hall, for plaintiff in error.

Samuel A. Rice, Attorney-General, for the State.

WRIGHT, C. J. The law provides that if any person let any house, knowing that the lessee intends to use it as a place or resort for the purpose of prostitution and lewdness, or knowingly permit such lessee. to use the same for such purpose, he shall be punished by fine, etc.1 The material inquiry in the case is, what is the true meaning of the word permit, as here used? We think the construction given it by the court below improperly changes the burden of proof. The construction assumes that if it is once shown that a lessor has knowledge that the premises leased are used for the illegal purpose, he must show that he took some steps to prevent the same if he would avoid liability. In our opinion mere inaction on his part, or a failure to take some steps to prevent the illegal use, is not permitting it, in the sense contemplated in this section. The permission to do a particular thing would imply an affirmative consent, or assent, to it, rather than a failure to act to prevent it, or the want or absence of action. It is true that a failure to prohibit may be said to amount to a license or permission to do a particular act; and in this sense, the word permit is sometimes used. But this is believed to be its secondary, rather than its primary, signification. When thus used, it implies that the party has it in his immediate power to prevent the act or thing; and having failed to prohibit the same, it may well and safely be concluded that he permitted it. When, however, as in the case before us, the offense on the part of those keeping the house could only be prohibited by a legal prosecution; and where the occupants could in no sense be said to be so far under the control of the lessor, as that his mere dissent or order would amount to a prohibition, we can not believe that his failure to act, or to prohibit, would amount to a permission.

To make the party liable under this statute, there must be on his part a consent to such use, either expressly given, or given by his silent acquiescence. Where the consent is expressly given, there, of course, would be no difficulty in showing that he permitted the use.

1 Code, sec. 2712.

What shall be said to amount to a silent acquiescence it is impossible to determine from any rule applicable to all cases which may arise. For the purposes of this case it is sufficient to say that a mere failure to interfere, or to prosecute, so as to prevent the illegal use, can not be construed to amount to a permission, or to a silent, affirmative acquiescence in such use.

The State must show such acts or circumstances as shall satisfy the jury that the lessor, having knowledge that the house was being used for the illegal purpose, after the execution of the lease, not only remained inactive, but assented or consented to such use; and it is not for him to show that he took some step to manifest his dissent or disapprobation.

Judgment reversed, and cause remanded for trial de novo.

OMISSION-BAWDY HOUSE

LANDLORD AND TENANT.

R. v. BARRETT.

[L. & C. 263.]

In the English Court for Crown Cases Reserved, 1862.

The Prisoner was the Owner of a house which he let to a weekly tenant who conducted it as a bawdy house. The prisoner derived no increase of rent by reason of the nature of the occupation; but although he had notice of the use to which the house was ap plied, he took no steps to put an end to the nuisance. Held, that he could not be con victed of keeping a bawdy house.

The following case was stated by the Assistant Judge of the Middlesex Sessions.

Thomas Barrett was tried before me at the Middlesex Sessions in November, 1862, upon an indictment which, in the first and second counts, charged him and two other persons with keeping a common bawdyhouse and disorderly house, in the parish of St. George in the East, and in two other counts charged him alone with keeping another common bawdy house and disorderly house in the same parish.

The houses in question were proved to be common bawdy houses, and that robberies had been frequently committed in them by prostitutes and other idle and disorderly persons who frequented them by day and night. The evidence against the other defendants who were included in the indictment was conclusive; and no question arises as respects them. The evidence against Thomas Barrett in addition to the proof as to the nature of the houses was that he, Thomas Barrett, was the owner of

both houses, which he let to weekly tenants, and that he had been repeatedly remonstrated with as to the manner in which the houses were conducted, and called upon to interfere so as to abate the nuisance. Of these warnings he took no notice, and some months before the prosecution was instituted he was served with a written notice to the effect that the police and inhabitants complained of the vicious and disorderly conduct of his tenants, and that unless he took steps for removing them and for the discontinuance of the unlawful practices which for a long time had been carried on, and still were carried on in his said houses, an indictment would be preferred against him and all other parties concerned in the unlawful practices complained of, and that in that case, the notice then served would be given in evidence against him.

The defendant, Thomas Barrett, took no steps with the view of complying, but continued to go to the houses and receive the rent from the occupiers every week until the present prosecution was commenced.

It was not proved that the defendant obtained any additional rent by reason of the nature of the occupation.

The prisoner's counsel contended that there was no evidence for the jury to consider; but as I stated that I should take their opinion upon the facts, he addressed the jury.

I told the jury that if they were satisfied that the defendant well knew the purposes for which the houses were occupied, and having the power of removing the tenants by a week's notice, had continuously permitted them to remain and conduct them as common bawdy houses, notwithstanding warnings and notices given him, that they should find him guilty.

The jury found the defendant guilty, and I have to request the judgment of this honorable court whether the conviction can, in point of law, be sustained. The defendant has been admitted to bail until the decision of this honorable court is pronounced.

The indictment was as follows:

MIDDLESEX

TO WIT.

The jurors for our lady the Queen, upon their oath, present that Thomas Barrett, James Edwards and Mary Edwards, on the 1st day of January, in the year of our Lord 1862, and on divers other occasions and times between that day and the day of taking this inquisition at the parish of St. Botolph without Aldgate, in the county of Middlesex, a certain common bawdy house unlawfully and wickedly did keep and maintain, and in the said house for filthy lucre and gain divers evil disposed persons as well men as women and whores on the days and times aforesaid, as well in the night as in the day then unlawfully and wickedly did receive and entertain, and in which said house the said evil disposed persons and whores by the con

sent and procurement of the said Thomas Barrett, James Edwards and Mary Edwards, on the days and times aforesaid did commit whoredom and fornication whereby divers unlawful assemblies, riots, routs, affrays, disturbances, and violations of the peace of our said lady the Queen, and dreadful, filthy and lewd offenses 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 of all the liege subjects of our said lady the Queen, in manifest destruction and subversion of youth and other people in their manners, conversation, estate and obedience, and against the peace of our lady the Queen, her crown and dignity.

Second count. And the jurors aforesaid upon their oath aforesaid do further present that the said Thomas Barrett, James Edwards and Mary Edwards on the said first day of January, in the year aforesaid and on other days and times aforesaid with force and arms at the parish aforesaid in the county aforesaid a certain common ill-governed and disorderly house unlawfully and wickedly did keep and maintain and in the said house for filthy lucre and gain certain evil disposed persons as well men as women of evil name, fame and conversation to frequent and come together on the days and times aforesaid then unlawfully and wickedly did cause and procure and the said persons in the said house at unlawful times as well in the night as in the day on the days and times aforesaid there to be and remain drinking, tippling, cursing, swearing, quarreling and otherwise misbehaving themselves unlawfully and wickedly did permit and suffer to the great damage and common nuisance of all the liege subjects or our said lady the Queen then inhabiting and being, to the evil example of all other persons and against the peace of our lady the Queen, her Crown and dignity. This case was argued on the 22d of November, 1862, before POLLOCK, C. B., WIGHTMAN, J., WILLIAMS, J., CHANNELL, B., and MELLOR, J.

Ribton, for the prisoner. This indictment is substantially for keeping a bawdy house. The defendant is the landlord of the house and has the power to prevent the nuisance, but does not. That is not equivalent to keeping the house. The cases where a landlord has been held liable for a continuing nuisance are collected and revised in Rich v. Basterfield1 where an action was brought against A. the owner of premises, for a nuisance arising from smoke issuing out of a chimney to the prejudice of the plaintiff in his occupation of an adjoining messuage, on the ground that A. having erected the chimney and let the premises with the chimney so erected had implicitly authorized the lighting of a fire therein. The court however held that the action

14 C. B. 783; 16 L. J., C. P. 273.