
    E. H. Childress vs. Mayor and Aldermen of Nashville.
    1. Cokpobation. Derívate powers of municipal corporation. Police regulations. A city ordinance forbidding, under penalty, the owners of houses within the corporation, from renting or letting the same to be kept as bawdy houses, is a valid ordinance under a general power granted in the charter, to regulate, prohibit or suppress all disorderly houses and bawdy houses. Such an ordinance, indeed, would be valid under the general power of a corporation to adopt such police regulations as are not incompatible with the constitution and general laws of the State.
    2. Amendment. Of penal actions. By the act of 1852, ch. 152, $ 6, amendments in penal actions and civil suits are placed upon the same footing.
    EBOM DAVIDSON.
    This was a suit by the corporation of Nashville against the plaintiff in error, instituted by warrant before a magistrate, on the 27th January, 1855, to recover a penalty under an ordinance of said city, forbidding the letting of houses within the corporation, to be used as houses of ill-fame. There was judgment for the plaintiff before the magistrate, and an appeal by defendant to the Circuit Court of Davidson. At the May Term, 1855, of said Court, before Baxter, J., there was verdict and judgment for the plaintiff. The defendant appealed in error to this Court.
    Meigs and Demoss, for the plaintiff in error.
    By chapter 19, § 5, of the ordinances of the Mayor and Aldermen of Nashville, it is enacted as follows: “Any person who shall keep within the limits of this corporation a house of ill-fame, or -■ who shall wil-fully permit any house owned by him to be kept in a disorderly manner, viz: a house to which men resort for the purpose of criminal intercourse with lewd women, such person shall be subject to a fine of not less than ten, nor more than fifty dollars for such offence. And it is hereby declared to be sufficient evidence of such pei’son keeping a house of ill-fame, that notoriously lewd women either reside at, or are in the habit of visiting such house at night, such house being, at the time, visited by men other than those who reside therein.”
    On the 27th of January, 1855, a warrant was issued against the defendant in the name of the plaintiffs, addressed to the City Marshall of Nashville, or any lawful officer, commanding him to summon the defendant to appear before a magistrate to answer the plaintiff, “in a plea that he render to them a penalty, which to them he owes and from them detains, in consequence of a forfeiture or penalty by him incurred for wilfully permitting a house belonging to him to he kept in a disorderly manner in the city oí Nashville, contrary to the aforesaid ordinance.”
    This warrant was served on the defendant on the 3d of February, 1855, by a person who signs his return, “Jno. Reddick, D. M.,” who was, at the time, a policeman of the town, but not a constable of Davidson county.
    The magistrate set the trial for February 5th, at 12 o’clock. On that day the defendant appeared, and had the trial postponed until the 8th, at 12 o’clock; and on that day he appeared again and had a postponement till the 12th, when this entry was made: “Judgment for plaintiff, against defendant, for $50 and costs. February 12th, 1855. E. A. Rawoeth,
    “ Recorder for the Corporation of Nashville.”
    The defendant appealed to the Circuit Court.
    1. There, on the 8th of June, 1855, the defendant moved the Court to quash the summons, because no penalty was expressed in it. The Court refused, and permitted the plaintiff to amend the warrant by inserting the words following: “ A penalty of from ten to fifty dollars.”
    2. The defendant also moved the Court to quash the summons because it was not served on him by a competent officer. The Court refused to quash the summons, but required the defendant to plead said matter in abatement; and on a demurrer, held the matter not sufficient to authorise the quashing of the summons.
    3. And then the case was submitted to a jury, who rendered a verdict for $20, upon a charge, that if the defendant was the owner of a house in Nashville, 
      
      and wilfully permitted it to be used and occupied for a bawdy house, he would be liable to a penalty of between ten and fifty dollars.
    
    1. The summons ought to have been quashed, because the statement of the cause of action was not sufficient notice to the defendant, of the nature of the demand against him. — Davis vs. Parks, 6 Yerg., 260; Parris vs. Brown, 5 Yerg., 267-270; Kirby vs, Lee, 8 Yerg., 439-441; Meigs’ Digest, 1188, 1193-3. The amendment did not better it, because it still left the sum demanded uncertain.
    The Judge was wholly wrong in requiring the defendant to plead a formal plea in abatement. . See the cases, Meigs’ Dig., 1193-4.
    2. ■ It is true, that an appearance before a justice and trial on the merits, and also in the County Court, on appeal, without exception to the warrant, has been held to cure defects. — Baker vs. Allen, 2 Tenn., 175, cited Meigs’ Dig., 1193-2.
    But there is nothing in this record to show that the defendant relied on the merits before the magistrate, or that he was present at the trial at all. And he may have appealed purely to move to quash the summons. Besides, to require defendants to conduct their defence before magistrate with regularity, and in order, would be asking more than the law requires of the magistrates themselves.
    To constitute a waiver of any right there must be a clear, unequivocal and decisive act of the party; an act, indeed, showing a determination not to claim the right in question. Thus, a defendant in an execution levied on land may waive his right to twenty days’ notice of the place of sale, by express words, or acta equivalent thereto, as by procuring a person to become a purchaser of the lands. . But not by being present and saying nothing. See the cases of waiver, Meigs’ Dig., 1965. In like manner, a defendant in a case before a magistrate, cannot be held to waive objections simply by attending the trial. It is true, that a man must take advantage of his rights at a proper time; but even if a party were to make his exceptions before a magistrate in due time and order, the justice’s record would show nothing of it.
    For these reasons, the Judge was wrong to refuse to quash this summons for the second ground, on the assumption that the defendant, by appearing, waived the objection to the validity of the process, in obedience to which he appeared.
    3. The defendant is charged in the summons with having “willfully permitted a house in Nashville, owned by him to be kept in a disorderly manner.
    
    There are two things prohibited by the ordinance: 1. Keeping a house of ill-fame. 2. Wilfully permitting one’s house to be kept in a disorderly manner.
    The latter is what is charged against the defendant, and what he is called upon to answer for; but the Court turned the attention of the jury to another thing altogether, namely: 3. Wilfully permitting his house to be used and occupied for a bawdy house, i. e.: “ a house kept for the resort and unlawful commerce of lewd people of both sexes.” Bouv. Diet., Tit., Bawdy-house.
    
    For this, the defendant would be indictable at com-moil law; because such a house is a nuisance. But this ordinance does not describe this offence. It prohibits houses of ill-fame and disorderly houses.
    
    4, But the real matter in hand here, is, that the defendant’s agent, Allen, rented his house to people of ill-fame, the defendant knowing nothing of them at all, and not encouraging, in any respect, their evil deportment. There is not a word of evidence showing that the defendant wilfully countenanced them in their immorality. How is it that the corporation of Nashville, like all other municipal bodies, permits people, known to all its officers to be lewd and indecent, to pass their lives on its streets, and in its theatres and market places, and will not allow the owners of houses to rent them to persons of whom they know nothing, and in whose misdemeanors they do not participate ?
    John A. McEwen, for the defendant in error.
    It is insisted that there is no error either in the charge of the Court or the finding of the jury. It was argued for the defendant in the Court below, that the corporation of Nashville had no authority to pass the ordinance of 1836, on the ground that the offence created thereby was not indictable at common law. But it is not necessary to establish that the offence was either known or punishable at common law One of the incidental and inseparable powers of municipal and other corporations, is that of making such by-laws or statutes as may be necessary for their regulation and government, and for effecting the objects of their creation. See An. & Ames on Cor., pp. 83 and 323. One of the highest duties of a municipal corporation is to promote the morals, health and comfort of its inhabitants. It may prevent or regulate any thing that tends to conflict with either of these great interests, whether the same be indictable, or a nuisance at common law or not. Thus, ordinances have been determined to be valid, which required the inhabitants of a town to place curb-stones in front of their lots.— Paxton vs. Sioeet, 1 Greenl., (M.) R., 196; which prohibited bowling-alleys. — Turner vs. Trustees of the Village of Albion, 5 Hill (N. Y.) R., 121; which prohibited fast riding or driving in the public streets. — Commonwealth vs. Worcester, 3 Pick. (Mass.) R., 462. Such enactments have been considered to be reasonable provisions for the police of a town. All that is necessary to establish the validity of such ordinances, is, to show that they are not inconsistent with the provisions of the town charter, and that they are reasonable in their character and requirements. — An. & Ames on Cor., 346, el seq. Although a single act of drunkenness is not indictable in Tennessee, yet the power of an incorporated town to attach a reasonable penalty to such an offence, will hardly be disputed. It is only necessary that the by-law or ordinance should not be nugatory, vexatious, unequal, oppressive, or manifestly detrimental to the interests of the corporation, — An. & Ames, 347.
    The Court is the sole judge of the reasonableness of a by-law or ordinance of a municipal corporation. Commonwealth vs. Worcester, 3 Pick., 462. It is not a question for the determination of a jury. — An. & Ames on Cor., 357, et seq. And so his Honor, the Circuit Judge, held and charged the jury.
    It is hardly necessary, nay, it were almost inexcusable to argue before an enlightened Court, the question, whether it is reasonable to forbid persons owning property in an incorporated town to rent it for the purposes of disorder and prostitution. It has never been doubted,' that the keeping of a bawdy-house is an indictable offence. And it is difficult to perceive any wide distance between one who actually keeps such an establishment, and him who rents property for the purpose. Both are actuated by the desire for ill-gotten gain, and both contribute to the corruption of the. public morals. Of this opinion was the Circuit Judge. But this precise question has been before the Court of last resort in the State of Massachusetts, in the case of Commomoealth vs. Harrington, when it was ■held, upon full and able consideration, that such an act was punishable by indictment. See 3 Pick., 26. See also, the cases of The King vs. Phillips, 6 East, 464; The King vs. Higgins, 2 East, 5.
    ■But we are not driven to mere argument, or the authority of the Courts, to find the power of the corporation of Nashville to enact this statute. The ordinance was passed on the 31st December, 1836; and on the 31st January, 1848, the Legislature of Tennessee passed “ an act to reduce the several acts incorporating the town of Nashville in one act, and to amend the same.” The 7th section of this act of Assembly is in these words: “ All ordinances and resolutions heretofore enacted by ‘ the Mayor and Aldermen of said city, and .not repealed or rescinded by them, shall be and remain in full force until altered, modified nr repealed under this act;” Now, the ordinance of 1836 has never been “ altered, modified or repealed,” and were there any doubt in regard to its validity otherwise, it has unquestionably been affirmed and legalized by the act of 1848. (See City Laws, pages 52 and 94.)
    Upon the proof, the slightest examination of the bill of* exceptions will show, that the house of the plaintiff- in error was used for a bawdy house, or such an establishment as was prohibited by the ordinance of 1836, and that such intention on the part of the tenants, was well known, not only to the agent of plaintiff- in error, but to himself. Nor will this Court be very anxious to go behind the verdict of the jury to find grounds to excuse or exculpate him. James Henson testifies that he notified plaintiff in error that his tenants were keeping a bawdy-house in December, 1854, and that he had been sued for this before.
    But plaintiff in error files his plea in abatement for irregularity in the process or its execution, after the case had been brought by appeal to the Circuit Court. But it was then' too late to take advantage of any such irregularity. Plaintiff in error had already appeared before the Recorder — had applied for and obtained a continuance of the'cause, and then an appeal to the Circuit Court. This amounted to an appearance and waiver, and plaintiff in error, could not plead in abatement afterwards. See Hearn vs. Crutcher Sf Bullard, 4 Yerg., 461 ; Cheatham vs. Hodges and Securities, Peck, 177.
   McKinkdy, J.,

delivered the opinion of the Court.

This suit was commenced by warrant before a justice of the peace, to recover a penalty prescribed by an ordinance of the City Council. Judgment was rendered against the defendant below by the justice, and again, upon an appeal by the Circuit Court, and the case is brought to this Court by an appeal in error.

The ordinance upon which the suit is founded, is as follows “ That any person or persons who shall keep, within the limits of this corporation, a house of ill-fame j or who shall wilfully permit any house owned by him, her, or them, to be kept in a disorderly manner, viz: a house to which men resort for the purpose of criminal intercourse with lewd women, such person or persons shall be subject to a fine of not less than ten, nor more than fifty dollars, for such offence; and a like sum for every day such house may be so continued to be kept.”

By an act of the General Assembly, passed in 1848, (ch. 168, § 6,) to amend and reduce into one act, the several acts incorporating the town of Nashville, various specific powers are conferred upon the Mayor and Aldermen; and, among others, the power “To regulate, or prohibit and suppress all disorderly houses and bawdy houses.”

1. No question can be raised therefore, as to the validity of the ordinance, the power being given in express terms by the statute. And the grant of the power to “prohibit and suppress all disorderly and bawdy houses,” carries with it, by necessary implica-4ion, tbe right and the power to adopt all such lawful means or methods as may be found necessary to effect the end “in view. The method adopted in the case before us, by forbidding the owners of houses within the corporation, under a penalty, to let a house to be used or kept for the purposes of prostitution, was unquestionably a proper exercise of the power granted. And without the aid of express power by Legislative grant, the validity of the ordinance might be maintained. A bawdy house is a common nuisance, because it not only tends to corrupt the public morals by an open profession of prostitution, but it likewise endangers the public peace and good order, by drawing together profligate and disorderly persons. It is, therefore, an indictable offence at common law ■to keep sueh a house. And not only may the keeper of the house be indicted for the nuisance, but the owner of the property, letting it with knowledge that it is to be used for the purposes of prostitution.—3 Pick. R., 26; 4 Denio’s R., 129; Wharton’s Criminal Law, 703, (2d ed.)

In this view, the general power of a corporation to adopt such police regulations as are not incompatible with the constitution and general laws of the State, would suffice to give validity to the ordinance in question.

2. It is insisted that the judgment is erroneous, because it is on a ground not described in the ordinance. Two things only, it is said are prohibited by the ordinance. First, keeping a house of ill-fame; an d secondly, permitting one’s house to he kept in a disorderly manner. It is argued that, as “ a house of ill-fame ” is, in law, a thing very different from a “ disorderly house;” and that, although the charge made against the defendant in the warrant, is, in effect, for suffering his house to be kept as a “ disorderly house,” yet, by the charge of the Court he is made liable for a different offence, and one not created by, or defined in the ordinance — namely, permitting his house to be used for the purposes of a bawdy house.

This reasoning is more ingenious than sound. The ordinance defines what is intended to be understood by permitting a house to be kept in a disorderly manner — namely, “a house to which men resort for the purpose of criminal intercourse with lewd women,” and not a “ disorderly house” in the technical sense of the law. In this view, the charge of the Court is correct, and the judgment proper.

3. The supposed matter in abatement was waived by the omission of the defendant to avail himself of it at the proper time, and in the proper manner.—Agee vs. Dement, 1 Hum., 332, 335.

4. There was no error in allowing the amedment. By the act of 1852, ch, 152, § 6, amendments in penal actions and civil suits are placed upon the same footing.

Judgment affirmed.  